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 Federal  Communications  Commission 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of  )  )  File  No.  EB-  02-  NY-  279 
 )  Emmanuel  Frederic  )  NAL/  Acct.  No.  200332380012 
 Brooklyn,  NY  )  )  FRN:  0007-  9945-  02 


 NOTICE  OF  APPARENT  LIABILITY  FOR  FORFEITURE 
 Released:  January  23,  2003 
 By  the  District  Director,  New  York  Office,  Enforcement  Bureau: 
 I.  INTRODUCTION 
 1.  In  this  Notice  of  Apparent  Liability  for  Forfeiture  ("  NAL"),  we  find  that  Emmanuel  Frederic  has  apparently  violated  Section  301  of  the  Communications  Act  of  1934  (  Act),  1  as  amended, 
 by  operating  an  unlicensed  radio  transmitter  on  frequencies  of  89.  7  and  87.9  MHz.  We  conclude  that  Emmanuel  Frederic  is  apparently  liable  for  a  forfeiture  in  the  amount  of  ten  thousand  dollars  ($  10,000). 


 II.  BACKGROUND 
 2.  On  November  1,  2002,  Commission  agents  investigated  the  operation  of  unlicensed  FM  broadcast  stations  in  Brooklyn,  NY.  Using  a  mobile  direction-  finding  vehicle,  the  agents  observed 
 unauthorized  radio  broadcast  on  89.7  MHz,  and  positively  identified  the  source  of  the  unauthorized  transmissions  to  1024  Montgomery  Street,  Brooklyn,  NY,  11213.  There  was  no  evidence  of  a 
 Commission  authorization  for  this  operation  in  Brooklyn,  NY. 
 3.  On  November  2,  2002,  a  Commission  agent  returned  to  1024  Montgomery  Street,  Brooklyn,  NY,  and  observed  a  vertical  antenna  on  the  roof  of  the  building,  from  which  a  coaxial  cable  ran 
 into  Apartment  3K  of  the  building.  The  agent  then  conducted  a  station  inspection  and  determined  that  Emmanuel  Frederic,  who  lives  in  Apartment  3K  of  the  building,  was  the  operator  of  the  unlicensed 
 station.  Beginning  in  October  2000  to  November  2001,  Commission  agents,  on  many  occasions,  had  positively  observed  unauthorized  radio  broadcast  of  Emmanuel  Frederic  from  1024  Montgomery  Street, 
 Apartment  3K,  Brooklyn,  NY,  and  other  locations  in  Brooklyn,  NY. 
 4.  On  November  4,  2002,  Emmanuel  Frederic,  in  a  telephone  conversation  with  a 


 1  47  U.  S.  C.    301. 
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 Commission  agent,  acknowledged  the  operation  of  an  unlicensed  radio  station  located  at  1024  Montgomery  Street,  Apartment  3K,  Brooklyn,  NY. 
 5.  On  December  6,  2002,  a  Commission  agent  investigated  the  operation  of  unlicensed  FM  broadcast  stations  in  Brooklyn,  NY.  Using  a  mobile  direction  finding  vehicle,  the  agent  observed 
 unauthorized  radio  broadcast  on  87.9  MHz,  and  positively  identified  the  source  of  the  unauthorized  transmissions  to  1024  Montgomery  Street,  Brooklyn,  NY,  11213.  There  was  no  evidence  of  a 
 Commission  authorization  for  this  operation  in  Brooklyn,  NY. 
 III.  DISCUSSION 
 6.  Section  301  of  the  Act  sets  forth  generally  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.  A  review  of  Commissions  records  showed  that  there  was  no  evidence  of  a  Commission  authorization  to  operate  this 
 station  on  89.7  or  87.  9  MHz  in  Brooklyn,  NY. 
 7.  Based  on  the  evidence  before  us,  we  find  that,  Emmanuel  Frederic  was  responsible  for  the  operation  of  radio  transmitting  equipment  on  89.7  MHz  on  November  1,  2002,  and  on  87.  9  MHz  on 
 December  6,  2002,  in  willful  2  and  repeated  3  violation  of  Section  301  of  the  Act. 


 8.  The  Commissions  Forfeiture  Policy  Statement  and  Amendment  of  Section  1.80  of  the  Rules  to  Incorporate  the  Forfeiture  Guidelines,  12  FCC  Rcd  17087,  17113  (1997),  recon.  denied,  15  FCC 
 Rcd  303(  1999)  (  Forfeiture  Policy  Statement)  4  ,  sets  the  base  forfeiture  amount  for  operation  without  an  instrument  of  authorization  at  $10,000.  In  assessing  the  monetary  forfeiture  amount,  we  must  take  into 
 account  the  statutory  factors  set  forth  in  Section  503(  b)(  2)(  D)  of  the  Act,  5  which  include  the  nature,  circumstances,  extent,  and  gravity  of  the  violation,  and  with  respect  to  the  violator,  the  degree  of 
 culpability,  any  history  of  prior  offenses,  ability  to  pay,  and  other  such  matters  as  justice  may  require.  Applying  the  Forfeiture  Policy  Statement  and  the  statutory  factors  to  the  instant  case  and  applying  the 
 inflation  adjustments,  we  believe  that  a  ten  thousand  dollar  ($  10,000)  monetary  forfeiture  is  warranted. 
 IV.  ORDERING  CLAUSES 


 2  Section  312(  f)(  1)  of  the  Act,  47  U.  S.  C.  312(  f)(  1),  which  applies  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). 
 3  Section  312(  f)(  2),  which  also  applies  to  Section  503(  b),  provides:  [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. 


 4  47  C.  F.  R.    1.80. 
 5  47  U.  S.  C.    503(  b)(  2)(  D). 
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 9.  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  Commissions  Rules  7  ,  Emmanuel  Frederic  is  hereby  NOTIFIED  of 
 their  APPARENT  LIABILITY  FOR  A  FORFEITURE  in  the  amount  of  ten  thousand  dollars  ($  10,000)  for  willfully  violating  Section  301  of  the  Act. 


 10.  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,  Emmanuel 
 Frederic  SHALL  PAY  the  full  amount  of  the  proposed  forfeiture  or  SHALL  FILE  a  written  statement  seeking  reduction  or  cancellation  of  the  proposed  forfeiture. 


 11.  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.  200332380012  and  FRN:  0007-  9945-  02. 


 12.  Any  response  to  this  NAL  must  be  mailed  to  Federal  Communications  Commission,  Enforcement  Bureau,  Technical  and  Public  Safety  Division,  445  12th  Street,  S.  W.,  Washington,  D.  C. 
 20554  and  MUST  INCLUDE  THE  NAL/  Acct.  No.  200332380012. 


 13.  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  petitioners 
 current  financial  status.  Any  claim  of  inability  to  pay  must  specifically  identify  the  basis  for  the  claim  by  reference  to  the  financial  documentation  submitted. 


 14.  Requests  for  payment  of  the  full  amount  of  this  Notice  of  Apparent  Liability  under  an  installment  plan  should  be  sent  to:  Chief,  Revenue  and  Receivable  Operations  Group,  445  12th  Street, 
 S.  W.,  Washington,  D.  C.  20554.  8 


 15.  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  Technical  and  Public  Safety  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  FCCs  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 


 6  47  U.  S.  C.    503(  b). 
 7  47  C.  F.  R.    0.  111,  and  0.311. 
 8  See  47  C.  F.  R.    1.1914. 
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 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. 
 16.  IT  IS  FURTHER  ORDERED  THAT  a  copy  of  this  NOTICE  OF  APPARENT  LIABILITY  shall  be  sent  by  Certified  Mail  Return  Receipt  Requested  to  Emmanuel  Frederic,  1024 
 Montgomery  Street,  Apartment  3K,  Brooklyn,  NY  11213. 
 FEDERAL  COMMUNICATIONS  COMMISSION 


 Daniel  W.  Noel  District  Director 
 New  York  Office 


 Attachment  A:  Condensed  List  of  Small  Entities 
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