Click here for Adobe Acrobat version
Click here for Microsoft Word version
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.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No: EB-10-NY-0185
Bernabe Moreno ) NAL/Acct. No: 201132380004
Passaic, New Jersey ) FRN: 0019865922
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 10, 2011 Released: February 11, 2011
By the District Director, New York Office, Northeast Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Bernabe Moreno ("Mr. Moreno"), 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 102.3 MHz in Passaic, New Jersey. We conclude that Mr.
Moreno is apparently liable for a forfeiture in the amount of ten
thousand dollars ($10,000).
2. On April 3 and April 7, 2010, in response to a complaint, agents of
the Enforcement Bureau's New York Office ("New York Office") used
mobile direction-finding techniques to monitor the frequency 102.3 MHz
in Passaic, New Jersey, and determined the source of the transmissions
to be a radio station operating from a building located at 251 Monroe
Street. The agents observed an FM broadcast antenna on the roof of the
building and a coaxial cable going from the antenna on the roof to the
second floor of the building. The agents subsequently took field
strength measurements and 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. A review of the
Commission's records revealed no evidence of a Commission
authorization for operation of a radio station on 102.3 MHz in
Passaic, New Jersey.
3. On April 7, 2010, agents from the New York Office returned to the
building on 251 Monroe Street to conduct an inspection of the radio
station and knocked on the door of Suite 201. A male answered the door
and identified himself as Bernabe Moreno. Mr. Moreno told the agents
that he owns and operates the station on 102.3 MHz at this location.
The agents observed that the station was active at the time of the
inspection until Mr. Moreno turned off the station at the agents'
request. The agents verbally warned Mr. Moreno about the consequences
of continued operation of an unlicensed radio station and provided him
with a written Notice of Unlicensed Operation, requiring him to cease
operation of the station.
4. 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. The term "willful" as used in Section 503(b) of the Act has
been interpreted to mean simply that the acts or omissions are
committed knowingly. The term "repeated" means the commission or
omission of such act more than once or for more than one day.
5. Section 301 of the Act states 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 granted under the provisions of the Act.
Agents determined that an unlicensed broadcast station operated on
102.3 MHz from Suite 201 at 251 Monroe Street in Passaic, New Jersey
on April 3, and April 7, 2010. During an interview with agents on
April 7, 2010, Mr. Moreno admitted to operating the radio station at
this location. Because Mr. Moreno operated the station knowingly, we
find that the apparent violation was willful. Because the operation
occurred on more than one day, we find the apparent violation was
repeated. Based on the evidence before us, we find that on April 3,
and April 7, 2010, Mr. Moreno apparently willfully and repeatedly
violated Section 301 of the Act by operating radio transmission
equipment without the required Commission authorization.
6. 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. Applying the Forfeiture Policy Statement, Section 1.80,
and the statutory factors to the instant case, we conclude that Mr.
Moreno is apparently liable for a forfeiture in the amount of $10,000.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314, and 1.80 of the Rules, Bernabe Moreno is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of ten thousand
dollars ($10,000) for violations of Section 301 of the Act.
8. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules, within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture, Bernabe Moreno SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
9. 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
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[s] 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: ARINQUIRIES@fcc.gov with
any questions regarding payment procedures. Bernabe Moreno shall send
electronic notification on the date said payment is made to
10. 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, must be mailed to Federal Communications Commission, Enforcement
Bureau, Northeast Region, New York Office, 201 Varick Street, Suite
1151, New York, NY 10014, and must include the NAL/Acct. No.
referenced in the caption. The statement should also be emailed to
11. 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.
12. 13. 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 Bernabe Moreno at his address
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
New York Office
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. Measurements showed that the field strength
of the station's signal exceeded the permissible level for a non-licensed
Part 15 transmitter.
47 U.S.C. S: 503(b).
Section 312(f)(1) of the Act, 47 U.S.C. S: 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', when used with reference to the
commission or omission of any act, 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, e.g., Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991); recon. denied, 7
FCC Rcd 3454 (1992).
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."
47 U.S.C. S: 301.
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).
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80.
See 47 C.F.R. S: 1.1914.
(...continued from previous page)
Federal Communications Commission DA 11-258
Federal Communications Commission DA 11-258