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 No. EB-03-NY-379
File No. .  EB-03-TP-231          )                              )
Angelo Avena                   )  )   FRN 0007006884
                              )  )      NAL/Acct.             No. 
NAL/Acct. No. 200332700030        )      200432380013
Linden, NJ                     )  )
FRN 0007006884                           FRN: 0010373769
                              )
                             ) 
 

                      FORFEITURE ORDER

Adopted:  November 23, 2004                  Released:  
November 24, 2004

By the Assistant Chief, Enforcement Bureau:

I.  INTRODUCTION

     1.   In this Forfeiture Order (``Order''), we issue a 
monetary forfeiture in the amount of one thousand dollars 
($1,000) to Angelo (``Angel'') Avena for operating an 
unlicensed radio transmitter on the frequency 87.9 MHz in 
Linden, New Jersey, in violation of Section 301 of the 
Communications Act of 1934, as amended (``Act'').1 

II.  BACKGROUND 

     2.   On November 7, 2003, the Commission's New York 
Field Office (``New York Office'') received a complaint 
about an illegal broadcast station in Middlesex County, New 
Jersey, operating on the frequency 87.9 MHz. 

     3.   On November 19, 2003, using a mobile direction-
finding vehicle, an agent from the New York Office monitored 
the frequency 87.9 MHz in Linden, New Jersey and observed a 
broadcast on that frequency.  The agent identified the 
source of the broadcast as an FM broadcast antenna on the 
roof of 18 East 17th Street, Linden, New Jersey 07306.  The 
agent determined, based on field strength measurements taken 
on November 19, 2003, that a Commission authorization was 
required to operate the station.2  The Commission's database 
contained no evidence of a station authorized to operate on 
87.9 MHz in Linden, New Jersey.  On that same day, the agent 
spoke with Mr. Avena at 18 East 17th Street and Mr. Avena 
acknowledged operating the unlicensed station.  The agent 
advised Mr. Avena that a license was required for operation 
of the station and the agent provided Mr. Avena a Warning 
Letter.  A Warning Letter also was sent to Mr. Avena on 
November 19, 2003 by First Class Mail and Certified Mail, 
Return Receipt Requested.

     4.   The agent later observed the unauthorized 
broadcast on 87.9 MHz on November 20, 2003, January 6, 2004, 
and January 17, 2004.  Each time, using mobile direction-
finding equipment, the agent identified the source of the 
unauthorized broadcast as an FM broadcast antenna on the 
roof of 18 East 17th Street, Linden, New Jersey.  During a 
station inspection that took place on November 20, 2003, Mr. 
Avena again acknowledged operating the unlicensed station.  
Mr. Avena also acknowledged operating radio-transmitting 
equipment on 87.9 MHz at 18 East 17th Street, Linden, New 
Jersey without a license in his response to the November 19, 
2003 Warning Letter.

     5.   On May 26, 2004, the New York Office issued a 
Notice of Apparent Liability for Forfeiture (``NAL'') to Mr. 
Avena in the amount of ten thousand dollars ($10,000).3  Mr. 
Avena filed a response to the NAL on June 18, 2004, 
admitting unlicensed operation of radio transmitting 
equipment on 87.9 MHz, but claiming that he does not have 
the financial means to pay the monetary forfeiture.  Mr. 
Avena also claims that he ceased operating the station on 
December 20, 2004 and therefore takes issue with the 
findings in the NAL regarding the station's operation on 
January 6, 2004 and January 17, 2004.  

III.      DISCUSSION

     6.   The proposed forfeiture amount in this case was 
assessed in accordance with Section 503(b) of the Act,4 
Section 1.80 of the Commission's Rules (``Rules''),5 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) (``Forfeiture Policy Statement'').  In 
examining Mr. Avena'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.6

     7.   Section 301 of the Act provides that ``[n]o person 
shall use or operate any apparatus for the transmission of 
energy or communications or signals by radio. . .except 
under and in accordance with this Act and with a license in 
that behalf granted under the provisions of this Act.''  Mr. 
Avena admits that he operated radio transmission equipment 
on 87.9 MHz from his residence at 18 East 17th Street, 
Linden, New Jersey without a valid authorization on November 
19, 2004 and November 20, 2004.  Contrary to Mr. Avena's 
assertion in his response to the NAL, the evidence shows 
that an unauthorized radio station operated on 87.9 MHz from 
18 East 17th Street in Linden, New Jersey, Mr. Avena's 
residence, on January 6 and January 17, 2004.  Using 
direction-finding equipment, an agent determined on January 
6 and January 17 that the radio station broadcasting on 87.9 
MHz was operated from 18 East 17th Street and, based on 
field strength measurements, the agent determined that a 
Commission authorization was required to operate the 
station.7  The Commission's database contained no record of 
a station authorized to operate in Linden, New Jersey on 
87.9 MHz.  We find that Mr. Avena's violation of Section 301 
of the Act was willful8 and repeated.9

     8.   Mr. Avena asserts that he does not have the 
financial means to pay the $10,000 forfeiture proposed in 
the NAL.  After reviewing the financial information provided 
by Mr. Avena, we conclude that the proposed forfeiture 
amount should be reduced to $1,000.00.


IV.  ORDERING CLAUSES

     9.   Accordingly, IT IS ORDERED that, pursuant to 
Section 503(b) of the Act, and Sections 0.111, 0.311 and 
1.80(f)(4) of the Rules,10 Angelo Avena IS LIABLE FOR A 
MONETARY FORFEITURE in the amount of one thousand dollars 
($1,000) for violation of Section 301 of the Act.

     10.  Payment of the forfeiture shall be made in the 
manner provided for in Section 1.80 of the Rules within 
thirty (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.11  Payment shall 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 must include the FCC 
Registration Number (FRN) and the NAL/Acct. No. referenced 
in the caption.  Payment by overnight mail may be sent to 
Bank One/LB 73482, 525 West Monroe, 8th Floor Mailroom, 
Chicago, IL 60661.  Payment by wire transfer may be made to 
ABA Number 071000013, receiving bank Bank One, and account 
number 1165259.  Requests for full payment under an 
installment plan should be sent to: Chief, Revenue and 
Receivables Group, 445 12th Street, S.W., Washington, D.C. 
20554.12


     11.  IT IS FURTHER ORDERED that a copy of this Order 
shall be sent by First Class and Certified Mail Return 
Receipt Requested to Angelo Avena, 18 East 17th Street, 
Linden, New Jersey, 07306.



                              FEDERAL COMMUNICATIONS 
                              COMMISSION



                              George R. Dillon
                              Assistant Chief, Enforcement 
                         Bureau

               
_________________________

147 U.S.C.  301.

247 C.F.R. 15.239(b).

3Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200432380013 (Enf. Bur., New  York Office, released May 26, 
2004).

447 U.S.C.  503(b).

547 C.F.R.  1.80.

647 U.S.C.  503(b)(2)(D).

7Section  15.239 of  the  Commission's Rules,  47 C.F.R.   
15.239, 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  V/m at three meters.  On 
January  6, 2004,  the  agent determined  that the  station 
exceeded the  permissible level for a  non-licensed station  
by 898  times.  On January  17, 2004, the  agent determined 
that the station exceeded the  permissible level for a non-
licensed station by 1,936 times.

8Section 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).   

9As  provided  by  47  U.S.C.    312(f)(2),  a  continuous 
violation is ``repeated'' if it continues for more than one 
day.     The  Conference   Report  for   Section  312(f)(2) 
indicates that  Congress intended to apply  this definition 
to Section 503 of the Act as well as Section 312.  See H.R. 
Rep.  97th   Cong.  2d  Sess.  51   (1982).   See  Southern 
California  Broadcasting  Company,  6 FCC  Rcd  4387,  4388 
(1991) and  Western Wireless Corporation, 18  FCC Rcd 10319 
at fn. 56 (2003).

1047 C.F.R.  0.111, and 0.311.

11 47 U.S.C.  504(a).

12 See 47 C.F.R.  1.1914.