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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                )                                
                                                                 
     In the Matter of           )   File No.: EB-11-MA-0123      
                                                                 
     Whisler Fleurinor          )   NAL/Acct. No.: 201232600006  
                                                                 
     Fort Lauderdale, Florida   )   FRN:  0020655106             
                                                                 
                                )                                


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: February 1, 2012 Released: February 1, 2012

   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 Whisler Fleurinor 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 99.5 MHz in
       Fort Lauderdale, Florida. We conclude that Mr. Fleurinor is apparently
       liable for a forfeiture in the amount of twenty-five thousand dollars
       ($25,000).

   II. BACKGROUND

    2. On March 4, 2011, the Enforcement Bureau's Miami Office (Miami Office)
       issued a Notice of Apparent Liability (1st NAL) in the amount of
       $20,000 to Mr. Fleurinor for willful and repeated operation of an
       unlicensed radio transmitter on the frequency 99.5 MHz from his
       commercial property in Fort Lauderdale, Florida. In his response to
       the 1st NAL, Mr. Fleurinor did not dispute the Bureau's findings, but
       nevertheless requested cancellation or reduction of the forfeiture
       based on his inability to pay claim. The Bureau later reduced the
       forfeiture to $500, which was based solely on Mr. Fleurinor's
       inability to pay the forfeiture. Mr. Fleurinor has since paid that
       forfeiture.

    3. On August 10, November 3, and December 7, 2011, agents from the Miami
       Office used direction-finding techniques to locate the source of radio
       frequency transmissions on the frequency 99.5 MHz to Mr. Fleurinor's
       commercial property in Fort Lauderdale, Florida, the same address
       which was identified in the 1st NAL. Furthermore, on each of these
       dates, the agents determined that the signals being broadcast exceeded
       the limits for operation under Part 15 of the Commission's rules
       (Rules), and therefore required a license. A review of Commission
       records showed that no authorization was issued to Mr. Fleurinor, or
       to anyone for any operation of an FM broadcast station on this
       frequency, at or near this address.

   III. DISCUSSION

    4. 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.  Section 312(f)(1) of the Act defines "willful" as the
       "conscious and deliberate commission or omission of [any] act,
       irrespective of any intent to violate" the law. The legislative
       history to Section 312(f)(1) of the Act clarifies that this definition
       of willful applies to both Sections 312 and 503(b) of the Act, and the
       Commission has so  interpreted the term in the Section 503(b) context.
       The Commission may also assess a forfeiture for violations that are
       merely repeated, and not willful. The term "repeated" means the
       commission or omission of such act more than once or for more than one
       day.

     A. Unlicensed Operations

    5. 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
       August 10, November 3, and December 7, 2011, agents from the Miami
       Office determined that Mr. Fleurinor operated an unlicensed radio
       station on the frequency 99.5 MHz from his commercial property in Fort
       Lauderdale, Florida. A review of the Commission's records revealed
       that no license or authorization was issued to anyone to operate a
       radio station on 99.5 MHz at this location. Because Mr. Fleurinor
       operated this station consciously and on more than one day, we find
       that the apparent violations were both willful and repeated. Based on
       the evidence before us, we find that Mr. Fleurinor apparently
       willfully and repeatedly violated Section 301 of the Act by operating
       radio transmission equipment without the required Commission
       authorization.

     A. Proposed Forfeiture Amount

    6. 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. After consideration of those factors, we find that the
       violations in this case justify a $15,000 upward adjustment from the
       base forfeiture amount. As the record reflects, Mr. Fleurinor
       previously received and paid the 1st NAL for willfully and repeatedly
       operating an unlicensed radio transmitter on the same frequency from
       the same commercial property. The fact that Mr. Fleurinor would again
       commit the same violation-and multiples times after he had already
       been found to be in serious violation in the 1st NAL-demonstrates not
       only the egregiousness of the violations here, but also his deliberate
       disregard for the Act and Commission's rules. Accordingly, applying
       the Forfeiture Policy Statement, Section 1.80 of the Rules, and the
       statutory factors to the instant case, we conclude that Mr. Fleurinor
       is apparently liable for a forfeiture of $25,000.

   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, 0.204,
       0.311, 0.314, and 1.80 of the Commission's rules, Whisler Fleurinor is
       hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
       amount of twenty-five thousand dollars ($25,000) for violations of
       Section 301  of the Act.

    8. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
       Commission's rules, within thirty (30) calendar days of the release
       date of this Notice of Apparent Liability for Forfeiture, Whisler
       Fleurinor 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.   If you have questions regarding payment
       procedures, please contact the Financial Operations Group Help Desk at
       1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. Whisler Fleurinor shall
       send electronic 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 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
       to Federal Communications Commission, Enforcement Bureau, South
       Central Region, Miami Office, P.O. Box 520617, Miami, Florida 33152,
       and include the NAL/Acct. number referenced in the caption. In
       addition, Whisler Fleurinor shall email the written response 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 Whisler Fleurinor at his address of
       record and to his attorneys, Lewis H. Goldman, P.C., 45 Dudley Court,
       Bethesda, MD 20814, and Rocco G. Marucci, P.A., 116 Southeast 6th
       Court, Fort Lauderdale, FL 33301.

   FEDERAL COMMUNICATIONS COMMISSION

   Stephanie Dabkowski

   Resident Agent

   Miami Office

   South Central Region

   Enforcement Bureau

   47 U.S.C. S: 301.

   Whisler Fleurinor, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd
   2478 (Enf. Bur., Miami Office 2011) (1st NAL).

   Whisler Fleurinor, Forfeiture Order, 26 FCC Rcd 14437 (Enf. Bur., South
   Central Region 2011).

   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. Although the agents did not measure the field
   strength of the transmissions on December 7, 2011, there is no evidence to
   suggest that the field strength changed since November 3, 2011.

   47 U.S.C. S: 503(b).

   47 U.S.C. S: 312(f)(1).

   H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
   [inserted in section 312] defines the terms `willful' and `repeated' for
   purposes of section 312, and for any other relevant section of the act
   (e.g., section 503) . . . . As defined[,] . . . `willful' means that the
   licensee knew that he was doing the act in question, regardless of whether
   there was an intent to violate the law. `Repeated' means more than once,
   or where the act is continuous, for more than one day. Whether an act is
   considered to be `continuous' would depend upon the circumstances in each
   case. The definitions are intended primarily to clarify the language in
   sections 312 and 503, and are consistent with the Commission's application
   of those terms . . . .").

   See, e.g., Application for Review of Southern California Broadcasting Co.,
   Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) (Southern
   California Broadcasting Co.).

   See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
   Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
   Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
   television operator's repeated signal leakage).

   Southern California Broadcasting Co., 6 FCC Rcd at 4388, para. 5; Callais
   Cablevision, Inc., 16 FCC Rcd at 1362, para. 9.

   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), recons. denied, 15
   FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.

   47 U.S.C. S: 503(b)(2)(E).

   On March 4, 2011, we issued a Notice of Apparent Liability for Forfeiture
   against Mr. Fleurinor for $20,000, for multiple violations of Section 301.
   See supra note 2. The proposed forfeiture amount was found to be
   appropriate given the multiple violations and deliberate disregard for the
   Act and the Commission's rules. Further, the facts in the 1st NAL
   indicated that Mr. Fleurinor had been repeatedly informed about the
   violations since January 2008.

   47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
   1.80.

   See 47 C.F.R. S: 1.1914.

   47 C.F.R. S:S: 1.16, 1.80(f)(3).

   Federal Communications Commission DA 12-111

                                       4

   Federal Communications Commission DA 12-111