No Attorney Present When FCC Visits? Too Bad
     

Just because your attorney isn’t present when FCC agents come a-knocking doesn’t mean evidence they might collect will be thrown out later.

That’s one of the lessons for a taxi company owner in Spring Valley, N.Y., who’d contested a $10,000 commission fine.

The case dates to an FM interference problem that cropped up on 90.5 MHz in the New York City area in late 2009. A WFUV listener complained.

As RW subsequently reported, the FCC traced the signal to a building leased by P.C. Taxi Services and P.C. Auto Repair. During an inspection visit, it said, owner Vicot Chery showed agents an operating station in a room, an FM antenna on the roof and a transmitter hidden behind a stack of car tires. According to the commission account, he told the agents he was allowing a friend to use the space to operate the station; and he turned the transmitter off, agreeing to remove the antenna.

The FCC then issued a notice of apparent liability to Chery over objections of his lawyer, who argued that the owner had “had no knowledge of the events which you have charged him with.” But the FCC said the station was in a building leased by Chery for his businesses and that he had “demonstrated control over the management of the station as a whole. … The fact that someone else also may have been involved in the station’s operation does not make Chery any less of a participant in the station’s operation.”

Now the FCC Enforcement Bureau has confirmed the $10,000 penalty and rejected Chery’s additional arguments that he’d been contacted by agents without the knowledge of his attorney and that the penalty would pose an “absolute hardship.”

On the question of the attorney, Chery’s lawyer said that agents conducted the inspection and interviewed him without an attorney present and therefore any “evidence taken under these circumstances should be discounted.” The commission replied that it is authorized by law to inspect all radio installations associated with stations required to be licensed, and it reiterated that agents are not required to obtain a warrant.

Also, the FCC staff said, its inspection is not a criminal investigation. “Any questioning that occurs as part of the fact-finding process in a non-custodial, civil, administrative proceeding, does not require the presence of counsel.” That’s different, it explained, from a situation in which a person is taken into custody in what’s called a custodial interrogation; here, agents were investigating a complaint and traced the transmissions, prompting questions and a request to inspect as part of their fact-gathering. Chery voluntarily led agents to where the antenna and radio transmitter were located, and voluntarily responded to questions, it ruled.

The FCC staff again rejected the idea that Chery had not been aware of the operation and said he had exercised control of the station. And it said Chery submitted no documentation to support his claim of financial hardship, even though the Bureau staff provided him an additional opportunity to do so.

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