**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-07-BS-001       |
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| Charles Clemons                  | ) | NAL/Acct. No: 200832260002      |
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| Boston, MA                       | ) | FRN: 0017500703                 |
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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: February 29, 2008

By the District Director, Boston Office, Northeast Region, Enforcement
Bureau:

# INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture ("*NAL*"), we
    find that Charles Clemons ("Clemons") apparently willfully and
    repeatedly violated Sections 301 of the Communications Act of 1934,
    as amended ("Act")[^1] by operating an unlicensed radio transmitter
    on the frequency 106.1 MHz in Boston, MA and willfully violated
    303(n) by failing to permit a station inspection.[^2] We conclude,
    pursuant to Section 503(b) of the Act,[^3] that Clemons is
    apparently liable for a forfeiture in the amount of seventeen
    thousand dollars (\$17,000).

# BACKGROUND

2.  On January 4, 2007, the Boston Office received a complaint of an
    unlicensed station from the Southern New England Society of
    Broadcast Engineers. The complainant stated that there is an
    unlicensed pirate station broadcasting on 106.1 MHz in the
    Dorchester neighborhood of Boston, MA.

3.  On January 11, 2007, agents from the FCC's Boston Office, using a
    mobile direction-finding vehicle, monitored the frequency 106.1 MHz
    in the Dorchester neighborhood of Boston, MA. The agents observed a
    radio station broadcasting on 106.1 MHz and identified the source of
    the transmissions to be emanating from an antenna located atop the
    building at 487 Blue Hill Avenue, Boston, MA. The agents observed a
    cable running from the roof of 487 Blue Hill Avenue to the roof of
    an adjacent building, located at 7 Cheney Street. 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")[^4] and therefore the station required
    a license. FCC records show that no license had been issued to
    operate an FM broadcast station on 106.1 in Boston, MA.

4.  On that same day, after completing field strength measurements, the
    agents entered the building at 7 Cheney Street to conduct a station
    inspection. The agents encountered a man who identified himself as
    Charles Clemons. Clemons refused to allow an inspection of his
    station. The agents presented Clemons with a handwritten Notice of
    Unlicensed Radio Operation (NOUO), which advised Clemons that he
    must discontinue the unlicensed operation immediately and outlined
    the possible penalties for continued operation of an unlicensed
    station.

5.  On January 25, 2007, the Boston Office sent a written NOUO to
    Charles Clemons for unlicensed operation on January 11, 2007 via
    certified mail and regular mail to 7 Cheney Street in Boston, MA.
    The certified letter receipt indicates the letter was successfully
    delivered to the subject on January 26, 2007. To date, the Boston
    Office has not received a reply from Clemons.

6.  On August 15, 2007, the agents again observed the signal on 106.1
    MHz in Boston, MA. The agents took field strength measurements and
    determined that the signals being broadcast exceeded the limits for
    operation under Part 15 of the Rules[^5] and therefore required a
    license. The agent searched Commission databases and found no
    evidence of a Commission authorization for operation on 106.1 MHz in
    Boston, MA.

7.  On January 7, 2008, the agents observed the signal on 106.1 MHz in
    Boston, MA and, using mobile direction finding techniques,
    determined that the source of the transmission was an antenna
    located on the top of a building located at 487 Blue Hill Avenue,
    Boston, MA. The agents observed a cable running from the roof of 487
    Blue Hill Avenue to the roof of an adjacent building, located at 7
    Cheney Street. The agents took field strength measurements and
    determined that the signals being broadcast exceeded the limits for
    operation under Part 15 of the Rules[^6] and therefore required a
    license. The agent searched the Commission database and found no
    evidence of a Commission authorization for operation on 106.1 MHz in
    Boston, MA. The agents spoke with Charles Clemons in the building
    located at 7 Cheney Street. When confronted with the station's
    operation, Clemons did not deny operating the station. The agents
    advised Clemons that he must discontinue the unlicensed operation
    immediately and outlined the possible penalties for continued
    operation of an unlicensed station. When the agents asked to conduct
    an inspection of the station, Clemons refused. When questioned, he
    stated that the studio was at a different location, but refused to
    provide the address.

8.  Agents also determined that the station is streamed live on the
    Internet at [www.touchfm.org](http://www.touchfm.org/). On the
    website page that provides information about the station, Charles
    Clemons is identified as one of the station's founders.

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

10. 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 Rules and with a license issued by the
    Commission. On January 11, 2007, August 15, 2007, and January 7,
    2008, agents determined that Clemons operated radio transmission
    equipment at 487 Blue Hill Avenue in the Dorchester neighborhood of
    Boston, MA without the required Commission authorization. Clemons
    received written notices on January 11 and January 25, 2007, that
    his operation of the station was unauthorized. Because Clemons
    continued to operate the station even after receiving a written
    warning, his violation is willful. Clemons violation occurred on
    more than one day, therefore, it is repeated. Based on the evidence
    before us, we find that Clemons apparently willfully and repeatedly
    violated Section 301 of the Act by operating an FM radio transmitter
    without a license on 106.1 MHz in Boston, MA.

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.[^9] On January 11, 2007, and January 7, 2008, Clemons
    refused to allow agents to inspect the station. We therefore find
    that Clemons willfully violated Section 303(n) of the Act by failing
    to allow an inspection of his station.

12. 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 an inspection is \$7,000.[^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 Clemons is apparently
    liable for a \$17,000 forfeiture.

# ORDERING CLAUSES

13. 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, Charles Clemons 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 Communications
    Act.[^12]

14. **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, Charles Clemons **SHALL
    PAY** the full amount of the proposed forfeiture or **SHALL FILE** a
    written statement seeking reduction or cancellation of the proposed
    forfeiture.

15. 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.

16. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Northeast Region, Boston Office, 1
    Batterymarch Park, Quincy, MA, 02169 and must include the NAL/Acct.
    No. referenced in the caption.

17. 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.

18. 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]^3^

19\. **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 Charles Clemons at his address of
record.

FEDERAL COMMUNICATIONS COMMISSION

Dennis Loria

District Director,

Boston Office

Northeast Region

Enforcement Bureau

[^1]: 47 C.F.R. § 301.

[^2]: 47 U.S.C. § 303(n).

[^3]: 47 U.S.C. § 503(b).

[^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 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.

[^5]: *See supra* n. 5.

[^6]: *See supra* n. 5.

[^7]: 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).

[^8]: 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."

[^9]: 47 U.S.C. § 303(n).

[^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. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80, 47
    U.S.C. §§ 301, 303(n).

[^13]: ^13^ *See* 47 C.F.R. § 1.1914.