**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+---------------------------------+---+---------------------------------+
| In the Matter of                | ) | File Number: EB-06-NY-006       |
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| Elroy Simpson                   | ) | NAL/Acct. No: 200732380002      |
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| Brooklyn, NY                    | ) | FRN: 0015 6596 83               |
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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: November 8, 2006

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 Elroy Simpson 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 Act,[^2] that Elroy Simpson is apparently
    liable for a forfeiture in the amount of ten thousand dollars
    (\$10,000).

# BACKGROUND

2.  On January 12, 2006, in response to an interference complaint,
    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 determined
    that the station was operating from an apartment building at 395
    Ocean Avenue, Brooklyn, New York, 11226. 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 102.3
    MHz in Brooklyn, New York.

3.  On January 13, 2006, Commission agents returned to 395 Ocean Avenue
    in Brooklyn, New York, and along with the building superintendent
    observed an FM broadcast antenna on the roof and a coaxial cable
    coming out of the window of Apartment 4P that, at the time, was not
    connected to the antenna on the roof. Agents contacted the
    management of 395 Ocean Avenue who identified the tenant in
    Apartment 4P as Elroy Simpson.[^4] Agents knocked on the door of
    Apartment 4P, but no one answered.

4.  On February 14, 2006, the New York Office sent, via regular mail and
    certified mail, return receipt requested, a Notice of Unlicensed
    Operation ("*NOUO*") addressed to Elroy Simpson at 395 Ocean Avenue,
    Apartment 4P, Brooklyn, New York 11226. The *NOUO* warned Simpson
    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 Simpson to terminate
    operation of the unlicensed station immediately and provided Simpson
    ten days to reply. Simpson 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.

5.  On May 6, 2006, Commission agents, using a mobile direction-finding
    vehicle, monitored the frequency 102.3 MHz in Brooklyn, NY. The
    agents again observed a radio station broadcasting on 102.3 MHz and
    determined that the station was operating from 395 Ocean Avenue in
    Brooklyn, New York. Agents heard the station announcer identify the
    station as "102.3 Red Hot FM." 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 102.3 MHz in Brooklyn, New York.

6.  On July 15, 2006, Commission agents, using a mobile
    direction-finding vehicle, monitored the frequency 102.3 MHz in
    Brooklyn, NY. The agents again observed a radio station broadcasting
    on 102.3 MHz and determined that the station was operating from 395
    Ocean Avenue in Brooklyn, New York. The agents observed an FM
    broadcast antenna on the roof and a coaxial cable that ran from the
    antenna into the window of Apartment 4P of 395 Ocean Avenue. One of
    the agents entered the apartment building and rang the buzzer for
    Apartment 4P. The agent identified himself as an FCC agent to the
    man who answered and informed the man that he was coming to his
    apartment to talk to him. When the agent knocked on the door of
    Apartment 4P, no one answered. The agent returned to the lobby and
    rang the buzzer to Apartment 4P once more, but there was no answer.

7.  When the agents returned to the direction-finding vehicle, they
    could hear that the station was still on the air and the station
    announcer identified the station as "102.3 Red Hot FM." 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. An agent searched
    Commission databases and found no evidence of a Commission
    authorization for this operation on 102.3 MHz in Brooklyn, New York.

8.  On July 19, 2006, a Commission agent again contacted the management
    of 395 Ocean Avenue, Brooklyn, New York and confirmed that Simpson
    is the tenant in Apartment 4P. At the agent's request, management
    submitted to the New York Office a copy of Simpson's lease
    agreement.

9.  On July 20, 2006, Commission agents, using a mobile
    direction-finding vehicle, monitored the frequency 102.3 MHz in
    Brooklyn, NY. The agents again observed a radio station broadcasting
    on 102.3 MHz and determined that the station was operating from 395
    Ocean Avenue in Brooklyn, New York. Agents, along with the building
    superintendent, observed an FM broadcast antenna on the roof and a
    coaxial cable that ran from the antenna into the window of Apartment
    4P. The superintendent accompanied the agents to Apartment 4P.
    Agents heard noises behind the door of Apartment 4P and knocked on
    the door, but no one answered. Agents left a copy of the *NOUO*,
    dated February 14, 2006, under the door of the apartment. When
    agents returned to their vehicle, they observed that the station had
    gone off the air.

# DISCUSSION

10. 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.[^5] The term
    "repeated" means the commission or omission of such act more than
    once or for more than one day.[^6]

11. 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 January 12, May 6,
    July 15, and July 20, 2006, an unlicensed radio station was
    broadcasting on 102.3 MHz from Apartment 4P at 395 Ocean Avenue in
    Brooklyn, New York. Agents further determined that Simpson is the
    lessee of Apartment 4P and the New York Office issued a *NOUO* to
    Simpson on February 14, 2006, notifying him that the operation of
    his station was unauthorized and must cease immediately. Because
    Simpson continued to operate his station even after being warned, we
    find that Simpson's violation was willful. Simpson's violation
    occurred on more than one day, therefore it is repeated.

12. Based on the evidence before us, we find that Simpson willfully and
    repeatedly violated Section 301 of the Act by operating radio
    transmission equipment on 102.3 MHz in Brooklyn, New York, on
    January 12, 2006, May 6, 2006, July 15, 2006, and July 20, 2006,
    without a Commission authorization.

13. 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.[^7] 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.[^8] Applying the
    *Forfeiture Policy Statement*, Section 1.80, and the statutory
    factors, a \$10,000 forfeiture is warranted.

# ORDERING CLAUSES

14. 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, Elroy Simpson 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.[^9]

15. **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, Elroy Simpson
    **SHALL PAY** the full amount of the proposed forfeiture or **SHALL
    FILE** a written statement seeking reduction or cancellation of the
    proposed forfeiture.

16. 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.

17. 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.

18. 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.

19. 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.[^10]

20. **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 Elroy Simpson 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]: Commission agents previously found Simpson operating an unlicensed
    station on 102.3 MHz from the same location in 2004. Agents first
    identified the unlicensed operation in Apartment 4P at 395 Ocean
    Avenue on November 6, 2004. When the agents returned to that
    location on November 17, 2004, the agents found the station still in
    operation. Building management informed the agents that Simpson was
    the tenant in Apartment 4P. Agents attempted to conduct an
    inspection in Apartment 4P. When no one answered, agents placed a
    hand-written Notice of Unlicensed Operation ("NOUO") under the door
    of the apartment. Later that day, a man who identified himself as
    Elroy Simpson contacted the New York Office and reported that he
    received the *NOUO*. Simpson stated that he had no equipment and
    that the cable going into his apartment window was for his satellite
    dish. When agents returned to 395 Ocean Avenue on November 18, 2004,
    the station had ceased operating, but agents observed that the only
    cable going into Apartment 4P was the cable that ran from the FM
    broadcast antenna on the roof. The New York Office issued a Notice
    of Unlicensed Operation to Elroy Simpson on November 18, 2004, for
    the unlicensed operation on November 6, 2004.

[^5]: 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).

[^6]: 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."

[^7]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^8]: 47 U.S.C. § 503(b)(2)(D).

[^9]: 47 C.F.R. §§ 0.111, and 0.311.

[^10]: *See* 47 C.F.R. § 1.1914.