Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Octavio Sarmiento, Jr. ) File Number EB-02-TP-208
Naples, Florida ) NAL/Acct.No. 200232700012
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 5, 2002
By the Enforcement Bureau, Tampa Office:
1. In this Notice of Apparent Liability for Forfeiture, we
find that Octavio Sarmiento, Jr., willfully and repeatedly
violated Section 301 of the Communications Act of 1934, as
amended (``Act''),1 by operating a radio station without
Commission authorization. We conclude that Octavio Sarmiento,
Jr. is apparently liable for a forfeiture in the amount of ten
thousand dollars ($10,000).
2. On April 19, 2002, agents from the Commission's Tampa
Field Office investigated complaints of an alleged unlicensed
radio station operating on the frequency 107.5 MHz in the Naples,
Florida area causing interference to the reception of a licensed
broadcast station on 107.1 MHz. The agents detected an FM radio
signal on the frequency 107.5 MHz. This station identified as
``WTEN'' and ``Tropical Estereo.'' Using direction finding
techniques, the agents located the source of the radio
transmissions on 107.5 MHz to a single-story office building at
2201 Kirkwood Ave., Naples, Florida. Based on field strength
measurements taken by the agents of the station's signal, this
station required a license to operate.
3. Immediately after locating the radio station, the
agents inspected the facilities at that address and found
broadcast studio and radio transmitting equipment in operation on
the frequency 107.5 MHz. The agents interviewed Mr. Octavio
Sarmiento, Jr. and other individuals operating the radio station
at that address. Mr. Sarmiento stated that he was responsible
for the radio station operation and that he was president and
registered agent of ``Tropical Estereo Enterprises'' which
operated the radio station. Mr. Sarmiento stated that he had no
license authorizing operation of the radio station and that he
had submitted an application to the FCC for a Low Power FM
license.2 The agents hand delivered a warning letter to Mr.
Sarmiento for operation of the unlicensed station. The warning
letter advised Mr. Sarmiento that operation of the radio station
violated Section 301 of the Act, warned of the penalties for
violating the Act, and ordered the immediate cessation of the
unlicensed operation. Mr. Sarmiento stated that he would cease
his unlicensed radio broadcasts.
4. On April 20, 2002, the Commission agents returned to
the same area in Naples and again observed radio broadcasts on
107.5 MHz identifying as ``Estereo Tropical'' and ``WTEN.'' The
agents positively identified the source of the unauthorized
transmissions to be the same single-story office building at 2201
Kirkwood Ave., Naples, Florida.
5. Section 301 of the Act sets forth generally that no
person shall use or operate any apparatus for the transmission of
energy of communications or signals by radio within the United
States except under and in accordance with the Act and with a
license. On April 19 and April 20, 2002, Octavio Sarmiento, Jr.
operated radio transmission equipment without benefit of the
required license. Mr. Sarmiento was warned verbally and in
writing of the violation yet continued the unlicensed operation.
6. Based on the evidence before us, we find that on April
19 and 20, 2002, Octavio Sarmiento, Jr. repeatedly3 and
willfully4 violated Section 301 of the Act by operating radio
transmission apparatus without a license.
7. Pursuant to Section 1.80(b)(4) of the Commission's
Rules, the base forfeiture amount for the violation cited in this
notice is $10,000.5 Section 503(b)(2)(D) of the Act requires us
to 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.''6
Considering the entire record and applying the statutory factors
listed above, this case warrants a $10,000 forfeiture.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,7 and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules,8 Octavio Sarmiento, Jr. is hereby NOTIFIED of
his APPARENT LIABILITY FOR A FORFEITURE in the amount of ten
thousand dollars ($10,000) for willful and repeated violation of
Section 301 of the Communications Act of 1934, as amended.
9. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules, within thirty days of the release date of
this NOTICE OF APPARENT LIABILITY, Octavio Sarmiento, Jr. SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
10. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment must include
the FRN and NAL/Acct. No. referenced in the letterhead above.
11. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street, SW, Washington, DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division, and MUST INCLUDE THE
NAL/Acct. No. and FRN referenced in the letterhead above.
12. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the petitioner submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices (``GAAP'');
or (3) some other reliable and objective documentation that
accurately reflects the petitioner's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
13. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Federal Communications Commission, Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
14. IT IS
FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT LIABILITY
shall be sent by Certified Mail Return Receipt Requested to
Octavio Sarmiento, Jr. at 2431 Bear Creek Drive, Naples, Florida
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director, Tampa Office
1 47 U.S.C. § 301
2 On April 24, 2002, the Tampa Office received from the FCC's
Media Bureau a copy of a letter sent by the Media Bureau to Mr.
Octavio Sarmiento, Jr. The letter accompanied the return of FCC
Form 319, application for Low Power FM radio station. The
application was returned for untimely filing of the wrong FCC
application with incorrect parameters. The Form 319 was signed
``Octavio Sarmiento Jr, President and Manager.''
3 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which
applies equally to 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.''
4 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies equally to Section 503(b) of the Act, provides that
``[t]he term `willful,' when used with reference to the
commission or omission of any act, means the conscious and
deliberate commission or omission of such act, irrespective of
any intent to violate any provision of this Act....'' See
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
5 47 C.F.R. § 1.80(b)(4)
6 47 U.S.C. § 503 (b)(2)(D)
7 47 U.S.C. § 503(b).
8 47 C.F.R. §§ 0.111, 0.311, 1.80.
9 See 47 C.F.R. § 1.1914.