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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-NY-216
)
Fernando Alejandro ) NAL/Acct. No.
200332380011
Bronx, NY )
) FRN: 0007-9608-34
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January
10, 2003
By the District Director, New York Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Fernando Alejandro has apparently violated
Section 301 of the Communications Act of 1934 (?Act?) 1, as
amended, by operating an unlicensed radio transmitter on the
frequency 95.1 MHz. We conclude that Fernando Alejandro is
apparently liable for a forfeiture in the amount of ten thousand
dollars ($10,000).
II. BACKGROUND
2. On September 16, 2002, the FCC New York Office received
a complaint about an illegal broadcast station in Bronx, NY.
3. On September 20, 2002, Commission agents, using a
mobile direction-finding vehicle, monitored the frequency 95.1
MHz in Bronx, NY. The agents observed unauthorized radio
broadcast on 95.1 MHz, and identified the source of the
unauthorized transmissions as El Fin Se Acerca Church, 2151
Jerome Avenue, Bronx, NY 10453. The agents observed an FM
broadcast antenna on the roof of the building. There was no
evidence of a Commission authorization for this operation in
Bronx, NY.
4. On October 3, 2002, Commission agents conducted a
station inspection of the radio station, Radio Mision
Evangelistica, located inside the church El Fin Se Acerca Church,
2151 Jerome Avenue, Bronx, NY 10453. An agent spoke to the
pastor of the church, Mr. Fernando Alejandro, by telephone, and
informed him he was operating an illegal radio station and to
cease all operations. The agents left a hand delivered warning
letter with the son of Fernando Alejandro.
5. On October 4, 2002, a Commission agent spoke to Mr.
Alejandro by telephone, and he acknowledged receiving the hand
delivered warning letter. The agent also asked Mr. Alejandro
about a flyer posted inside the radio station, Radio Mision
Evangelistica, located inside El Fin Se Acerca Church. The flyer
announced a concert being held at the church on October 12, 2002,
presented by Radio Mision Evangelistica, 95.1 FM. Mr. Alejandro
said he was not planning on broadcasting the concert on air on
95.1 MHz. The New York Office sent a Warning Letter, by First
Class and Certified Mail, Return Receipt Requested, to Mr.
Fernando Alejandro for unlicensed operation on the frequency 95.1
MHz. The New York Office did not receive a reply to the Warning
Letter.
6. On October 12, 2002, Commission agents, using a mobile
direction-finding vehicle, monitored the frequency 95.1 MHz in
Bronx, NY. The agents again observed an unauthorized radio
broadcast on 95.1 MHz, and identified the source of the
unauthorized transmissions as El Fin Se Acerca Church, 2151
Jerome Avenue, Bronx, NY 10453. The agents conducted a station
inspection and spoke to Mr. Alejandro about the continued
unlicensed operation on the frequency 95.1 MHz. During the
inspection, the agents noticed that the unauthorized broadcast on
95.1 MHz had ceased.
III. DISCUSSION
7. Section 301 of the Act sets forth generally 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. A review of
Commission's records showed that there was no evidence of a
Commission authorization to operate this station on the
frequency, 95.1 MHz, in Bronx, NY.
8. Based on the evidence before us, we find that, Fernando
Alejandro was responsible for the operation of radio transmission
equipment on 95.1 MHz on September 20, 2002, and October 12,
2002, without a Commission authorization in willful2 and
repeated3 violation of Section 301 of the Act.
9. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087, 17113 (1997), recon.
denied, 15 FCC Rcd 303(1999) (?Forfeiture Policy Statement?)4, sets
the base forfeiture amount for operation without an instrument of
authorization at $10,000. In assessing the monetary forfeiture
amount, we must take into account the statutory factors set forth
in Section 503(b)(2)(D) of the Act,5 which include 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. Applying the Forfeiture Policy Statement and
the statutory factors to the instant case and applying the
inflation adjustments, we believe that a ten thousand dollar
($10,000) monetary forfeiture is warranted.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act6 and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules7, Fernando Alejandro is hereby NOTIFIED of his
APPARENT LIABILITY FOR A FORFEITURE in the amount of ten thousand
dollars ($10,000) for willfully violating Section 301 of the Act.
11. 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, Fernando Alejandro SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
proposed forfeiture.
12. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. 200332380011 and FRN: 0007-9608-34.
13. Any response to this NAL must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington, D.C.
20554 and MUST INCLUDE THE NAL/Acct. No. 200332380011.
14. 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.
15. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivable Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.8
16. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Technical and Public Safety
Division. Your certification should indicate whether you,
including your parent entity and its subsidiaries, meet one of
the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (OCBO) set forth
in Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
17. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to Fernando Alejandro, El Fin Se Acerca
Church, 2151 Jerome Avenue, Bronx, NY 10453.
FEDERAL COMMUNICATIONS
COMMISSION
Daniel W. Noel
District Director
New York Office
Attachment A-FCC List of Small Entities, October 2002
_________________________
1 47 U.S.C. § 301.
2 Section 312(f)(1) of the Act, 47 U.S.C. 312(f)(1), which
applies to 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 ?.? See Southern California Broadcasting
Co., 6 FCC Rcd 4387 (1991).
3 Section 312(f)(2), which also applies to Section 503(b),
provides: [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.
447 C.F.R. § 1.80.
547 U.S.C. § 503(b)(2)(D).
647 U.S.C. § 503(b).
747 C.F.R. §§ 0.111, and 0.311.
8 See 47 C.F.R. § 1.1914.