Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                )
                                )
Richard Muņoz                   )    File No. EB-02-TP-114
2132 Shadowlawn Drive           )    NAL/Acct. No. 200232700011
Naples, Florida 34112           )    FRN 0007-0496-61
                                )    
                                   

                        FORFEITURE ORDER 

Adopted:  October 22, 2002              Released:   October   24, 
2002

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

1.        In  this  Forfeiture  Order  (``Order''),  we  issue  a 
  monetary  forfeiture in  the  amount of  ten  thousand  dollars 
  ($10,000) to Richard  Muņoz for willful and repeated  violation 
  of Section  301 of the Communications  Act of 1934, as  amended 
  (``Act'').1    The  noted   violation  involves   Mr.   Muņoz's 
  operation of  a radio station on  105.1 MHz without  Commission 
  authorization.

2.        On June 5, 2002, the Commission's Tampa, Florida  Field 
  Office  (``Tampa   Office'')  issued  a   Notice  of   Apparent 
  Liability  for  Forfeiture   (``NAL'')  to  Mr.  Muņoz  for   a 
  forfeiture in  the amount of  ten thousand dollars  ($10,000).2  
  Mr. Muņoz filed a response to the NAL on July 8, 2002.

                         II.  BACKGROUND

3.        On  April  20,  2002,  agents  from  the  Tampa  Office 
  investigated  a complaint  alleging  that an  unlicensed  radio 
  station was transmitting on frequency 105.1 MHz in the  Naples, 
  Florida  area.  A  search  of Commission  records  showed  that 
  there was no FM radio station licensed on 105.1 MHz in  Naples, 
  Florida.  Using a mobile direction finding vehicle, the  agents 
  detected an FM radio station operating on 105.1 MHz and  traced 
  the  station  to  the Tree  of  Life  Church  located  at  2132 
  Shadowlawn  Drive,  Naples, Florida.   The  agents  took  field 
  strength measurements  of the station's  signal and  determined 
  that the  station required a license  to operate.3  The  agents 
  interviewed  several witnesses  at  the church  who  identified 
  Richard   Muņoz  as   the  operator   of  the   radio   station 
  transmitting on  105.1 MHz.   The witnesses  also provided  the 
  agents a business card identifying Richard Muņoz as the  pastor 
  of  a   Spanish-language  ministry   called  Mission   Possible 
  Ministries and  a brochure advertising  a radio program  called 
  ``Mision  Posible  105.1 MHz.''   Immediately  thereafter,  the 
  agents  inspected  the station  inside  the  church  and  found 
  studio  and transmitting  equipment in  operation.  The  agents 
  interviewed Mr.  Muņoz, who  admitted that  his ministry  owned 
  the  radio station  equipment and  operated the  station.   The 
  agents asked Mr. Muņoz if he had a license for the station  and 
  he replied  that a friend had  submitted an application to  the 
  FCC  and had  advised him  that he  could operate  the  station 
  while the  paperwork was being  processed.  The agents  advised 
  Mr.  Muņoz that  he could  not operate  the station  without  a 
  license   and  directed   him  to   terminate  the   unlicensed 
  operation.  Mr. Muņoz  requested additional time to notify  his 
  listeners that  the station had to go  off the air.  After  the 
  agents again  advised Mr. Muņoz that  he could not operate  the 
  station without a license and directed him to take the  station 
  off the air, Mr. Muņoz directed another person to turn off  the 
  transmitter.  The  agents then  hand delivered to  Mr. Muņoz  a 
  warning  letter which  advised him  that operation  of a  radio 
  station  without a  license violates  Section 301  of the  Act, 
  ordered  him  to cease  operation  of  the  unlicensed  station 
  immediately,  and   listed  the   penalties  for   unauthorized 
  operation of a radio station.

4.        On  April  30,  2002,  the  Tampa  Office  received   a 
  complaint alleging that  an unlicensed FM station operating  on 
  105.1 MHz  in Naples, Florida was  causing interference to  the 
  reception of  an FM  broadcast station licensed  to operate  in 
  Naples, Florida.   On May  14, 2002, using  a mobile  direction 
  finding vehicle,  agents from the  Tampa Office again  detected 
  an  FM radio  station operating  on 105.1  MHz and  traced  the 
  station to the Tree  of Life Church located at 2132  Shadowlawn 
  Drive,  Naples,  Florida.   The  agents  took  field   strength 
  measurements of  the station's signal  and determined that  the 
  station required a license  to operate.4  On May 17, 2002,  the 
  Tampa  Office issued  a warning  letter to  Andrew DeLong,  the 
  head pastor  of the Tree  of Life Church.   The warning  letter 
  advised Mr. DeLong that operation of a radio station without  a 
  license violates Section 301  of the Act, ordered him to  cease 
  operation of the  unlicensed station transmitting on 105.1  MHz 
  immediately,  and   listed  the   penalties  for   unauthorized 
  operation  of a  radio station.   On May  24, 2002,  the  Tampa 
  Office received a letter  from Mr. DeLong.  In the letter,  Mr. 
  DeLong stated that Richard Muņoz was the operator of the  radio 
  station transmitting on 105.1 MHz, that Mr. Muņoz leased  space 
  for the  radio station from the Tree  of Life Church, and  that 
  the Tree of Life  Church had no control over the operations  of 
  the radio  station.  Mr. DeLong further  stated that after  the 
  agents' inspection of the station on April 20, 2002, Mr.  Muņoz 
  told  him   that  it  was  a   simple  misunderstanding  or   a 
  misplacement of the  paperwork and returned the station to  the 
  air a short time later.  Finally, Mr. DeLong stated that  after 
  receiving the May 17,  2002, warning letter, he spoke with  Mr. 
  Muņoz and Mr. Muņoz shut down the radio station.

5.        On June 5, 2002, the Tampa  Office issued an NAL for  a 
  $10,000  forfeiture to  Richard  Muņoz for  operating  a  radio 
  station without a license in willful and repeated violation  of 
  Section 301 of the Act.  In his response to the NAL, Mr.  Muņoz 
  admits that  he operated the unlicensed  station on 105.1  MHz, 
  but requests cancellation of the forfeiture.  Mr. Muņoz  states 
  that his  church, Mission  Possible Ministries,  had agreed  to 
  purchase  50% of  the radio  station  for $15,000  from  Daniel 
  Morisma  approximately   eight  months   earlier.   Mr.   Muņoz 
  maintains  that  Mr.  Morisma  told  him  that  there  was   an 
  application for the radio  station on file at the FCC and  that 
  the station  could go on  the air while  they were waiting  for 
  the application  to be processed.  Mr.  Muņoz states that  when 
  the  FCC agents  came to  the station  on April  20, 2002,  and 
  directed  him  to  shut  down  the  unlicensed  operation,   he 
  initially shut  the station  down but returned  the station  to 
  the air  a short time  later after speaking  with Mr.  Morisma.  
  According to Mr. Muņoz,  Mr. Morisma told him that Mr.  Morisma 
  would get  him the paperwork, that  the station should go  back 
  on the air because  the FCC would not visit again, and that  if 
  the  FCC did  visit  again, it  would  issue a  second  warning 
  before proceeding with  any penalties.  Mr. Muņoz asserts  that 
  the station  had been using  the time between  the FCC's  first 
  and second visit to  explain to listeners that they would  soon 
  be off  the air because they had  been lied to and scammed  and 
  that the station was a week away from dismantling when the  FCC 
  visited  the  station the  second  time.   Finally,  Mr.  Muņoz 
  submits that  neither he nor  his church has  the funds to  pay 
  the $10,000 forfeiture.

                      III.      DISCUSSION

6.        The forfeiture  amount in  this  case was  assessed  in 
  accordance with  Section 503(b)  of the Act,5  Section 1.80  of 
  the  Commission's  Rules  (``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'').   In  examining  Mr.  Muņoz's  response,  Section 
  503(b)  of the  Act  requires  that 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

7.        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.''8  Mr.  Muņoz does not dispute  that he operated a  radio 
  station without a license  on April 20, 2002, and again on  May 
  14, 2002.   Accordingly, we conclude  that Mr. Muņoz  willfully 
  and repeatedly violated Section 301 of the Act.

8.         Regarding Mr. Muņoz's  explanation for the  violation, 
  we think  that it is unfortunate that  Mr. Muņoz may have  been 
  duped  into believing  that there  was an  application for  the 
  radio station  on file with the FCC  and that he could put  the 
  station on the  air while the application was being  processed.  
  However, Mr.  Muņoz clearly  knew following  the inspection  of 
  the  station by FCC  agents on  April 20 that  the station  was 
  unlicensed.  The agents orally warned Mr. Muņoz twice that  the 
  station was  unlicensed and had  to be shut  down.  The  agents 
  also gave  Mr. Muņoz a written  warning which advised him  that 
  operation  of  a  radio  station  without  a  license  violates 
  Section 301 of the  Act, ordered him to cease operation of  the 
  unlicensed station  immediately, and listed  the penalties  for 
  failure  to do  so.  Mr.  Muņoz simply  chose to  ignore  these 
  warnings.  That Mr. Muņoz may have believed that the FCC  would 
  issue a  second warning  before issuing a  forfeiture or  other 
  penalty does  not justify  his continued  violation of  Section 
  301 or provide a basis for reduction of the forfeiture  amount.  
  Moreover, while  Mr. Muņoz  claims that the  station was  using 
  the time  between the FCC's  first and second  visit to  notify 
  listeners that  the station had  to go off  the air, this  does 
  not  justify the  continued violation  of Section  301.   Under 
  these  circumstances, we  conclude  that no  reduction  of  the 
  forfeiture on this basis is warranted.

9.        Mr. Muņoz also maintains that neither he nor his church 
  has the funds to pay a $10,000 forfeiture.  However, as  stated 
  in  the NAL,  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; 
  or (3)  some other  reliable and  objective documentation  that 
  accurately reflects the petitioner's current financial  status.  
  Mr. Muņoz  provided no  financial documentation  in support  of 
  his request  for cancellation of  the forfeiture and  therefore 
  we have  no basis upon  which to analyze  his inability to  pay 
  claim.

10.       We have  examined  Mr.  Muņoz's  response  to  the  NAL 
  pursuant to  the statutory  factors above,  and in  conjunction 
  with the Policy Statement as well.  As a result of our  review, 
  we conclude  that Mr. Muņoz  willfully and repeatedly  violated 
  Section 301  of the Act and that  he has provided no basis  for 
  rescission or reduction of the $10,000 forfeiture.

                      IV.  ORDERING CLAUSES

11.       Accordingly, IT IS  ORDERED that,  pursuant to  Section 
  503 of  the Act, and  Sections 0.111, 0.311  and 1.80(f)(4)  of 
  the Rules,9 Richard  Muņoz IS LIABLE FOR A MONETARY  FORFEITURE 
  in the  amount of  ten thousand dollars  ($10,000) for  willful 
  and repeated violation of Section 301 of the Act.

12.       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.10  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 reference  NAL/Acct. No.  200232700011 and  FRN 
  0007-0496-61.  Requests for  full payment under an  installment 
  plan  should  be  sent  to:   Chief,  Revenue  and  Receivables 
  Operations  Group,  445 12th  Street,  S.W.,  Washington,  D.C. 
  20554.11

13.       IT IS FURTHER ORDERED that  a copy of this Order  shall 
  be sent by  Certified Mail Return Receipt Requested to  Richard 
  Muņoz, 2132 Shadowlawn Drive, Naples, Florida 34112.

                         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. 
200232700011 (Enf. Bur., Tampa Office, released June 5, 2002).   

  3 Under Section 15.239  of the Commission's Rules, 47 C.F.R.  § 
15.239, non-licensed  broadcasting  in  the 88-108  MHz  band  is 
permitted only if  the field strength  of the transmissions  does 
not exceed 250  ĩV/m at three  meters.  The agents'  measurements 
indicated that the station's field strength extrapolated to three 
meters was 22,549,576 ĩV/m.  Thus, the station operating on 105.1 
MHz exceeded the permissible  level for a non-licensed  low-power 
radio transmitter by 90,198 times.

  4 The agents'  measurements indicated that the station's  field 
strength extrapolated to three meters was 20,646,659 ĩV/m.  Thus, 
the station operating on 105.1 MHz exceeded the permissible level 
for a non-licensed low-power radio transmitter by 82,587 times.

  5 47 U.S.C. § 503(b).

  6 47 C.F.R. § 1.80.

  7 47 U.S.C. § 503(b)(2)(D).

  8 47 U.S.C. § 301.

  9 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

  10 47 U.S.C. § 504(a).

  11 See 47 C.F.R. § 1.1914.