**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+---------------------------------+---+---------------------------------+
| In the Matter of                | ) | File Number: EB-07-NY-308       |
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| Jean Idalbert                   | ) | NAL/Acct. No: 200832380008      |
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| Brooklyn, NY                    | ) | FRN: 0017428293                 |
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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}

> April 29, 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 Jean Idalbert 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 90.9 MHz in Brooklyn, NY. We conclude, pursuant to Section
    503(b) of Act,[^2] that Jean Idalbert is apparently liable for a
    forfeiture in the amount of ten thousand dollars (\$10,000).

# BACKGROUND

2.  On August 21, 2007, the FCC New York Office received a complaint
    from a listener about a possible illegal broadcast station operating
    on 90.9 MHz in Brooklyn, NY, which was causing interference to
    station WFUV in Bronx, NY, and station WKCR in New York, NY.

3.  On August 27, 2007, agents from the Commission's New York Field
    Office, using a mobile direction finding vehicle, monitored the
    frequency 90.9 MHz in Brooklyn, NY. The agents observed a radio
    broadcast on 90.9 MHz and identified the source of the transmissions
    as an FM broadcasting antenna on the roof of 1151 New York Avenue,
    Brooklyn, NY 11203. The agents 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 operation on
    90.9 MHz at this location in Brooklyn, NY.

4.  On the same day, after completing field strength measurements,
    Commission agents returned to 1151 New York Avenue, Brooklyn,
    NY 11203. The agents observed on the roof an FM broadcast antenna
    mounted to a pole connected to a coaxial cable that lead to a ground
    floor window of an apartment, which agents subsequently identified
    as apartment A-6. Outside the entrance to the building, the buzzer
    for apartment A-6 identified "Idalbert, J." as the tenant. Inside
    the lobby, agents observed an apartment directory on the wall that
    also identified "Idalbert, J.B." as the tenant in apartment A-6. The
    agents knocked on the door to apartment A-6, but did not receive an
    answer. Agents determined that the full name of the tenant is "Jean
    Idalbert."

5.  On September 13, 2007, the New York Office issued Notices of
    Unlicensed Operation, by First Class and Certified Mail Return
    Receipt Requested, to Jean Idalbert and to 1151 Realty Corporation.
    The New York Office did not receive a reply to the Notices of
    Unlicensed Operation.

6.  On December 15, 2007, Commission agents, using a mobile direction
    finding vehicle, monitored the frequency 90.9 MHz in Brooklyn, NY.
    The agents observed a radio broadcast on 90.9 MHz and identified the
    source of the transmissions as an FM broadcasting antenna on the
    roof of 1151 New York Avenue, Brooklyn, NY 11203. The agents 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. The agents searched
    Commission databases and found no evidence of a Commission
    authorization for operation on 90.9 MHz at this location in
    Brooklyn, NY.

7.  On the same day, after completing the field strength measurements,
    Commission agents returned to 1151 New York Avenue, Brooklyn,
    NY 11203. The agents proceeded to the roof and again observed an FM
    broadcast antenna mounted to a pole connected to a coaxial cable
    that lead to a ground floor window of apartment A-6. When the agents
    knocked on the door, a man answered the door, but refused to
    identify himself or allow the agents to conduct a station
    inspection. One of the agents phoned the building superintendent and
    informed him that there was an illegal radio station operating in
    apartment A-6. The agent advised the superintendent to notify Jean
    Idalbert to cease operation of the radio station and remove the
    antenna from the roof. The superintendent agreed to take care of the
    matter as soon as possible. After returning to the vehicle, the
    agents monitored 90.9 MHz and noted that the station was off the
    air.

8.  On January 26, 2008, a Commission agent returned to 1151 New York
    Avenue in Brooklyn, and again spoke with the superintendent, who
    stated that, on December 16, 2007, he removed the antenna and
    returned it to Idalbert. The superintendent also stated that he
    notified Idalbert that FCC agents were there on December 15, 2007
    and that the agents stated that Idalbert must cease operating the
    radio station. The superintendent also reported that he had
    previously warned Idalbert to cease operation of the radio station
    after a visit from Commission agents earlier in the year.

9.  On February 15, 2008, the New York Office received a telephone call
    from a Brooklyn NY resident with a complaint of receiving
    interference to reception of FCC licensed station WFUV, 90.7 MHz.

10. On February 23, 2008, a Commission agent, using a mobile direction
    finding vehicle, monitored the frequency 90.9 MHz in Brooklyn, NY.
    The agent observed a radio broadcast on 90.9 MHz and identified the
    source of the transmissions as an FM broadcasting antenna on the
    roof of 1151 New York Avenue, Brooklyn, NY 11203. The agent 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. The agents searched
    Commission databases and found no evidence of a Commission
    authorization for operation on 90.9 MHz at this location in
    Brooklyn, NY.

11. On the same day, after completing measurements, the Commission agent
    returned to 1151 New York Avenue Brooklyn, NY 11203 and observed a
    ground plane FM broadcasting antenna on the roof and the coaxial
    cable was going into a window of apartment A-6. A review of
    Commission databases revealed no evidence of a Commission
    authorization for operation on 90.9 MHz at this location in
    Brooklyn, NY.

12. On February 28, 2008, a Commission agent visited the office of 1151
    Realty LLC and obtained a renewal lease agreement that identified
    Jean Idalbert as the tenant in apartment A-6 at 1151 New York
    Avenue, Brooklyn, NY.

# DISCUSSION

13. 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]

14. 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."[^6] Agents determined that, on
    August 26 and December 15, 2007, and February 23, 2008, an
    unlicensed broadcast station was operating from apartment A-6 at
    1151 New York Avenue, Brooklyn, NY 11203. A lease agreement obtained
    from the building owner confirmed that Idalbert is the lessee of
    apartment A-6. Despite written warnings to Idalbert, the unlicensed
    radio station on 90.9 MHz continued to operate from Idalbert's
    apartment. We have previously held that liability for unlicensed
    operation may be assigned to an individual who provides services and
    facilities incidental to the transmission of communications by
    radio.[^7] We find that Idalbert is responsible for the unlicensed
    station operation on 90.9 MHz at 1151 New York Avenue in Brooklyn,
    NY and that his actions amounted to willful and repeated violations
    of Section 301 of the Act.

15. Based on the evidence before us, we find that Jean Idalbert
    apparently willfully and repeatedly violated Section 301 of the Act
    by operating radio transmission equipment on 90.9 MHz in Brooklyn,
    NY on August, 26 and December 15, 2007, and February 23, 2008,
    without a Commission authorization.

16. 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.[^8] 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.[^9] Applying the
    *Forfeiture Policy Statement*, Section 1.80, and the statutory
    factors to the instant case, we conclude that Jean Idalbert is
    apparently liable for a \$10,000 forfeiture.

# ORDERING CLAUSES

17. 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, Jean Idalbert 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.[^10]

18. **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, Jean Idalbert
    **SHALL PAY** the full amount of the proposed forfeiture or **SHALL
    FILE** a written statement seeking reduction or cancellation of the
    proposed forfeiture.

19. 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/Account Number and FRN
    Number 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\[s\] 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.   Please contact the Financial Operations Group Help Desk at
    1-877-480-3201 or Email: <ARINQUIRIES@fcc.gov> with any questions
    regarding payment procedures.

20. 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, and must include
    the NAL/Acct. No. referenced in the caption.

21. 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.

22. **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 Jean Idalbert 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]: 47 U.S.C. § 153(33).

[^7]: *See Joni K. Craig,* Forfeiture Order, 21 FCC Rcd 10793 (EB 2006).

[^8]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^9]: 47 U.S.C. § 503(b)(2)(D).

[^10]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80, 47
    U.S.C. §301.