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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No: EB-10-MA-0116
Marckenson Bazile ) NAL/Acct. No: 201132600003
Miami, Florida ) FRN: 0016893083
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 29, 2011 Released: March 29, 2011
By the Resident Agent, Miami Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Marckenson Bazile ("Mr. Bazile"), apparently willfully and
repeatedly violated section 301 of the Communications Act of 1934, as
amended ("Act"), by operating an unlicensed radio transmitter on the
frequency 103.9 MHz from his residence in Miami, Florida. We conclude
that Mr. Bazile is apparently liable for a forfeiture in the amount of
twenty thousand dollars ($20,000).
II. BACKGROUND
2. On June 16 and June 29, 2010, in response to a complaint, agents from
the Enforcement Bureau's Miami Office ("Miami Office") used
direction-finding techniques to locate the source of radio frequency
transmissions on the frequency 103.9 MHz to a residence in Miami,
Florida leased by Mr. Bazile. The agents determined that the signals
from Mr. Bazile's leased property exceeded the limits for operation
under Part 15 of the Commission's rules ("Rules"), and therefore
required a license. A review of the Commission's records revealed that
no license or authorization was issued to Mr. Bazile or anyone else to
operate a radio station on 103.9 MHz at this location. The agents also
found information on the Internet listing an email address with
"marcbazile@..." as the contact information for a Disc Jockey on
"103.9 PARADIS FM."
III. DISCUSSION
3. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in section 503(b) of the Act has
been interpreted to mean simply that the acts or omissions are
committed knowingly. The term "repeated" means the commission or
omission of such act more than once or for more than one day.
4. Section 301 of the Act states that no 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
the Act and with a license granted under the provisions of the Act. On
June 16 and again on June 29, 2010, Mr. Bazile operated an unlicensed
radio station on the frequency 103.9 MHz from his leased residence in
Miami, Florida. Information on the Internet also shows that Mr. Bazile
served as a DJ for a radio station on the frequency 103.9 MHz. Because
Mr. Bazile knowingly operated the station, we find the apparent
violation was willful. Because the operation occurred on more than one
day, we find the apparent violation was repeated. Based on the
evidence before us, we find that on June 16 and June 29, 2010, Mr.
Bazile apparently willfully and repeatedly violated section 301 of the
Act by operating radio transmission equipment without the required
Commission authorization.
5. Pursuant to the Commission's Forfeiture Policy Statement and section
1.80 of the Rules, the base forfeiture amount for operation without an
instrument of authorization is $10,000. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in section 503(b)(2)(E) of the Act, which include
the nature, circumstances, extent, and gravity of the violations, and
with respect to the violator, the degree of culpability, any history
of prior offenses, ability to pay, and other such matters as justice
may require.
6. Consequently, the $10,000 base forfeiture amount is subject to
adjustment. In this regard, we take into account Mr. Bazile's previous
violations. On November 16, 2007, Mr. Bazile admitted to operating an
unlicensed radio station at Port St. Lucie, Florida on August 16 and
17, 2007. The fact that Mr. Bazile continued to operate albeit at a
different location after being put on notice that his unlicensed
operation contravened the Act, Rules, and related Commission Orders
demonstrates a deliberate disregard for the Commission's requirements.
Based on the evidence before us, we find that an upward adjustment of
$10,000 is warranted. Applying the Forfeiture Policy Statement,
section 1.80 of the Rules, and the statutory factors to the instant
case, we conclude that Mr. Bazile is apparently liable for a
forfeiture in the amount of $20,000.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.311,
0.314, and 1.80 of the Rules, Marckenson Bazile is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of twenty
thousand dollars ($20,000) for violation of section 301 of the Act.
8. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the Rules,
within thirty (30) days of the release date of this Notice of Apparent
Liability for Forfeiture, Marckenson Bazile SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
9. Payment of the forfeiture must be made by credit card, check, or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the Account Number and FRN
referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. For questions about payment, contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. Also, Marckenson Bazile shall send an email
notification on the date said payment is made to
SCR-Response@fcc.gov.
10. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.80(f)(3) and 1.16 of the Rules. The written statement, if
any, must be mailed to Federal Communications Commission, Enforcement
Bureau, South Central Region, Miami Office, PO Box 520617, Miami, FL
33152 and must include the NAL/Acct. No. referenced in the caption.
The statement shall also be emailed to SCR-Response@fcc.gov.
11. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
12. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and regular mail, to Marckenson Bazile at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Stephanie Dabkowski
Resident Agent
Miami Office
South Central Region
Enforcement Bureau
47 U.S.C. S: 301.
Part 15 of the Rules sets out the conditions and technical requirements
under which certain radio transmission devices may be used without a
license. In relevant part, section 15.239 of the Rules provides that
non-licensed broadcasting in the 88-108 MHz band is permitted only if the
field strength of the transmission does not exceed 250 mV/m at three
meters. 47 C.F.R. S: 15.239.
On May 25, 2010, agents from the Miami Office met Mr. Bazile while
investigating an unlicensed radio station operating on 103.9 MHz from
another location in Miami. Mr. Bazile asserted the station was located in
a locked garage space that he was subleasing to another person. On June
28, 2010, "T-Pouchon" was listed as a contact for ParadisFM, 103.9. The
photograph of the person listed to the side of "T-Pouchon" was the same
individual the agents met on May 25, 2010, Mr. Bazile. See
www.paradisfm.com, Team Paradis tab. On June 28, 2010, an agent from the
Miami Office searched the Internet and found a message posted by
Ti_Pouchon at www.sakapfet.com on May 24, 2010 at 05:14 PM which stated:
"EVERY SUNDAY AT DECO LOUNGE 10PM TO 4PM, 103.9 PARADIS FM OR GO ONLINE
WWW.PARADIS FM .COM REQUEST LINE (786) 955-8892. IF YOU NEED A DJ CALL JOE
MIX AT (305) 263-0765." The agent clicked on the user profile for
TI_POUCHON on www.sakapfet.com, which showed the email address
marcbazile@yahoo.com.
47 U.S.C. S: 503(b).
Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
violations for which forfeitures are assessed under section 503(b) of the
Act, provides that "[t]he term `willful', when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act or any rule or regulation of the Commission
authorized by this Act...." See, e.g., Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991), recon. denied, 7
FCC Rcd 3454 (1992).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under section 503(b) of
the Act, provides that "[t]he term `repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 U.S.C. S: 301.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
Letter from Marckenson Bazile to the Tampa Field Office, dated November
16, 2007. See also Marckenson Bazile, Forfeiture Order, 22 FCC Rcd 21448
(Enf. Bur. 2007).
See Nounoune Lubin, Notice of Apparent Liability for Forfeiture, 25 FCC
Rcd 12654 (Enf. Bur. 2010) (upwardly adjusted by $10,000 because violator
operated an unlicensed radio station on multiple days with full knowledge
that such action violated the rules).
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80.
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission DA 11 -567
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Federal Communications Commission DA 11 -567