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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File Number: EB-05-PA-244
Jose Velazquez
) NAL/Acct. No.: 200832400002
Licensee of Station WPUH745
) FRN: 0001-84-0834
Philadelphia, Pennsylvania
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: October 31, 2007
By the District Director, Philadelphia Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Jose Velazquez ("Velazquez"), the licensee of stations WPUH745
and WQGH860 in Philadelphia, Pennsylvania, apparently willfully and
repeatedly violated Section 1.903(a) of the Commission's Rules
("Rules") by operating station WPUH745 on the frequency 451.900 MHz at
an unauthorized location. We conclude, pursuant to Section 503(b) of
the Communications Act of 1934, as amended ("Act"), that Velazquez is
apparently liable for a forfeiture in the amount of four thousand
dollars ($4,000).
II. BACKGROUND
2. On December 11, 2006 and December 14, 2006, in response to complaints,
an agent with the Commission's Philadelphia Office used radio
direction finding techniques to determine that a mobile relay station
was operating on the frequency 451.900 MHz at the Chestnut Hill
Towers, 7600 Stenton Avenue, Philadelphia, Pennsylvania. The
Commission's records showed that no license was issued for operation
on the frequency 451.900 MHz at 7600 Stenton Avenue, Philadelphia,
Pennsylvania.
3. On December 11, 2006, the agent contacted Morgan Tower, Inc., the
company that manages the rooftop of the Chestnut Hill Towers, to
inquire who was operating radio transmitting equipment on the
frequency 451.900 MHz from the building. Morgan Tower, Inc. confirmed
that Velazquez leases space on the rooftop of the Chestnut Hill Towers
to operate radios transmitting on three frequencies, including the
frequency 451.900 MHz. During a telephone conversation on December 15,
2006, Velazquez acknowledged to the agent that he operates a mobile
relay station on the frequency 451.900 MHz at the Chestnut Hill Towers
in Philadelphia, Pennsylvania. Velazquez said that he had recently
relocated the 451.900 MHz radio transmitting equipment from 1176 Old
York Road in Abington Township, Pennsylvania to the Chestnut Hill
Towers in Philadelphia, Pennsylvania.
4. On December 18, 2006, Velazquez provided the agent a copy of the
license for station WPUH745 as evidence that he was authorized to
operate radio transmitting equipment on the frequency 451.900 MHz .
However, at the time of the investigation, the license for station
WPUH745 authorized Velazquez to operate a mobile relay station on the
frequency 451.900 MHz at 1176 Old York Road, Abington Township,
Pennsylvania and 121 East 2nd Street, Moorestown, New Jersey. The
license did not authorize Velazquez to operate the 451.900 MHz station
at the Chestnut Hill Towers in Philadelphia, Pennsylvania. On December
19, 2006, Velazquez filed an application with the Commission seeking
authorization to operate a mobile relay station on the frequency
451.900 MHz at 7600 Stenton Avenue, Philadelphia, Pennsylvania. On
January 23, 2007, the Commission granted the application and assigned
the station the call sign WQGH860.
III. DISCUSSION
5. 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.
6. Section 1.903(a) of the Rules requires that stations in the Wireless
Radio Service must be used and operated only in accordance with the
rules applicable to their particular service as set forth in this
title and with a valid authorization grated by the Commission under
the provision of this part. On December 11, 2006 and December 14,
2006, Velazquez operated a mobile relay station on the frequency
451.900 MHz at the unauthorized location of 7600 Stenton Avenue,
Philadelphia, Pennsylvania. Because Velazquez knowingly operated
Station WPUH745 from an unauthorized location, the violation was
willful. The unauthorized operation occurred on more than one day,
therefore, it was repeated.
7. Based on the evidence before us, we find that Velazquez apparently
willfully and repeatedly violated Section 1.903(a) of the Rules by
operating station WPUH745 on the frequency 451.900 MHz at an
unauthorized location.
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 operating at an unauthorized location is
$4,000. In assessing the monetary forfeiture amount, we must also take
into account the statutory factors set forth in Section 503(b)(2)(E)
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 Velazquez is apparently liable for a
($4,000) forfeiture.
IV. ORDERING CLAUSES
Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311, 0.314
and 1.80 of the Commission's Rules, Jose Velazquez is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of four thousand
dollars ($4,000) for violations of Section 1.903(a) of the Rules.
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, Jose Velazquez SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
9. 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.
10. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, Philadelphia Office,
One Oxford Valley Building, Suite 404, 2300 East Lincoln Highway,
Langhorne, Pennsylvania 19047 and must include the NAL/Acct. No.
referenced in the caption.
11. 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.
12. 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.
13. 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 Jose Velazquez at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Gene J. Stanbro
District Director
Philadelphia Office
Northeast Region
Enforcement Bureau
47 C.F.R. S: 1.903(a).
47 U.S.C. S: 503(b).
We note that, on January 8, 2002, the Philadelphia Office issued a Notice
of Unlicensed Radio Operation ("NOUO") to Velazquez for unlicensed
operation at this very same location.
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."
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)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 1.903(a).
See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission