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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number: EB-09-NY-0234
Marixsa Rolon ) NAL/Acct. No: 201032380006
Plainfield, New Jersey ) FRN: 0019205715
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
January 20, 2010
By the District Director, New York Office, Northeast Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Marixsa Rolon apparently willfully and repeatedly violated
Section 301 of the Communications Act of 1934, as amended ("Act"), by
providing services and facilities incidental to the operation of an
unlicensed radio transmitter on the frequencies 90.1 MHz and 96.7 MHz
in Plainfield, New Jersey. We conclude, pursuant to Section 503(b) of
the Communications Act of 1934, as amended ("Act"), that Marixsa Rolon
is apparently liable for a forfeiture in the amount of ten thousand
2. On July 29, 2009, the New York Office of the FCC's Enforcement Bureau
received a complaint from a media consultant in North Plainfield, New
Jersey, regarding interference to licensed adjacent channel radio
stations from illegal broadcast stations operating on 90.1 MHz and
96.7 MHz in North Plainfield, New Jersey.
3. On August 2 and August 3, 2009, agents from the Commission's New York
Field Office, using a mobile direction finding vehicle, monitored the
frequency 90.1 MHz and 96.7 MHz in Plainfield, New Jersey. The agents
observed a radio broadcast on 90.1 MHz and 96.7 MHz and identified the
source of the transmissions as FM broadcasting antennas on the roof of
217 East 7th Avenue, Plainfield, New Jersey. 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 operation on 90.1 MHz or 96.7 MHz at this location
in Plainfield, New Jersey.
4. On August 4, 2009, agents from the Commission's New York Field Office,
using a mobile direction finding vehicle, monitored the frequencies
90.1 MHz and 96.7 MHz in Plainfield, New Jersey. This time, the agents
observed a radio broadcast on 90.1 MHz only and identified the source
of the transmissions as one of two FM broadcasting antennas on the
roof of 217 East 7th Avenue. The agents again took field strength
measurements and determined that the signals being broadcast still
exceeded the limits for operation under Part 15 of the Rules and
therefore required a license.
5. On the same day, after completing the field strength measurements,
Commission agents returned to 217 East 7th Avenue and met with the
building superintendent and the building owner. The superintendent
accompanied the agents to the roof, where they observed the two FM
broadcasting antennas and a coaxial cable running from the antennas
into one of the apartments. The superintendent advised the agents that
the antenna coaxial cable was going into apartment # 48, but he was
not certain who leased apartment #48. The agents subsequently obtained
from the building's management company a copy of the lease agreement
for apartment #48, which identified Ms. Rolon as the tenant.
6. On August 11, 2009, the New York Office issued Notices of Unlicensed
Operation ("NOUO") by First Class and Certified Mail Return Receipt
Requested to Ms. Rolon at 217 East 7th Avenue, Apartment # 48 and at
1335 Putnam Avenue, Plainfield, New Jersey 07060. The New York Office
did not receive a reply to the Notices of Unlicensed Operation.
7. On September 29, 2009, the New York Office sent a Letter of Inquiry
("LOI"), First Class and Certified Mail, to Ms. Rolon at 1335 Putnam
Avenue to determine ownership of the unlicensed radio station.
Although the certified mail receipt received by the New York Office
indicated that the LOI was successfully delivered on October 1, 2009,
a reply to the Letter of Inquiry was never received.
8. 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.
9. 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.
Section 3(33) of the Act defines "communications by radio" as "the
transmission by radio of writing, signs, signals, pictures, and sounds
of all kinds, including all instrumentalities, facilities, apparatus,
and services (among other thing the receipt, forwarding, and delivery
of communications) incidental to such transmission." Agents determined
that, on August 2, 3 and 4, 2009, unlicensed broadcast stations were
operating from apartment # 48 at 217 East 7th Avenue, Plainfield, New
Jersey. A lease agreement obtained from the building management
company confirmed that Marixsa Rolon is the lessee of apartment # 48.
We have previously held that liability for unlicensed operation may be
assigned to an individual who provides services and facilities
incidental to the transmission of communications by radio. We find
that Marixsa Rolon is responsible for the unlicensed station
operations on 90.1 MHz and 96.7 MHz at 217 East 7th Avenue,
Plainfield, New Jersey and that her actions amounted to willful and
repeated violations of Section 301 of the Act on August 2, 3 and 4,
10. 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. 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 Marixsa
Rolon is apparently liable for a $10,000 forfeiture.
IV. ORDERING CLAUSES
11. 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, Marixsa Rolon is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of ten thousand
dollars ($10,000) for violations of Section 301 of the Act.
12. 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, Marixsa Rolon SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
13. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment[s] by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. Please contact the Financial Operations
Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with
any questions regarding payment procedures. If payment is made, Ms.
Rolon must send electronic notification on the date said payment is
made to NER-Response@fcc.gov.
14. 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.
15. 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.
16. 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 Marixsa Rolon at his address of
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
New York Office
47 U.S.C. S: 301.
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.
A NOUO was sent to Ms. Rolon at 1335 Putnam Avenue because the management
company that provided the agents with the lease agreement for apartment
#48 also showed agents a copy of Ms. Rolon's driver's license, which
identified her address as 1335 Putnam Avenue, Plainfield, NJ, 07060.
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."
47 U.S.C. S: 153(33).
See Joni K. Craig, Forfeiture Order, 21 FCC Rcd 10793 (EB 2006).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S:1.80. We note that, while we could have proposed the base forfeiture
amount of $10,000 for each of the unlicensed frequencies, we believe that
the circumstances presented here do not warrant a $20,000 forfeiture.
47 U.S.C. S: 503(b)(2)(D).
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.
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Federal Communications Commission
Federal Communications Commission