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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                )
                                )
Octavio Sarmiento, Jr.          )    File No. EB-02-TP-208
                                )    NAL/Acct. No. 200232700012
Naples, Florida                 )    FRN 0007-0497-62
                                )    
                                   

                        FORFEITURE ORDER 

Adopted:  December 19, 2002             Released:   December  20, 
2002

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

1.        In  this  Forfeiture  Order  (``Order''),  we  issue  a 
  monetary  forfeiture in  the  amount of  ten  thousand  dollars 
  ($10,000) to  Octavio Sarmiento, Jr.  for willful and  repeated 
  violation of Section 301 of the Communications Act of 1934,  as 
  amended   (``Act'').1   The   noted  violation   involves   Mr. 
  Sarmiento's  operation of  a  radio  station on  107.5  MHz  in 
  Naples, Florida without Commission authorization.

2.        On June 5, 2002, the Commission's Tampa, Florida  Field 
  Office  (``Tampa   Office'')  issued  a   Notice  of   Apparent 
  Liability  for Forfeiture  (``NAL'')  to Mr.  Sarmiento  for  a 
  forfeiture in  the amount of  ten thousand dollars  ($10,000).2  
  Mr. Sarmiento  filed a response to the  NAL on July 19,  2002,3 
  and supplemented his response on August 5, 2002.

                         II.  BACKGROUND

3.        On  April  19,  2002,  agents  from  the  Tampa  Office 
  investigated  complaints  alleging  that  an  unlicensed  radio 
  station  transmitting on  frequency 107.5  MHz in  the  Naples, 
  Florida area  was causing interference to  the reception of  an 
  FM broadcast  station licensed  to operate  on frequency  107.1 
  MHz in Naples, Florida.  A search of Commission records  showed 
  that there  was no FM  radio station licensed  on 107.5 MHz  in 
  Naples,  Florida.  The  agents  detected an  FM  radio  station 
  operating  on  107.5  MHz  and  identifying  as  ``WTEN''   and 
  ``Tropical   Estereo.''    Using   radio   direction    finding 
  techniques, the agents located the source of the radio  station 
  transmitting  on 107.5  MHz.  The  agents determined  that  the 
  station was  transmitting from a  single-story office  building 
  located at 2201  Kirkwood Avenue, Naples, Florida.  The  agents 
  took field  strength measurements of  the station's signal  and 
  determined that the station required a license to operate.4   

4.        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  frequency  107.5  MHz.   The  agents  interviewed   Octavio 
  Sarmiento, Jr.  and other  individuals who  were operating  the 
  station.  Mr.  Sarmiento stated  that he was  the president  of 
  Tropical  Estereo  Enterprises  (``Tropical  Estereo''),  which 
  owned the  radio station  equipment and  operated the  station.  
  The  agents asked Mr.  Sarmiento if  he had a  license for  the 
  station  and he  stated  that  he had  no  license  authorizing 
  operation of  the radio station  but that he  had submitted  an 
  application for a low power FM (``LPFM'') license to the  FCC.5  
  The agents advised Mr. Sarmiento that he could not operate  the 
  station without  a license  and directed him  to terminate  the 
  unlicensed operation.   The agents also  hand delivered to  Mr. 
  Sarmiento a warning letter which advised him that operation  of 
  a radio station without  a license violates Section 301 of  the 
  Act, warned him  that operation of the unlicensed station  must 
  cease immediately,  and listed the  penalties for  unauthorized 
  operation of  a radio  station.  Mr. Sarmiento  stated that  he 
  would cease operation of the unlicensed station.

5.        On April 20, 2002, the  agents returned to the  Naples, 
  Florida  area   and  again   detected  an   FM  radio   station 
  transmitting  on 107.5  MHz  and identifying  as  ``WTEN''  and 
  ``Tropical   Estereo.''    Using   radio   direction    finding 
  techniques, the  agents determined that  the station was  again 
  transmitting  from a  single-story office  building located  at 
  2201 Kirkwood Avenue,  Naples, Florida.  The agents took  field 
  strength measurements  of the station's  signal and  determined 
  that the station required a license to operate.6

6.        On June 5, 2002, the Tampa  Office issued an NAL for  a 
  $10,000 forfeiture  to Octavio Sarmiento,  Jr. for operating  a 
  radio station on April 19 and April 20, 2002 without a  license 
  in willful  and repeated violation of  Section 301 of the  Act.  
  Mr. Sarmiento  filed a response  on July 19,  2002 in which  he 
  seeks cancellation  of the  forfeiture.  In  his response,  Mr. 
  Sarmiento  acknowledges  that  agents  from  the  Tampa  Office 
  issued  a warning  to him  on April  19, 2002,  but denies  the 
  remaining allegations set forth in the NAL.  Additionally,  Mr. 
  Sarmiento requests a  bill of particulars detailing all  facts, 
  including  among  other   things,  the  time  of  the   alleged 
  offenses, what equipment was used to determine the offense  was 
  taking   place,  identification   of  the   complainants   that 
  initiated the  investigation, all documentation reflecting  the 
  ownership  of Tropical  Estereo, and  copies of  all  documents 
  generated in the investigation.  Mr. Sarmiento also requests  a 
  hearing  if  required   in  support  of  cancellation  of   the 
  forfeiture.  

7.        In a supplemental response filed on August 5, 2002, Mr. 
  Sarmiento  again  admits that  agents  from  the  Tampa  Office 
  issued  him a  warning on  April 19,  2002, but  contends  that 
  transmissions were  not conducted  at any point  in time  after 
  that  date.   In support  of  this  contention,  Mr.  Sarmiento 
  provides  sworn  affidavits from  five  employees  of  Tropical 
  Estereo who  claim that  they observed the  station being  shut 
  down and  that transmissions on the  station did not resume  at 
  any point  after April 19, 2002.   Mr. Sarmiento also  provides 
  sworn  affidavits  from 25  individuals  who  claim  that  they 
  listened to  frequency 107.5 MHz  on an FM  radio on April  20, 
  2002, and  did not  hear any transmissions.   In addition,  Mr. 
  Sarmiento  claims that  he had  been led  to believe  that  the 
  frequency 107.5  MHz had been  leased to him  and that an  LPFM 
  station  required no  further licensing,  but later  found  out 
  that he  had been duped.  Mr.  Sarmiento also asserts that  the 
  subject investigation ``was  initiated in bad faith by  adverse 
  interests'' and that the allegations in the NAL are ``a  result 
  of  falsehoods,  unsupported allegations  and  aspersions  cast 
  upon  Mr. Sarmiento.''   Finally,  Mr. Sarmiento  asserts  that 
  mitigation of the  forfeiture is warranted because he has  been 
  forthcoming by having  initiated written contact with the  FCC, 
  has  applied  for  an LPFM  license,  and  has  demonstrated  a 
  respect for local, state and federal laws.

                      III.      DISCUSSION

8.        The forfeiture  amount in  this  case was  assessed  in 
  accordance with  Section 503(b)  of the Act,7  Section 1.80  of 
  the Rules,8  and The Commission's  Forfeiture Policy  Statement 
  and Amendment of Section  1.80 of the Rules to Incorporate  the 
  Forfeiture Guidelines, 12 FCC Rcd 17087 (1997), recon.  denied, 
  15 FCC  Rcd 303  (1999) (``Policy  Statement'').  In  examining 
  Mr. Sarmiento's  response, Section 503(b)  of the Act  requires 
  that   the   Commission   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.9

9.        As an initial matter, we deny Mr. Sarmiento's  requests 
  for a  bill of particulars and a  hearing.  Nothing in the  Act 
  requires the  Commission to  provide an  unlicensed operator  a 
  bill  of particulars  or  the opportunity  for  an  evidentiary 
  hearing prior to  imposition of a forfeiture.10  Rather,  under 
  Section  503(b)(4) of  the Act,  the  Commission must  issue  a 
  written  notice  of apparent  liability  which  specifies  each 
  provision of the Act and the rules alleged to be violated,  the 
  facts  upon which  the charge  against  the named  violator  is 
  based,  and   the  date  upon   which  the  alleged   violation 
  occurred.11  The NAL issued by the Tampa Office fully  complied 
  with  these requirements.   To the  extent that  Mr.  Sarmiento 
  seeks   additional  investigatory   records  and   information, 
  including  identification of  the complainants  that  initiated 
  the investigation and copies of all documents generated in  the 
  investigation,  we note  that such  records are  not  routinely 
  available  for public  inspection under  Section 0.457  of  the 
  Rules12 and that any requests for such records must be made  in 
  accordance with the  Freedom of Information Act procedures  set 
  forth in Section 0.461 of the Rules.13  

10.       Section  301  of  the  Act  prohibits  radio  operation 
  ``except  under and  in accordance  with this  Act and  with  a 
  license in  that behalf  granted under the  provisions of  this 
  Act.''14  Mr.  Sarmiento does  not dispute that  he operated  a 
  radio station on 107.5 MHz without Commission authorization  on 
  April 19, 2002.  We conclude that this violation was a  willful 
  violation within the meaning of Section 503(b) of the Act.   In 
  this regard,  the term ``willful,'' as  used in Section  503(b) 
  of the Act, does  not require a finding that the violation  was 
  intentional  or  that  the  violator  was  aware  that  it  was 
  committing a violation.15  Rather, the term ``willful''  simply 
  requires that  the violator knew  it was taking  the action  in 
  question, irrespective of any intent to violate the Act or  the 
  Commission's rules.16  

11.       Although Mr.  Sarmiento  denies  that  there  were  any 
  transmissions  on the  unlicensed  radio station  operating  on 
  107.5 MHz on April  20, 2002, we conclude that Mr.  Sarmiento's 
  violation of Section 301 was also repeated.17  The evidence  in 
  the record establishes that on April 20, 2002, agents from  the 
  Tampa  Office observed  an  FM radio  station  transmitting  on 
  107.5   MHz  and   identifying  as   ``WTEN''  and   ``Tropical 
  Estereo.''   Using  radio  direction  finding  techniques,  the 
  agents determined  that this  station was  transmitting from  a 
  single-story office building  located at 2201 Kirkwood  Avenue, 
  the same location from which Mr. Sarmiento admits  transmitting 
  on the previous day.  Consistent with Commission practice,  the 
  agents   recorded   the  transmissions   on   107.5   MHz   for 
  approximately  one half  hour,  between 10:00  and  10:30  a.m.  
  Thus,  we have  a  tape  recording of  the  unlicensed  station 
  transmitting on 107.5 MHz  on April 20, 2002.  On the basis  of 
  this substantial evidence, we find altogether unpersuasive  the 
  sworn statements by Mr. Sarmiento and his employees that  there 
  were  no  transmissions  on  107.5  MHz  on  April  20,   2002.  
  Further, while Mr. Sarmiento provided sworn affidavits from  25 
  other individuals  who claim  that they  listened to  frequency 
  107.5 MHz on  an FM radio on April  20, 2002, and did not  hear 
  any  transmissions,  we note  that  these  individuals  do  not 
  specify what time or how long they listened.  In any event,  as 
  detailed above, there  is substantial documented evidence  that 
  the unlicensed  station transmitted on 107.5  MHz on April  20, 
  2002.   Additionally,  we  have  already  concluded  that   Mr. 
  Sarmiento's operation of the unlicensed station was willful.18  

12.       Mr.  Sarmiento   suggests   that  mitigation   of   the 
  forfeiture is  appropriate because he had  been led to  believe 
  that the  frequency 107.5 MHz had been  leased to him and  that 
  an LPFM station required no further licensing, but later  found 
  out  that  he had  been  duped.   While we  think  that  it  is 
  unfortunate that Mr. Sarmiento may have been duped, the  record 
  evidence  shows that  Mr.  Sarmiento  knew that  a  license  is 
  required  for an  LPFM station  at least  two months  prior  to 
  April 19,  2002, the date  that the FCC  agents first  observed 
  Mr. Sarmiento transmitting on 107.5 MHz without a license.   In 
  this regard,  on February 19, 2002,  the Commission received  a 
  letter  from Mr.  Sarmiento requesting  information on  how  to 
  obtain a  license for  an LPFM  station.  In  this letter,  Mr. 
  Sarmiento related that in  December 2001 he had leased a  radio 
  station transmitting  on 105.1 MHz in  Naples, Florida from  an 
  individual named Daniel Morisma, but then dissolved this  lease 
  after learning  that Mr.  Morisma did  not have  a license  for 
  that  station.   Mr.  Sarmiento  further  stated  that  he  had 
  subsequently leased a  radio station transmitting on 107.5  MHz 
  from   an  individual   named  Dionisio   Lombardi  and   began 
  broadcasting  on  that  frequency  on  January  1,  2002,   but 
  terminated this lease after learning on February 7, 2002,  that 
  Mr. Lombardi did not have a license to operate a radio  station 
  on  107.5  MHz.  On  April  5,  2002, Mr.  Sarmiento  filed  an 
  application for an  LPFM license with the Commission.19   Thus, 
  Mr.  Sarmiento clearly  knew  that  a license  is  required  to 
  operate an LPFM station  but simply chose to operate without  a 
  license.   Furthermore,  on April  19,  2002,  the  FCC  agents 
  warned  Mr. Sarmiento  both  orally  and in  writing  that  the 
  unlicensed  station  had  to  be  shut  down.   Despite   these 
  warnings,   the   agents  observed   the   unlicensed   station 
  transmitting  on 107.5  MHz again  on  April 20,  2002.   Under 
  these  circumstances, we  conclude  that no  reduction  of  the 
  forfeiture on this basis is warranted. 

13.       We also find no merit to Mr. Sarmiento's assertion that 
  the  subject investigation  ``was  initiated in  bad  faith  by 
  adverse  interests.''   The  investigation  was  initiated   in 
  response  to complaints  alleging  that an  unlicensed  station 
  transmitting on 107.5  MHz was causing widespread  interference 
  to  the  reception  of an  FM  broadcast  station  licensed  to 
  operate on  107.1 MHz in Naples,  Florida.  Moreover, we  think 
  it  is irrelevant  why the  investigation was  initiated.   The 
  fact remains that  Mr. Sarmiento was operating a radio  station 
  without a license in violation of Section 301 of the Act.  

14.       Finally,  we  reject  Mr.  Sarmiento's  argument   that 
  mitigation of the  forfeiture is warranted because he has  been 
  forthcoming by having  initiated written contact with the  FCC, 
  has  applied  for  an LPFM  license,  and  has  demonstrated  a 
  respect  for local,  state  and federal  laws.   Mr.  Sarmiento 
  applied for an  LPFM license only after putting his  unlicensed 
  station on  the air, did  not even attempt  to comply with  the 
  Commission rules applicable to LPFM stations, and continued  to 
  operate  the  unlicensed  station  after  receiving  oral   and 
  written  warnings  from  the  FCC  agents  to  terminate   such 
  operation.   We do  not  think  that such  behavior  evinces  a 
  respect  for  federal   laws  or  warrants  reduction  of   the 
  forfeiture amount.  

15.       We have examined  Mr. Sarmiento's response  to the  NAL 
  pursuant to  the statutory  factors above,  and in  conjunction 
  with the Policy Statement as well.  As a result of our  review, 
  we  conclude  that  Mr.  Sarmiento  willfully  and   repeatedly 
  violated Section  301 of the  Act and that  he has provided  no 
  basis for rescission or reduction of the $10,000 forfeiture.

                      IV.  ORDERING CLAUSES

16.       Accordingly, IT IS  ORDERED that,  pursuant to  Section 
  503 of  the Act, and  Sections 0.111, 0.311  and 1.80(f)(4)  of 
  the Rules,20  Octavio Sarmiento, Jr. IS  LIABLE FOR A  MONETARY 
  FORFEITURE in the amount of ten thousand dollars ($10,000)  for 
  willful and repeated violation of Section 301 of the Act.

17.       Payment of the forfeiture shall  be made in the  manner 
  provided for  in Section 1.80  of the Rules  within 30 days  of 
  the  release of  this Order.   If the  forfeiture is  not  paid 
  within the  period specified, the case  may be referred to  the 
  Department  of  Justice  for  collection  pursuant  to  Section 
  504(a) of the Act.   Payment may be made by mailing a check  or 
  similar  instrument,  payable  to  the  order  of  the  Federal 
  Communications  Commission,   to  the  Federal   Communications 
  Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.   The 
  payment  should reference  NAL/Acct. No.  200232700012 and  FRN 
  0007-0497-62.  Requests for  full payment under an  installment 
  plan  should  be  sent  to:   Chief,  Revenue  and  Receivables 
  Operations  Group,  445 12th  Street,  S.W.,  Washington,  D.C. 
  20554.21

18.       IT IS FURTHER ORDERED that  a copy of this Order  shall 
  be sent  by certified mail return  receipt requested and  first 
  class mail  to counsel  for Octavio Sarmiento,  Jr., Robert  N. 
  Pelier, Esq., Blanco  & Pelier, P.A., 1100 Fifth Avenue  South, 
  Suite 201, Naples, Florida 34102.

                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

  1 47 U.S.C.  301.  

  2 Notice  of Apparent Liability  for Forfeiture, NAL/Acct.  No. 
200232700012 (Enf. Bur., Tampa Office, released June 5, 2002).   

  3  Mr. Sarmiento's  response  to  the NAL  was  untimely  under 
Section 1.80(f)(3)  of  the Commission's  Rules  (``Rules''),  47 
C.F.R.  1.80(f)(3).  Nevertheless, we will consider the response 
in order to provide  Mr. Sarmiento an  opportunity to respond  on 
the record.

  4  Under Section  15.239  of the  Rules,  47 C.F.R.    15.239, 
non-licensed broadcasting  in the  88-108 MHz  band is  permitted 
only if the field strength  of the transmissions does not  exceed 
250 V/m  at three  meters.  The  agents' measurements  indicated 
that the station's  field strength extrapolated  to three  meters 
was 17,785,270 V/m.   Thus, the station  operating on 107.5  MHz 
exceeded the permissible level for a non-licensed low-power radio 
transmitter by 71,141 times.

  5 The Tampa Office subsequently learned that on April 5,  2002, 
Tropical Estereo had filed an application for an LFPM license  on 
FCC Form 319.  On April  24, 2002, the Commission's Media  Bureau 
returned this application to  Mr. Sarmiento as improperly  filed, 
noting that FCC Form 319 is used to signify operation pursuant to 
a granted construction permit and that Tropical Estereo had never 
applied for or received the  required construction permit for  an 
LPFM station.  The Media Bureau further noted that pursuant to 47 
C.F.R.  73.870(b), the required  form for a construction  permit 
for an LPFM license, FCC Form  318, will only be accepted  during 
Commission-specified filing periods.

  6 Under Section 15.239 of the Rules, non-licensed  broadcasting 
in the 88-108 MHz band is permitted only if the field strength of 
the transmissions does not exceed 250 V/m at three meters.   The 
measurements taken by the agents on April 20, 2002 indicated that 
the station's  field strength  extrapolated to  three meters  was 
974,976 V/m.  Thus, the station operating on 107.5 MHz  exceeded 
the  permissible  level  for   a  non-licensed  low-power   radio 
transmitter by 3,900 times.

  7 47 U.S.C.  503(b).

  8 47 C.F.R.  1.80.

  9 47 U.S.C.  503(b)(2)(D).

  10 Section 504(a) of the Act provides that any suit brought  by 
the United States in federal district court for the collection of 
a forfeiture imposed  pursuant to  the Act  shall be  a trial  de 
novo.  47 U.S.C.  504(a).

  11 47 U.S.C.  503(b)(4). 

  12 47 C.F.R.  0.457.

  13 47 C.F.R.  0.461.

  14 47 U.S.C.  301.

  15 Section 312(f)(1) of  the Act, 47 U.S.C.  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,' 
... 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).  

  16  Id.  

  17  Section 312(f)(2)  of the  Act provides  that ``[t]he  term 
`repeated,' ... 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.  312(f)(2).

  18  Section 503(b)(1)  of the  Act provides  that a  forfeiture 
penalty may  be imposed  if the  violation is  either willful  or 
repeated.  47 U.S.C.  503(b)(1).

  19 The Media Bureau returned this application to Mr.  Sarmiento 
as improperly and untimely filed on April 24, 2002.  See supra n. 
4.

  20 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  21 See 47 C.F.R.  1.1914.