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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File Number: EB-06-SJ-034
Carlos M. Colon ) NAL/Acct. No. 200632680005
Coamo, Puerto Rico ) FRN 0015523517
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 28, 2006
By the Resident Agent, San Juan Field Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Carlos M. Colon apparently willfully and repeatedly violated
Section 301 of the Communications Act of 1934, as amended ("Act"), by
operating an unlicensed radio transmitter. We conclude, pursuant to
Section 503(b) of the Act, that Mr. Colon is apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On August 28, 2006, an agent from the Commission's San Juan Office of
the Enforcement Bureau ("San Juan Office") monitored broadcast
transmissions on 99.5 MHz from over 10 miles from the signal's source.
A search of the Commission's databases revealed no authorization for a
broadcast station on that frequency in that area. The agent, using
direction finding techniques, located the source of the transmissions
to a house located in Coamo, Puerto Rico. The agent inspected the
station and found a BW T20 FM transmitter in use with 20 watts output
power. Based on the agent's experience with this equipment and the
distance that the signal was heard, the agent concluded that the
signals being broadcast exceeded the limits for operation under Part
15 of the Commission's Rules ("Rules"), and, therefore, required a
license. The operator of the station identified himself as Carlos M.
Colon and stated the he was the owner of the equipment. He admitted
that he did not have a license to operate the station from his
residence. The agent informed him that his actions violated the Act
and the Rules, and he ceased operations.
3. On August 31, 2006, an agent from the San Juan Office monitored
broadcast transmissions on 91.9 MHz from over 10 miles from the
signal's source. A search of the Commission's databases revealed no
authorization for a broadcast station on that frequency in that area.
The agent, using direction finding techniques, located the source of
the transmissions to the same house where the transmissions on 99.5
MHz emanated on August 28, 2006. The agent inspected the station and
again warned Mr. Colon about the violation. Mr. Colon apologized and
ceased operations.
4. On September 5, 2006, the San Juan Office mailed a Notice of
Unlicensed Operation to Mr. Colon, which informed him that his actions
violated the Act and Rules and could subject him to further
enforcement action.
5. On September 10, 2006, agents from the San Juan Office monitored
broadcast transmissions on 91.9 MHz in Coamo, Puerto Rico. The agents,
using direction finding techniques, located the source of the
transmissions to Mr. Colon's house. The agents 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 agents searched Commission databases and found
no evidence of a Commission authorization for operation of a station
on 91.9 MHz in Coamo, Puerto Rico.
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. In particular, Section 301
states that "[n]o person shall use or operate any apparatus for the
transmission of energy or communications or signals by radio (a) from
one place in any State, Territory, or possession of the United States
or in the District of Columbia to another place in the same State,
Territory, possession, or District; . . . except under and in
accordance with this chapter and with a license in that behalf granted
under the provisions of this chapter." Agents, using direction
finding techniques, determined that an unlicensed radio station
operated from Mr. Colon's home in Coamo, Puerto Rico on August 28,
August 31, September 5, and September 10, 2006 on 99.5 MHz and 91.9
MHz. On August 28, 2006, Mr. Colon admitted owning and operating the
radio station. Mr. Colon was warned orally and in writing that
operation of a radio station without a license violates the Rules and
the Act. Based on the evidence before us, we find Mr. Colon apparently
willfully and repeatedly violated Section 301 of the Act by operating
radio transmission apparatus without a license on August 28, August
31, September 5, and September 10, 2006.
8. 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 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, Section 1.80, and
the statutory factors to the instant case, we conclude that Mr. Colon
is apparently liable for a $10,000 forfeiture
IV. ORDERING CLAUSES
9. 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, Carlos M. Colon is 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. 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 for Forfeiture, Carlos M. Colon SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
11. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission.\001 The
payment must include the NAL/Acct. No. and FRN No. referenced
above.\001 Payment by\001check 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\001Payment by wire transfer may be made to ABA
Number\001043000261, receiving bank\001Mellon Bank, and account
number\001911-6106.
12. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, San Juan Field
Office, Room 762, Federal Building, San Juan, Puerto Rico 00918, and
must include the NAL/Acct. No. referenced in the caption.
13. 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.
14. 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, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
15. 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 Carlos M. Colon, Coamo, Puerto Rico.
FEDERAL COMMUNICATIONS COMMISSION
William Berry
Resident Agent
San Juan Field 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.
Devices compliant with Part 15 typically have a range of less than one
mile.
The measurements made on September 10, 2006 indicated that the signal was
5,620 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.
S1.80.
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.
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Federal Communications Commission
4
Federal Communications Commission