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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-03-
)NY-380
Moises Cabrera )
Juan Cabrera ) NAL/Acct. No:
)200632380002
New York, NY
FRN: 0013 3361 10
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December
19, 2005
By the District Director, New York Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Moises Cabrera and Juan Cabrera
apparently willfully and repeatedly violated Section 301 of the
Communications Act of 1934, as amended (``Act''),1 by operating
an unlicensed radio transmitter on the frequency 89.7 MHz. We
conclude, pursuant to Section 503(b) of Act,2 that Moises
Cabrera and Juan Cabrera are apparently liable for a forfeiture
in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On December 27, 2004, the New York Office of the FCC's
Enforcement Bureau received a complaint of an illegal broadcast
station operating on 89.7 MHz in New York, New York.
3. On December 29, 2004, a Commission agent, using a
mobile direction-finding vehicle, monitored the frequency 89.7
MHz in New York, New York. The agent observed a radio
broadcast on 89.7 MHz and identified the source of the
transmissions as an FM broadcasting antenna on a building at
501 West 207th Street, New York, NY 10034. The agent observed
an FM broadcast antenna mounted on the roof. The agent 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'')3 and therefore required a
license. The agent searched Commission databases and found no
evidence of a Commission authorization for operation on 89.7
MHz in New York, New York.
4. On that same day, after completing the field strength
measurements, the agent went to the second floor of 501 West
207th Street to conduct a station inspection. Upon entering
the building, the agent noted a sign for an organization that
read ``Iglesia Pentecostal Centro Evangelistico Movimiento
Misionero.''4 The agent conducted an inspection with Juan
Cabrera, Moises Cabrera's son, who was present in the studio
and operating the station. The agent observed radio station
studio equipment, including an operational FM transmitter with
a visual display showing the frequency assignment 89.7 MHz.
Prior to leaving the area, the agent monitored 89.7 MHz and
noted that the station went off the air.
5. On December 30, 2004, the New York office sent a
Warning Letter, by First Class and Certified Mail Return
Receipt Requested, to Radio Movimiento Mision Vida, Attn: Juan
Cabrera and Moises Cabrera, for unlicensed operation on the
frequency 89.7 MHz.5 The New York Office received the U. S.
Post Office return receipt, signed by Juan Cabrera, confirming
that the letter was delivered and received on January 4, 2005.
The New York Office did not receive a response to the Warning
Letter.
6. On March 3, 7, and 8, 2005, a Commission agent, using a
mobile direction-finding vehicle, monitored the frequency 89.7
MHz in New York, New York. The agent observed a radio
broadcast on 89.7 MHz, and identified the source of the
transmissions as an FM broadcasting antenna on a building at
501 West 207th Street, New York, NY 10034. The agent also
observed an FM broadcast antenna mounted on the roof. The
agent took field strength measurements and determined that the
signals being broadcast exceeded the limits for operation under
Part 15 of the Rules and therefore required a license. The
agent searched Commission databases and found no evidence of a
Commission authorization for operation on 89.7 MHz in New York,
New York.
7. After completing the field strength measurements on
March 8, the agents went to the second floor of 501 West 207th
Street and conducted a station inspection with Moises and Juan
Cabrera. The agents observed radio station studio equipment,
including an operational FM transmitter. In response to
questions from the agents, Moises Cabrera and Juan Cabrera
admitted to operating the station. They reported that, using
the roof antenna, they had been operating the station with the
current transmitter for about one year and previously operated
the station with a higher power transmitter. When Juan Cabrera
turned off the transmitter in the agents' presence, the station
went off the air. The agents informed Moises and Juan Cabrera
that they did not have authority to operate the station and
advised them of the penalties for unlicensed operation.
8. On May 5, 2005, a Commission agent, using a mobile
direction-finding vehicle, monitored the frequency 89.7 MHz in
New York, New York. The agent observed a radio broadcast on
89.7 MHz, and identified the source of the transmissions as an
FM broadcasting antenna on a building at 501 West 207th Street,
New York, NY 10034. The antenna was mounted at a much lower
height on the roof than previously observed and could only be
seen from a higher vantage point. The agent 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'')4 and therefore required a
license. The agent searched Commission databases and found no
evidence of a Commission authorization for operation on 89.7
MHz in New York, New York.
III. DISCUSSION
9. 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.6 The term ``repeated'' means the commission or
omission of such act more than once or for more than one day.7
10. 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 from the New
York Office positively identified the source of an FM signal
transmitting on 89.7 MHz on December 29, 2004, and March 3,
March 7, March 8, and May 5, 2005 as a building at 501 West
207th Street, New York, NY. On those dates, agents also
conducted field strength measurements and determined the signal
exceeded the allowable limit for a low power non-licensed
transmitter. A license therefore was required for operation of
this station. The FCC's records showed that no license had
been issued for an FM station on 89.7 MHz in New York, NY.
Moises and Juan Cabrera admitted to operating the station and
continued to operate the station after being warned orally and
in writing of the possible penalties for unlicensed operation.
11. Based on the evidence before us, we find that
Moises Cabrera and Juan Cabrera apparently willfully and
repeatedly violated Section 301 of the Act by operating radio
transmission equipment on 89.7 MHz in New York, NY on December
29, 2004, and March 3, March 7, March 8, and May 5, 2005,
without a Commission authorization.
12. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines ("Forfeiture Policy
Statement"), and Section 1.80 of the Rules, the base forfeiture
amount for operation without an instrument of authorization is
$10,000.8 In assessing the monetary forfeiture amount, we must
also take into account the statutory factors set forth in
Section 503(b)(2)(D) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, and with
respect to the violator, the degree of culpability, and history
of prior offenses, ability to pay, and other such matters as
justice may require.9 Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the
instant case, we conclude that Moises Cabrera and Juan Cabrera
are apparently jointly liable for a $10,000 forfeiture.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as amended,
and Sections 0.111, 0.311 and 1.80 of the Commission's Rules,
Moises Cabrera and Juan Cabrera are 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.10
14. 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, Moises Cabrera and Juan Cabrera SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
15. 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/Acct. No. and FRN No. referenced above. Payment by check
or money order may be mailed to Federal Communications
Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106.
16. The response, 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.
17. 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.
18. Requests for payment of the full amount of this
Notice of Apparent Liability for Forfeiture under an
installment plan should be sent to: Associate Managing
Director, Financial Operations, 445 12th Street, S.W., Room
1A625, Washington, D.C. 20554.1
19. IT IS FURTHER ORDERED that a copy of this Notice
of Apparent Liability for Forfeiture shall be sent by Certified
Mail, Return Receipt Requested, and regular mail, to Moises and
Juan Cabrera at their address of record.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
District Director
New York Office
Northeast Region
Enforcement Bureau
_________________________
147 U.S.C. § 301.
247 U.S.C. § 503(b).
3Section 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 ?V/m at
three meters. 47 C.F.R. § 15.239. Measurements showed that the
field strength of the station's signal exceeded the
permissible level for a non-licensed Part 15 transmitter.
4The agent subsequently confirmed that ``Centro Evangelistico
M.M.M. Inc.'' is a non-profit corporation registered in New York
State with a mailing address of 501 West 207th Street, New York,
NY 10040. The website for the church, ``Movimiento Misionero
Mundial - New York,'' lists Moises Cabrera as the pastor of the
church.
5The unlicensed radio station apparently operated by Moises and
Juan Cabrera identifies as ``Radio Movimiento Mision Vida.''
6Section 312(f)(1) of the Act, 47 U.S.C. § 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 Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
7Section 312(f)(2) of the Act, 47 U.S.C. § 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.''
812 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
947 U.S.C. § 503(b)(2)(D).
1047 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80, 47
U.S.C. § 301.
_________________________
1See 47 C.F.R. § 1.1914.