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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No: EB-11-MA-0044
)
Robens Cheriza NAL/Acct. No: 201232600007
)
West Palm Beach, Florida FRN: 0021457213
)
)
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 Robens Cheriza 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 107.3 MHz
from his residence in West Palm Beach, Florida. We conclude that Mr.
Cheriza is apparently liable for a forfeiture in the amount of twenty
thousand dollars ($20,000).
II. BACKGROUND
2. On April 2, 2011, based on a complaint by the Federal Aviation
Administration (FAA) of interference to Palm Beach International
Airport's control tower frequency 119.1 MHz from an unlicensed station
on 107.3 MHz, agents from the Enforcement Bureau's Miami Office (Miami
Office) used direction-finding techniques to locate the source of
radio frequency transmissions on the frequencies 107.3 MHz and 119.1
MHz to an antenna mounted at a residence in West Palm Beach, Florida.
The agents determined that the signal on 107.3 MHz exceeded the limits
for operation under Part 15 of the Commission's rules (Rules), and
therefore required a license. Commission records showed no
authorization issued to Mr. Cheriza or to anyone else for operation of
an FM broadcast station at or near this address on either of these
frequencies.
3. On the date of the investigation-just moments before entering Mr.
Cheriza's residence- agents observed that the station on 107.3 MHz all
of a sudden went off the air. In response to a request to inspect his
transmitting equipment, Mr. Cheriza escorted agents to the enclosed
patio, where agents observed an FM broadcast transmitter connected by
coaxial cable to the transmitting antenna. The agents also observed
that the transmitter was connected by audio cables to an operational
broadcast studio, consisting of a PC computer, laptop, microphone, and
audio mixer, in Mr. Cheriza's residence. Mr. Cheriza stated that he
was the owner of the studio and transmitting equipment and had
operated the station on 107.3 MHz from his residence for about a
month. Mr. Cheriza also stated that he was aware that operating an
unlicensed station was illegal. During the inspection, the agents
confirmed that the station they had monitored on 107.3 MHz came back
on the air when Mr. Cheriza turned the transmitter on momentarily. In
addition, Mr. Cheriza confirmed that he broadcast a party live from
his residence on the evening of April 1, 2011, which is consistent
with the FAA's complaint about hearing audio of a party on 107.3 MHz
and 119.1 MHz on the evening of April 1, 2011; and it was the latter
transmission that interfered with the FAA's control tower frequency.
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
April 2, 2011, Mr. Cheriza operated an unlicensed radio station on the
frequency 107.3 MHz from his residence in West Palm Beach, Florida.
Mr. Cheriza admitted to operating the unlicensed station from his
residence for about a month. A review of the Commission's records
revealed that Mr. Cheriza did not have a license to operate a radio
station at this location. Because Mr. Cheriza consciously operated the
station and on more than one day, the apparent violation was both
willful and repeated. Therefore, based on the evidence before us, we
find that Mr. Cheriza 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. In doing so, we find that the violations here warrant a
proposed forfeiture above the base amount. As the record reflects, Mr.
Cheriza's unlicensed operations on 107.3 MHz produced a spurious
signal on the frequency 119.1 MHz, which caused harmful interference
to Palm Beach International Airport's control tower communications,
thereby creating a safety hazard to the operation of aircraft.
Moreover, the fact that Mr. Cheriza operated an unlicensed station
after admitting to knowing that such action contravened the Act and
the Commission's rules demonstrate a deliberate disregard for the Act
and the Commission's requirements. Thus, we find that an additional
upward adjustment of $10,000 in the forfeiture amount 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.
Cheriza 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, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, Robens Cheriza 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
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture, Robens
Cheriza 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 procedures,
contact the Financial Operations Group Help Desk at 1-877-480-3201 or
Email: ARINQUIRIES@fcc.gov. Robens Cheriza 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 1.80(f)(3) and 1.16 of the Rules. The written statement must
be mailed to Federal Communications Commission, Enforcement Bureau,
South Central Region, Miami Office, P.O. Box 520617, Miami, FL
33152-0617, and must include the NAL/Acct. No. referenced in the
caption. The written 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 Robens Cheriza at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Steven DeSena
Resident Agent
Miami Office
South Central Region
Enforcement Bureau
47 U.S.C. S: 301.
The frequency 119.1 MHz lies within the 108-121.94 MHz band and is listed
as a restricted band in Section 15.205(a) of the Commission's rules. 47
C.F.R. S: 15.205(a).
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.
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), recons. denied,
7 FCC Rcd 3454 (1992) (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. 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), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
See, e.g., Gabriel A. Garcia, Notice of Apparent Liability for Forfeiture,
26 FCC Rcd 3750 (Enf. Bur., San Francisco Office 2011) (imposing a $25,000
forfeiture for repeated and willful violations of Section 301; the
forfeiture amount included a $15,000 upward adjustment because of the
deliberate nature of the violations and the interference caused to FAA
operations).
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).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 12-112
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Federal Communications Commission DA 12-112