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 ) File No. EB-01-SJ-094
)
Javier Rodriguez. ) NAL/Acct. No.
200232680002
)
Boqueron, Puerto Rico ) FRN 0006-0437-80
FORFEITURE ORDER
Adopted: March 26, 2002 Released: March 28, 2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of one thousand ($1,000) to
Javier Rodriguez (``Rodriguez''), Boqueron, Puerto Rico, for
willful violation of Section 301 of the Communications Act of
1934, as amended (``Act''),1 The noted violation involves
Rodriguez's unauthorized operation of a CB radio on a
frequency for which a license or authorization is required
before operation.
2. On November 7, 2001, the Commission's San Juan, Puerto
Rico, Resident Agent Office (``San Juan Office'') issued a
Notice of Apparent Liability for Forfeiture (``NAL'') to
Rodriguez for a forfeiture in the amount of ten thousand
dollars ($10,000).2 Rodriguez filed a response3 to the NAL on
December 3, 2001.
II. BACKGROUND
3. On April 20, 1999, during an investigation of a
complaint about interference to home electronic entertainment
equipment, agents from the San Juan Office, using a mobile
direction finding vehicle, observed radio transmissions on
26.715 MHz and determined the origin of those signals to be an
antenna located in the backyard of a residence belonging to
Mr. Javier Rodriguez (located at Carr 307, Km 6.5 Interior,
Boqueron, Puerto Rico). After locating the source of the
transmissions, the agents inspected the station at that
address and observed that a modified CB radio (a Cobra 148 GTL
transceiver) was installed at the station and was connected to
a radio frequency power amplifier. During the inspection, the
agents determined that Rodriguez was the operator of the
station on 26.715 MHz. The frequency 26.715 MHz is in a band
allocated exclusively for use by the United States Government.
That frequency is not authorized for operation by CB stations
and Rodriguez had no authorization to operate on it.4 One of
the investigating agents verbally warned Rodriguez during the
inspection that unauthorized operation is prohibited by
Section 301 of the Act.
4. On October 24, 2001, during an investigation of another
complaint about interference to home electronic entertainment
equipment, agents from the San Juan Office, using a mobile
direction finding vehicle, observed radio transmissions on
26.705 MHz and determined the origin of those signals to again
be an antenna located in the backyard of Rodriguez's residence
at Carr 307, Km 6.5 Interior, Boqueron, Puerto Rico. After
locating the source of the transmissions, the agents inspected
the station located at that residence and observed that a
modified CB radio (a Cobra 148 GTL transceiver) was installed
at the station. During the inspection, the agents determined
that Rodriguez was the operator of the station on 26.705 MHz.
The frequency 26.705 MHz is in a band allocated exclusively
for use by the United States Government. That frequency is
not authorized for operation by CB stations and Rodriguez had
no authorization to operate on it.
5. On November 7, 2001, the San Juan Office issued a NAL
to Rodriguez in the amount of $10,000 for the unlicensed
operation observed on October 24, 2001. In his December 3,
2001, response to the NAL, Rodriguez argues that he is
financially unable to pay the proposed forfeiture. As
support, Rodriguez encloses copies of his Government of Puerto
Rico income tax returns for 1998, 1999 and 2000 and documents
indicating that he is unemployed. Rodriguez also argues that
his violations are mitigated by his remedial action and his
status as a first offender.
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''). Section 503(b) of the Act requires that, in
examining Rodriguez'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
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. Rodriguez does not deny the violations alleged in the
NAL. In view of the facts set forth above, we conclude that
Rodriguez operated without authorization on 26.705 MHZ on
October 24, 2001, in willful violation of Section 301 of the
Act.
9. Rodriguez's violation on October 24, 2001, occurred
despite a verbal warning from the Commission following his
previous unlicensed operation on April 20, 1999. Rodriguez
is, therefore, not a ``first offender,'' and is not entitled
to a reduction on that basis. Furthermore, remedial action
subsequent to notification of a violation will not nullify a
forfeiture penalty.8
10. On the basis of the documentation furnished by
Rodriguez, we find that a reduction of the forfeiture to
$1,000 is appropriate.
11. We have examined Rodriguez'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 the proper forfeiture amount is
$1,000.
IV. ORDERING CLAUSES
12. 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,9 Javier Rodriguez IS LIABLE FOR A MONETARY
FORFEITURE in the amount of $1,000 for willful violation of
the provisions of Sections 301 of the Act.
13. 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 shall 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. 200232680002, and the
FRN No. 0006-0437-80. 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
14. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by Certified Mail Return Receipt Requested to Javier
Rodriguez, P.O. Box 661, Boqueron, Puerto Rico 00622.
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.
200232680002 (Enf. Bur., San Juan Office, released November 7,
2001).
3 Although Rodriguez characterized his response as a Petition
for Reconsideration of the NAL filed pursuant to 47 C.F.R. §
1.106, we will treat Rodriguez's filing as a response to the NAL
per 47 C.F.R. § 1.80(f)(3).
4 CB operation is permitted only on 40 channels located
between 26.965 and 27.405 MHz. See 47 C.F.R. § 95.407.
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 See KGVH, Inc., 42 FCC 2d 258, 259 (1973).
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.