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Federal Communications Commission
Washington, D.C. 20554
In the Matter of File No: EB-11-SJ-0028
Eleuterio Lebron NAL/Acct. No.: 201132680003
Guayama, PR FRN: 0020992913
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 21, 2011 Released: September 21, 2011
By the Resident Agent, San Juan Office, South Central Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Eleuterio Lebron ("Mr. Lebron"), apparently willfully and
repeatedly violated section 301 of the Communications Act of 1934, as
amended ("Act"), by operating an unlicensed radio transmitter on the
frequency 88.5 MHz in Guayama, Puerto Rico. We conclude that Mr.
Lebron is apparently liable for a forfeiture in the amount of fifteen
thousand dollars ($15,000).
2. On June 22 and 23, 2011, in response to a complaint, agents from the
Enforcement Bureau's San Juan Office ("San Juan Office"), used
direction-finding techniques to locate the source of radio frequency
transmissions on the frequency 88.5 MHz to a building located at
Barrio Mosquito, Carretera 3, Km 148.9, Guayama, Puerto Rico. On both
days, the agents 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. On June 29, 2011, agents
from the San Juan Office inspected the station located in the building
previously identified on June 22 and 23, 2011. During the inspection,
the operator of the station telephoned Mr. Lebron, who confirmed with
the agents that he was the station owner. Mr. Lebron then instructed
the operator to take the station off the air and the agents confirmed
that the operation on the frequency 88.5 MHz ceased. A review of
Commission records shows that Mr. Lebron does not hold any
authorization to broadcast on any frequency in Guayama, Puerto Rico.
3. 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. Section 312(f)(1) of the Act defines willful as the
"conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law. The legislative
history to section 312(f)(1) of the Act clarifies that this definition
of willful applies to both section 312 and 503(b) of the Act and the
Commission has so interpreted the term in the section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. The term "repeated" means the
commission or omission of such act more than once or for more than one
4. Section 301 of the Act requires 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. For the purposes of
section 301, the word "operate" has been interpreted to mean both the
technical operation of the station, as well as "the general conduct or
management of a station as a whole, as distinct from the specific
technical work involved in the actual transmission of signals." In
other words, the use of the word "operate" in section 301 of the Act
captures not just the "actual, mechanical manipulation of radio
apparatus" but also operation of a radio station generally. To
determine whether an individual is involved in the general conduct or
management of the station, we can consider whether such individual
exercises control over the station, which the Commission has defined
to include ". . . any means of actual working control over the
operation of the [station] in whatever manner exercised." On June 22,
23, and 29, 2011, agents from the San Juan Office determined that an
unlicensed radio station on the frequency 88.5 MHz operated from a
building located at Barrio Mosquito, Carretera 3, Km 148.9, Guayama,
Puerto Rico. Because Mr. Lebron is the owner of the unlicensed station
at this location and he controlled the station's operations, we find
that he willfully operated the station in apparent violation of the
Rules. Because the operation occurred on more than one day, we find
that the apparent violation was repeated. Based on the evidence before
us, we find that Mr. Lebron apparently willfully and repeatedly
violated section 301 of the Act by operating radio transmission
equipment without the required Commission authorization.
5. Pursuant to the Commission's 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, any history
of prior offenses, ability to pay, and other such matters as justice
may require. In this regard, we take into account the fact that on
February 9, 2010 Mr. Lebron operated an unlicensed station on the same
frequency from the same location and was warned verbally and in
writing that such action violated the Act. The fact that Mr. Lebron
continued to operate after being put on notice that his unlicensed
operation contravened the Act, the Commission's rules, and related
Commission orders, demonstrates a deliberate disregard for the
Commission's requirements warranting an upward adjustment of $5,000.
Applying the Forfeiture Policy Statement, section 1.80 of the Rules,
and the statutory factors to the instant case, we conclude that Mr.
Lebron is apparently liable for a total forfeiture in the amount of
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.204,
0.311, 0.314 and 1.80 of the Commission's rules, Eleuterio Lebron is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of fifteen thousand dollars ($15,000) for violations of section
301 of the Act.
7. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the
Commission's rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Eleuterio Lebron SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
8. 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 Account Number and FRN
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. For questions about payment procedures,
please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. Eleuterio Lebron shall
also send an email notification to SCR-Response@fcc.gov on the date
said payment is made.
9. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.80(f)(3) and 1.16 of the Rules. The written statement, if
any, shall be mailed to Federal Communications Commission, Enforcement
Bureau, South Central Region, San Juan Office, Room 762, Federal
Building, Hato Rey, Puerto Rico, and must include the NAL/Acct. No.
referenced in the caption. The written statement shall also be emailed
10. 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.
11. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and regular mail, to Eleuterio Lebron at his address of
FEDERAL COMMUNICATIONS COMMISSION
47 U.S.C. S: 301.
Part 15 of the Rules sets out the conditions and technical requirements
under which certain radio transmission devices may be used without a
license. In relevant part, 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 mV/m at three
meters. 47 C.F.R. S: 15.239.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the [A]ct
(e.g., section 503).... As defined ... `willful' means that the licensee
knew that he was doing the act in question, regardless of whether there
was an intent to violate the law. `Repeated' means more than once, or
where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
sections 312 and 503, and are consistent with the Commission's application
of those terms ...").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10 (2001) ("Callais
Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
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." See Callais Cablevision, Inc.
47 U.S.C. S: 301.
See Campbell v. United States, 167 F.2d 451, 453 (5th Cir. 1948)
(comparing the use of the words "operate" and "operation" in sections 301,
307, and 318 of the Act and concluding that the word "operate" as used in
section 301 of the Act means both the technical operation of the station
as well as the general conduct or management of the station).
Id. See also 47 U.S.C S: 307(c)(1).
See Revision of Rules and Policies for the Direct Broadcast Satellite
Service, 11 FCC Rcd 9712, 9747 (1995), recon. denied, DIRECTV, Inc. v.
FCC, 110 F.3d 816 (D.C. Cir. 1997).
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 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
See Eleuterio Lebron, Notice of Unlicensed Operation (Enf. Bur., San Juan
Office, rel. March 2, 2010).
See Robert Brown, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd
13740 (Enf. Bur. 2010); Loyd Morris, Notice of Apparent Liability for
Forfeiture, 25 FCC Rcd 13736 (Enf. Bur. 2010).
47 U.S.C. S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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Federal Communications Commission DA 11 -1578
Federal Communications Commission DA 11 -1578