Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Andres Santos ) NAL/Acct. No. 815TP0007 Orlando, Florida ) FORFEITURE ORDER Adopted: March 31, 1999 Released: April 6, 1999 By the Director, Legal Services Group Compliance and Information Bureau: I. INTRODUCTION 1. Before the Compliance and Information Bureau ("the Bureau") is a Notice of Apparent Liability ("NAL"), issued on September 24, 1998, to Andres Santos, and the response filed thereto by Mr. Santos on October 20, 1998. The NAL proposes imposition of a forfeiture in the amount of $6,000 pursuant to Section 503(b) of the Communications Act of 1934, as amended ("the Act"), 47 U.S.C.  503(b), and Section 1.80 of the Commission's Rules ("the Rules"), 47 C.F.R.  1.80, for willful violation of Section 301 of the Act, 47 U.S.C.  301. For the reasons noted below, we affirm the $6,000 forfeiture amount. II. BACKGROUND 2. On February 6, 1997, the Bureau's Tampa, Florida Field Office conducted an investigation and determined that Mr. Santos was operating an unlicensed broadcast station on frequency 97.1 MHz from 4300 South Semoran Boulevard, Suite 210, Orlando Florida. During the investigation, Mr. Santos was verbally informed about the licensing requirements of Section 301 of the Act pertaining to operation of a broadcast station and was warned about the penalties for operating an unlicensed broadcast station. Mr. Santos turned off his transmitter at that time. 3. On February 11, 1997, the Tampa Field Office issued an Official Notice to Mr. Santos, notifying him that his unlicensed operation violated Section 301 of the Act. 4. Based on reports that the station had resumed its unlicensed transmissions, on November 6, 1997, agents from the Tampa Field Office went to Orlando to investigate whether Mr. Santos had resumed transmitting on frequency 97.1 MHz. The agents confirmed that the unlicensed broadcast station was transmitting from the same location, 4300 South Semoran, Boulevard, Suite 210, Orlando, Florida. The agents determined that the station's field strength measured 711,000 microvolts per meter at 20 meters from the antenna. Non-licensed, low powered transmissions are permitted only if the field strength of the transmissions do not exceed 250 microvolts per meter at three meters. 47 C.F.R.  15.239(b). The field strength of the transmissions on frequency 97.1 MHz, when extrapolated to three meters, were determined to far exceed the permitted level for non-licensed operation, i.e., 250 microvolts per meter at three meters, as provided in Section 15.239(b) of the Rules, 47 C.F.R.  15.239(b). Therefore, a license was required for Mr. Santos' operation on frequency 97.1 MHz. See 47 U.S.C.  301. 5. After the November 6, 1997 investigation confirmed that the unlicensed operation on frequency 97.1 MHz was continuing, the Tampa Field Office issued a second Official Notice on November 25, 1997, notifying Mr. Santos that his unlicensed transmissions continued to violate Section 301 of the Act. In the Official Notice, the Tampa Field Office urged Mr. Santos to terminate his unlicensed operation on frequency 97.1 MHz. Mr. Santos was given 10 days from receipt of the Official Notice to submit statements concerning the violation. 6. The next month, on December 11, 1997, an agent from the Tampa Field Office drove to Orlando, Florida to investigate Mr. Santos' operation on frequency 97.1 MHz. The agent found that the station was still transmitting from 4300 South Semoran Boulevard, Orlando. The agent measured the station's field strength at 639,900 microvolts per meter at 29 meters from the station's antenna, which when extrapolated to three meters, far exceeded the permitted level for non-licensed operation, i.e., 250 microvolts per meter at three meters, as provided in Section 15.239(b) of the Rules. 7. On December 22, 1997, the Tampa Field Office received a letter dated December 18, 1997, from Luis F. Gomez, Jr., Esquire, on behalf of Mr. Santos. Mr. Gomez requested an extension of time to respond to the Tampa Field Office's November 25, 1997 Official Notice. In a letter dated December 23, 1997, the Tampa Field Office granted Mr. Santos' request, but noted that Mr. Santos' unlicensed operation constitutes a violation of Section 301 of the Act and that he must immediately terminate his unlicensed operation. 8. Agents from the Tampa Field Office conducted an investigation on January 27, 1998, in Orlando, Florida and determined that Mr. Santos was still transmitting on frequency 97.1 MHz from 4300 South Semoran Boulevard, Suite 210 in Orlando. The agents measured the station's field strength at 545,000 microvolts per meter at 20 meters from the station's antenna, which, when extrapolated to three meters, far exceeded the permitted level for non-licensed operation, i.e., 250 microvolts per meter at three meters, as provided in Section 15.239(b) of the Rules. 9. In spite of repeated FCC warnings, Mr. Santos was still transmitting on July 23, 1998, when agents from the Tampa Field Office drove to Orlando to investigate the status of Mr. Santos' unlicensed broadcast station. The station was still transmitting on frequency 97.1 MHz from 4300 South Semoran Boulevard in Orlando. This time, however, the agents discovered that Mr. Santos had moved his broadcast equipment from Suite 210 to Suite 209. The agents measured the station's field strength at 592,500 microvolts per meter at 20 meters from the station's antenna, which when extrapolated to three meters, far exceeded the permitted level for non-licensed operation, i.e., 250 microvolts per meter at three meters, as provided in Section 15.239(b) of the Rules. 10. On September 9, 1998, the FCC, in conjunction with the United States Marshals Service and the United States Attorney's Office, executed a warrant of arrest in rem and seized Mr. Santos' radio broadcasting equipment from 4300 South Semoran Boulevard, Suite 209, Orlando. At the time of the seizure, Mr. Santos' unlicensed broadcast station was transmitting. 11. Based on Mr. Santos' violation of Section 301 of the Act, on September 24, 1998, the Tampa Field Office issued Mr. Santos the subject NAL in the amount of $6,000. The Tampa Field Office concluded that Mr. Santos' violation was willful, as defined under Section 312(f) of the Act, because it was not caused by accident or mistake. In addition, the Tampa Field Office noted that it had repeatedly warned Mr. Santos regarding his unlicensed operation, both verbally and in writing, going back to February 6, 1997. III. DISCUSSION 12. The Tampa Field Office issued the forfeiture penalty pursuant to Section 503 of the Act and Section 1.80 of the Rules. The Tampa Field Office noted that the statutory maximum forfeiture for the unlicensed operation is $11,000. However, in assessing the forfeiture amount, the Tampa Field Office followed the forfeiture standards established in Section 503 of the Act and The Commission's Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087 (1997), recon. pending ("Policy Statement") and concluded that a forfeiture in the amount of $6,000 would be warranted. In reviewing this matter and assessing the appropriateness of the monetary forfeiture amount, we must take into account the statutory factors set forth in Section 503(b)(2)(D) of the Act, 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. 47 U.S.C.  503(b)(2)(D). 13. Mr. Santos filed a Response to the NAL on October 20, 1998. Although he argues that he "is without knowledge concerning the interpretation of the rules and regulations cited and denies that the appropriate amount of forfeiture should be $6,000 or even that forfeiture should occur," Mr. Santos contends that seizure of his radio station equipment is sufficient punishment for his violation of Section 301 of the Act. Using as a reference point, other unlicensed broadcasters, Mr. Santos states that he "is concerned with the selective nature under which the FCC is making its decisions. . . ." We find this argument to be irrelevant to the case at hand because the only issue before us is whether Mr. Santos' unlicensed radio operation violated Section 301 of the Act. Based on our finding that Mr. Santos' unlicensed operation violated Section 301 of the Act, we then need to determine the appropriate sanction for the violation. The penalties for violation of Section 301 of the Act include a monetary forfeiture as well as seizure of the property. See 47 U.S.C.  503 and 510. These enforcement sanctions are not mutually exclusive and may be utilized by the Bureau in the exercise of its discretion based on the facts, either singularly or in combination, to address violations of Section 301 of the Act. 14. Mr. Santos contends further that his actions were never deliberate nor willful because he consulted with legal counsel and never intended to violate the law or any of the FCC's Rules. This argument is without merit. Agents from the Tampa Field Office verbally warned Mr. Santos--in-person--that his unlicensed operation was a violation of Section 301 of the Act. The Tampa Field Office followed the verbal warnings with written Official Notices and various other correspondence that it mailed to Mr. Santos or his attorney. Therefore, we find that the violation was willful. 15. Mr. Santos also makes reference to a request for a special temporary authorization ("STA") to operate a broadcast station filed with the Commission in August of 1997 that supposedly is still pending with the FCC. Interestingly, he does not refer to a letter dated April 7, 1998, from the FCC's Mass Media Bureau, Audio Services Division, replying to what it characterizes as Mr. Santos' October 3, 1997 STA request. In the letter, the Audio Services Division denied Mr. Santos' STA request because he failed to include the necessary Anti-Drug Abuse certification. Nevertheless, in examining the substance of Mr. Santos' STA request, the Audio Services Division still found it deficient. For example, the Audio Services Division informed Mr. Santos that "[y]ou indicated that you are employing a consulting broadcasting engineer to prepare an application for [y]our proposed station; however, as of this date no application has been filed." The Audio Services Division noted that it found that Mr. Santos' STA request "fails to demonstrate the existence of an 'exceptional situation' meeting the requirements of Section 15.7(a)" of the Rules, 47 C.F.R.  15.7(a), and specifically stated that Mr. Santos has "no authority to operate an FM radio station in the manner proposed in the request for an STA or in the application for a construction permit." Furthermore, the Audio Services Division added that "any operation that occurred during the pendency of the subject request and application was unauthorized." We therefore find that the referenced STA request provides no color of authority for Mr. Santos' unlicensed operation on frequency 97.1 MHz. Moreover, filing of an STA does not convey operating authority to the requestor, i.e., the STA must be granted before the requested operation can be commenced. Furthermore, as noted above, the Audio Services Division put Mr. Santos on notice that he needed an FCC authorization to operate his broadcast station. 16. Lastly, Mr. Santos presents his financial status as a basis for us to reduce the amount of his NAL. He alleges that his salary is $27,712.28 per year and that his expenses, not including payments for the equipment that the Government seized, amount to $3078.74 per month or $36,944.88 per year. With respect to the financial information Mr. Santos submits in support of his claim that the forfeiture would impose a hardship on him, we note that there is no verification of the authenticity of his submission, no indication of the source or scope of the financial information presented therein, and no evidence that the figures were prepared in accordance with generally accepted accounting procedures. The NAL clearly states, at footnote two, that a claim of inability to pay should be supported by tax returns or other financial statements prepared under generally acceptable accounting procedures for the most recent three year period. Mr. Santos has provided no such documentation, nor has he offered any explanation of the document that he submitted that would allow the Commission to assess the validity of his hardship claim. See, e.g., PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 (1992) (a licensee's gross revenues are generally the best indicator of its ability to pay a forfeiture); In re Barry A. Stevenson, 12 FCC Rcd 1976, 1977 (1997) (Commission requires petitioners claiming inability to pay forfeitures to provide financial statements prepared in accordance with generally accepted accounting procedures for the most recent three years). 17. In sum, we are not persuaded by Mr. Santos' pleas of ignorance of the law. The record is replete with evidence to support a finding that Mr. Santos repeatedly and willfully violated Section 301 of the Act by operating an unlicensed broadcast station that transmitted on frequency 97.1 MHz from 4300 South Semoran Boulevard, Orlando, Florida. Additionally, we have evaluated the financial information that Mr. Santos submitted, and find that it does not comport with our standards. Therefore, after considering the record and Mr. Santos' response to the NAL, pursuant to the statutory factors set forth above and in conjunction with the Policy Statement, we believe that a monetary forfeiture in the amount of $6,000 is warranted. IV. ORDERING CLAUSES 18. IT IS ORDERED that, pursuant to Section 503(b) of the Act, 47 U.S.C.  503(b), and Section 1.80 of the Rules, 47 C.F.R.  1.80, that Andres Santos IS LIABLE FOR A MONETARY FORFEITURE in the amount of $6,000 for violation of Section 301 of the Communications Act of 1934, as amended, 47 U.S.C.  301. 19. IT IS FURTHER ORDERED that, pursuant to Section 1.80(f) of the Rules, 47 C.F.R.  1.80(f), that Andres Santos shall, within thirty (30) days of the date of release of this FORFEITURE ORDER pay the full amount of the forfeiture. Forfeitures shall be paid by check or money order drawn on a U.S. financial institution payable to the Federal Communications Commission. Payment may also be made by credit card with appropriate documentation. The remittance should be marked "NAL/Acct. No. 815TP0007" and mailed to the following address: Federal Communications Commission Post Office Box 73482 Chicago, IL 60673-7482 Petitions for reconsideration pursuant to Section 1.106 of the Rules, 47 C.F.R.  1.106, or applications for review pursuant to Section 1.115 of the Rules, 47 C.F.R.  1.115, should be sent to: Office of the Secretary Federal Communications Commission 445 12th Street, S.W. Washington, D.C. 20554 Attn: Mail Stop 1500E3-DLH Compliance and Information Bureau 20. IT IS FURTHER ORDERED that, a copy of this FORFEITURE ORDER shall be sent by certified mail, return-receipt requested, to Andres Santos 7830 Killian Drive, Orlando, Florida 32822 and to his attorney, Luis Gomez, Esq. FEDERAL COMMUNICATIONS COMMISSION Ricardo M. Durham Director, Legal Services Group Compliance Division Compliance and Information Bureau