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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Octavio Sarmiento, Jr. ) File No. EB-02-TP-208
) NAL/Acct. No. 200232700012
Naples, Florida ) FRN 0007-0497-62
)
FORFEITURE ORDER
Adopted: December 19, 2002 Released: December 20,
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 Octavio Sarmiento, Jr. for willful and repeated
violation of Section 301 of the Communications Act of 1934, as
amended (``Act'').1 The noted violation involves Mr.
Sarmiento's operation of a radio station on 107.5 MHz in
Naples, Florida 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. Sarmiento for a
forfeiture in the amount of ten thousand dollars ($10,000).2
Mr. Sarmiento filed a response to the NAL on July 19, 2002,3
and supplemented his response on August 5, 2002.
II. BACKGROUND
3. On April 19, 2002, agents from the Tampa Office
investigated complaints alleging that an unlicensed radio
station transmitting on frequency 107.5 MHz in the Naples,
Florida area was causing interference to the reception of an
FM broadcast station licensed to operate on frequency 107.1
MHz in Naples, Florida. A search of Commission records showed
that there was no FM radio station licensed on 107.5 MHz in
Naples, Florida. The agents detected an FM radio station
operating on 107.5 MHz and identifying as ``WTEN'' and
``Tropical Estereo.'' Using radio direction finding
techniques, the agents located the source of the radio station
transmitting on 107.5 MHz. The agents determined that the
station was transmitting from a single-story office building
located at 2201 Kirkwood Avenue, Naples, Florida. The agents
took field strength measurements of the station's signal and
determined that the station required a license to operate.4
4. Immediately after locating the radio station, the
agents inspected the facilities at that address and found
broadcast studio and radio transmitting equipment in operation
on frequency 107.5 MHz. The agents interviewed Octavio
Sarmiento, Jr. and other individuals who were operating the
station. Mr. Sarmiento stated that he was the president of
Tropical Estereo Enterprises (``Tropical Estereo''), which
owned the radio station equipment and operated the station.
The agents asked Mr. Sarmiento if he had a license for the
station and he stated that he had no license authorizing
operation of the radio station but that he had submitted an
application for a low power FM (``LPFM'') license to the FCC.5
The agents advised Mr. Sarmiento that he could not operate the
station without a license and directed him to terminate the
unlicensed operation. The agents also hand delivered to Mr.
Sarmiento a warning letter which advised him that operation of
a radio station without a license violates Section 301 of the
Act, warned him that operation of the unlicensed station must
cease immediately, and listed the penalties for unauthorized
operation of a radio station. Mr. Sarmiento stated that he
would cease operation of the unlicensed station.
5. On April 20, 2002, the agents returned to the Naples,
Florida area and again detected an FM radio station
transmitting on 107.5 MHz and identifying as ``WTEN'' and
``Tropical Estereo.'' Using radio direction finding
techniques, the agents determined that the station was again
transmitting from a single-story office building located at
2201 Kirkwood Avenue, Naples, Florida. The agents took field
strength measurements of the station's signal and determined
that the station required a license to operate.6
6. On June 5, 2002, the Tampa Office issued an NAL for a
$10,000 forfeiture to Octavio Sarmiento, Jr. for operating a
radio station on April 19 and April 20, 2002 without a license
in willful and repeated violation of Section 301 of the Act.
Mr. Sarmiento filed a response on July 19, 2002 in which he
seeks cancellation of the forfeiture. In his response, Mr.
Sarmiento acknowledges that agents from the Tampa Office
issued a warning to him on April 19, 2002, but denies the
remaining allegations set forth in the NAL. Additionally, Mr.
Sarmiento requests a bill of particulars detailing all facts,
including among other things, the time of the alleged
offenses, what equipment was used to determine the offense was
taking place, identification of the complainants that
initiated the investigation, all documentation reflecting the
ownership of Tropical Estereo, and copies of all documents
generated in the investigation. Mr. Sarmiento also requests a
hearing if required in support of cancellation of the
forfeiture.
7. In a supplemental response filed on August 5, 2002, Mr.
Sarmiento again admits that agents from the Tampa Office
issued him a warning on April 19, 2002, but contends that
transmissions were not conducted at any point in time after
that date. In support of this contention, Mr. Sarmiento
provides sworn affidavits from five employees of Tropical
Estereo who claim that they observed the station being shut
down and that transmissions on the station did not resume at
any point after April 19, 2002. Mr. Sarmiento also provides
sworn affidavits from 25 individuals who claim that they
listened to frequency 107.5 MHz on an FM radio on April 20,
2002, and did not hear any transmissions. In addition, Mr.
Sarmiento claims that he had been led to believe that the
frequency 107.5 MHz had been leased to him and that an LPFM
station required no further licensing, but later found out
that he had been duped. Mr. Sarmiento also asserts that the
subject investigation ``was initiated in bad faith by adverse
interests'' and that the allegations in the NAL are ``a result
of falsehoods, unsupported allegations and aspersions cast
upon Mr. Sarmiento.'' Finally, Mr. Sarmiento asserts that
mitigation of the forfeiture is warranted because he has been
forthcoming by having initiated written contact with the FCC,
has applied for an LPFM license, and has demonstrated a
respect for local, state and federal laws.
III. DISCUSSION
8. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Act,7 Section 1.80 of
the Rules,8 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. Sarmiento'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.9
9. As an initial matter, we deny Mr. Sarmiento's requests
for a bill of particulars and a hearing. Nothing in the Act
requires the Commission to provide an unlicensed operator a
bill of particulars or the opportunity for an evidentiary
hearing prior to imposition of a forfeiture.10 Rather, under
Section 503(b)(4) of the Act, the Commission must issue a
written notice of apparent liability which specifies each
provision of the Act and the rules alleged to be violated, the
facts upon which the charge against the named violator is
based, and the date upon which the alleged violation
occurred.11 The NAL issued by the Tampa Office fully complied
with these requirements. To the extent that Mr. Sarmiento
seeks additional investigatory records and information,
including identification of the complainants that initiated
the investigation and copies of all documents generated in the
investigation, we note that such records are not routinely
available for public inspection under Section 0.457 of the
Rules12 and that any requests for such records must be made in
accordance with the Freedom of Information Act procedures set
forth in Section 0.461 of the Rules.13
10. 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.''14 Mr. Sarmiento does not dispute that he operated a
radio station on 107.5 MHz without Commission authorization on
April 19, 2002. We conclude that this violation was a willful
violation within the meaning of Section 503(b) of the Act. In
this regard, the term ``willful,'' as used in Section 503(b)
of the Act, does not require a finding that the violation was
intentional or that the violator was aware that it was
committing a violation.15 Rather, the term ``willful'' simply
requires that the violator knew it was taking the action in
question, irrespective of any intent to violate the Act or the
Commission's rules.16
11. Although Mr. Sarmiento denies that there were any
transmissions on the unlicensed radio station operating on
107.5 MHz on April 20, 2002, we conclude that Mr. Sarmiento's
violation of Section 301 was also repeated.17 The evidence in
the record establishes that on April 20, 2002, agents from the
Tampa Office observed an FM radio station transmitting on
107.5 MHz and identifying as ``WTEN'' and ``Tropical
Estereo.'' Using radio direction finding techniques, the
agents determined that this station was transmitting from a
single-story office building located at 2201 Kirkwood Avenue,
the same location from which Mr. Sarmiento admits transmitting
on the previous day. Consistent with Commission practice, the
agents recorded the transmissions on 107.5 MHz for
approximately one half hour, between 10:00 and 10:30 a.m.
Thus, we have a tape recording of the unlicensed station
transmitting on 107.5 MHz on April 20, 2002. On the basis of
this substantial evidence, we find altogether unpersuasive the
sworn statements by Mr. Sarmiento and his employees that there
were no transmissions on 107.5 MHz on April 20, 2002.
Further, while Mr. Sarmiento provided sworn affidavits from 25
other individuals who claim that they listened to frequency
107.5 MHz on an FM radio on April 20, 2002, and did not hear
any transmissions, we note that these individuals do not
specify what time or how long they listened. In any event, as
detailed above, there is substantial documented evidence that
the unlicensed station transmitted on 107.5 MHz on April 20,
2002. Additionally, we have already concluded that Mr.
Sarmiento's operation of the unlicensed station was willful.18
12. Mr. Sarmiento suggests that mitigation of the
forfeiture is appropriate because he had been led to believe
that the frequency 107.5 MHz had been leased to him and that
an LPFM station required no further licensing, but later found
out that he had been duped. While we think that it is
unfortunate that Mr. Sarmiento may have been duped, the record
evidence shows that Mr. Sarmiento knew that a license is
required for an LPFM station at least two months prior to
April 19, 2002, the date that the FCC agents first observed
Mr. Sarmiento transmitting on 107.5 MHz without a license. In
this regard, on February 19, 2002, the Commission received a
letter from Mr. Sarmiento requesting information on how to
obtain a license for an LPFM station. In this letter, Mr.
Sarmiento related that in December 2001 he had leased a radio
station transmitting on 105.1 MHz in Naples, Florida from an
individual named Daniel Morisma, but then dissolved this lease
after learning that Mr. Morisma did not have a license for
that station. Mr. Sarmiento further stated that he had
subsequently leased a radio station transmitting on 107.5 MHz
from an individual named Dionisio Lombardi and began
broadcasting on that frequency on January 1, 2002, but
terminated this lease after learning on February 7, 2002, that
Mr. Lombardi did not have a license to operate a radio station
on 107.5 MHz. On April 5, 2002, Mr. Sarmiento filed an
application for an LPFM license with the Commission.19 Thus,
Mr. Sarmiento clearly knew that a license is required to
operate an LPFM station but simply chose to operate without a
license. Furthermore, on April 19, 2002, the FCC agents
warned Mr. Sarmiento both orally and in writing that the
unlicensed station had to be shut down. Despite these
warnings, the agents observed the unlicensed station
transmitting on 107.5 MHz again on April 20, 2002. Under
these circumstances, we conclude that no reduction of the
forfeiture on this basis is warranted.
13. We also find no merit to Mr. Sarmiento's assertion that
the subject investigation ``was initiated in bad faith by
adverse interests.'' The investigation was initiated in
response to complaints alleging that an unlicensed station
transmitting on 107.5 MHz was causing widespread interference
to the reception of an FM broadcast station licensed to
operate on 107.1 MHz in Naples, Florida. Moreover, we think
it is irrelevant why the investigation was initiated. The
fact remains that Mr. Sarmiento was operating a radio station
without a license in violation of Section 301 of the Act.
14. Finally, we reject Mr. Sarmiento's argument that
mitigation of the forfeiture is warranted because he has been
forthcoming by having initiated written contact with the FCC,
has applied for an LPFM license, and has demonstrated a
respect for local, state and federal laws. Mr. Sarmiento
applied for an LPFM license only after putting his unlicensed
station on the air, did not even attempt to comply with the
Commission rules applicable to LPFM stations, and continued to
operate the unlicensed station after receiving oral and
written warnings from the FCC agents to terminate such
operation. We do not think that such behavior evinces a
respect for federal laws or warrants reduction of the
forfeiture amount.
15. We have examined Mr. Sarmiento'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. Sarmiento 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
16. 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,20 Octavio Sarmiento, Jr. 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.
17. 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. 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. 200232700012 and FRN
0007-0497-62. 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.
20554.21
18. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by certified mail return receipt requested and first
class mail to counsel for Octavio Sarmiento, Jr., Robert N.
Pelier, Esq., Blanco & Pelier, P.A., 1100 Fifth Avenue South,
Suite 201, Naples, Florida 34102.
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.
200232700012 (Enf. Bur., Tampa Office, released June 5, 2002).
3 Mr. Sarmiento's response to the NAL was untimely under
Section 1.80(f)(3) of the Commission's Rules (``Rules''), 47
C.F.R. § 1.80(f)(3). Nevertheless, we will consider the response
in order to provide Mr. Sarmiento an opportunity to respond on
the record.
4 Under Section 15.239 of the 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 µV/m at three meters. The agents' measurements indicated
that the station's field strength extrapolated to three meters
was 17,785,270 µV/m. Thus, the station operating on 107.5 MHz
exceeded the permissible level for a non-licensed low-power radio
transmitter by 71,141 times.
5 The Tampa Office subsequently learned that on April 5, 2002,
Tropical Estereo had filed an application for an LFPM license on
FCC Form 319. On April 24, 2002, the Commission's Media Bureau
returned this application to Mr. Sarmiento as improperly filed,
noting that FCC Form 319 is used to signify operation pursuant to
a granted construction permit and that Tropical Estereo had never
applied for or received the required construction permit for an
LPFM station. The Media Bureau further noted that pursuant to 47
C.F.R. § 73.870(b), the required form for a construction permit
for an LPFM license, FCC Form 318, will only be accepted during
Commission-specified filing periods.
6 Under Section 15.239 of the Rules, non-licensed broadcasting
in the 88-108 MHz band is permitted only if the field strength of
the transmissions does not exceed 250 µV/m at three meters. The
measurements taken by the agents on April 20, 2002 indicated that
the station's field strength extrapolated to three meters was
974,976 µV/m. Thus, the station operating on 107.5 MHz exceeded
the permissible level for a non-licensed low-power radio
transmitter by 3,900 times.
7 47 U.S.C. § 503(b).
8 47 C.F.R. § 1.80.
9 47 U.S.C. § 503(b)(2)(D).
10 Section 504(a) of the Act provides that any suit brought by
the United States in federal district court for the collection of
a forfeiture imposed pursuant to the Act shall be a trial de
novo. 47 U.S.C. § 504(a).
11 47 U.S.C. § 503(b)(4).
12 47 C.F.R. § 0.457.
13 47 C.F.R. § 0.461.
14 47 U.S.C. § 301.
15 Section 312(f)(1) of the Act, 47 U.S.C. § 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,'
... 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).
16 Id.
17 Section 312(f)(2) of the Act provides that ``[t]he term
`repeated,' ... 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. § 312(f)(2).
18 Section 503(b)(1) of the Act provides that a forfeiture
penalty may be imposed if the violation is either willful or
repeated. 47 U.S.C. § 503(b)(1).
19 The Media Bureau returned this application to Mr. Sarmiento
as improperly and untimely filed on April 24, 2002. See supra n.
4.
20 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
21 See 47 C.F.R. § 1.1914.