Click here for Adobe Acrobat version
Click here for Microsoft Word version
******************************************************** 
                      NOTICE
********************************************************

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.

*****************************************************************




                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                        )                               
                                                        
                        )                               
                                                        
     In the Matter of   )   File Number: EB-07-NY-067   
                                                        
     Nicolas Paula      )   NAL/Acct. No: 200832380001  
                                                        
     Bronx, New York    )   FRN: 0016 3880 01           
                                                        
                        )                               
                                                        
                        )                               


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                                   Released: November 6, 2007

   By the District Director, New York Office, Northeast Region, Enforcement
   Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       that Nicolas Paula apparently willfully and repeatedly violated
       Sections 301 of the Communications Act of 1934, as amended ("Act"), by
       operating an unlicensed radio transmitter on the frequency 94.5 MHz,
       and willfully violated Section 303(n) of the Act by failing to permit
       a station inspection. We conclude, pursuant to Section 503(b) of Act,
       that Nicolas Paula is apparently liable for a forfeiture in the amount
       of seventeen  thousand dollars ($17,000).

   II. BACKGROUND

    2. In February, 2007, the FCC's Enforcement Bureau received several
       complaints from New York City area radio broadcasters of an unlicensed
       station operating on 94.5 MHz. The complaints were subsequently
       forwarded to the Enforcement Bureau's New York Office for further
       investigation.

    3. On March 3, 2007, Commission agents, using a mobile direction-finding
       vehicle, monitored the frequency 94.5 MHz in Bronx, New York. The
       agents observed a radio broadcast on 94.5 MHz and identified the
       source of the transmissions as an FM broadcasting antenna mounted on
       the roof of an apartment building at 317 East 178th Street, Bronx, NY.
       The agents took field strength measurements and determined that the
       signals being broadcast exceeded the limits for operation under Part
       15 of the Commission's Rules ("Rules") and therefore required a
       license. An agent searched Commission databases and found no evidence
       of a Commission authorization for this operation on 94.5 MHz in Bronx,
       New York.

    4. After completing the field strength measurements on March 3, 2007, the
       agents returned to 317 East 178th Street and observed the FM antenna
       mounted on the roof and antenna coaxial cable that ran into a window
       of Apartment 5B of 317 East 178th Street. The agents rang the doorbell
       to apartment 5B and no one answered. The agents left a hand-delivered
       Notice of Unlicensed Operation ("NOUO") under the door of Apartment
       5B. The NOUO warned the resident that operation of the unlicensed
       radio station on 94.5 MHz violated 47 U.S.C. S: 301; outlined the
       potential penalties for operating an unlicensed station in violation
       of 47 U.S.C. S: 301, including seizure of the equipment, fines and
       imprisonment; and directed the operator of the station to terminate
       operation of the unlicensed station immediately. The NOUO offered the
       station operator ten days to reply. The New York Office did not
       receive a reply to the NOUO.

    5. On March 14, 2007, a Commission agent, using a mobile
       direction-finding vehicle, monitored the frequency 94.5 MHz in Bronx,
       New York. The agents observed a radio broadcast on 94.5 MHz and
       identified the source of the transmissions as an FM broadcasting
       antenna mounted on the roof of an apartment building at 317 East 178th
       Street, Bronx, NY. The agent took field strength measurements and
       determined that the signals being broadcast exceeded the limits for
       operation under Part 15 of the Rules and therefore required a license.
       An agent searched Commission databases and found no evidence of a
       Commission authorization for this operation on 94.5 MHz in Bronx, New
       York.

    6. After completing the field strength measurements on March 14, 2007,
       the agent returned to 317 East 178th Street and observed the FM
       antenna mounted on the roof and antenna coaxial cable that ran into a
       window of Apartment 5B of 317 East 178th Street. The agent went to
       Apartment 5B where he spoke to a resident of the apartment who
       identified himself as Nicolas Paula. Nicolas Paula stated that he was
       the operator of the station and owner of the transmitting equipment.
       Mr. Paula refused to turn off the transmitter and refused to allow
       inspection of the station.  The agent orally warned Mr. Paula of the
       consequences of operating an unlicensed broadcast station and failing
       to permit an inspection.

    7. On March 31, 2007, Commission agents, using a mobile direction-finding
       vehicle, monitored the frequency 94.5 MHz in Bronx, New York. The
       agents observed a radio broadcast on 94.5 MHz and identified the
       source of the transmissions as an FM broadcasting antenna mounted on
       the roof of an apartment building at 317 East 178th Street, Bronx, NY.
       The agents took field strength measurements and determined that the
       signals being broadcast exceeded the limits for operation under Part
       15 of the Rules and therefore required a license. An agent searched
       Commission databases and found no evidence of a Commission
       authorization for this operation on 94.5 MHz in Bronx, New York.

    8. On April 6, 2007, the New York Office sent a Notice of Unlicensed
       Operation (NOUO), by First Class and Certified Mail Return Receipt
       Requested, to Nicolas Paula at 317 East 178th Street, Apartment 5B,
       Bronx, NY 10457. The NOUO warned Paula that operation of the
       unlicensed radio station on 94.5 MHz violated 47 U.S.C. S: 301;
       outlined the potential penalties for operating an unlicensed station
       in violation of 47 U.S.C. S: 301, including seizure of the equipment,
       fines and imprisonment; and directed the operator of the station to
       terminate operation of the unlicensed station immediately. The NOUO
       offered Paula ten days to reply. The New York Office did not receive a
       reply to the NOUO. On May 7, 2007, the certified letter was returned
       undelivered to the New York Office by the U.S. Postal Service. The
       letter sent by First Class Mail was not returned.

   III. DISCUSSION

    9. Section 503(b) of the Act provides that any person who willfully or
       repeatedly fails to comply substantially with the terms and conditions
       of any license, or willfully or repeatedly fails to comply with any of
       the provisions of the Act or of any rule, regulation or order issued
       by the Commission thereunder, shall be liable for a forfeiture
       penalty. The term "willful" as used in Section 503(b) of the Act has
       been interpreted to mean simply that the acts or omissions are
       committed knowingly. The term "repeated" means the commission or
       omission of such act more than once or for more than one day.

   10. Section 301 of the Act states that no person shall use or operate any
       apparatus for the transmission of energy or communications or signals
       by radio within the United States except under and in accordance with
       the Act and with a license granted under the provisions of the Act. On
       March 3, 14, and 31, Nicolas Paula operated radio transmission
       equipment on the frequency 94.5 MHz from his residence at 317 East
       178th Street, Apartment 5B, Bronx, NY, without the required Commission
       authorization. Paula admitted to operating the station, but continued
       to operate the station notwithstanding the issuance of two Notices of
       Unlicensed Operation and an oral warning. We therefore find that
       Paula's operation of his station without a license was willful.
       Because the unlicensed operation continued for more than one day, the
       violation was repeated.

   11. Section 303(n) states that the Commission has authority to inspect all
       radio installations associated with stations required to be licensed
       to ascertain whether, in operation, they conform to the requirements
       of the rules and regulations of the Commission. On March 14, 2007,
       agents orally warned Paula that failure to allow an inspection of his
       station could subject him to enforcement action. Notwithstanding this
       warning, Paula refused to allow agents to inspect the station,
       therefore, his violation was willful.

   12. Based on the evidence before us, we find that Nicolas Paula apparently
       willfully and repeatedly violated Section 301 of the Act by operating
       radio transmission equipment on 94.5 MHz in Bronx, NY on March 3, 14,
       and 31, 2007 without a Commission authorization, and willfully
       violated Section 303(n) of the Act by failing to allow an inspection
       of his station on March 14, 2007.

   13. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
       of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines
       ("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
       base forfeiture amount for operation without an instrument of
       authorization is $10,000, and the base forfeiture amount for failure
       to permit a station inspection is $7,000. In assessing the monetary
       forfeiture amount, we must also take into account the statutory
       factors set forth in Section 503(b)(2)(E) of the Act, which include
       the nature, circumstances, extent, and gravity of the violations, and
       with respect to the violator, the degree of culpability, and history
       of prior offenses, ability to pay, and other such matters as justice
       may require. Applying the Forfeiture Policy Statement, Section 1.80,
       and the statutory factors to the instant case, we conclude that
       Nicolas Paula is apparently liable for a $17,000 forfeiture.

   IV. ORDERING CLAUSES

   14. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
       Communications Act of 1934, as amended, and Sections 0.111, 0.311,
       0.314 and 1.80 of the Commission's Rules, Nicolas Paula is hereby
       NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
       seventeen thousand dollars ($17,000) for violations of Sections 301
       and 303(n) of the Act.

   15. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
       Commission's Rules, within thirty (30) days of the release date of
       this Notice of Apparent Liability for Forfeiture, Nicolas Paula SHALL
       PAY the full amount of the proposed forfeiture or SHALL FILE a written
       statement seeking reduction or cancellation of the proposed
       forfeiture.

   16. Payment of the forfeiture must be made by check or similar instrument,
       payable to the order of the Federal Communications Commission. The
       payment must include the NAL/Acct. No. and FRN No. referenced above.
       Payment by check or money order may be mailed to Federal
       Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
       Payment by overnight mail may be sent to Mellon Bank /LB 358340, 500
       Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire
       transfer may be made to ABA Number 043000261, receiving bank Mellon
       Bank, and account number 911-6106.

   17. The response, if any, must be mailed to Federal Communications
       Commission, Enforcement Bureau, Northeast Region, New York Office, 201
       Varick Street, Suite 1151, New York, NY 10014, and must include the
       NAL/Acct. No. referenced in the caption.

   18. 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.

   19. Requests for payment of the full amount of this Notice of Apparent
       Liability for Forfeiture under an installment plan should be sent to:
       Associate Managing Director, Financial Operations, 445 12th Street,
       S.W., Room 1A625, Washington, D.C. 20554.

   20. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
       for Forfeiture shall be sent by Certified Mail, Return Receipt
       Requested, and regular mail, to Nicolas Paula at his address of
       record.

   FEDERAL COMMUNICATIONS COMMISSION

   Daniel W. Noel

   District Director

   New York Office

   Northeast Region

   Enforcement Bureau

   47 U.S.C. S:S: 301, 303(n).

   47 U.S.C. S: 503(b).

   Section 15.239 of the Rules provides that non-licensed broadcasting in the
   88-108 MHz band is permitted only if the field strength of the
   transmission does not exceed 250 mV/m at three meters. 47 C.F.R. S:
   15.239. Measurements showed that the field strength of the station's
   signal exceeded the permissible level for a non-licensed Part 15
   transmitter.

   Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
   violations for which forfeitures are assessed under 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 or any rule or regulation of the Commission
   authorized by this Act...." See Southern California Broadcasting Co., 6
   FCC Rcd 4387 (1991).

   Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
   to violations for which forfeitures are assessed under 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."

   12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
   S:1.80.

   47 U.S.C. S: 503(b)(2)(E).

   47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 47 U.S.C.
   S:S: 301, 303(n).

   See 47 C.F.R. S: 1.1914.

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission

                                       4

   Federal Communications Commission