**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+---------------------------------+---+---------------------------------+
| In the Matter of                | ) | File Number: EB-05-NY-290       |
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| Shawn Deroux                    | ) | NAL/Acct. No: 200632380008      |
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| Bronx, NY                       | ) | FRN: 0014159255                 |
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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: August 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 Shawn Deroux ("Deroux") apparently willfully and
    repeatedly violated Sections 301 and 303(n) of the Communications
    Act of 1934, as amended ("Act"),[^1] by operating an unlicensed
    radio transmitter on the frequency 87.9 MHz in Bronx, NY and failing
    to permit a station inspection. We conclude, pursuant to Section
    503(b) of Act,[^2] that Deroux is apparently liable for a forfeiture
    in the amount of seventeen thousand dollars (\$17,000).

# BACKGROUND

2.  On September 23, 2005, the New York Office of the FCC's Enforcement
    Bureau received a complaint of an illegal broadcast station
    operating on 87.9 MHz in Bronx, NY.

3.  On October 6, 2005, Commission agents, using a mobile
    direction-finding vehicle, monitored the frequency 87.9 MHz in
    Bronx, NY. The agents observed a radio broadcast on 87.9 MHz and
    identified the source of the transmissions as an FM broadcasting
    antenna on the roof of 11 West 172 Street, Bronx, NY 10452. 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. The agent searched Commission databases and found no
    evidence of a Commission authorization for operation on 87.9 MHz in
    Bronx, NY.

4.  On that same day, after completing the field strength measurements,
    the agents went to the roof of 11 West 172 Street, Bronx, NY 10452.
    The agents observed that the antenna cable went from the roof to a
    basement window next door at 11A West 172 Street, Bronx, NY. While
    on the roof, the agents observed a man in a green shirt constructing
    an FM antenna on a long pole in the backyard of 11A West 172 Street.
    When the agents descended from the roof and entered the lobby of the
    building at 11 West 172 Street, they were met by the man in the
    green shirt, who later was identified as Deroux.[^4] Deroux admitted
    operating the unlicensed radio station and agreed to shut down the
    station. He refused, however, to allow agents to inspect the
    station. The agents orally warned Mr. Deroux of the consequences of
    operating an unlicensed broadcast station and failing to allow an
    inspection. Prior to leaving the area, the agents monitored 87.9 MHz
    and noted that the station went off the air.

5.  On October 8, 2005, Commission agents, using a mobile
    direction-finding vehicle, monitored the frequency 87.9 MHz in
    Bronx, NY. The agents observed a radio broadcast on 87.9 MHz, and
    identified the source of the transmissions as an FM broadcasting
    antenna in the back yard of 11A West 172 Street , Bronx, NY 10452.
    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 87.9 MHz in Bronx, New York.

6.  After completing the field strength measurements on October 8, 2005,
    the agents went to 11A West 172 Street, Bronx, NY 10452 and
    attempted a station inspection. A man living there identified the
    operator of the station as "Shawn" and agreed to contact him by
    telephone. Shortly thereafter, Deroux came out of the basement
    apartment at 11A West 172 Street and again refused to allow the
    agents to inspect the station. The agents orally informed Deroux
    that he did not have authority to operate the station and advised
    him of the penalties for unlicensed operation. Prior to leaving the
    area, the agents monitored 87.9 MHz and noted that the station went
    off the air.

7.  On October 27, 2005, Commission agents, using a mobile
    direction-finding vehicle, monitored the frequency 87.9 MHz in
    Bronx, NY. The agents observed a radio broadcast on 87.9 MHz, and
    identified the source of the transmissions as an FM broadcasting
    antenna on a building at 305 East 170 Street, Bronx, NY 10456. The
    agents traced the cable to the basement of 305 East 170 Street,
    Bronx, NY 10456. 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") and
    therefore required a license. The agents searched Commission
    databases and found no evidence of a Commission authorization for
    operation on 87.9 MHz in Bronx, NY.

8.  After completing the field strength measurements on October 27,
    2005, the agents went to

305 East 170 Street, Bronx, NY 10456 and attempted a station inspection.
The owner of the building, Dr. Mark Escoffery-Bey, admitted that he
allowed his friend Shawn to install and operate a radio station on 87.9
MHz in his building. Dr. Escoffery-Bey refused to allow agents to
inspect the station.

# DISCUSSION

9.  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]

10. Section 301 of the Act provides 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 October 6, 2005, and October 8, 2005,
    Deroux operated radio transmission equipment at 11A West 172 Street,
    Bronx, NY without the required Commission authorization. Deroux also
    operated radio transmission equipment at 305 West 170 Street, Bronx,
    NY without the required Commission authorization on October
    27, 2005. Deroux was orally warned by agents on October 6 and
    October 8, 2005 that operation of his station was unauthorized and
    must cease immediately. Because Deroux continued to operate his
    station even after being warned, his violation was willful. Deroux's
    violation occurred on more than one day, therefore, it was repeated.

11. Section 303(n) of the Act states that the Commission has the
    authority to inspect all radio installations associated with
    stations required to be licensed to ascertain whether, in operation,
    they conform to the requirements of the rules and regulations of the
    Commission.[^7] On October 6, 2005, agents orally warned Deroux that
    failure to allow an inspection of his station could subject him to
    enforcement action. Notwithstanding this warning, Deroux refused to
    allow agents to inspect the station, therefore, his violation was
    willful. Because Deroux failed to permit agents to inspect the
    station on October 6 and October 8, 2005, the violation was
    repeated.

12. Based on the evidence before us, we find that Shawn Deroux
    apparently willfully and repeatedly violated Section 301 of the Act
    by operating radio transmission equipment on 87.9 MHz in Bronx, NY
    on October 6, October 8, and October 27, 2005 without a Commission
    authorization and willfully and repeatedly violated Section 303(n)
    of the Act by failing to allow an inspection of his station on
    October 6 and October 8, 2005.

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 and the base forfeiture
    amount for failure to permit inspection is \$7,000.[^8] 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.[^9] Applying the
    *Forfeiture Policy Statement*, Section 1.80, and the statutory
    factors to the instant case, we conclude that Shawn Deroux is
    apparently liable for a \$17,000 forfeiture.

# 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, Shawn Deroux is hereby
    **NOTIFIED** of this **APPARENT LIABILITY FOR A FORFEITURE** in the
    amount of seventeen thousand dollars (\$17,000) for violations of
    Sections 301 and 303(n) of the Act.[^10]

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, Shawn Deroux
    **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, 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, 445 12th
    Street, S.W., Room 1A625, Washington, D.C. 20554.[^11]

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 Shawn Deroux 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, 303(n).

[^2]: 47 U.S.C. § 503(b).

[^3]: Section 15.209 of the Rules provides that non-licensed
    broadcasting in the 30-88 MHz band is permitted only if the field
    strength of the transmission does not exceed 100 μV/m at three
    meters. 47 C.F.R. § 15.209. Measurements showed that the field
    strength of the station's signal exceeded the permissible level for
    a non-licensed Part 15 transmitter.

[^4]: Deroux initially identified himself as Shawn Sadler and provided
    an address of 615 Main Street, Stroudsburg, PA 18360. Agents
    subsequently identified him as Shawn Deroux from his car's license
    plate, which was registered to a Shawn Deroux at 615 Main Street,
    Stroudsburg, PA.

[^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]: 47 U.S.C. § 303(n).

[^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, 303(n).

[^11]: *See* 47 C.F.R. § 1.1914.