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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

     In the Matter of      )   File No.: EB-09-SJ-0013      
     Ayustar Corporation   )   NAL/Acct. No.: 201032680001  
     San Juan, PR          )   FRN: 0008739229              

                          MEMORANDUM OPINION AND ORDER

   Adopted: November 23, 2010 Released: November 23, 2010

   By the Chief, Enforcement Bureau:


    1. In this Memorandum Opinion and Order, we deny the petition for
       reconsideration filed by Ayustar Corporation ("Ayustar") in response
       to the Forfeiture Order issued by the Enforcement Bureau's South
       Central Region ("EB South Central Region") on January 8, 2010. The
       Forfeiture Order imposed a monetary forfeiture in the amount of ten
       thousand dollars ($10,000) for Ayustar's willful and repeated
       violation of Section 301 of the Communications Act of 1934, as amended
       ("Act"), involving Ayustar's operation of unlicensed radio


    2. On November 12, 2009, the Enforcement Bureau's San Juan Office issued
       a Notice of Apparent Liability for Forfeiture to Ayustar in the amount
       of $10,000, for the apparent willful and repeated violation of Section
       301 of the Act. On December 3, 2009, Ayustar submitted a response to
       the NAL requesting reduction or cancellation of the proposed
       forfeiture based "solely on the lack of capacity of Ayustar to pay the
       established fine." In the Forfeiture Order, the EB South Central
       Region found that Ayustar's documented gross revenues did not warrant
       a reduction based on inability to pay and imposed a forfeiture in the
       amount of $10,000. On February 2, 2010, Ayustar filed a petition for
       reconsideration requesting reduction or cancellation of the forfeiture
       based on its net losses rather than its gross revenues.


    3. The forfeiture amount in this case was assessed in accordance with
       Section 503(b) of the Act, Section 1.80 of the Commission's Rules
       ("Rules"), and the Commission's Forfeiture Policy Statement. In
       examining Ayustar's petition, 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. As discussed below, we
       decline to reduce the forfeiture on the basis of Ayustar's claim of an
       inability to pay.

    4. In its petition, Ayustar requests that the Commission "take into
       consideration other financial indicators, such as net losses," to
       determine its ability to pay the forfeiture. Citing First Greenville
       Corporation, Benito Rish, and Pinnacle Communications, Ayustar notes
       that "the Commission took into consideration the Profit and Losses
       [sic] of the respective companies, including in one of the cases, the
       net liabilities in light of default in payments." Ayustar requests
       that the Commission similarly consider its continuing monthly losses.
       Ayustar claims that paying the forfeiture could have a negative impact
       on its ability to retain employees.

    5. We do not find that Ayustar's financial situation warrants a reduction
       of the forfeiture. Generally, the Commission has found that "a
       licensee's gross revenues are the best indicator of its ability to pay
       a forfeiture." The Commission, citing PJB Communications, has also
       held that "[i]f gross revenues are sufficiently great. . .the mere
       fact that a business is operating at a loss does not itself mean that
       it cannot afford to pay a forfeiture." Such is the case here.
       Ayustar's documented gross revenues are sufficiently great that we do
       not find a reduction appropriate. As Ayustar notes, the Commission has
       in a few limited cases looked to other factors, including profits and
       losses, to determine ability to pay. Those cases, however, involved
       licensees in severe financial distress. Ayustar has failed to
       demonstrate that it is experiencing a comparable level of financial
       distress or that it otherwise should qualify for an exception to our
       gross revenues policy. For example, unlike the entities in Pinnacle
       Communications and First Greenville Corporation, Ayustar has not
       indicated that it is facing foreclosure, that it is unable to secure
       funding to cover its losses, or that its owners have personally
       guaranteed loans on its behalf. Moreover, unlike the entity in Benito
       Rish, Ayustar services a large metropolitan area, with a significant
       potential customer base. Accordingly, based on our review of the
       instant case, we deny Ayustar's petition for reconsideration and
       affirm the forfeiture in the amount of $10,000.


    6. Accordingly, IT IS ORDERED, pursuant to Section 405 of the
       Communications Act of 1934, as amended, and Section 1.106 of the
       Commission's Rules, that the petition for reconsideration filed by
       Ayustar Corporation IS DENIED.

    7. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
       Sections 0.111, 0.311 and 1.80(f)(4) of the Rules, Ayustar Corporation
       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.

    8. 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
       Memorandum Opinion and 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
       of the forfeiture must be made by credit card, 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 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: with
       any questions regarding payment procedures. Ayustar Corporation shall
       also send electronic notification to on the date
       said payment is made.

    9. IT IS FURTHER ORDERED that this Memorandum Opinion and Order shall be
       sent by regular mail and by certified mail, return receipt requested,
       to Ayustar Corporation at its address of record.


   P. Michele Ellison

   Chief, Enforcement Bureau

   Ayustar is a wireless internet service provider using Unlicensed National
   Information Infrastructure (U-NII) devices in San Juan, PR.

   Ayustar Corporation, Forfeiture Order, 25 FCC Rcd 945 (Enf. Bur. South
   Central Region 2010) ("Forfeiture Order").

   47 U.S.C. S: 301.

   Ayustar Corporation, Notice of Apparent Liability for Forfeiture,
   NAL/Acct. No. 201032680001 (Enf. Bur., rel. November 12, 2009) ("NAL").

   Letter from Stefan Lechnar, Chief Executive Officer, Ayustar Corporation,
   to San Juan Office at 1 (December 3, 2009) ("Ayustar Response").

   Letter from Stefan Lechnar, Chief Executive Officer, Ayustar Corporation,
   to Dennis P. Carlton, Regional Director, South Central Region, Enforcement
   Bureau (February 2, 2010) ("Ayustar Petition").

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

   47 C.F.R. S: 1.80.

   The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
   of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
   12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
   FCC Rcd 303 (1999).

   47 U.S.C. S: 503(b)(2)(E).

   Ayustar Petition at 1.

   First Greenville Corporation, Memorandum Opinion and Order and Forfeiture
   Order, 11 FCC Rcd 7399 (1996).

   Benito Rish, Memorandum Opinion and Order, 10 FCC Rcd 2861 (1995).

   Pinnacle Communications, Inc., Memorandum Opinion and Order, 11 FCC Rcd
   15496 (1996).

   Ayustar Petition at 1.


   Forfeiture Policy Statement, 12 FCC Rcd at 17106.


   See supra nn.12-14.

   Cf. First Greenville Corporation (considered that the station's losses
   exceeded its income and that the sole shareholder funded those losses and
   received no income from the station when reducing proposed forfeiture);
   Pinnacle Communications, Inc. (considered that the licensee was in default
   of a loan personally guaranteed by licensee's owner, that the loan was
   entered into to avoid foreclosure, and that the licensee and its owner
   would receive no cash from sale of the license when cancelling

   Cf. Benito Rish (considered the station's unprofitable history and the
   fact that it served a small community of license with a population of 425
   when reducing proposed forfeiture).

   47 U.S.C. S: 405.

   47 C.F.R. S: 1.106.

   47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).

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

   Federal Communications Commission DA 10-2235



   Federal Communications Commission DA 10-2235