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


In the Matter of                 )
                                )
Josue Alusma                     )    File No.:  EB-02-TP-260
Naples, Florida                  )    NAL/Acct. No. 200232700022
                                )    FRN 0007-4959-97


                  MEMORANDUM OPINION AND ORDER

             Adopted:  February 23, 2004     Released:  February 
26, 2004

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

           1.  In this Memorandum Opinion and Order  (``Order''), 
      we  grant  in part  and  deny  in  part  the  Petition  for 
      Reconsideration filed on February 20, 2003 by Josue  Alusma 
      (``Mr. Alusma'').   Mr. Alusma seeks  reconsideration of  a 
      Forfeiture Order,1 in which the Chief, Enforcement  Bureau, 
      issued a monetary forfeiture in the amount of ten  thousand 
      dollars ($10,000)  for willful  and repeated  violation  of 
      Section 301 of the  Communications Act of 1934, as  amended 
      (``Act'').2   The noted  violation  involves  Mr.  Alusma's 
      operation of a radio station on the frequency of 100.5  MHz 
      without   Commission  authorization.    For   the   reasons 
      discussed below, we  reduce the forfeiture  amount to  five 
      hundred dollars ($500). 

                         II.  BACKGROUND

           2.  On  April  20,   2002,  in   connection  with   an 
      investigation  of  unlicensed  FM  broadcast  stations   in 
      Naples,  Florida,  agents  from  the  Commission's   Tampa, 
      Florida Field Office  (``Tampa Office'') observed FM  radio 
      broadcasts on the frequency 100.5 MHz.  Commission  records 
      showed  no authorization  for  this  operation  in  Naples, 
      Florida.  Using  electronic direction  finding  techniques, 
      the  agents  positively   identified  the  source  of   the 
      transmissions to be an antenna mounted on a tower  attached 
      to the back of an  automobile repair shop building at  3639 
      Bayshore Dr.,  Naples, Florida.   Based on  field  strength 
      measurements taken by the  agents of the station's  signal, 
      this station required a license to operate.

           3.  Immediately thereafter, still  on April 20,  2002, 
      the agents interviewed  the lessee of  the entire  property 
      who stated that part of the second floor was sub-leased  to 
      another person.   In  a subsequent  interview,  the  lessee 
      identified  the  sub-lessee  as  Mr.  Alusma  and  Mireille 
      Alusma of Naples, Florida,  and also identified Mr.  Alusma 
      as the sub-lessee  based on a  comparison with the  picture 
      on a  copy of Mr.  Alusma's driver's  license.  The  agents 
      then went to the second floor space that was sub-leased  to 
      Mr. Alusma to attempt  an inspection of the radio  station.  
      The agents  saw  a man  leaving the  vicinity of  the  sub-
      leased space whom  they later identified  to be Mr.  Alusma 
      based on a  comparison with the  picture on a  copy of  Mr. 
      Alusma's driver's  license.   Several people  were  on  the 
      second floor  and  one of  them approached  the  Commission 
      agents to  answer their  questions.  The  agents  inspected 
      the radio station located on  the second floor in the  sub-
      leased  space and  observed  a radio  transmitter,  an  RVR 
      Model VJ1000,  an exciter,  RVR Model  TEX20-NV, and  other 
      equipment  associated  with  the  station  operation.   The 
      agents  hand delivered  a  written warning  to  the  person 
      assisting with  the inspection  and to  the lessee  of  the 
      entire   space  providing   notice   that   the   station's 
      unlicensed operation violated  Section 301 of  the Act  and 
      warning  of  the  penalties   for  the  operation  of   the 
      unlicensed radio station.

           4.  On May  14, 2002,  agents  from the  Tampa  Office 
      drove to the Naples  area to determine whether the  station 
      on  100.5  MHz  was  still  operating.   Using   electronic 
      direction finding  techniques, the  agents determined  that 
      the station was broadcasting  from an antenna mounted on  a 
      two-story  commercial   building  consisting   of   several 
      individually-owned  suites, at  4995  Tamiami  Trail  East, 
      Naples,  Florida.  Based  on  field  strength  measurements 
      taken by the agents  of the station's signal, this  station 
      required  a license  to  operate.  The  agents  traced  the 
      coaxial cable from the antenna  down to Suite # 4995.   The 
      agents observed  a man  leaving the  area whom  they  later 
      identified as  Mr. Alusma based  on a  comparison with  the 
      picture on  a copy of  Mr. Alusma's  driver's license.   No 
      one was available in Suite # 4995 at the time.  The  agents 
      located and  interviewed  the owner  of  Suite #  4995  who 
      provided a copy of a lease identifying the lessee of  Suite 
      # 4995 as Mr. Alusma.

           5.  On August  6,  2002,  the Tampa  Office  issued  a 
      Notice of Apparent  Liability for Forfeiture (``NAL'')3  to 
      Mr. Alusma  in the  amount of  $10,000 for  operation of  a 
      radio  station  on  the  frequency  of  100.5  MHz  without 
      Commission authorization in willful and repeated  violation 
      of Section  301 of  the Act.   Mr. Alusma  did not  file  a 
      response  to  the  NAL,   and  on  January  31,  2003   the 
      Enforcement Bureau issued a Forfeiture Order to Mr.  Alusma 
      affirming the  forfeiture amount.   On February  20,  2003, 
      Mr. Alusma filed  a petition for  reconsideration.  In  his 
      petition   Mr.  Alusma   requests   cancellation   of   the 
      forfeiture  amount.  Mr.  Alusma  argues that  he  did  not 
      violate any  Commission rules regarding  the radio  station 
      operated  on 100.5  MHz  in Naples,  Florida.   Mr.  Alusma 
      states that he hosted a  show on this station and that  the 
      station was  owned by  Bishop Ardouin  Joseph.  Mr.  Alusma 
      contends that  he  had been  told  that ``the  station  was 
      perfectly legal'' and that he didn't have any way in  which 
      to verify  whether  the station  was  in violation  of  the 
      Commission's rules.   Mr.  Alusma also  argues that  he  is 
      unable to  pay the  forfeiture due  to financial  hardship.  
      In  support of  his  argument of  financial  hardship,  Mr. 
      Alusma includes various financial documents.

                         III.   DISCUSSION

           6.  In The  Commission's Forfeiture  Policy  Statement 
      and Amendment of Section  1.80 of the Rules to  Incorporate 
      the   Forfeiture   Guidelines,   the   Commission   adopted 
      guidelines  for  assessing  base  forfeiture  amounts   for 
      violations  of the  Act  and the  Commission's  rules,  and 
      ``retain[ed] the  discretion  to take  action  in  specific 
      cases   as   warranted.''4    The   forfeiture   guidelines 
      establish a $10,000  base forfeiture for operation  without 
      a license.5   In assessing the  forfeiture, the  Commission 
      may adjust  the  base forfeiture  by taking  into  account, 
      inter alia,  a violator's  ability to  pay and  other  such 
      matters as justice may  require.6   It is in this  context, 
      that    we   consider    Mr.    Alusma's    petition    for 
      reconsideration.  

           7.  Section 301  of the  Act provides  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  a 
      license.  On April 20,  2002, agents from the Tampa  Office 
      observed  a radio  transmitter,  an RVR  Model  VJ1000,  an 
      exciter,   RVR  Model   TEX20-NV,   and   other   equipment 
      associated  with  the   operation  of  the  radio   station 
      operating  on   100.5  MHz.   Contrary   to  Mr.   Alusma's 
      assertions regarding ownership  of the unlicensed  station, 
      agents from the  Tampa Office determined  that the  station 
      was operating  on  April 20,  2002,  from a  location  sub-
      leased by Mr. Alusma, and  that Mr. Alusma assisted in  the 
      station's operation.   On  May 14,  2002, agents  from  the 
      Tampa Office determined that  the station on 100.5 MHz  was 
      operating from  another location  again sub-leased  by  Mr. 
      Alusma,  and  that  he  again  assisted  in  the  station's 
      operation.  Commission records showed no authorization  for 
      this operation.  Therefore,  we conclude that operation  of 
      the station violated Section 301  of the Act, and that  Mr. 
      Alusma, as sub-lessee  of the station's operating  location 
      and as  a station  operator, bears  responsibility for  the 
      willful and repeated violation.7   In light of our  finding 
      that Mr. Alusma's violation was willful, his claim that  he 
      thought  the  station  was  legal  does  not  mitigate  the 
      violation.8 

           8.  We find however,  that reduction  of the  proposed 
      forfeiture   amount  to   $500   is   appropriate.    After 
      considering the  financial information  submitted, we  find 
      that  requiring Mr.  Alusma  to pay  a  $10,000  forfeiture 
      would impose  a financial  hardship and,  consequently,  we 
      lower the monetary forfeiture to $500.   

                         IV.  CONCLUSION

           9.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to 
      Section 405 of the Act9  and Section 1.106 of the  Rules,10 
      the  Petition  for   Reconsideration  of  the   Enforcement 
      Bureau's Forfeiture  Order  in this  proceeding  IS  hereby 
      GRANTED IN PART AND DENIED IN PART.

           10.      IT  IS  FURTHER  ORDERED  that,  pursuant  to 
      Section 503(b)  of the  Act11 and  Section 1.80(f)  of  the 
      Rules,12 Mr.  Josue Alusma, shall,  within 30  days of  the 
      release  of  this  Order,  pay  the  amount  of  $500   for 
      violating Section  301 of the  Act.  If  the forfeiture  is 
      not paid  within  the specified  period,  the case  may  be 
      referred  to  the  Department  of  Justice  for  collection 
      pursuant to Section  504(a) of the  Act.13  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 note  the 
      NAL/Acct. No. 200232700022 and FRN 0007-4959-97.   Requests 
      for full payment under  an installment plan should be  sent 
      to:  Revenue  and Receivables  Operations Group,  445  12th 
      Street, S.W., Washington, D.C. 20554.14
     11.  IT IS FURTHER ORDERED THAT  a copy of this Order  shall 
be sent by first  class mail and  certified mail, return  receipt 
requested, to Mr. Josue Alusma at his address of record.    

                         FEDERAL COMMUNICATIONS COMMISSION

                         


                         David H. Solomon
                         Chief, Enforcement Bureau


_________________________

1 Josue Alusma, 18 FCC Rcd 1031 (Enf. Bur. 2003).
2 47 U.S.C.  301.
3 Notice  of Apparent  Liability  for Forfeiture,  NAL/Acct.  No. 
200232700022 (Enf. Bur., Tampa Office, released August 6, 2002). 
4 12 FCC  Rcd 17087, 17093   8,  recon. denied, 15  FCC Rcd  303 
(1999).
5 Id. at 17113.
6 See 47 U.S.C.  503(b)(2)(D); 47 C.F.R.  1.80(b)(4).
7 In this context, ``willful'' means the conscious and deliberate 
commission or omission of an  act, irrespective of any intent  to 
violate statutory  or regulatory  requirements.  A  violation  is 
considered ``repeated'' if  it continues for  more than one  day.  
See 47 U.S.C.  312(f); see also Southern California Broadcasting 
Co., 6 FCC Rcd 4387, 4387-88,  5 (1991). 
8 We note additionally, that the written warning delivered by the 
agents from the Tampa Office  to the unlicensed station on  April 
20, 2002, informed  those associated  with the  station that  the 
unlicensed operation violated Section 301 of the Act.  
9 47 U.S.C.  405
10 47 C.F.R.  1.106. 
11 47 U.S.C.  503(b) 
12 47 C.F.R.  1.80(f) 
13 47 U.S.C.  504(a).
14 See 47 C.F.R.  1.1914.