Federal Communications Commission DA 11-1577 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Fritzner Lindor Orange Park, Florida ) ) ) ) ) ) File No.: EB-10-TP-0077 NAL/Acct. No.: 201132700007 FRN No.: 0020856266 FORFEITURE ORDER Adopted: September 20, 2011 Released: September 20, 2011 By the Regional Director, South Central Region, Enforcement Bureau: I. INTRODUCTION 1. In this Forfeiture Order (“Order”), we issue a monetary forfeiture in the amount of three hundred dollars ($300) to Fritzner Lindor (“Mr. Lindor”) for willful and repeated violation of section 301 of the Communications Act of 1934, as amended (“Act”).1 The noted violations involved Mr. Lindor’s operation of an unlicensed radio station on the frequency 94.7 MHz in Orange Park, Florida. II. BACKGROUND 2. On May 16, 2011, the Enforcement Bureau’s Tampa Office (“Tampa Office”) issued a Notice of Apparent Liability for Forfeiture (“NAL”) 2 to Mr. Lindor for operating an unlicensed radio station. In view of the record evidence discussed in detail in the NAL, including the fact that Mr. Lindor admitted that he knew his action violated the Act, the NAL proposed a forfeiture of $15,000 against Mr. Lindor for violation of section 301 of the Act.3 Mr. Lindor submitted a response to the NAL acknowledging that he committed the violation, but denying that he “used the radio knowing that it was illegal.”4 Mr. Lindor also requests cancellation or reduction of the proposed forfeiture because he asserts that he cannot afford the proposed forfeiture.5 1 47 U.S.C. § 301. 2 Fritzner Lindor, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 6779 (Enf. Bur. 2011). A comprehensive recitation of the facts and history of this case can be found in the NAL and is incorporated herein by reference. 3 47 U.S.C. § 301. 4 Letter from Fritzner Lindor to the Tampa Office dated June 4, 2011 (“NAL Response”). 5 Id. Federal Communications Commission DA 11-1577 2 III. DISCUSSION 3. The proposed forfeiture amount in this case was assessed in accordance with section 503(b) of the Act,6 section 1.80 of the Commission’s rules,7 and the Forfeiture Policy Statement.8 In examining Mr. Lindor’s response, section 503(b) of the Act requires that the Commission 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 other such matters as justice may require.9 As discussed below, we have considered Mr. Lindor’s response in light of these statutory factors and find that reduction of the forfeiture is warranted based solely on his documented inability to pay. 4. As set forth in the NAL, agents from the Tampa Office determined that Mr. Lindor operated an unlicensed radio station on the frequency 94.7 MHz on June 8, 9, and 10, 2010. In his response to the NAL, Mr. Lindor admits to operating an unlicensed radio station, but asserts he did not know his actions were illegal.10 Such knowledge, however, is unnecessary for a violation to be willful. As the Commission has long held, “willful” is defined as the “conscious and deliberate commission or omission of [any] act, irrespective of any intent to violate” the law.11 Thus, we find that Mr. Lindor willfully and repeatedly12 violated section 301 of the Act by operating an unlicensed radio transmitter. We also find Mr. Lindor’s statement that he did not know his actions to be illegal to be unreliable, given his statements to the contrary made to agents during the inspection on June 10, 2010.13 5. Finally, Mr. Lindor asserts that payment of the forfeiture would pose a financial hardship. With regard to an individual’s or entity’s inability to pay claim, the Commission has determined that, in general, gross revenues are the best indicator of an ability to pay a forfeiture.14 Having reviewed Mr. Lindor’s submitted documentation, we conclude that the forfeiture should be reduced to $300, an amount within the range determined by the Bureau to be affordable.15 6 47 U.S.C. § 503(b). 7 47 C.F.R. § 1.80. 8 The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and Order, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) (“Forfeiture Policy Statement”). 9 47 U.S.C. § 503(b)(2)(E). 10 NAL Response at 1. 11 47 U.S.C. § 312(f)(1). 12 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.” 13 During the inspection on June 10, 2010, Mr. Lindor stated to FCC agents that he had about 19 years of experience in the broadcasting industry and knew his actions violated the Act. See NAL at 6779. 14 See PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd 2088, 2089 (1992) (forfeiture not deemed excessive where it represented approximately 2.02 percent of the violator’s gross revenues); Local Long Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000) (forfeiture not deemed excessive where it represented approximately 7.9 percent of the violator’s gross revenues); Hoosier Broadcasting Corporation, Forfeiture Order, 15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it represented approximately 7.6 percent of the violator’s gross revenues). 15 See NAL at 6779. Federal Communications Commission DA 11-1577 3 IV. ORDERING CLAUSES 6. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the Communications Act of 1934, as amended, and sections 0.111, 0.204, 0.311, 0.314, and 1.80(f)(4) of the Commission’s rules, Fritzner Lindor IS LIABLE FOR A MONETARY FORFEITURE in the amount of three hundred dollars ($300) for violations of section 301 of the Act.16 7. Payment of the forfeiture shall be made in the manner provided for in section 1.80 of the Rules within 30 days of the release of this Order. If the forfeiture is not paid within the period specified, the case may be referred to the Department of Justice for enforcement pursuant to section 504(a) of the Act.17 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 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 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. Fritzner Lindor shall also send electronic notification to SCR-Response@fcc.gov on the date said payment is made. 8. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both First Class and Certified Mail, Return Receipt Requested, to Fritzner Lindor at his address of record. FEDERAL COMMUNICATIONS COMMISSION Dennis P. Carlton Regional Director, South Central Region Enforcement Bureau 16 47 U.S.C. §§ 301, 503(b); 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80(f)(4). 17 47 U.S.C. § 504(a).