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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-03-NY-125
)
L.A.C.A., State of New York, Inc. )
) NAL/Acct. No.
200432380007
Bronx, NY )
) FRN: 0007 8304 58
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February 24,
2004
By the District Director, New York Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that L.A.C.A., State of New York, Inc.
(``L.A.C.A.'') has apparently violated Section 301 of the
Communications Act of 1934, as amended, (``Act'')1, by operating
an unlicensed radio transmitter on the frequencies 96.1 MHz and
96.5 MHz. We conclude that L.A.C.A. is apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On June 19, 2003, the New York Office received
complaints about an illegal broadcast station located
in Bronx, NY, operating on the frequency 96.1 MHz, and
causing interference to a FCC licensed radio station in
New York, NY, operating on the frequency 96.3 MHz.
3. On June 21, 2003, a Commission agent, using a mobile
direction-finding vehicle, monitored the frequency 96.1
MHz in Bronx, NY. The agent observed an unauthorized
radio broadcast on 96.1 MHz, and positively determined
the source of the broadcast to a FM broadcast antenna
on the roof of 1112 Garrison Avenue, Bronx, NY 10474.
The agent then conducted a station inspection with Rev.
Fernando Rodriguez, president of L.A.C.A., who
acknowledged the operation of the unlicensed radio
station. The agent advised Rev. Rodriguez that the
station on 96.1 MHz was causing interference to an FCC
licensed station operating on 96.3 MHz. There was no
evidence of a Commission authorization for this
operation in Bronx, NY.
4. On June 23, 2003, the New York Office sent a Warning
Letter, by Fax, First Class Mail and Certified Mail
Return Receipt Requested, to L.A.C.A. for unlicensed
operation on the frequency 96.1 MHz. In a June 25,
2003, telephone call with a Commission agent, Rev.
Rodriguez acknowledged receipt of the faxed copy of the
Warning Letter. The New York Office did not receive a
written reply to the Warning Letter.
5. On June 26, 2003, a Commission agent, using a mobile
direction-finding vehicle, monitored the frequency 96.1
MHz in Bronx, NY, observed unauthorized radio broadcast
on 96.1 MHz, and positively determined the source of
the broadcast to a FM broadcast antenna on the roof of
1112 Garrison Avenue, Bronx, NY 10474.
6. On August 4, 2003, the New York Office received a fax
complaint letter from an FCC licensed station, in New
York, NY, concerning interference to their broadcast on
96.3 MHz from a station in Bronx, NY, transmitting on
96.1 MHz.
7. On August 6, 2003, an agent from the FCC New York
Office contacted Rev. Rodriguez by telephone and
advised him of the complaint of interference being
caused from a station operating on 96.1 MHz in Bronx,
NY.
8. On September 22, 2003, the New York Office received
another fax complaint letter from a FCC licensed
station in New York, NY, concerning interference to
their broadcast signal on 96.3 MHz, from a station in
Bronx, NY, transmitting on 96.5 MHz.
9. On September 22, 2003, Commission agents, using a
mobile direction-finding vehicle, monitored the
frequency 96.5 MHz in the Bronx, NY, and observed an
unauthorized radio broadcast on 96.5 MHz, and
positively determined the source of the broadcast to a
FM broadcast antenna on the roof of 1112 Garrison
Avenue, Bronx, NY 10474.
10. On September 27, 2003, Commission agents, using a
mobile direction-finding vehicle, monitored the
frequency 96.5 MHz in Bronx, NY, and observed an
unauthorized radio broadcast on 96.5 MHz, and
positively determined the source of the broadcast to a
FM broadcast antenna on the roof of 1112 Garrison
Avenue, Bronx, NY 10474. The agents conducted a
station inspection with Rev. Rodriguez and advised him
of the station operation that was again causing
interference to an FCC licensed station operating on
96.3 MHz. There was no evidence of a Commission
authorization for this operation in Bronx, NY.
III. DISCUSSION
11. 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.
12. Based on the evidence before us, we find that L.A.C.A.
willfully2 and repeatedly3 operated radio transmission
equipment on: 96.1 MHz on June 21, 2003 and June 26,
2003; 96.5 MHz on September 22, 2003 and September 27,
2003, without a Commission authorization, in violation
of Section 301 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
frequencies, 96.1 MHz or 96.5 MHz in Bronx, NY.
13. 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 for the service 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 Act5, 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
14. 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, L.A.C.A. is hereby NOTIFIED
of their APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for willfully
and repeatedly violating Section 301 of the Act.
15. 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,
L.A.C.A SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
16. 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. 200432380007 and FRN: 0007 8304 58.
17. Any response to this NAL must be mailed to Federal
Communications Commission, Spectrum Enforcement
Division, 445 12th Street, S.W., Washington, D.C.
20554, and MUST INCLUDE THE NAL/Acct. No. 200432380007.
18. 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.
19. 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
20. 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 Spectrum Enforcement 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.
21. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail
Return Receipt Requested to L.A.C.A., 1112 Garrison
Avenue, Bronx, NY 10474.
FEDERAL COMMUNICATIONS
COMMISSION
Daniel W. Noel
District Director
New York Office
Attachment A - FCC Condensed 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.
5
47 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.