Report and Recommendation on Default Judgment — United States v. Rony Richard Louis (M.D. Fla.)

Summary

A Report and Recommendation to the United States District Court, Document 9, filed 08/18/06, Case 6:05-cv-01919-JA-KRS, United States of America v. Rony Richard Louis, Middle District of Florida, Orlando Division. The United States sued to recover $10,000.00 on an unpaid forfeiture order assessed by the Federal Communications Commission (FCC) over an unlicensed radio station. Louis did not answer, and the clerk's default was entered on February 3, 2006. The magistrate judge concludes that the FCC's base forfeiture amount was permissible and recommends that the motion for entry of default judgment be granted and judgment be entered for $10,000.00. Signed by Karla R. Spaulding, United States Magistrate Judge, on August 18, 2006.

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“Report and Recommendation on Default Judgment — United States v. Rony Richard Louis (M.D. Fla.).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-6-05-cv-01919-dkt-9-m-d-fla-bbd87f5721/, SHA-256 e64292dad52172ce506bf1e5edd7bcf30ea3cae4e3bed2e5e2c2598cb7a5d87b.

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Case 6:05-cv-01919-JA-KRS Document 9 Filed 08/18/06 Page 1 of 8 PageID 143

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
UNITED STATES OF AMERICA,

Plaintiff,

-vs- Case No. 6:05-cv-1919-Orl-28KRS

RONY RICHARD LOUIS,

Defendant.
______________________________________

REPORT AND RECOMMENDATION

TO THE UNITED STATES DISTRICT COURT

This cause came on for consideration without oral argument on the following motion filed

herein:

MOTION: MOTION FOR ENTRY OF DEFAULT JUDGMENT
(Doc. No. 8)

FILED: May 5, 2006

I. PROCEDURAL BACKGROUND.

On December 28, 2005, the United States of America filed a complaint against Defendant

Rony Richard Louis seeking to recover $10,000.00 on an allegedly unpaid order of forfeiture

assessed by the Federal Communications Commission (FCC). Doc. No. 1. Louis was served with

the summons and complaint on January 3, 2006. Doc. No. 2. After Louis failed to answer or

otherwise respond to the complaint, the United States moved for the entry of a clerk’s default, doc.

no. 6, which was entered on February 3, 2006, doc. no. 7.
Case 6:05-cv-01919-JA-KRS Document 9 Filed 08/18/06 Page 2 of 8 PageID 144

On May 5, 2006, the United States filed a motion for entry of default judgment pursuant to

Federal Rule of Civil Procedure 55(b)(2). Doc. No. 8. In support of this motion, the United States

filed the declaration of Ralph M. Barlow, the District Director of the Tampa Office of the FCC,

and the administrative record compiled by the FCC. To date, Louis has not responded to the

complaint or to the present motion. The motion has been referred to me for issuance of a report

and recommendation.

II. STANDARD OF REVIEW.

A court may enter a default judgment only if the factual allegations of the plaintiff’s

complaint, which are assumed to be true, provide a sufficient legal basis for entry of a default

judgment. Nishimatsu Constr. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)

(“The defendant is not held to admit facts that are not well-pleaded or to admit conclusions of

law.”). Therefore, in considering a motion for default judgment, a court must examine the

sufficiency of the allegations in a complaint to determine whether a plaintiff is entitled to a default

judgment. Fid. & Deposit Co. v. Williams, 699 F. Supp. 897, 899 (N.D. Ga. 1988).

The defaulting defendant does not admit the amount of damages to be awarded. See Miller

v. Paradise of Port Richey, Inc., 75 F. Supp. 2d 1342, 1346 (M.D. Fla. 1999). The plaintiff has the

burden of proving the amount of damages to be awarded. Id. “Damages may be awarded only if

the record adequately reflects the basis for the award via ‘a hearing or a demonstration by detailed

affidavits establishing the necessary facts.’” Adolph Coors Co. v. Movement Against Racism and

the Klan, 777 F.2d 1538, 1544 (11th Cir. 1985) (citing United Artists Corp. v. Freeman, 605 F.2d

854, 857 (5th Cir. 1979) (per curiam)).

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Case 6:05-cv-01919-JA-KRS Document 9 Filed 08/18/06 Page 3 of 8 PageID 145

III. ANALYSIS.

A. Liability.

1. Allegations of the Complaint.

The complaint alleges that Louis owes the United States $10,000.00 by virtue of a

forfeiture assessed by the FCC. Doc. No. 1. The Certificate of Forfeiture, which is incorporated

into the complaint, certifies that the “[t]otal forfeiture assessed by the FCC as of February 28,

2005,” is $10,000.00. Id. at 3. It “certif[ies] that [FCC] records show that [Louis] has been

ordered to pay the United States” this amount based on a Notice of Apparent Liability for

Forfeiture issued March 3, 2004, a Forfeiture Order issued May 20, 2004, and a Memorandum

Opinion and Order issued December 7, 2004. Id. Louis’s address is included in the Certificate of

Forfeiture.

2. Analysis.

The FCC has authority to issue forfeiture penalties for violations of the Communications

Act or its implementing regulations. 47 U.S.C. § 503. If the violator refuses to pay, the FCC may

file suit through the United States Attorney’s Office. 47 U.S.C. 504(a); see also Action for

Children’s Television v. F.C.C., 59 F.3d 1249, 1253–55 (D.C. Cir. 1995) (describing enforcement

scheme under the Communications Act).

To enforce a forfeiture penalty assessed by the FCC, the government must show the

following: (1) that the FCC issued a notice of apparent liability; (2) that the alleged violator

received the notice (or that the notice was sent to the alleged violator’s last known address) and

was given an opportunity to respond; and (3) that an order of forfeiture was entered. 47 U.S.C. §

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Case 6:05-cv-01919-JA-KRS Document 9 Filed 08/18/06 Page 4 of 8 PageID 146

503(b)(4); see also United States v. Rowland, Case No. 6:03-cv-106-Orl-31DAB (doc. no. 19),

2003 WL 22319074, *5 (M.D. Fla. July 8, 2003).

By failing to respond to the complaint, Louis is deemed to have admitted (1) that the FCC

issued a Notice of Apparent Liability for Forfeiture on March 3, 2004. Because the FCC will only

issue a Memorandum Opinion and Order if an alleged violator requests reconsideration of a

forfeiture order, 47 C.F.R. § 1.106(k), and because Louis is deemed to have admitted that a

Memorandum Opinion and Order was issued on December 7, 2004, he is deemed to have admitted

(2) that he received the notice of apparent liability and/or order of forfeiture and had an

opportunity to respond. Finally, because the complaint specifically references the Forfeiture Order

issued May 20, 2004, Louis is deemed to have admitted (3) that the FCC issued a forfeiture order.

This is sufficient to establish the United States’ claim under 47 U.S.C. § 503(b)(4).

B. Damages.

1. Applicable Law.

The relevant statute, 47 U.S.C. § 301, provides that “[n]o person shall use or operate any

apparatus for the transmission of energy or communications or signals by radio” from a place in

any state to another place in the same or any other state without a license from the FCC. Pursuant

to 47 U.S.C. § 503(b), the FCC is authorized to issue forfeiture penalties against any person who

“willfully or repeatedly” fails to comply with the statutes and regulations governing radio and

other broadcast media. 47 U.S.C. § 503(b). “[T]he term ‘willful’ means that the violator knew he

was taking the action in question, irrespective of any intent to violate the Act, while ‘repeatedly’

means more than once.” Rowland, 2003 WL 22319074 at *4 (citing In re Matter of Peninsula

Comm. Inc., 17 F.C.C.R. 2832, 2835-36, 2002 WL 181100 (F.C.C. Feb. 6, 2002)).

-4-
Case 6:05-cv-01919-JA-KRS Document 9 Filed 08/18/06 Page 5 of 8 PageID 147

In determining the amount of a forfeiture, the FCC must consider the nature,

circumstances, extent, and gravity of the violations, as well as the violator’s culpability, history of

prior offenses, ability to pay, and other such matters as justice may require. 47 U.S.C. §

503(b)(2)(D). The relevant regulation, 47 C.F.R. § 1.80, provides that the base amount of a

forfeiture under 47 U.S.C. § 503 for “[c]onstruction and/or operation without an instrument of

authorization for the service” is $10,000.00. See also Rowland, 2003 WL 22319074 at *4 (citing

The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to

Incorporate the Forfeiture Guidelines, 12 F.C.C.R. 17087, 17112 (1997)).

2. Evidence.

Barlow’s declaration and the administrative record indicate that in October 2003, the FCC

began investigating an unlicensed radio station broadcasting at 89.5 MHz and operated out of a

commercial building located at West Oakridge Road in Orlando, Florida. Doc. No. 8-2 at 5-6;

Doc. No. 8-9 at 13.1 Based on field tests conducted by FCC agents, it was determined that the

radio station was broadcasting at a field strength greater than that permitted by the applicable

statutes and regulations. Doc. No. 8-2 at 6.

On November 5, 2003, FCC agents, accompanied by two Orange County Sheriff’s

deputies, inspected the building and, after having been admitted by Louis, observed an RVR

Elettronica exciter and amplifier. Doc. No. 8-9 at 14-15. The FCC agents demanded that Louis

terminate any unauthorized operation of a radio station. Doc. No. 8-6 at 11; Doc. No. 8-9 at 14-

1
For the sake of convenience, I will identify relevant portions of the administrative record
by citing the page number of the exhibits filed in this Court, without regard to internal pagination.

-5-
Case 6:05-cv-01919-JA-KRS Document 9 Filed 08/18/06 Page 6 of 8 PageID 148

15. The agents requested that Louis surrender the equipment, which he did. Doc. No. 8-7 at 3;

Doc. No. 8-9 at 15.

On December 20, 2003, while on personal travel in the area of West Oakridge Road in

Orlando, an FCC agent observed transmissions on 89.5 MHz, the frequency previously used by

Louis. Doc. No. 8-9 at 15. On January 15, 2004, FCC agents returned to the area to conduct field

tests, and confirmed that unauthorized broadcasts that exceeded the permissible field strength were

being transmitted from the same location as before. Doc. No. 8-9 at 16. While the agents were

unable to speak with anyone inside the building, they observed the car Louis had previously

identified as his. Doc. No. 8-9 at 16. The following day, the agents returned and were able to

speak with Louis, who denied operating an unlicensed radio station or possessing the necessary

equipment. Doc. No. 8-9 at 17.

On January 23, 2004, FCC agents sent a warning letter to the owner of the commercial

property from which the unauthorized transmission was made. Doc. No. 8-9 at 5. The owner

responded that she had contacted Louis and demanded that he obtain a valid license or cease all

radio activity, and that Louis had indicated an antenna and radio would be removed by February 1,

2004. Doc. No. 8-9 at 10.

On March 3, 2004, the FCC issued to Louis a Notice of Apparent Liability for Forfeiture.

The notice summarized the relevant factual history and explained that pursuant to the applicable

statutes and regulations, Louis was apparently liable for a forfeiture of $10,000.00. Doc. No. 8-5

at 2-5.

On May 20, 2004, after Louis failed to respond to the notice within the time provided, the

FCC issued a Forfeiture Order for $10,000.00. Doc. No. 8-3 at 11-12. On May 24, 2004, Louis

-6-
Case 6:05-cv-01919-JA-KRS Document 9 Filed 08/18/06 Page 7 of 8 PageID 149

submitted a letter to the FCC requesting reconsideration of the forfeiture order. Doc. No. 8-3 at

10. In the request, Louis admitted to operating a radio station without authorization by the FCC,

and acknowledged receiving a warning and surrendering his equipment. Id. Louis represented

that he had not thereafter operated a radio station, and had attempted to obtain a license. Id. He

promised “that kind of behavior will never take place anymore.” Id.

On December 7, 2004, the FCC issued a Memorandum Opinion and Order denying the

petition for reconsideration and ordering the forfeiture of $10,000.00. Doc. No. 8-3 at 7-9. On

February 28, 2005, the FCC sent Louis notice that if he did not pay the amount required by the

forfeiture order, the matter would be referred to the Department of Justice. Doc. No. 8-3 at 2.

3. Analysis.

The evidence indicates that Louis was verbally warned that his operation of an unlicensed

radio station was unlawful and that he surrendered equipment to the FCC agents. Thereafter, FCC

agents observed radio broadcasts using the same frequency as Louis had used, emanating from the

same location Louis had used. While Louis denied operating an unlicensed radio station, he later

apparently represented to the owner of the property that he would obtain a license or cease further

operation.

The FCC then issued a Notice of Apparent Liability, to which Louis failed to respond. The

FCC then issued an Order of Forfeiture, to which Louis responded. The FCC considered this

response a request for reconsideration, and evaluated it as such. Based on its review of the history

of the case, the FCC declined to assess less than the base forfeiture amount.

Based on Barlow’s declaration and the administrative record, and in the absence of

objection by Louis, I conclude that the FCC’s decision to assess the base forfeiture amount was

-7-
Case 6:05-cv-01919-JA-KRS Document 9 Filed 08/18/06 Page 8 of 8 PageID 150

permissible. Because the regulations provide for a $10,000.00 base amount of a forfeiture for

violations of § 503, I conclude that the United States has satisfied its burden of showing damages

in that amount.

IV. RECOMMENDATION.

Based on the foregoing, I respectfully recommend that the United States’ Motion for Entry

of Default Judgment, doc. no. 8, be GRANTED, and that the Court enter judgment against Louis

in the amount of $10,000.00.

I further recommend that the Clerk of Court be directed to enter a judgment consistent with

the Order entered on this Report and Recommendation and, thereafter, to close the file.

Failure to file written objections to the proposed findings and recommendations contained

in this report within ten (10) days from the date of its filing shall bar an aggrieved party from

attacking the factual findings on appeal.

RECOMMENDED in Orlando, Florida on August 18, 2006.

Karla R. Spaulding
KARLA R. SPAULDING
UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

Presiding District Judge
Counsel of Record
Unrepresented Party
Courtroom Deputy

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