**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-07-NY-418       |
|                                  |   |                                 |
| Trevor W. Whitely                | ) | NAL/Acct. No: 200832380003      |
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| Brooklyn, NY                     | ) | FRN: 0017 1319 54               |
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|                                  | ) |                                 |
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|                                  | ) |                                 |
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|                                  | ) |                                 |
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|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE {#notice-of-apparent-liability-for-forfeiture .unnumbered}

> Released: January 25, 2008

By the District Director, New York Office, Northeast Region, Enforcement
Bureau:

# INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture ("*NAL*"), we
    find that Trevor W. Whitely apparently willfully and repeatedly
    violated Section 301 of the Communications Act of 1934, as amended
    ("Act"),[^1] by operating an unlicensed radio transmitter on the
    frequency 102.3 MHz in Brooklyn, NY. We conclude, pursuant to
    Section 503(b) of the Communications Act of 1934, as amended
    ("Act"),[^2] that Trevor W. Whitely is apparently liable for a
    forfeiture in the amount of ten thousand dollars (\$10,000).

# BACKGROUND

2.  On October 22, 2007, in response to an interference complaint, a
    Commission agent, using a mobile direction-finding vehicle,
    monitored the frequency 102.3 MHz in Brooklyn, NY. The agent
    observed a radio station broadcasting on 102.3 MHz and determined
    that the station was operating from an apartment building at 410
    Eastern Parkway, Brooklyn, New York, 11225. Agents heard the station
    announcer identify the station as "102.3 Red Hot FM." The agent
    subsequently took field strength measurements and determined that
    the signals being broadcast exceeded the limits for operation under
    Part 15 of the Commission's Rules ("Rules")[^3] and therefore
    required a license. An agent searched Commission databases and found
    no evidence of a Commission authorization for this operation on
    102.3 MHz in Brooklyn, NY.

3.  On October 23, 2007, Commission agents, using a mobile
    direction-finding vehicle, monitored the frequency 102.3 MHz in
    Brooklyn, NY. The agents observed a radio station broadcasting on
    102.3 MHz and again determined that the station was operating from
    an apartment building at 410 Eastern Parkway, Brooklyn, New
    York, 11225. Agents heard the station announcer identify the station
    as "102.3 Red Hot FM." The agent subsequently took field strength
    measurements and determined that the signals being broadcast
    exceeded the limits for operation under Part 15 of the Rules[^4] and
    therefore required a license. Commission agents observed at 410
    Eastern Parkway, Brooklyn, NY, an FM broadcast antenna on the roof
    and a coaxial cable going into the basement.

4.  On October 30 and October 31, 2007, the New York Office received
    e-mail complaints from Radio Station WBAB, 102.3 FM, Long Island,
    NY, concerning interference to their broadcast signal on 102.3 MHz,
    from a station in Brooklyn, New York, transmitting on 102.3 MHz.

5.  On November 6, 2007, Commission agents, using a mobile
    direction-finding vehicle, monitored the frequency 102.3 MHz in
    Brooklyn, NY. The agents observed a radio station broadcasting on
    102.3 MHz and again determined that the station was operating from
    an apartment building at 410 Eastern Parkway, Brooklyn, New
    York, 11225. Agents heard the station announcer identify the station
    as "102.3 Red Hot FM."

6.  Also on November 6, 2007, based on the investigation conducted by
    FCC agents, a district judge in the United States District Court,
    Eastern District of New York, signed a warrant authorizing the U.S.
    Marshals to seize the transmission equipment at 410 Eastern Parkway,
    Brooklyn, New York, 11225.[^5] The U.S. Marshals carried out the
    Warrant of Arrest *in rem* on that same day. Upon entry into the
    apartment building, 410 Eastern Parkway, Brooklyn, NY, agents along
    with the marshals found Trevor Whitely, the building superintendent,
    in the lobby of the building. Agents and marshals identified
    themselves and requested to go to the basement to see the radio
    station equipment. Mr. Whitely accompanied the agents and marshals
    to the basement and, upon request, unlocked a door that led into a
    small room. Agents observed the radio station equipment in the
    corner of the room and questioned Mr. Whitely about the equipment.
    Mr. Whitely claimed the equipment was not his, but admitted that he
    allowed the radio station equipment to be placed in his basement and
    also allowed the FM broadcast antenna to be installed on the roof of
    the building. Mr. Whitely claimed that he only knew the owner of the
    equipment as DJ Elly, but would not provide any information other
    than a phone number. Agents also traced a cable modem wire connected
    to the radio equipment and questioned Mr. Whitely on the source of
    this cable, which he admitted was coming from his apartment within
    the building, Apt. 1B. In accordance with the *in rem* warrant, all
    radio station equipment was inventoried and then confiscated by the
    U.S. Marshals.

7.  On November 9, 2007, the New York Office sent, via regular mail and
    certified mail, return receipt requested, a Notice of Unlicensed
    Operation ("*NOUO*") addressed to Trevor W. Whitely at his address
    of record. The *NOUO* warned Whitely that operation of the
    unlicensed radio station on 102.3 MHz violated Section 301 of the
    Act and outlined the potential penalties for such a violation,
    including seizure of the equipment, fines and imprisonment. The
    *NOUO* also directed Whitely to terminate operation of the
    unlicensed station immediately and provided Whitely ten days to
    reply. Whitely did not reply. The *NOUO* sent via certified mail was
    later returned to the New York Office by the U.S. Postal Service as
    undeliverable. The *NOUO* sent via regular mail was not returned to
    the New York Office.

# DISCUSSION

8.  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) has been interpreted to mean simply that the acts or
    omissions are committed knowingly.[^6] The term "repeated" means the
    commission or omission of such act more than once or for more than
    one day.[^7]

9.  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. Section 3(33) of the Act defines
    "communications by radio" as "the transmission by radio of writing,
    signs, signals, pictures, and sounds of all kinds, including all
    instrumentalities, facilities, apparatus, and services (among other
    thing the receipt, forwarding, and delivery of communications)
    incidental to such transmission."[^8] Agents determined that, on
    October 22, 2007, October 23, 2007, and November 6, 2007, an
    unlicensed radio station was broadcasting on 102.3 MHz from 410
    Eastern Parkway, Brooklyn, New York, 11225. During the execution of
    the *in rem* arrest warrant at 410 Eastern Parkway in Brooklyn on
    November 6, 2007, agents encountered Mr. Whitely, who admitted to
    allowing individuals to place radio transmitting equipment in the
    building's basement and allowing the station to connect to a cable
    modem located in his apartment. In this regard, we find that Mr.
    Whitely provided services and facilities incidental to the
    transmission of communications by radio occurring on 102.3 MHz at
    410 Eastern Parkway. We have previously held that liability for
    unlicensed operation may be assigned to any individual taking part
    in the operation of the unlicensed station, regardless of who else
    may be responsible for the operation, because Section 301 of the Act
    provides that "no person shall use or operate" radio transmission
    equipment.[^9] Taken together, we find that Mr. Whitely's actions
    amounted to willful and repeated violations of Section 301 of the
    Act.

10. Pursuant to *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines,* (\"*Forfeiture Policy Statement*\"), and Section 1.80
    of the Rules, the base forfeiture amount for operation without an
    instrument of authorization is \$10,000.[^10] 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, and history of prior offenses, ability to pay, and
    other such matters as justice may require.[^11] Applying the
    *Forfeiture Policy Statement*, Section 1.80, and the statutory
    factors to the instant case, we conclude that Trevor W. Whitely is
    apparently liable for a (\$10,000) forfeiture.

# ORDERING CLAUSES

11. 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 Commission\'s Rules, Trevor W. Whitely
    is hereby **NOTIFIED** of this **APPARENT LIABILITY FOR A
    FORFEITURE** in the amount of ten thousand dollars (\$10,000) for
    violations of Section 301 of the Act.[^12]

12. **IT IS FURTHER ORDERED** that, pursuant to Section 1.80 of the
    Commission\'s Rules within thirty days of the release date of this
    Notice of Apparent Liability for Forfeiture, Trevor W. Whitely
    **SHALL PAY** the full amount of the proposed forfeiture or **SHALL
    FILE** a written statement seeking reduction or cancellation of the
    proposed forfeiture.

13. 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
    Federal Communications Commission, P.O. Box 358340, Pittsburgh, PA
    15251-8340.  Payment by overnight mail may be sent to Mellon
    Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
    15251.   Payment by wire transfer may be made to ABA
    Number 043000261, receiving bank Mellon Bank, and account
    number 911-6106.

14. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Northeast Region, New York Office,
    201 Varick Street, Suite 1151, New York, NY 10014and must include
    the NAL/Acct. No. referenced in the caption.

15. 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.

16. Requests for payment of the full amount of this Notice of Apparent
    Liability for Forfeiture under an installment plan should be sent
    to: Associate Managing Director, Financial Operations, 445 12th
    Street, S.W., Room 1A625, Washington, D.C. 20554.[^13]

17. **IT IS FURTHER ORDERED** that a copy of this Notice of Apparent
    Liability for Forfeiture shall be sent by Certified Mail, Return
    Receipt Requested, and regular mail, to Trevor W. Whitely at his
    address of record.

FEDERAL COMMUNICATIONS COMMISSION

Daniel W. Noel

District Director

New York Office

Northeast Region

Enforcement Bureau

[^1]: 47 U.S.C. § 301.

[^2]: 47 U.S.C. § 503(b).

[^3]: 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 μV/m at three
    meters. 47 C.F.R. § 15.239. Measurements showed that the field
    strength of the station's signal exceeded the permissible level for
    a non-licensed Part 15 transmitter.

[^4]: 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 μV/m at three
    meters. 47 C.F.R. § 15.239. Measurements showed that the field
    strength of the station's signal exceeded the permissible level for
    a non-licensed Part 15 transmitter.

[^5]: Amended Summons and Warrant for Arrest of Article In Rem, Civil
    Action No. 07-4012, District Judge Brian M. Cogan. The *in rem*
    seizure warrant issued on November 6, 2007, was the result of an FCC
    investigation that began in 2004 of the unlicensed radio operations
    on 102.3 MHz in Brooklyn, NY. *See Elroy Simpson,* Notice of
    Apparent Liability for Forfeiture*,* NAL/Acct. No. 200732380002
    (Enf. Bur., New York Office, rel. November 8, 2006); *Elroy
    Simpson*, Forfeiture Order, 22 FCC Rcd 752 (2007). When the initial
    complaint for an *in rem* warrant was filed with the court, the
    station was located at 782 East 32^nd^ Street, Brooklyn, NY 11210.
    An amended complaint subsequently was filed identifying the
    station's location as 410 Eastern Parkway, Brooklyn, NY.

[^6]: Section 312(f)(1) of the Act, 47 U.S.C. § 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 Southern California Broadcasting Co.*, 6 FCC Rcd 4387 (1991).

[^7]: Section 312(f)(2) of the Act, 47 U.S.C. § 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."

[^8]: 47 U.S.C. § 153(33).

[^9]: 47 U.S.C. § 301; *See Joni K. Craig,* Forfeiture Order, 21 FCC Rcd
    10793 (EB 2006); *See also Jean L. Senatus*, Forfeiture Order, 20
    FCC Rcd 14418 (EB 2005).

[^10]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^11]: 47 U.S.C. § 503(b)(2)(E).

[^12]: 47 U.S.C. § 301, 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80.

[^13]: ^8^ *See* 47 C.F.R. § 1.1914.