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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File Number: EB-06-KC-106
Raul Guzman Reyes ) NAL/Acct. No. 200632560005
Des Moines, Iowa ) FRN 0009331497
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 1, 2006
By the District Director, Kansas City Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Raul Guzman Reyes ("Mr. Guzman"), in Des Moines, Iowa, apparently
willfully and repeatedly violated Section 301 of the Communications
Act of 1934, as amended ("Act") by operating an unlicensed radio
transmitter on 92.9 MHz in Des Moines, Iowa. We conclude, pursuant to
Section 503(b) of the Act, that Mr. Guzman is apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On June 14, 2006, the Commission's Kansas City Office of the
Enforcement Bureau ("Kansas City Office") received information
concerning an unauthorized broadcast station operating on 92.9 MHz in
Des Moines, Iowa. A search of the Commission's databases revealed no
authorization for a broadcast station to operate on 92.9 MHz in Des
Moines, Iowa.
3. On June 27, 2006, agents from the Kansas City Office monitored
broadcast transmissions on 92.9 MHz in Des Moines, Iowa. The agents,
using direction finding techniques, located the source of the
transmissions on 92.9 MHz to an apartment building in Des Moines,
Iowa. The agents took field strength measurements and determined that
the strength of the signal being broadcast exceeded the limits for
operation under Part 15 of the Commission's Rules ("Rules") and
therefore required a license. The agents observed an antenna mounted
on the roof of the apartment building and visually traced a cable
attached to the antenna at one end to where it entered the apartment
building through a second floor window.
4. On June 28, 2006, agents from the Kansas City Office again monitored
broadcast transmissions on 92.9 MHz in Des Moines, Iowa and, using
direction finding techniques, located the source of the transmissions
on 92.9 MHz to an apartment building in Des Moines, Iowa. This is the
same location determined to be the source of the unlicensed
transmissions on the previous day. The agents made field strength
measurements and determined that the signal strength still exceeded
the limits for operation under Part 15 of the Rules and, therefore,
still required a license.
5. Still on June 28, 2006, the agents inspected a radio station located
in Apartment 2 on the second floor of the apartment building. This
apartment included the window where the cable from the rooftop antenna
made ingress into the building. The agents found radio station
equipment in operation inside the apartment. The sole occupant of the
apartment was identified as Mr. Guzman who was present during the
inspection. Mr. Guzman stated this was his residence. Mr. Guzman
stated that the radio station equipment in the apartment belonged to
him, that he operated the station, and that he had no authorization
from the Commission to do so. Mr. Guzman also stated that he had
received from one of the agents a prior warning for unlicensed radio
operation in May 2005 at another location, and that the equipment in
operation now was the same equipment he used then.
III. DISCUSSION
6. 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) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
7. Section 301 of the Act requires 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. On June 27, 2006, and June 28, 2006, Mr.
Guzman operated radio transmitting equipment from his residence in Des
Moines, Iowa, on 92.9 MHz without the required Commission
authorization. Therefore, Mr. Guzman violated Section 301 of the Act.
Because the violation occurred on multiple days, the violation was
repeated. Mr. Guzman owned and controlled the radio station and
operated the equipment. Mr. Guzman knew he did not have the required
license to operate the station and had been warned previously in
writing by a Commission agent that his operation of the radio station
violated Section 301 of the Act. Therefore, the violation was willful.
8. Based on the evidence before us, we find that Mr. Guzman apparently
willfully and repeatedly violated Section 301 of the Act by operating
a radio station without Commission authorization on June 27 and 28,
2006.
9. 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. 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. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the instant case, we
conclude that Mr. Guzman is apparently liable for a $10,000 forfeiture.
IV. ORDERING CLAUSE
10. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Sections 0.111, 0.311 and 1.80 of the Rules, Raul Guzman
Reyes, is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of ten thousand dollars ($10,000) for violation of
Section 301 of the Act.
11. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture, Raul Guzman Reyes 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 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\001358340,\001Pittsburgh, PA
15251-8340.\001 Payment by overnight mail may be sent to\001Mellon
Bank\001/LB\001358340,\001500 Ross Street, Room 1540670, Pittsburgh,
PA 15251.\001\001 Payment by wire transfer may be made to ABA
Number\001043000261, receiving bank\001Mellon Bank, and account
number\001911-6106.
13. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Kansas City
District Office, 520 NE Colbern Road, Lee's Summit, MO 64068-4711 and
must include the NAL/Acct. No. referenced in the caption.
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 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.
16. 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 Raul Guzman Reyes, Des Moines,
Iowa.
FEDERAL COMMUNICATIONS COMMISSION
Robert C. McKinney
District Director
Kansas City District Office
South Central Region
Enforcement Bureau
47 U.S.C. S 301.
47 U.S.C. S 503(b).
Section 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 mV/m at three meters. 47 C.F.R. S 15.239.
On June 27, 2006, the measurements indicated that the strength of the
signal was 1,738 times greater than the maximum permissible level for a
non-licensed Part 15 transmitter.
The measurements made on June 28, 2006, indicated that the strength of the
signal was 2,710 times greater than the maximum permissible level for a
non-licensed Part 15 transmitter.
Section 312(f)(1) of the Act, 47 U.S.C. S 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).
Section 312(f)(2) of the Act, 47 U.S.C. S 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."
47 U.S.C. S 301.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S
1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80.
47 U.S.C. S 301.
See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
3
Federal Communications Commission