**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+-----------------------------------+---+-------------------------------+
| In the Matter of                  | * | File Number EB-03-TP-110      |
|                                   | * |                               |
| Gary M. Feldman                   | ) | NAL/Acct. No.200432700008     |
|                                   | * |                               |
| 5500 N.W. 4th Avenue              | * | FRN 00010018281               |
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| Miami, Florida                    | * |                               |
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## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Released:** February 4, 2004

By the Enforcement Bureau, Tampa Office:

**I.** **INTRODUCTION**

1.  In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
    Gary M. Feldman ("Mr. Feldman") apparently liable for forfeiture in
    the amount of ten thousand dollars (\$10,000) for willful violation
    of Section 301 of the Communications Act of 1934, as amended
    ("Act").[^1] Specifically, we find Mr. Feldman apparently liable for
    the operation of an FM broadcast station on the frequency 91.9 MHz
    without Commission authorization.

**II. BACKGROUND**

2.  On March 5, 2003, agents from the FCC Enforcement Bureau\'s Tampa
    Field Office received information alleging that an unlicensed radio
    station operated on 91.9 MHz in the Ft. Myers, Florida area.

3.  Using direction-finding techniques, two Tampa Field Office agents
    determined that a radio broadcast station operated on the frequency
    91.9 MHz from a commercial business located at 2243 Cleveland
    Avenue, Suite A, Ft. Myers, Florida. Based on field strength
    measurements taken by the agents of the station's signal, the
    station required a Commission authorization to operate.[^2] FCC
    license records showed no license issued for an FM broadcast station
    at that location or for the frequency 91.9 MHz in the Ft. Myers,
    Florida area.

4.  Still on March 5, 2003, the Tampa Field Office agents inspected the
    radio station broadcasting on 91.9 MHz at 2243 Cleveland Avenue,
    Suite A, in Ft. Myers, Florida. The agents found an FM broadcast
    transmitter inside the suite. The operator, Gary M. Feldman,
    admitted to operating the station without an FCC license and was
    given a warning letter for unlicensed radio operation. Mr. Feldman
    was the only person present at the studio. Mr. Feldman stated that
    he had been on the air from this location for about two weeks and
    that he was operating the station to promote his DJ services at the
    local nightclubs.

**III**. **DISCUSSION**

5.  Section 301 of the Act requires that no person shall use or operate
    any apparatus for the transmission of energy of communications or
    signals by radio within the United States except under and in
    accordance with the Act and with a license. On March 5, 2003, Mr.
    Feldman operated radio transmitting equipment on the frequency 91.9
    MHz without the required Commission authorization.

6.  Based on the evidence before us, we find that on March 5, 2003, Mr.
    Feldman willfully[^3] violated Section 301 of the Act by operating
    radio transmission apparatus without a license.

7.  Pursuant to Section 1.80(b)(4) of the Rules,[^4] the base forfeiture
    amount for operating a radio station without an instrument of
    authorization for the service is \$10,000. 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 violation, and
    with respect to the violator, the degree of culpability, any history
    of prior offenses, ability to pay, and other such matters as justice
    may require.[^5] Considering the entire record and applying the
    factors listed above, this case warrants a \$10,000 forfeiture.

**IV. ORDERING CLAUSES**

Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
Act,[^6] and Sections 0.111, 0.311 and 1.80 of the Rules,[^7] Gary M.
Feldman is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of ten thousand dollars (\$10,000) for willful violation
of Section 301 the Act by operating radio transmitting equipment on the
frequency 91.9 MHz without benefit of the required Commission
authorization.

8.  IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the Rules,
    within thirty days of the release date of this NAL, Gary M. Feldman
    SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
    written statement seeking reduction or cancellation of the proposed
    forfeiture.

9.  Payment of the forfeiture may be made by mailing a check or similar
    instrument, payable to the order of the Federal Communications
    Commission, to the Forfeiture Collection Section, Finance Branch,
    Federal Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482. The payment should note the NAL/Acct. No. and FRN
    referenced above. Requests for payment of the full amount of this
    NAL under an installment plan should be sent to: Chief, Revenue and
    Receivables Operations Group, 445 12th Street, S.W., Washington,
    D.C. 20554.[^8]

10. The response, if any, must be mailed to Federal Communications
    Commission, Office of the Secretary, 445 12^th^ Street SW,
    Washington DC 20554, Attn: Enforcement Bureau-Spectrum Enforcement
    Division and MUST INCLUDE THE NAL/Acct. No. and FRN referenced
    above.

11. 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.

12. Under the Small Business Paperwork Relief Act of 2002, Pub L. No.
    107-198, 116 Stat. 729 (June 28, 2002), the FCC is engaged in a
    two-year tracking process regarding the size of entities involved in
    forfeitures. If you qualify as a small entity and if you wish to be
    treated as a small entity for tracking purposes, please so certify
    to us within thirty (30) days of this NAL, either in your response
    to the NAL or in a separate filing to be sent to the Spectrum
    Enforcement Division. Your certification should indicate whether
    you, including your parent entity and its subsidiaries, meet one of
    the definitions set forth in the list provided by the FCC's Office
    of Communications Business Opportunities (OCBO) set forth in
    Attachment A of this Notice of Apparent Liability. This information
    will be used for tracking purposes only. Your response or failure to
    respond to this question will have no effect on your rights and
    responsibilities pursuant to Section 503(b) of the Communications
    Act. If you have questions regarding any of the information
    contained in Attachment A, please contact OCBO at (202) 418-0990.

13. IT IS FURTHER ORDERED THAT a copy of this NAL shall be sent by
    regular mail and Certified Mail Return Receipt Requested to Gary M.
    Feldman, 5500 N.W. 4th Avenue, Miami, Florida 33127.

FEDERAL COMMUNICATIONS COMMISSION

Ralph M. Barlow

###  District Director

###  Tampa Field Office, Enforcement Bureau

Attachment

[^1]: 47 U.S.C. § 301.

[^2]: *See* 47 C.F.R. § 15.239(b).

[^3]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies
    equally to 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...." *See Southern California Broadcasting Co*., 6 FCC Rcd
    4387 (1991).

[^4]: 47 C.F.R. § 1.80(b)(4).

[^5]: 47 U.S.C. § 503(b)(2)(D).

[^6]: 47 U.S.C. § 503(b).

[^7]: 47 C.F.R. §§ 0.111, 0.311, 1.80.

[^8]: *See* 47 C.F.R. § 1.1914.