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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Bernabe Moreno Passaic, New Jersey ) ) ) ) ) ) File No:
EB-10-NY-0185 NAL/Acct. No: 201132380004 FRN: 0019865922
Adopted: February 22, 2013 Released: February 22, 2013
By the Regional Director, Northeast Region, Enforcement Bureau:
1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
the amount of one thousand dollars ($1,000) to Bernabe Moreno for
willfully and repeatedly violating Section 301 of the Communications
Act of 1934, as amended (Act).^ The noted violations involved Mr.
Moreno's operation of an unlicensed radio transmitter on the frequency
102.3 MHz in Passaic, New Jersey.
2. On February 11, 2011, the Enforcement Bureau's New York Office issued
a Notice of Apparent Liability for Forfeiture (NAL) ^ for ten
thousand dollars ($10,000) to Mr. Moreno for operating an unlicensed
radio station in Passaic, New Jersey.^ At the time of the inspection,
Mr. Moreno admitted to FCC agents that he owned and operated the
station.^ In response to the NAL, Mr. Moreno clarifies his initial
admissions to the agents and requests cancellation or reduction of the
forfeiture.^ Specifically, Mr. Moreno now states that he was not the
owner of the station, but was just "in charge" of the station. ^ Mr.
Moreno further states that the owner (who he identifies simply as
"Casique") never informed him that the station was unlicensed.^ Mr.
Moreno also asserts that he is unable to pay the proposed forfeiture
based on his financial circumstances.^
3. The proposed 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 Forfeiture Policy Statement.^ In examining Mr.
Moreno's response, Section 503(b)(2)(E) 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.^ After considering Mr.
Moreno's response in light of these statutory factors, we deny his
request for cancellation of the forfeiture, but grant his request for
a forfeiture reduction based on his inability to pay claim.
4. We affirm the NAL's finding that Mr. Moreno violated 301 of the Act.
Section 301 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.^ 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 captures not just the "actual, mechanical manipulation of radio
apparatus,"^ but also operation of a radio station generally.^ Thus,
even if Mr. Moreno is now denying ownership of the unlicensed station,
he still can found in violation of Section 301 because--by Mr.
Moreno's own admission in his response--he was "in charge" of the
station and was hired by the station's owner to program the station's
music.^ As such, Mr. Moreno consciously operated and/or otherwise was
involved in the general conduct or management of the unlicensed
station.^ Furthermore, the fact that the station's owner did not
advise Mr. Moreno that the station was unlicensed does not excuse the
violation. In this respect, it is well established that the Commission
does not consider ignorance of the law or reliance on erroneous or
misleading advice from third parties as mitigating circumstances that
justify cancellation or reduction of a forfeiture, and we see no
reason to depart from that long-established policy in this case.^ We
therefore conclude that Mr. Moreno willfully and repeatedly violated
Section 301 of the Act by operating radio transmission equipment
without the required Commission authorization.
5. Mr. Moreno also requests cancellation or reduction of the forfeiture
based on his inability to pay. With regard to an individual or
entity's inability to pay claim, the Commission has determined that,
in general, gross revenues are the best indicator of an ability to pay
a forfeiture.^ Based on the financial documents provided by Mr.
Moreno, we find sufficient basis to reduce the forfeiture to $1,000.^
However, we caution Mr. Moreno that a party's inability to pay is only
one factor in our forfeiture calculation analysis, and is not
dispositive.^ We have previously rejected inability to pay claims in
cases of repeated or otherwise egregious violations.^ Therefore,
future violations of this kind may result in significantly higher
forfeitures that may not be reduced due to Mr. Moreno's financial
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(f)(4) of the Commission's rules, Bernabe Moreno
IS LIABLE FOR A MONETARY FORFEITURE in the amount of one thousand
dollars ($1,000) for violations of Section 301 of the Act.^
7. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days after the
release date of this Forfeiture Order.^ If the forfeiture is not paid
within the period specified, the case may be referred to the U.S.
Department of Justice for enforcement of the forfeiture pursuant to
Section 504(a) of the Act.^ Bernabe Moreno shall send electronic
notification of payment to NER-Response@fcc.gov on the date said
payment is made. The payment must be made by check or similar
instrument, wire transfer, or credit card, and must include the
NAL/Account number and FRN referenced above. Regardless of the form of
payment, a completed FCC Form 159 (Remittance Advice) must be
submitted.^ When completing the FCC Form 159, enter the Account Number
in block number 23A (call sign/other ID) and enter the letters "FORF"
in block number 24A (payment type code). Below are additional
instructions you should follow based on the form of payment you
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
8. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer--Financial Operations, Federal Communications
Commission, 445 12th Street, S.W., Room 1-A625, Washington, D.C.
20554.^ If you have questions regarding payment procedures, please
contact the Financial Operations Group Help Desk by phone, 1-877-480-3201,
or by e-mail, ARINQUIRIES@fcc.gov.
9. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
First Class and Certified Mail, Return Receipt Requested, to Bernabe
Moreno at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
^ 47 U.S.C. S 301.
^ Bernabe Moreno, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd
1355 (Enf. Bur. 2011) (NAL). A comprehensive recitation of the facts and
history of this case can be found in the NAL and is incorporated herein by
^ Id. at 1355, para. 3. Mr. Moreno also demonstrated control over the
station by turning off the station at the agents' request. Id.
^ Letter from Bernabe Moreno to the New York Office, Northeast Region,
Enforcement Bureau (March 7, 2011) (on file in EB-10-NY-0185) (NAL
^ See id.
^ See id.
^ 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), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
^ 47 U.S.C. S 503(b)(2)(E).
^ 47 U.S.C. S 301.
^ 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). 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." See Revision of Rules and Policies for the Direct
Broadcast Satellite Service, 11 FCC Rcd 9712, 9747 (1995), recons. denied,
DIRECTV, Inc. v. FCC, 110 F.3d 816 (D.C. Cir. 1997).
^ NAL Response at 1. In addition, it does not appear that Mr. Moreno is
denying his initial admission to the agents that he operated the station,
which separately confirms a Section 301 violation.
^ See, e.g., Donald J. Payne, Forfeiture Order, 22 FCC Rcd 10776 (Enf.
Bur. 2007) (holding that "liability for unlicensed operation may be
assigned to any individual participating in the operation of the
unlicensed station, regardless of who else may be responsible for the
^ See Southern California Broadcasting Co., Memorandum Opinion and Order,
6 FCC Rcd 4387, 4387, para. 3 (1991) (holding that ignorance of the law or
inadvertent mistakes are not mitigating circumstances that can serve to
justify a forfeiture reduction). Accord Dexter Blake, Memorandum Opinion
and Order, 27 FCC Rcd 15087 (Enf. Bur. 2012), aff'd in part, Forfeiture
Order, 25 FCC Rcd 10038 (Enf. Bur. 2010) (finding that misleading advice
from third parties does not constitute a mitigating circumstances that
justifies cancellation or reduction of a forfeiture); Paisa 2 Car and
Limousine Service, Inc., Memorandum Opinion and Order, 26 FCC Rcd 14423,
14424, para. 5 (Enf. Bur. 2011) (declining to cancel forfeiture based on
licensee's claim that it did not know that it was operating on
^ See PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd
2088, 2089 (1992) (forfeiture not deemed excessive where it represented
approximately 2.02 percent of the violator's gross revenues); Local Long
Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000) (forfeiture not
deemed excessive where it represented approximately 7.9 percent of the
violator's gross revenues); Hoosier Broadcasting Corporation, Forfeiture
Order, 15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross revenues).
^ This forfeiture amount falls within the percentage range that the
Commission has previously found acceptable. See supra note 18.
^ See 47 U.S.C. S 503(b)(2)(E) (requiring the Commission to 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 such other matters as justice may
^ See Whisler Fleurinor, Forfeiture Order, DA 13-175 (Enf. Bur. rel. Feb.
8, 2013) (finding that violator's demonstrated inability to pay was
outweighed by repeated operation of an unlicensed radio station); Kevin W.
Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur. 2011) (holding that
violator's repeated acts of malicious and intentional interference
outweigh evidence concerning his ability to pay); Hodson Broadcasting
Corp., Forfeiture Order, 24 FCC Rcd 13699 (Enf. Bur. 2009) (holding that
permittee's continued operation at variance with its construction permit
constituted an intentional and continuous violation, which outweighed
permittee's evidence concerning its ability to pay the proposed
^ 47 U.S.C. SS 301, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
^ 47 C.F.R. S 1.80.
^ 47 U.S.C. S 504(a).
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 13-262
Federal Communications Commission DA 13-262