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.


                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

     In the Matter of             )                               
                                      File Number EB-08-PA-0180   
     Jose Torres                  )                               
                                      NAL/Acct. No. 200932400002  
     Licensee of Station N3TX     )                               
                                      FRN 0001 83 1825            
     Philadelphia, Pennsylvania   )                               

                                FORFEITURE ORDER

   Adopted: May 13, 2011 Released: May 16, 2011

   By the Regional Director, Northeast Region, Enforcement Bureau:


    1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
       the amount of four thousand dollars ($4,000) to Jose Torres
       ("Torres"), the licensee of Amateur Extra Class Station N3TX in
       Philadelphia, Pennsylvania, for willfully and repeatedly operating his
       amateur station on an unauthorized frequency at his residence, in
       violation of section 1.903(a)  of the Commission's Rules. In this
       Order, we consider Torres's request that we cancel the forfeiture
       because he was not at his residence at the time of the unauthorized
       transmissions and his request that, in the event the forfeiture is not
       cancelled, it be reduced based on his inability to pay.


    2. After receiving a complaint of interference, agents in the Enforcement
       Bureau's Philadelphia Office ("Philadelphia Office") used mobile
       direction finding equipment on April 17, 2008, and June 2, 2008 to
       determine that the source of the interference was unauthorized radio
       transmissions on 26.71 MHz emanating from Torres's residence. Torres's
       Amateur Extra Class License does not permit operation on 26.71 MHz.
       Torres previously was warned about not operating on 26.71 MHz on
       December 11, 2007 and received a Notice of Violation for operating on
       this unauthorized frequency from his residence, in violation of
       section 1.903(a) of the Rules. In response to the Notice of Violation,
       Torres admitted to operating on the unauthorized frequency of 26.71

    3. On January 6, 2009, the Philadelphia Office issued a Notice of
       Apparent Liability for Forfeiture ("NAL") in the amount of $4,000 to
       Torres for operating on an unauthorized frequency on April 17, 2008
       and June 2, 2008. Torres met with agents in the Philadelphia Office on
       February 17, 2009,  to respond to the apparent findings in the NAL.
       During the meeting, Torres claimed that he was not at home during the
       alleged unauthorized operations on April 17, 2008, and June 2, 2008,
       and he submitted cell phone records in support of this claim. Torres
       also submitted his most recent three years of federal tax returns to
       support his request for a reduction based on an inability to pay.


    4. The proposed forfeiture amount in this case was assessed in accordance
       with section 503(b) of the Act, section 1.80 of the Rules, and the
       Commission's Forfeiture Policy Statement. In examining Torres'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. We have considered Torres's
       response to the NAL in light of these statutory factors and have found
       that cancellation or reduction of the forfeiture is not warranted for
       the reasons discussed below.

    5. Section 1.903(a) of the Rules provides that stations in the Wireless
       Radio Service must be used and operated only in accordance with the
       rules applicable to their particular service and with a valid
       authorization granted by the Commission. Section 1.903(b) provides
       that the holding of an authorization does not create any rights beyond
       the terms, conditions and period specified in the authorization. As an
       Extra Class amateur licensee, Torres is not permitted to operate on
       26.71 MHz. Nevertheless, agents found that, on April 17, 2008, and
       June 2, 2008, unauthorized transmissions on 26.71 MHz were emanating
       from Torres's residence. The voice that the agents heard during the
       transmissions on April 17, 2008, and June 2, 2008, is the same voice
       that agents heard, and that Torres conceded was his, on December 11,

    6. We find no merit to Torres's claim that he was not at home when the
       unauthorized transmissions took place at his residence on April 17,
       2008, and June 2, 2008. The cell phone records Torres submitted are
       evidence of nothing more than the fact that he was using his cell
       phone and not the landline phone located in his home. It does not
       prove that he was not at home at the time of the unauthorized
       transmissions. During his interview with agents at the Philadelphia
       Office on February 17, 2009, Torres provided no other information or
       documentation to support his claim that he was not at home at the time
       of the unauthorized transmissions. At no time does Torres claim or
       provide evidence that someone else in his house was responsible for
       the unauthorized transmissions. We therefore find that cancellation of
       the forfeiture on this basis is not warranted.

    7. We likewise decline to reduce the forfeiture based on Torres's claimed
       inability to pay. In support of his request, Torres submitted three
       years of individual tax returns. With regard to an individual's or
       entity's inability to pay, the Commission has determined that, in
       general, gross revenues are the best indicator of an ability to pay a
       forfeiture. We have reviewed Torres's documentation and conclude that
       a reduction of the forfeiture is not warranted.

    8. We have examined the Response to the NAL pursuant to the statutory
       factors above, and in conjunction with the Forfeiture Policy
       Statement. As a result of our review, we conclude that Torres
       willfully and repeatedly violated section 1.903(a) of the Rules.
       Considering the entire record and the factors listed above, we find
       that a forfeiture in the amount of $4,000 is warranted.


    9. ACCORDINGLY, IT IS ORDERED that, pursuant to section 503(b) of the
       Communications Act of 1934, as amended ("Act"), and sections 0.111,
       0.311, 0.314 and 1.80(f)(4) of the Commission's Rules, Jose Torres IS
       LIABLE FOR A MONETARY FORFEITURE in the amount of $4,000 for willfully
       and repeatedly violating section 1.903(a) of the Commission's Rules.

   10. 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 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 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. 
       Jose Torres shall also send electronic notification on the date said
       payment is made to

   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 Jose Torres
       at his address of record.


   G. Michael Moffitt

   Regional Director, Northeast Region

   Enforcement Bureau

   47 U.S.C. S: 1.903(a).

   On April 17, 2008, the unauthorized transmission occurred between 8:00 pm
   and 9:30 pm and on June 2, 2008, between 3:00 pm and 3:40 pm.

   See 47 U.S.C. S: 97.301.

   See Jose Torres, Notice of Violation, NOV No. V20083240007, released
   January 3, 2008. The NOV also included a violation for failure to transmit
   a call sign identification, in violation of Section 97.119(a) of the
   Rules. During the 2007 investigation, agents inspected Torres's station
   and obtained audio recordings of the unauthorized transmissions.

   Specifically, Mr. Torres wrote: "With this writing respond [sic] I agree
   to the Notice listed above. I fully understand this violation. According
   to my license N3TX I will transmit where I'm authorized, at the Extra
   Class portion only."

   Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932400002
   (Enf. Bur., Philadelphia Office, rel. January 6, 2009).

   The meeting with Torres took place in the Philadelphia Office on February
   17, 2009. Torres requested the meeting based on an alleged language
   barrier and his inability to properly refute in writing the findings in
   the NAL. Two FCC agents and the Philadelphia Office's Spanish-speaking
   Office Assistant were present during the meeting. Torres's statements were
   recorded with his consent.

   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), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
   Policy Statement").

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

   See e.g. PJB Communications of Virginia, Inc., Memorandum Opinion and
   Order, 7 FCC Rcd 2088, 2089 (1992) (licensee's gross revenues are the best
   indicator of its ability to pay a forfeiture and use of gross revenues to
   determine a party's ability to pay is reasonable, appropriate, and a
   useful yardstick in helping to analyze a licensee's financial condition).

   See e.g., Coleman Enterprises, Inc. D/B/A Local Long Distance, Inc., Order
   of Forfeiture, 15 FCC Rcd 24385 (2000) (forfeiture not deemed excessive
   where it represented approximately 7.9 percent of the violator's gross
   revenues); Hoosier Broadcasting Corporation, Memorandum Opinion and Order,
   15 FCC Rcd 8640 (EB 2002) (forfeiture not deemed excessive where it
   represented approximately 7.6 percent of the violator's gross revenues).

   47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80(f)(4),
   1.903(a), 1.903(b), 11.35(a).

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

   Federal Communications Commission DA 11- 874



   Federal Communications Commission DA 11- 874