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                           Before the
                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
                                )
                                             FRN No.0007-0497-52


           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                          Released:  June 5, 2002
By the Enforcement Bureau, Tampa Office:

                        I.  INTRODUCTION

     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).

                         II.  BACKGROUND

     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.

                        III.  DISCUSSION

     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 
proposed forfeiture.

     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 
submitted.  

     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, 
D.C. 20554.9 

     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 
34109.



                               FEDERAL COMMUNICATIONS COMMISSION
                                                  

                                                       

                               Ralph M. Barlow
                               District Director, Tampa Office
                               Enforcement Bureau
_________________________

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.