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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                        )                               
                                                        
                        )                               
                                                        
                        )                               
     In the Matter of       File Number: EB-07-NY-041   
                        )                               
     Jairo Diaz             NAL/Acct. No: 200732380011  
                        )                               
     Paterson, NJ           FRN: 0016 2735 91           
                        )                               
                                                        
                        )                               
                                                        
                        )                               


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                                      Released: July 27, 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 Jairo Diaz ("Diaz") apparently willfully and repeatedly violated
       Sections 301 and 303(n) of the Communications Act of 1934, as amended
       ("Act"), by operating an unlicensed radio transmitter on the frequency
       90.5 MHz in Paterson, NJ and failing to permit a station inspection.
       We conclude, pursuant to Section 503(b) of the Act, that Jairo Diaz is
       apparently liable for a forfeiture in the amount of seventeen 
       thousand dollars ($17,000).

   II. BACKGROUND

    2. On November 6, 2006, the New York Office of the FCC's Enforcement
       Bureau received a complaint of an illegal broadcast station operating
       on 90.5 MHz in Paterson, NJ that was causing interference to the
       reception of FM station WFUV, licensed to Fordham University in Bronx,
       NY.

    3. On November 8, 2006, a Commission agent, using a mobile
       direction-finding vehicle, monitored the frequency 90.5 MHz five miles
       from Paterson, NJ. The agent observed a radio station broadcasting on
       90.5 MHz and determined that the station was operating from a
       residence at 439 East 32nd Street in Paterson, NJ. The agent
       subsequently 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 90.5 MHz in
       Paterson, NJ.

    4. On November 8, 2006, immediately after taking measurements, the agent
       returned to 439 East 32nd Street, Paterson, NJ. The agent observed an
       FM broadcast antenna attached to the back of the house and a red
       coaxial cable going from the antenna into a basement apartment. The
       agent knocked on the basement door and asked the man who answered
       about the radio station. The man, who identified himself as "J,"
       agreed to turn off the station, but refused to allow the agent to
       conduct an inspection. At that point, the man re-entered the apartment
       and turned off the radio station. The agent warned the man about the
       penalties for operating an unlicensed radio station and the penalties
       for refusing to allow an inspection and handed the man a warning
       letter that sets out such penalties in detail.

    5. On November 29, 2006, the New York Office sent, via regular mail and
       certified mail, return receipt requested, a Notice of Unlicensed
       Operation ("NOUO") to Perkin Diaz, who the agent determined is the
       registered owner of 439 East 32nd Street, Paterson, NJ. The NOUO
       warned Perkin Diaz that operation of the unlicensed radio station on
       90.5 MHz violated Section 301 of the Act and outlined the potential
       penalties for such a violation, including seizure of the equipment,
       fines and imprisonment. The NOUO also directed Perkin Diaz to
       terminate operation of the unlicensed station immediately and provided
       Perkin Diaz ten days to reply. Perkin Diaz did not reply to the NOUO.
       The NOUO sent via certified mail was later returned to the New York
       Office by the U.S. Postal Service as undeliverable. The NOUO sent via
       regular mail was not returned to the New York Office.

    6. On January 27, 2007, in response to further interference complaints,
       Commission agents, using a mobile direction-finding vehicle, monitored
       the frequency 90.5 MHz five miles from Paterson, NJ. The agents
       observed a radio station broadcasting on 90.5 MHz and determined that
       the station was operating from a residence at 439 East 32nd Street,
       Paterson, NJ. The agents  subsequently 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. Agents searched Commission
       databases and found no evidence of a Commission authorization for this
       operation on 90.5 MHz in Paterson, NJ.

    7. On January 27, 2007, immediately after taking measurements, Commission
       agents returned to 439 East 32nd Street, Paterson, NJ. The agents
       observed the same FM broadcast antenna attached to the back of the
       house and a red coaxial cable going from the antenna into the basement
       apartment. The agents knocked on the basement door, but no one
       answered. At that point, the agents observed that the radio station
       went off the air. A man emerged from the basement and the agents
       recognized him as the man with whom they had spoken on November 8,
       2006. Officers from the Patterson Police Department who accompanied
       the agents on the inspection asked the man for identification and he
       was identified from his driver's license as Jairo Diaz. Although Diaz
       again refused to allow agents to inspect the radio station, he stated
       that he would take down the FM broadcast antenna attached to the
       house. Agents handed Diaz a warning letter, but he refused to sign the
       agent's copy. Agents warned Diaz of the penalties for unlicensed
       operation and for refusal to allow an inspection.

    8. On March 2, 2007, in response to additional interference complaints, a
       Commission agent, using a mobile direction-finding vehicle, monitored
       the frequency 90.5 MHz five miles from Paterson, NJ and determined
       that the station was still operating from the same residence at 439
       East 32nd Street. The agent again took field strength measurements and
       confirmed that the signals being broadcast exceeded the limits for
       operation under Part 15 of the Rules. Immediately after taking
       measurements, the Commission agent returned to 439 East 32nd Street
       and observed an FM broadcast antenna attached to the back of the house
       and a red coaxial cable going from the antenna into a basement window.
       The agent knocked on the basement door and a woman answered. When the
       agent requested to speak to the operator of the radio station, the
       woman called out for "Jairo" to come to the door. The man identified
       himself as Jairo Diaz. Diaz would not allow a station inspection, but
       agreed to shut off the station. The agent orally warned Jairo that the
       station required a license and of the penalties for operating an
       unlicensed radio station and refusing to allow an inspection.

    9. On March 19, 2006, the New York Office sent, via regular mail and
       certified mail, return receipt requested, a Notice of Unlicensed
       Operation ("NOUO") to Jairo Diaz at 439 East 32nd Street, Paterson, NJ
       07504. The NOUO warned Jairo Diaz that operation of the unlicensed
       radio station on 90.5 MHz violated Section 301 of the Act and outlined
       the potential penalties for such a violation, including seizure of the
       equipment, fines and imprisonment. The NOUO also directed Diaz to
       terminate operation of the unlicensed station immediately and provided
       Diaz ten days to reply. Jairo Diaz did not reply to the NOUO. The NOUO
       sent via certified mail was later returned to the New York Office by
       the U.S. Postal Service as undeliverable. The NOUO sent via regular
       mail was not returned to the New York Office.

   III. DISCUSSION

   10. 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.

   11. 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.
       Agents determined that, on November 8, 2006, a man, who later was
       identified as Jairo Diaz, operated an unlicensed radio station on 90.5
       MHz from 439 East 32nd Street in Paterson, NJ. Notwithstanding the
       oral warning provided to Diaz on November 8, 2006, agents determined
       that Diaz continued to operate an unlicensed radio station on 90.5 MHz
       from 439 East 32nd Street on January 27, 2007. At that time, agents
       handed Diaz a written warning letter that set out the penalties
       associated with unlicensed radio operation and refusal to allow
       inspection. On March 2, 2007, agents found that Diaz continued to
       operate a broadcast station on 90.5 MHz from 439 East 32nd Street in
       Patterson, NJ. Because Diaz continued to operate his station even
       after being warned, we find that Diaz's violation was willful. Diaz's
       violation occurred on more than one day, therefore, it is repeated.

   12. Section 303(n) of the Act states that the Commission has the 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
       November 8, 2006, an agent orally warned Diaz that failure to allow an
       inspection of his station could subject him to enforcement action.
       Notwithstanding this warning, Diaz refused to allow agents to inspect
       the station. We therefore find that his violation was willful. Because
       Jairo Diaz failed to permit agents to inspect the station on November
       8, 2006, January 27, 2007, and March 2, 2007, the violation was
       repeated.

   13. Based on the evidence before us, we find that Diaz willfully and
       repeatedly violated Section 301 of the Act by operating radio
       transmission equipment on 90.5 MHz on November 8, 2006, January 27,
       2007, and on March 2, 2007, in Paterson, NJ, without a Commission
       authorization and willfully and repeatedly violated Section 303(n) of
       the Act by failing to allow an inspection of his station on November
       8, 2006, January 27, 2007, and March 2, 2007.

   14. 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 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, we conclude that a $17,000 forfeiture is
       warranted.

   IV. ORDERING CLAUSES

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

   16. 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, Jairo Diaz SHALL PAY
       the full amount of the proposed forfeiture or SHALL FILE a written
       statement seeking reduction or cancellation of the proposed
       forfeiture.

   17. 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.

   18. 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, within thirty (30) days
       from the release date of this Notice of Apparent Liability for
       Forfeiture and must include the NAL/Acct. No. referenced in the
       caption.

   19. 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.

   20. 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, 1A625, 445 12th
       Street, S.W., Washington, D.C. 20554.

   21. 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 Jairo Diaz 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 micro volts per meter ("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 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 micro volts per meter ("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 C.F.R. S:S: 0.111, and 0.311, 47 U.S.C. S:S: 301 and 303(n).

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

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission

                                       5

   Federal Communications Commission