**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+---------------------------------+---+---------------------------------+
| In the Matter of                | ) | File Number: EB-06-NY-073       |
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| Marcel Emile                    | ) | NAL/Acct. No: 200732380010      |
|                                 |   |                                 |
| East Orange, NJ                 | ) | FRN: 0015 1919 68               |
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|                                 | ) |                                 |
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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: March 28, 2007

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 Marcel Emile 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
    frequencies 96.7 MHz and 104.7 MHz in East Orange, NJ. We conclude,
    pursuant to Section 503(b) of the Act,[^2] that Marcel Emile is
    apparently liable for a forfeiture in the amount of ten thousand
    dollars (\$10,000).

# BACKGROUND

2.  On April 1, 2006, in response to an interference complaint,
    Commission agents, using a mobile direction-finding vehicle,
    monitored the frequency 96.7 MHz in East Orange, NJ. The agents
    observed a radio station broadcasting on 96.7 MHz and determined
    that the station was operating from an apartment building at 182
    North Arlington Avenue, East Orange, New Jersey, 07017. The agents
    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 96.7
    MHz in East Orange, New Jersey.

3.  On April 1, 2006, immediately after taking measurements, Commission
    agents returned to 182 North Arlington Avenue in East Orange, New
    Jersey. The agents, along with the building superintendent, observed
    an FM broadcast antenna on the roof and a coaxial cable coming out
    of the window of Apartment 23 connected to the antenna on the roof.
    Agents knocked on the door and were allowed to inspect the radio
    station in apartment 23. The occupants identified the person
    responsible for the operation of the radio station as Marcel Joseph.
    The transmitter was a Broadcast Warehouse FM 300 with output power
    from 25 to 300 watts.

4.  On April 3, 2006, agents contacted the management company for 182
    North Arlington Avenue. A representative from the management company
    identified the tenant in Apartment 23 as Marcel Emile ("Emile").

5.  On April 18, 2006, the New York Office sent, via regular mail and
    certified mail, return receipt requested, a Notice of Unlicensed
    Operation ("*NOUO*") to Marcel Emile at 182 North Arlington Avenue,
    Apartment 23, East Orange, New Jersey 07017. The *NOUO* warned Emile
    that operation of the unlicensed radio station on 96.7 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 Emile to terminate operation
    of the unlicensed station immediately and provided Emile ten days to
    reply. Emile 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.

6.  On May 6, 2006, Commission agents, using a mobile direction-finding
    vehicle, monitored the frequency 96.7 MHz in East Orange, NJ. The
    agents again observed a radio station broadcasting on 96.7 MHz and
    determined that the station was operating from 182 North Arlington
    Avenue in East Orange, New Jersey. The agents subsequently took
    field strength measurements and determined that the signals being
    broadcast exceeded the limits for operation under Part 15 of the
    Rules and therefore required a license. An agent searched Commission
    databases and found no evidence of a Commission authorization for
    this operation on 96.7 MHz in East Orange, New Jersey. Agents
    immediately returned to 182 North Arlington and observed a FM
    broadcast antenna on the roof and a coaxial cable from the antenna
    entering the window of Apartment 23.

7.  On June 12, 2006, the original complainant notified the New York
    office that the unlicensed broadcasts were transmitting on 96.7 MHz
    on the nights of June 10 and June 11, 2006. When agents inspected
    the rooftop site on July 20, 2006, they observed that the FM
    broadcast antenna had been removed. Agents left a copy of the April
    20, 2006, *NOUO* under the door of Apartment 23*.*

8.  On September 5, 2006, the complainant reported to the New York
    Office that the unlicensed station that previously was broadcasting
    on the frequency 96.7 MHz was now broadcasting on the frequency
    104.7 MHz.

9.  On December 2, 2006, Commission agents, using a mobile
    direction-finding vehicle, monitored the frequency 104.7 MHz in East
    Orange, NJ. The agents observed a radio station broadcasting on
    104.7 MHz and determined that the station was operating from 182
    North Arlington Avenue in East Orange, New Jersey. The agents
    subsequently took field strength measurements and determined that
    the signals being broadcast exceeded the limits for operation under
    Part 15 of the Rules and therefore required a license. An agent
    searched Commission databases and found no evidence of a Commission
    authorization for this operation on 104.7 MHz in East Orange, New
    Jersey. Agents immediately returned to 182 North Arlington and
    observed a FM broadcast antenna on the roof and a coaxial cable from
    the antenna entering the window of Apartment 23. Agents observed
    that the open mailbox for Apartment 23 was labeled with the name
    Marcel Emile.

10. On December 5, 2006, a Commission agent again contacted the
    management company for 182 North Arlington, East Orange, New Jersey.
    The representative from the management company confirmed that Emile
    is the tenant in Apartment 23 and that he has a month-to-month
    verbal agreement to rent the apartment.

# DISCUSSION

11. 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.[^4] The term
    "repeated" means the commission or omission of such act more than
    once or for more than one day.[^5]

12. 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. Agents determined that, on April 1, 2006, an
    unlicensed radio station was broadcasting on 96.7 MHz from Apartment
    23 at 182 North Arlington Avenue in East Orange, New Jersey. Agents
    subsequently determined that Emile rents Apartment 23 and the New
    York Office issued a *NOUO* to Emile on April 18, 2006, notifying
    him that the operation of his station was unauthorized and must
    cease immediately. Notwithstanding this warning, agents found on May
    6, 2006, that an unlicensed radio station continued to broadcast on
    the frequency 96.7 MHz from Apartment 23 at 182 North Arlington
    Avenue in East Orange, New Jersey. On December 2, 2006, agents
    observed an unlicensed broadcast station operating from Apartment 23
    at 182 North Arlington Avenue in East Orange, New Jersey on the
    frequency 104.7 MHz. Because Emile continued to operate his station
    even after being warned, we find that Emile's violation was willful.
    Emile's violation occurred on more than one day, therefore it is
    repeated.

13. Based on the evidence before us, we find that Emile willfully and
    repeatedly violated Section 301 of the Act by operating radio
    transmission equipment on 96.7 MHz on April 1, 2006, and May 6,
    2006, and by operating radio transmission equipment on 104.7 MHz on
    December 2, 2006, in East Orange, New Jersey, without a Commission
    authorization.

14. 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.[^6] In assessing the
    monetary forfeiture amount, we must also take into account the
    statutory factors set forth in Section 503(b)(2)(D) 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.[^7] Applying the
    *Forfeiture Policy Statement*, Section 1.80, and the statutory
    factors, a \$10,000 forfeiture is warranted.

# ORDERING CLAUSES

15. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended, and Sections 0.111,
    0.311 and 1.80 of the Commission\'s Rules, Marcel Emile is hereby
    **NOTIFIED** of this **APPARENT LIABILITY FOR A FORFEITURE** in the
    amount of ten thousand dollars (\$10,000) for violation of Section
    301 of the Act.[^8]

16. **IT IS FURTHER ORDERED** that, pursuant to Section 1.80 of the
    Commission\'s Rules, within thirty (30) days of the release date of
    this Notice of Apparent Liability for Forfeiture, Marcel Emile
    **SHALL PAY** the full amount of the proposed forfeiture or **SHALL
    FILE** a written statement seeking reduction or cancellation of the
    proposed forfeiture.

17. 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.

18. 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 10014, within
    thirty (30) days from the release date of this Notice of Apparent
    Liability for Forfeiture and must include the NAL/Acct. No.
    referenced in the caption.

19. 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.

20. 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, 1A625, 445
    12th Street, S.W., Washington, D.C. 20554.[^9]

21. **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 Marcel Emile 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 micro volts per
    meter ("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 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).

[^5]: 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."

[^6]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^7]: 47 U.S.C. § 503(b)(2)(E).

[^8]: 47 C.F.R. §§ 0.111, and 0.311.

[^9]: *See* 47 C.F.R. § 1.1914.