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Before the
Federal Communications Commission
Washington, D.C. 20554
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)
)
In the Matter of File Number: EB-07-NY-041
)
Jairo Diaz NAL/Acct. No: 200732380011
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Paterson, NJ FRN: 0016 2735 91
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NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 27, 2007
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 Jairo Diaz ("Diaz") apparently willfully and repeatedly violated
Sections 301 and 303(n) of the Communications Act of 1934, as amended
("Act"), by operating an unlicensed radio transmitter on the frequency
90.5 MHz in Paterson, NJ and failing to permit a station inspection.
We conclude, pursuant to Section 503(b) of the Act, that Jairo Diaz is
apparently liable for a forfeiture in the amount of seventeen
thousand dollars ($17,000).
II. BACKGROUND
2. On November 6, 2006, the New York Office of the FCC's Enforcement
Bureau received a complaint of an illegal broadcast station operating
on 90.5 MHz in Paterson, NJ that was causing interference to the
reception of FM station WFUV, licensed to Fordham University in Bronx,
NY.
3. On November 8, 2006, a Commission agent, using a mobile
direction-finding vehicle, monitored the frequency 90.5 MHz five miles
from Paterson, NJ. The agent observed a radio station broadcasting on
90.5 MHz and determined that the station was operating from a
residence at 439 East 32nd Street in Paterson, NJ. 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.
4. On November 8, 2006, immediately after taking measurements, the agent
returned to 439 East 32nd Street, Paterson, NJ. The agent observed an
FM broadcast antenna attached to the back of the house and a red
coaxial cable going from the antenna into a basement apartment. The
agent knocked on the basement door and asked the man who answered
about the radio station. The man, who identified himself as "J,"
agreed to turn off the station, but refused to allow the agent to
conduct an inspection. At that point, the man re-entered the apartment
and turned off the radio station. The agent warned the man about the
penalties for operating an unlicensed radio station and the penalties
for refusing to allow an inspection and handed the man a warning
letter that sets out such penalties in detail.
5. On November 29, 2006, the New York Office sent, via regular mail and
certified mail, return receipt requested, a Notice of Unlicensed
Operation ("NOUO") to Perkin Diaz, who the agent determined is the
registered owner of 439 East 32nd Street, Paterson, NJ. The NOUO
warned Perkin Diaz 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 Perkin Diaz to
terminate operation of the unlicensed station immediately and provided
Perkin Diaz ten days to reply. Perkin Diaz did not reply to the NOUO.
The NOUO sent via certified mail was later returned to the New York
Office by the U.S. Postal Service as undeliverable. The NOUO sent via
regular mail was not returned to the New York Office.
6. On January 27, 2007, in response to further interference complaints,
Commission agents, using a mobile direction-finding vehicle, monitored
the frequency 90.5 MHz five miles from Paterson, NJ. The agents
observed a radio station broadcasting on 90.5 MHz and determined that
the station was operating from a residence at 439 East 32nd Street,
Paterson, NJ. The agents 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. Agents searched Commission
databases and found no evidence of a Commission authorization for this
operation on 90.5 MHz in Paterson, NJ.
7. On January 27, 2007, immediately after taking measurements, Commission
agents returned to 439 East 32nd Street, Paterson, NJ. The agents
observed the same FM broadcast antenna attached to the back of the
house and a red coaxial cable going from the antenna into the basement
apartment. The agents knocked on the basement door, but no one
answered. At that point, the agents observed that the radio station
went off the air. A man emerged from the basement and the agents
recognized him as the man with whom they had spoken on November 8,
2006. Officers from the Patterson Police Department who accompanied
the agents on the inspection asked the man for identification and he
was identified from his driver's license as Jairo Diaz. Although Diaz
again refused to allow agents to inspect the radio station, he stated
that he would take down the FM broadcast antenna attached to the
house. Agents handed Diaz a warning letter, but he refused to sign the
agent's copy. Agents warned Diaz of the penalties for unlicensed
operation and for refusal to allow an inspection.
8. On March 2, 2007, in response to additional interference complaints, a
Commission agent, using a mobile direction-finding vehicle, monitored
the frequency 90.5 MHz five miles from Paterson, NJ and determined
that the station was still operating from the same residence at 439
East 32nd Street. The agent again took field strength measurements and
confirmed that the signals being broadcast exceeded the limits for
operation under Part 15 of the Rules. Immediately after taking
measurements, the Commission agent returned to 439 East 32nd Street
and observed an FM broadcast antenna attached to the back of the house
and a red coaxial cable going from the antenna into a basement window.
The agent knocked on the basement door and a woman answered. When the
agent requested to speak to the operator of the radio station, the
woman called out for "Jairo" to come to the door. The man identified
himself as Jairo Diaz. Diaz would not allow a station inspection, but
agreed to shut off the station. The agent orally warned Jairo that the
station required a license and of the penalties for operating an
unlicensed radio station and refusing to allow an inspection.
9. On March 19, 2006, the New York Office sent, via regular mail and
certified mail, return receipt requested, a Notice of Unlicensed
Operation ("NOUO") to Jairo Diaz at 439 East 32nd Street, Paterson, NJ
07504. The NOUO warned Jairo Diaz 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 Diaz to
terminate operation of the unlicensed station immediately and provided
Diaz ten days to reply. Jairo Diaz did not reply to the NOUO. The NOUO
sent via certified mail was later returned to the New York Office by
the U.S. Postal Service as undeliverable. The NOUO sent via regular
mail was not returned to the New York Office.
III. DISCUSSION
10. 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. The term "repeated" means the commission or
omission of such act more than once or for more than one day.
11. 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 determined that, on November 8, 2006, a man, who later was
identified as Jairo Diaz, operated an unlicensed radio station on 90.5
MHz from 439 East 32nd Street in Paterson, NJ. Notwithstanding the
oral warning provided to Diaz on November 8, 2006, agents determined
that Diaz continued to operate an unlicensed radio station on 90.5 MHz
from 439 East 32nd Street on January 27, 2007. At that time, agents
handed Diaz a written warning letter that set out the penalties
associated with unlicensed radio operation and refusal to allow
inspection. On March 2, 2007, agents found that Diaz continued to
operate a broadcast station on 90.5 MHz from 439 East 32nd Street in
Patterson, NJ. Because Diaz continued to operate his station even
after being warned, we find that Diaz's violation was willful. Diaz's
violation occurred on more than one day, therefore, it is repeated.
12. Section 303(n) of the Act states that the Commission has the authority
to inspect all radio installations associated with stations required
to be licensed to ascertain whether, in operation, they conform to the
requirements of the rules and regulations of the Commission. On
November 8, 2006, an agent orally warned Diaz that failure to allow an
inspection of his station could subject him to enforcement action.
Notwithstanding this warning, Diaz refused to allow agents to inspect
the station. We therefore find that his violation was willful. Because
Jairo Diaz failed to permit agents to inspect the station on November
8, 2006, January 27, 2007, and March 2, 2007, the violation was
repeated.
13. Based on the evidence before us, we find that Diaz willfully and
repeatedly violated Section 301 of the Act by operating radio
transmission equipment on 90.5 MHz on November 8, 2006, January 27,
2007, and on March 2, 2007, in Paterson, NJ, without a Commission
authorization and willfully and repeatedly violated Section 303(n) of
the Act by failing to allow an inspection of his station on November
8, 2006, January 27, 2007, and March 2, 2007.
14. 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 and the base forfeiture amount for failure to
permit inspection is $7,000. 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, we conclude that a $17,000 forfeiture is
warranted.
IV. ORDERING CLAUSES
15. 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, Jairo Diaz is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of seventeen
thousand dollars ($17,000) for violation of Sections 301 and 303(n)of
the Act.
16. 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, Jairo Diaz SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
17. 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.
18. 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, within thirty (30) days
from the release date of this Notice of Apparent Liability for
Forfeiture and must include the NAL/Acct. No. referenced in the
caption.
19. 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.
20. 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, 1A625, 445 12th
Street, S.W., Washington, D.C. 20554.
21. 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 Jairo Diaz 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:S: 301, 303(n).
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 micro volts per meter ("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 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 micro volts per meter ("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."
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 C.F.R. S:S: 0.111, and 0.311, 47 U.S.C. S:S: 301 and 303(n).
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission