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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-08-NY-032
Frank Rodriguez ) NAL/Acct. No: 200832380007
Paterson, NJ ) FRN: 0017 5086 15
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 9, 2008
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 Frank Rodriguez apparently willfully and repeatedly violated
Section 301 of the Communications Act of 1934, as amended ("Act"), by
operating an unlicensed radio transmitter on the frequency 90.5 MHz in
Paterson, NJ. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Frank Rodriguez
is apparently liable for a forfeiture in the amount of ten thousand
dollars ($10,000).
II. BACKGROUND
2. On February 2, 2008, in response to an interference complaint,
Commission agents, using a mobile direction-finding vehicle, monitored
the frequency 90.5 MHz in Paterson, NJ. The agent observed a radio
station broadcasting on 90.5 MHz and determined that the station was
operating from a private house at 276 Ellison Street, Paterson, NJ
07501. The agent observed an FM broadcast antenna on the roof of 276
Ellison Street. The agent subsequently 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") and therefore required a license. An agent searched
Commission databases and found no evidence of a Commission
authorization for this operation on 90.5 MHz in Paterson, NJ.
3. Later on February 2, 2008, Commission agents, accompanied by Paterson
Police officers, knocked on the door of the house at 276 Ellison
Street, Paterson, NJ 07501, and a tenant answered. The agent asked the
tenant about the operation of the unlicensed station at that location.
The tenant said she had no knowledge of the station. The agents and
police requested permission to go to the back of the house to
determine where the coaxial cable from the antenna was going and the
tenant agreed.
4. Agents and police traced the coaxial cable from the antenna on the
roof of the house to a crawl space behind the house. The agents asked
the tenant for the name and phone number of the owner of the house,
which the tenant said was Frank Rodriguez and gave his cell phone
number. The agents contacted Mr. Rodriguez and explained to him about
the operation of the unlicensed station at his house. Mr. Rodriguez
claimed he had no knowledge of the station operation. The agents
requested that Mr. Rodriguez meet with him at the house to discuss
this issue further. Mr. Rodriguez arrived at the house and met with
the agents. The agents showed Mr. Rodriguez the FM broadcast antenna
on the roof of the house and the coaxial cable from the antenna going
into a crawl space behind the house. Mr. Rodriguez pulled away a
wooden board covering up the crawl space and agents observed an FM
transmitter, computer, and modem in that space. The agents requested
that Mr. Rodriguez take down the FM broadcast antenna from the roof as
soon as possible, remove all radio station equipment from the crawl
space behind the house, and find out who the antenna and the equipment
belonged to and report back to the NY Office with this information, to
which Mr. Rodriguez agreed. The agents gave Mr. Rodriguez a verbal
warning on the consequences of allowing this unlicensed radio station
on 90.5 MHz to operate on his property at 276 Ellison Street,
Paterson, NJ 07501.
5. On February 5, 2008, the New York Office sent, via regular mail and
certified mail, return receipt requested, a Notice of Unlicensed
Operation ("NOUO") addressed to Frank Rodriguez at 276 Ellison Street,
Paterson, NJ 07501. The NOUO warned Mr.Rodriguez that operation of the
unlicensed radio station on 90.5 MHz violated Section 301 of the Act
and outlined the potential penalties for such a violation, including
seizure of the equipment, fines and imprisonment. The NOUO also
directed Mr.Rodriguez to terminate operation of the unlicensed station
immediately and provided Mr. Rodriguez ten days to reply. Mr.Rodriguez
did not reply. The NOUO sent via certified mail was later returned to
the New York Office by the U.S. Postal Service as unclaimed. The NOUO
sent via regular mail was not returned to the New York Office.
6. On March 1, 2008, Commission agents, using a mobile direction-finding
vehicle, monitored the frequency 90.5 MHz in Paterson, NJ. The agent
observed a radio station broadcasting on 90.5 MHz and again determined
that the station was operating from a house at 276 Ellison Street,
Paterson, NJ 07501. The agent observed an FM broadcast antenna on the
roof of 276 Ellison Street and traced the coaxial cable from the
antenna going into a crawl space behind the house. The agent
subsequently 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.
7. On April 4, 2008, a Commission agent conducted research online and
found property records on the Paterson, NJ website confirming that
Rodriguez is the owner of the property located at 276 Ellison Street,
Paterson, NJ 07501.
III. DISCUSSION
8. 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.
9. 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.
Section 3(33) of the Act defines "communications by radio" as "the
transmission by radio of writing, signs, signals, pictures, and sounds
of all kinds, including all instrumentalities, facilities, apparatus,
and services (among other thing the receipt, forwarding, and delivery
of communications) incidental to such transmission." Agents determined
that, on February 2, 2008 and March 1, 2008, an unlicensed radio
station was broadcasting on 90.5 MHz from 276 Ellison Street,
Paterson, NJ 07501. Property records confirmed that Mr. Rodriguez owns
the property at 276 Ellison Street in Paterson, NJ. Despite verbal and
written warnings to Mr. Rodriguez, the unlicensed radio station on
90.5 MHz continued to operate from Mr. Rodriguez's property. We have
previously held that liability for unlicensed operation may be
assigned to an individual who provides services and facilities
incidental to the transmission of communications by radio. We find
that Mr. Rodriguez is responsible for the unlicensed station operation
on 90.5 MHz at 276 Ellison Street, Paterson, NJ 07501 and that his
actions amounted to willful and repeated violations of Section 301 of
the Act.
10. 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)(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 Frank
Rodriguez is apparently liable for a ($10,000) forfeiture.
IV. ORDERING CLAUSES
11. 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, Frank Rodriguez 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.
12. 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, Frank Rodriguez SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
13. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment[s] by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. Please contact the Financial Operations
Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with
any questions regarding payment procedures.
14. 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.
15. 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.
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 Frank Rodriguez at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
District Director
New York Office
Northeast 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. Measurements showed that the field strength of the station's
signal exceeded the 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: 153(33).
See Joni K. Craig, Forfeiture Order, 21 FCC Rcd 10793 (EB 2006).
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:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80.
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Federal Communications Commission
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Federal Communications Commission