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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-01-NY-490
Rev. Yvon Louis ) NAL/Acct. No. 200232380002
Brooklyn, New York ) FRN No. 0006-2631-72
MEMORANDUM OPINION AND ORDER
Adopted: September 3, 2004 Released: September 8,
2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order (``Order''),
we deny the petition for reconsideration filed by Rev. Yvon
Louis, Brooklyn, New York (``Rev. Louis'').1 Rev. Louis seeks
reconsideration of the Forfeiture Order2 in which the Chief,
Enforcement Bureau (``Bureau'') found him liable for a monetary
forfeiture in the amount of ten thousand dollars ($10,000) for
willful and repeated violation of Section 301 of the
Communications Act of 1934 (``Act'').3 The noted violation
involves Rev. Louis's operating radio transmitting equipment
without a license.
2. On July 23, 2002, the Commission's New York
District Office (``New York Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'') to Rev. Louis for a
forfeiture in the amount of ten thousand dollars ($10,000).4
Rev. Louis filed a response to the NAL on July 30, 2002. On
August 5, 2003, the Bureau issued the Forfeiture Order, which
imposed a monetary forfeiture in the amount of $10,000. Rev.
Louis filed a response requesting cancellation of the
forfeiture. For the reasons set forth below, we deny Rev.
Louis's request.
II. BACKGROUND
3. On November 16 and 17, 2001, New York Office
agents observed an unauthorized radio broadcast on 93.7 MHz, and
identified the source of the unauthorized transmissions as the
Calvary Tabernacle, Inc., 1653 Nostrand Avenue, Brooklyn, NY,
11226. There was no evidence of a Commission authorization for
this operation. On November 17, the agents requested and
received permission from Rev. Louis, the pastor of Calvary
Tabernacle, Inc., to inspect the radio station's studio
equipment. Also at that time the agents hand-delivered a
Warning Letter to Rev. Louis for the operation of the unlicensed
station. On November 23, 2001, the New York Office mailed Rev.
Louis a Warning Letter, by First Class and Certified Mail Return
Receipt Requested.
4. On December 5, 2001, the New York Office received
a response from Rev. Louis acknowledging and confirming the
operation of a radio station at 1653 Nostrand Avenue, Brooklyn,
NY, 11226. In his response, Rev. Louis claimed that the
transmitter conformed to the standards of Part 15 of the
Commission's Rules and that it did not exceed four watts.
5. On December 17, 2001, New York Office agents
requested and were given permission by Rev. Louis to inspect the
Calvary Tabernacle, Inc. radio station. In response to
questions by the agents, Rev. Louis told the agents that he
operated the station on weekends, first on 93.7 MHz, and later
on 88.1 MHz. The agents explained to Rev. Louis that his
transmitter was listed as a Part 73 transmitter and therefore
that it required an FCC station license. The agents pointed out
to Rev. Louis that the label on the back of his transmitter, and
the information in the instruction manual, indicated that the
transmitter was Part 73 and not Part 15 as Rev. Louis had stated
in his letter. In addition, the New York agents explained to
Rev. Louis that the measured field strength from his transmitter
greatly exceeded the Part 15 power limits for non-licensed
operation. The agents advised Rev. Louis of the penalties for
operating without a license and ascertained that Rev. Louis had
a copy of the Warning Letter dated November 23, 2001, in his
possession.
6. On January 4, January 5, January 11, and January
18, 2002, Commission agents again observed radio broadcasts on
88.1 MHz, and identified the source of the unauthorized
transmissions to the Calvary Tabernacle, Inc., 1653 Nostrand
Avenue, Brooklyn, New York, 11226. Field strength measurements
taken on January 5, 2002 and January 18, 2002 exceeded the field
strength limits for non-licensed low-power Part 15 transmitters
by 2,479 and 3,391 times respectively.5
7. On January 22, 2002 the New York Office received a
letter from Rev. Louis in which he stated that during the
December 17, 2001 inspection the agents found a one watt
transmitter and informed him that the unlicensed operation of
the transmitter violated Section 301 of the Act. Rev. Louis
further states that the agents told him he could operate a low-
power transmitter under Part 15 of the Rules.6 Based on the
agents' statements, Rev. Louis asserts that he exchanged the one
watt transmitter for one that complied with Part 15 of the
Rules. Rev. Louis claims that the transmitter inspected by the
agents on January 18, 2002 was the new Part 15-compliant
transmitter.
8. On June 22, 2002, Commission agents again observed a
radio broadcast on 88.1 MHz, and identified the source of the
unauthorized transmissions to the Calvary Tabernacle, Inc., 1653
Nostrand Avenue, Brooklyn, New York, 11226. The agents made
field strength measurements of the station's signal. The
agents' measurements indicated that the field strength of the
signal exceeded the permissible level for a non-licensed low-
power transmitter by 847 times. The agents conducted a station
inspection and determined that Rev. Louis was the person
responsible for the station operation.
9. On July 23, 2002, the New York Office issued an NAL in
the amount of $10,000 to Rev. Louis for operating an unlicensed
radio transmitter on frequencies 93.7 MHz, 88.1 MHz, and 90.1
MHz in willful and repeated violation of Section 301 of the Act.
In his response to the NAL, Rev. Louis argued that he allowed a
Commission agent to inspect the church on November 16, 2001, and
that the Commission agent did not find a transmitter during that
inspection. Rev. Louis alleges that he thereafter replaced the
one watt transmitter with a Part 15 transmitter, after being
informed by the agent that its operation would be permitted
without a license, and that during a subsequent inspection, only
a non-operating Part 15 transmitter was observed by the agent.
Rev. Louis concludes that the Commission never found a ``good
functioning radio transmitter'' at the church, and that he did
not violate Section 301 of the Act.
10. On August 5, 2003, the Enforcement Bureau issued a
Forfeiture Order to Rev. Louis assessing a ten thousand dollar
($10,000) forfeiture on a finding that Rev. Louis willfully and
repeatedly violated Section 301 of the Act.7 The Forfeiture
Order rejected Rev. Louis's argument that no operable
transmitting equipment was located at 1653 Nostrand Avenue,
Brooklyn, New York 11226, and that his transmissions complied
with Part 15 of the Rules after the December 17, 2001
inspection. The Forfeiture Order noted that New York Office
agents identified an unauthorized radio broadcast at 1653
Nostrand Avenue, Brooklyn, New York 11226 on numerous occasions,
and that the agents detected a measurable field strength signal
on January 5, 2002, January 18, 2002 and June 22, 2002 that
exceeded the permissible level for a non-licensed Part 15
transmitter by significant amounts.
11. In his response to the Forfeiture Order, Rev.
Louis makes several arguments. First, Rev. Louis denies that
his transmitter was illegal, insisting, as he did in the
response to the NAL, that the transmitter was Part 15-compliant
and that a New York Office agent had advised him that Part 15
transmitters are permitted without a license. Rev. Louis
further denies that the transmissions detected by the New York
Office agents outside the building were his, and that the agents
never detected any illegal transmissions or found an illegal
transmitter inside the building. In addition, Rev. Louis argues
that Section 503(b) of the Act requires that the Commission take
into account his religious organization's ability to serve its
community and his freedom of speech. Finally, Rev. Louis
argues that the forfeiture should be cancelled because his
station is no longer broadcasting on the frequencies in question
due to interference from another station.
III. DISCUSSION
12. Section 301 of the Act mandates that ``[n]o person
shall use or operate any apparatus for the transmission of
energy or communications or signals by radio'' within the United
States ``except under and in accordance with this Act and with a
license in that behalf granted under the provisions of this
Act.''8 Rev. Louis continues to argue, notwithstanding
explanations by the New York Office agents and by the Warning
Letters he received, that his operations were permitted under
Part 15 of the Rules.
13. We conclude that contrary to his opinion, Rev.
Louis did not meet the requirements of Part 15 for permissible
broadcasting without a license. The New York Office agents
examined Rev. Louis's transmitter in his presence and pointed
out to him that it was a Part 73 transmitter. Moreover, the
agents documented signal strength emanating from the Calvary
Tabernacle, Inc., 1653 Nostrand Avenue, Brooklyn, New York,
11226, far in excess of that permitted under Part 15. The
agents determined that Rev. Louis was responsible for these
operations, and informed him of the violation.
14. Rev. Louis's argument that if he had a transmitter,
and if it were illegal, that the Commission would have seized
it, is without merit. Seizure of equipment is only one sanction
of several that the Commission has at its disposal, and there is
no requirement that field agents seize the transmitter to
establish that it is in violation of the Commission's Rules.
While Rev. Louis may not be familiar with the Act and the Rules,
it is well established that ignorance of the Rules or Act is not
a basis for determining that the violation is not willful.9
Accordingly, we conclude that Rev. Louis willfully and
repeatedly violated Section 301 of the Act.10
15. We further conclude that no infringement of Rev.
Louis's rights to practice his religion and exercise free speech
exists here. Rev. Louis's rights to freedom of speech and
freedom to practice his religion do not extend to transmitting
communications by radio without a license. The statutory
requirement to have a license does not infringe on the
Constitutional rights of individuals who are unlicensed
broadcasters.11
16. Finally, that Rev. Louis is no longer operating
his transmitter is not a basis for mitigation of the forfeiture.
Cessation of the rule violation does not nullify or mitigate any
prior forfeitures or violations.12
17. We have examined Rev. Louis's petition for
reconsideration pursuant to the statutory factors set forth
above, and in conjunction with the Policy Statement as well. As
a result of our reconsideration, we conclude that Rev. Louis has
failed to provide sufficient justification for any change in the
Forfeiture Order.
IV. ORDERING CLAUSES
18. Accordingly, IT IS ORDERED that, pursuant to
Section 405 of the Act,13 and Section 1.106 of the Rules, 14 the
petition for reconsideration of the Forfeiture Order IS DENIED
and the issuance of the $10,000 forfeiture IS AFFIRMED.
19. Payment of the forfeiture shall be made in the
manner provided for in Section 1.80 of the Rules within 30 days
of the release of this Order. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for collection pursuant to Section 504(a)
of the Act.15 Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check or
money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259. Requests for full payment under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.16
20. IT IS FURTHER ORDERED THAT this Order shall be
sent by regular mail and by certified mail, return receipt
requested, to Rev. Yvon Louis, Calvary Tabernacle, 1653 Nostrand
Avenue, Brooklyn, New York, 11226.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 Letter to the Chief, Enforcement Bureau from Rev. Yvon Louis,
dated August 15, 2003.
2 Rev. Yvon Louis, 18 FCC Rcd 16187 (Enf. Bur. 2003)
(``Forfeiture Order'').
3 47 U.S.C. § 301.
4 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232380002 (released July 23, 2002).
5 Non-licensed broadcasting is permitted only if the field
strength of the transmission does not exceed 250 ?V/m at three
meters. The agent's measurements indicated that the station's
field strength measurement extrapolated to three meters was
619,689 ?V/m on January 5, 2002, and 847,647 ?V/m on Janua
ry 18, 2002.
6 47 C.F.R. §§ 15.1 et seq. permits the use of certain non-
licensed low-power transmitters.
7 Notice of Apparent Liability, supra.
8 47 U.S.C. § 301.
9 Southern California Broadcasting Company, 6 FCC Rcd. 4387
(1991)(citing Vernon Broadcasting, Inc., 60 RR2d 1275, 1277
(1986); Fay Neel Eggleston, 19 FCC2d 829 (1969)). See also PBJ
Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992); Standard
Communications Corp., 1 FCC Rcd 358 (1986); Triad Broadcasting
Co., Inc., 96 FCC 2d 1235, 1242 (1984).
10 In this context, ``willful'' means the conscious and
deliberate commission or omission of an act, irrespective of any
intent to violate statutory or regulatory requirements. A
violation is considered ``repeated'' if it continues for more
than one day. See 47 U.S.C. § 312(f); see also Southern
California Broadcasting Co., 6 FCC Rcd 4387, 4387-88, ¶ 5 (1991).
11 National Broadcasting Co. v. US, 319 U.S. 190, 227 (1943)
(``The right of free speech does not include... the right to use
the facilities of radio without a license.'') See also Creation
of Low Power Radio Service, 15 FCC Rcd 2205, 2227 (2000).
12 See Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973); and
Executive Broadcasting Corp., 3 FCC 2d 699, 700 (1966).
13 47 U.S.C. § 405.
14 47 C.F.R. § 1.106.
15 47 U.S.C. § 504(a).
16 See 47 C.F.R. § 1.1914.