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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
)
MEMORANDUM OPINION AND ORDER
Adopted: March 31, 2003 Released: April 2, 2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum
Opinion and Order
(``Order''), we grant in
part and deny in part the
petition for
reconsideration filed on
November 1, 2002, by
Richard Muņoz (``Mr.
Muņoz''). Mr. Muņoz seeks
reconsideration of the
Forfeiture Order1 in which
the Chief, Enforcement
Bureau (``Bureau''), found
him liable for a monetary
forfeiture in the amount
of ten thousand dollars
($10,000) for willful and
repeated violation of
Section 301 of the
Communications Act of
1934, as amended
(``Act'').2 The noted
violation involves Mr.
Muņoz's operation of a
radio station on 105.1 MHz
without Commission
authorization. For the
reasons discussed below,
we reduce the monetary
forfeiture to $2,000.
II. BACKGROUND
2. On April 20, 2002, agents
from the Commission's
Tampa, Florida, District
Office (``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's signal to the
Tree of Life Church at
2132 Shadowlawn Drive,
Naples, Florida. The
agents determined through
field strength
measurements that the
station's field strength
was 90,198 times greater
than the permissible
level3 for a non-licensed
low-power radio
transmitter and that,
therefore, the station
required a license to
operate.
3. The agents immediately
inspected the station and
found that the
transmitting equipment was
in operation. During the
inspection, the agents
interviewed Mr. Muņoz, who
admitted that he operated
the station. When asked
whether he had a license
for the station, Mr. Muņoz
replied that a friend had
submitted an application
to the FCC and advised him
that he could operate the
station while the
paperwork was being
processed. The agents
informed Mr. Muņoz that he
could not operate the
station without a license,
directed him to terminate
the unlicensed operation
and hand delivered a
warning letter to Mr.
Muņoz. The warning letter
advised Mr. Muņoz that
operation of a radio
station without a license
violates Section 301 of
the Act, warned him to
cease operation of the
unlicensed station
immediately, and set forth
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
authorized FM broadcast
station. 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
at 2132 Shadowlawn Drive,
Naples, Florida. The
agents determined through
field strength
measurements that the
station's field strength
was 82,587 times greater
than the permissible level
for a non-licensed low-
power radio transmitter
and that, therefore, the
station required a license
to operate.
5. On May 17, 2002, the
Tampa Office issued a
warning letter to Andrew
DeLong, head Mr. of the
Tree of Life Church. On
May 24, 2002, the Tampa
Office received a letter
from Mr. DeLong stating
that the Tree of Life
Church leased space for
the radio station to Mr.
Muņoz and had no control
over the operation of the
station. In addition, Mr.
DeLong stated that,
following the May 17,
2002, warning letter, he
spoke with Mr. Muņoz and
Mr. Muņoz shut down the
radio station.
6. On June 5, 2002, the
Tampa Office issued a NAL4
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. Mr. Muņoz
responded to the NAL
seeking cancellation of
the proposed forfeiture.
On October 24, 2002, the
Bureau released a
Forfeiture Order affirming
the NAL. In response to
the Forfeiture Order, Mr.
Muņoz admits that he
operated the unlicensed
station on 105.1 MHz and
pledges that there will be
no recurrence. He
requests cancellation of
the forfeiture on basis of
contrition, his reliance
on misleading advice from
another unlicensed
religious broadcaster and
his inability to pay the
forfeiture. To support
his inability to pay
claim, Mr. Muņoz submits
copies of his 1999, 2000
and 2001 federal income
tax returns.
III. DISCUSSION
7. Mr. Muņoz's pledge not to
repeat his violations of
Section 301 and his
contrition do not mitigate
his violations. As the
Commission stated in
Seawest Yacht Brokers, 9
FCC Rcd 6099, 6099 (1994),
``corrective action taken
to come into compliance
with Commission rules or
policy is expected, and
does not nullify or
mitigate any prior
forfeitures or
violations.''5
8. Mr. Muņoz argues that his
violations resulted from
his reliance on misleading
advice. Mr. Muņoz made a
similar argument in his
response to the NAL.6 We
rejected that argument in
the Forfeiture Order
because after the
inspection on April 20,
2002, Mr. Muņoz knew that
his station's operation
was unauthorized but
despite the received
warning he continued to
operate the unlicensed
station. He provides
nothing new to support his
support here, and we again
reject it as a basis for
cancellation of the
forfeiture. We affirm
the imposition of a
forfeiture for Mr. Muņoz's
unlicensed operation.
However, we find that, on
the basis of the financial
information provided by
Mr. Muņoz, the forfeiture
should be reduced to
$2,000.
IV. ORDERING CLAUSES
9. Accordingly, IT IS
ORDERED that, pursuant to
Section 405 of the Act7
and Section 1.106 of the
Rules,8 Mr. Muņoz's
petition for
reconsideration of the
October 24, 2002,
Forfeiture Order IS
GRANTED to the extent that
the monetary forfeiture IS
REDUCED to $2,000 and IS
DENIED in all other
respects.
10. 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 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. 20554.10
11. 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, and to his
attorney, Lewis H.
Goldman, Esq., 45 Dudley
Court, Bethesda, Maryland
20814.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 17 FCC Rcd 21132 (Enf. Bur. 2002).
2 47 U.S.C. § 301.
3 Under Section 15.239 of the Commission's Rules (``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.
4 Richard Muņoz, NAL Acct. No. 200232700011 (Enf. Bur., Tampa
Office, rel. June 5, 2002).
5 See also AT&T Wireless Services, Inc., 17 FCC Rcd 21871
(2002).
6 17 FCC Rcd 21132, 21134 (Enf. Bur. 2002).
7 47 U.S.C. § 405.
8 47 C.F.R. § 1.106
9 47 U.S.C. § 504(a).
10 See 47 C.F.R. § 1.1914.