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Miami Pirate fined $15k
April 12, 2016 Released: April 12, 2016 By the
Regional Director, South Central Region, Enforcement Bureau INTRODUCTION 1.
FCC impose a penalty of $15,000 against Andrew O. Turner for operating an unlicensed
FM radio station on 95.9 MHz in Broward County, FL. Mr. Turner does not deny that he operated an
unlicensed station, but argues that he did not intend to cause harm or undermine the Commission’s
authority, and that he does not have the funds to pay the forfeiture. After reviewing Mr. Turner’s response
to the NAL, we find no reason to cancel, withdraw or reduce the proposed penalty, and we therefore
assess the $15,000 forfeiture the Bureau previously proposed.
II. BACKGROUND
2. In response to a complaint, on January 26, March 7, August 17, and September 9, 2015,
agents from the Enforcement Bureau’s Miami Office (Miami Office) and Tampa Office (Tampa Office)
identified and located the source of unlicensed transmissions on the frequency 95.9 MHz originating from
residences in Broward County, FL. Agents determined that Mr. Turner operated the unlicensed stations.
Mr. Turner was warned of the unlicensed operations by the Commission in writing on March 7 and
August 17, 2015.
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3. On November 20, 2015, the Enforcement Bureau’s Miami Office issued a Notice of
Apparent Liability for Forfeiture (NAL) proposing a $15,000 forfeiture against Mr. Turner for his
apparent willful and repeated violation of Section 301 of the Communications Act of 1934, as amended
(Act)
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by operating an FM broadcast transmitter without Commission authorization.
4. On December 16, 2015, Mr. Turner filed a response to the NAL.
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Mr. Turner requests
cancellation of the proposed forfeiture. While Mr. Turner does not deny operating the unlicensed station,
he states that he “had no intentions of creating or causing danger intentional or unintentional,” nor did he
Federal Communications Commission DA 16-392
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“deliberately intend to undermine the commissions’ authority.”
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Mr. Turner maintains that his broadcasts
benefit his community, and asks the Commission to cancel the forfeiture in light of those community
benefits.
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He also argues that his ministry is nonprofit and he has insufficient funds to pay the forfeiture.
III. DISCUSSION .
5. The Bureau proposed a forfeiture in this case in accordance with Section 503(b) of the
Communications Act of 1934, as amended (Act),
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Section 1.80 of the Commission’s rules (Rules),
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and
the Commission’s Forfeiture Policy Statement.
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When we assess forfeitures, Section 503(b)(2)(E)
requires that we take into account 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
such other matters as justice may require.”
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As discussed below, we have fully considered Mr. Turner’s
response to the NAL, but we find none of them persuasive. We therefore affirm the $15,000 forfeiture
proposed in the NAL.
A. The Commission of an Act, Irrespective of Any Intent to Violate the Law, Qualifies as
Willful Under Section 312 of the Act
6. Mr. Turner does not contest the facts recited in
the NAL. Instead, he requests cancellation of the proposed forfeiture because he
did not intend to cause or create danger nor did he intend to violate the Act.
12 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. Mr. Turner does not deny that he operated the station. Therefore, we find that his operation of
the station was willful, according to the Act. Even if we were to accept that the operation on the unlicensed
station was not “willful,” it was nevertheless repeated.
B. Mr. Turner’s Community Service Does Not Warrant Forfeiture Cancellation or
Reduction
7. Mr. Turner discusses a number of benefits he
claims his broadcasts provide for the community, and asks us to consider those
benefits while determining whether cancellation of the forfeiture proposed in
the NAL is warranted. We have taken those benefits into account, and we
conclude that they do not provide justification for any cancellation or
reduction of the proposed forfeiture amount. Assuming for the sake of argument
that Mr. Turner’s broadcasts provide the services he claims, it is well
established that such community service does not excuse violations of the
Communications Act or the Commission’s rules, and does not provide a mitigating
factor with respect to such violations. Moreover, Mr. Turner
could have performed his public service under Section 15.239 of the Commission’s Rules, which authorizes
low power unlicensed transmissions, but he chose not to do so.
Accordingly, we find that Mr. Turner’s service to his
community does not warrant cancellation or reduction of the proposed forfeiture
amount. C. Mr. Turner Did Not Demonstrate an Inability to Pay Warranting
Forfeiture Cancellation or Reduction 8. We decline to cancel or reduce the
forfeiture amount based on Mr. Turner’s alleged inability to pay.
We find that a forfeiture in the amount of $15,000 is warranted.
Weighing the relevant statutory factors and our own forfeiture guidelines, we conclude,
based upon the evidence before us, that the proposed forfeiture of $15,000 properly reflects the
seriousness, duration, and scope of Mr. Turner’s violations.
Based on the record before us and in light of the
applicable statutory factors, we conclude that Mr. Turner willfully and
repeatedly violated Section 301 of the Act by operating an unlicensed radio
station.
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