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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No.: EB-00-SJ-075
Santiago Varela )
Hormigonera Chaparro, Inc. )
P.O. Box 818 )
) NAL/Acct. No.: X3268-002
Aguada, PR 00620 )
FORFEITURE ORDER
Adopted: January 3, 2001 Released: January 4,
2001
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of five thousand dollars
($5,000) against Hormigonera Chaparro, Inc. (``HCI'') for
willfully violating Section 301 of the Communications Act of
1934, as amended (``the Act''). 1 The noted violation involves
HCI's operation of a two-way radio station without Commission
authorization.
2. On September 26, 2000, the Commission's San Juan
Resident Agent Office (``San Juan Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'') in the amount of five
thousand dollars ($5,000) to HCI for the noted violation.2 HCI
responded to the NAL on October 17, 2000.
II. BACKGROUND
3. HCI formerly held the license for Land Mobile Station
WPIK940. HCI did not respond to Commission correspondence asking
whether it constructed and placed Station WPIK940 in operation by
the required date. As a result, the Commission notified HCI, by
letter dated January 26, 1998 (``800H letter''), that its license
for Station WPIK940 had automatically cancelled.3
4. On August 15, 2000, an agent from the San Juan Office
(``the agent'') received a report of possible unlicensed
operation on the frequency pair 464.425 MHz/469.425 MHz, which
formerly was assigned to Station WPIK940. On August 18, 2000,
the agent telephonically notified both HCI's communications
representative, Mr. Luis Rosario, and HCI's owner, Mr. Santiago
Varela, that HCI's station was unlicensed. On the same date, the
agent sent a Notice of Unlicensed Radio Operation (``NURO'') to
HCI by facsimile and by mail.
5. As of September 7, 2000, the agent had received a
certified mail receipt indicating that HCI received the NURO but
had not received a reply to the NURO. On that date the agent
monitored transmissions on the frequency pair 464.425 MHz/469.425
MHz. Using a mobile automatic direction finding vehicle, the
agent traced the transmissions to an antenna installed at RD 411,
Km 0.4, Aguada, PR. An inspection confirmed that HCI was
operating an unlicensed station from that location.
6. Based on the above, on September 26, 2000, the San Juan
Office issued a NAL in the amount of five thousand dollars
($5,000) to HCI for violation of Section 301 of the Act.
7. In response to the NAL, Mr. Varela requests rescission
of the proposed monetary forfeiture but does not deny that HCI
engaged in unlicensed operation. Mr. Varela indicates that --
prior to the monitoring on September 7, 2000 -- he instructed his
communications provider to terminate the unlicensed operation
immediately but, for unknown reasons, the communications provider
did not do so. Additionally, Mr. Varela states that he acquired
HCI in September 1998 and that no one brought the license
cancellation to his attention.4
III. DISCUSSION
8. As the NAL explicitly states, the San Juan Office
assessed the proposed forfeiture amount in this case in
accordance with Section 503 of the Act,5 Section 1.80 of the
Rules,6 and The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15
FCC Rcd 303 (1999) (``Policy Statement''). Section 503(b) of the
Act requires that, in examining Mr. Varela's response, the
Commission take into account 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.7
9. Section 301 of the Act prohibits radio operation
``except under and in accordance with this Act and with a license
in that behalf granted under the provisions of this Act.''
10. Mr. Varela does not deny the violation alleged in the
NAL. In view of the facts set forth above, we conclude that HCI
operated without authorization on frequency pair 464.425
MHz/469.425 MHz on September 26, 2000, in willful violation of
Section 301 of the Act.
11. Mr. Varela should have taken whatever steps were needed
to terminate the unlicensed operation rather than simply relying
on his communications provider to follow instructions. The San
Juan Office took Mr. Varela's unsuccessful attempt to terminate
the unlicensed operation into account when it set the proposed
forfeiture amount at $5,000, a reduction from the base amount of
$10,000 specified by the Policy Statement for unlicensed
operation. No further reduction is warranted.
12. We have examined Mr.Varela's response to the NAL in
light of the above statutory factors and the factors set forth
in the Policy Statement. Taking all of these factors into
account, we conclude that neither cancellation nor mitigation of
the proposed forfeiture is justified and that the proper
forfeiture amount is $5,000.
IV. ORDERING CLAUSES
13. ACCORDINGLY, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,8 Hormigonera Chaparro, Inc., IS LIABLE FOR A MONETARY
FORFEITURE in the amount of $5,000 for willful violation of the
provisions of Section 301of the Act.
14. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of the
release of this Order. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of
Justice for collection pursuant to Section 504(a) of the Act.9
Payment may be made by mailing a check or similar instrument,
payable to the order of the ``Federal Communications
Commission,'' to the Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. referenced above. Requests for full payment under
an installment plan should be sent to: Chief, Credit and Debt
Management Center, 445 12th Street, S.W., Washington, D.C.
20554.10
15. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by Certified Mail -- Return Receipt Requested, to Mr.
Santiago Varela, Hormigonera Chaparro, Inc., P.O. Box 818,
Aguada, PR 00602.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 U.S.C. § 301.
2 Notice of Apparent Liability for Forfeiture, NAL Acct. No.
X3268-002 (Enf. Bur., San Juan Office, released September 26,
2000).
3 The NAL uses the date August 26, 1998, which is the date
the Wireless Telecommunications Bureau deleted the license for
Station WPIK940 from the Commission's license records.
4 Mr. Varela requested copies of the 800H letter and the
certified mail receipt for that letter. 800H letters instruct
recipients to return those letters to the Commission with their
responses. Since HCI did not return its 800H letter to the
Commission, we do not have a copy of that letter. We will mail a
copy of the certified mail receipt concurrently.
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 7 47 U.S.C. § 503(b)(2)(D).
8 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
9 47 U.S.C. § 504(a).
10 See 47 C.F.R. § 1.1914.