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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) ) File No. EB-03-NY-379
File No. . EB-03-TP-231 ) )
Angelo Avena ) ) FRN 0007006884
) ) NAL/Acct. No.
NAL/Acct. No. 200332700030 ) 200432380013
Linden, NJ ) )
FRN 0007006884 FRN: 0010373769
)
)
FORFEITURE ORDER
Adopted: November 23, 2004 Released:
November 24, 2004
By the Assistant Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of one thousand dollars
($1,000) to Angelo (``Angel'') Avena for operating an
unlicensed radio transmitter on the frequency 87.9 MHz in
Linden, New Jersey, in violation of Section 301 of the
Communications Act of 1934, as amended (``Act'').1
II. BACKGROUND
2. On November 7, 2003, the Commission's New York
Field Office (``New York Office'') received a complaint
about an illegal broadcast station in Middlesex County, New
Jersey, operating on the frequency 87.9 MHz.
3. On November 19, 2003, using a mobile direction-
finding vehicle, an agent from the New York Office monitored
the frequency 87.9 MHz in Linden, New Jersey and observed a
broadcast on that frequency. The agent identified the
source of the broadcast as an FM broadcast antenna on the
roof of 18 East 17th Street, Linden, New Jersey 07306. The
agent determined, based on field strength measurements taken
on November 19, 2003, that a Commission authorization was
required to operate the station.2 The Commission's database
contained no evidence of a station authorized to operate on
87.9 MHz in Linden, New Jersey. On that same day, the agent
spoke with Mr. Avena at 18 East 17th Street and Mr. Avena
acknowledged operating the unlicensed station. The agent
advised Mr. Avena that a license was required for operation
of the station and the agent provided Mr. Avena a Warning
Letter. A Warning Letter also was sent to Mr. Avena on
November 19, 2003 by First Class Mail and Certified Mail,
Return Receipt Requested.
4. The agent later observed the unauthorized
broadcast on 87.9 MHz on November 20, 2003, January 6, 2004,
and January 17, 2004. Each time, using mobile direction-
finding equipment, the agent identified the source of the
unauthorized broadcast as an FM broadcast antenna on the
roof of 18 East 17th Street, Linden, New Jersey. During a
station inspection that took place on November 20, 2003, Mr.
Avena again acknowledged operating the unlicensed station.
Mr. Avena also acknowledged operating radio-transmitting
equipment on 87.9 MHz at 18 East 17th Street, Linden, New
Jersey without a license in his response to the November 19,
2003 Warning Letter.
5. On May 26, 2004, the New York Office issued a
Notice of Apparent Liability for Forfeiture (``NAL'') to Mr.
Avena in the amount of ten thousand dollars ($10,000).3 Mr.
Avena filed a response to the NAL on June 18, 2004,
admitting unlicensed operation of radio transmitting
equipment on 87.9 MHz, but claiming that he does not have
the financial means to pay the monetary forfeiture. Mr.
Avena also claims that he ceased operating the station on
December 20, 2004 and therefore takes issue with the
findings in the NAL regarding the station's operation on
January 6, 2004 and January 17, 2004.
III. DISCUSSION
6. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Act,4
Section 1.80 of the Commission's Rules (``Rules''),5 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) (``Forfeiture Policy Statement''). In
examining Mr. Avena'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.6
7. Section 301 of the Act provides that ``[n]o person
shall use or operate any apparatus for the transmission of
energy or communications or signals by radio. . .except
under and in accordance with this Act and with a license in
that behalf granted under the provisions of this Act.'' Mr.
Avena admits that he operated radio transmission equipment
on 87.9 MHz from his residence at 18 East 17th Street,
Linden, New Jersey without a valid authorization on November
19, 2004 and November 20, 2004. Contrary to Mr. Avena's
assertion in his response to the NAL, the evidence shows
that an unauthorized radio station operated on 87.9 MHz from
18 East 17th Street in Linden, New Jersey, Mr. Avena's
residence, on January 6 and January 17, 2004. Using
direction-finding equipment, an agent determined on January
6 and January 17 that the radio station broadcasting on 87.9
MHz was operated from 18 East 17th Street and, based on
field strength measurements, the agent determined that a
Commission authorization was required to operate the
station.7 The Commission's database contained no record of
a station authorized to operate in Linden, New Jersey on
87.9 MHz. We find that Mr. Avena's violation of Section 301
of the Act was willful8 and repeated.9
8. Mr. Avena asserts that he does not have the
financial means to pay the $10,000 forfeiture proposed in
the NAL. After reviewing the financial information provided
by Mr. Avena, we conclude that the proposed forfeiture
amount should be reduced to $1,000.00.
IV. ORDERING CLAUSES
9. 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,10 Angelo Avena IS LIABLE FOR A
MONETARY FORFEITURE in the amount of one thousand dollars
($1,000) for violation of Section 301 of the Act.
10. Payment of the forfeiture shall be made in the
manner provided for in Section 1.80 of the Rules within
thirty (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.11 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 must include the FCC
Registration Number (FRN) and the NAL/Acct. No. referenced
in the caption. Payment by overnight mail may be sent to
Bank One/LB 73482, 525 West Monroe, 8th Floor Mailroom,
Chicago, IL 60661. Payment by wire transfer may be made to
ABA Number 071000013, receiving bank Bank One, and account
number 1165259. Requests for full payment under an
installment plan should be sent to: Chief, Revenue and
Receivables Group, 445 12th Street, S.W., Washington, D.C.
20554.12
11. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return
Receipt Requested to Angelo Avena, 18 East 17th Street,
Linden, New Jersey, 07306.
FEDERAL COMMUNICATIONS
COMMISSION
George R. Dillon
Assistant Chief, Enforcement
Bureau
_________________________
147 U.S.C. § 301.
247 C.F.R. §15.239(b).
3Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200432380013 (Enf. Bur., New York Office, released May 26,
2004).
447 U.S.C. § 503(b).
547 C.F.R. § 1.80.
647 U.S.C. § 503(b)(2)(D).
7Section 15.239 of the Commission's Rules, 47 C.F.R. §
15.239, provides that non-licensed broadcasting in the 88-
108 MHz band is permitted only if the field strength of the
transmission does not exceed 250 µV/m at three meters. On
January 6, 2004, the agent determined that the station
exceeded the permissible level for a non-licensed station
by 898 times. On January 17, 2004, the agent determined
that the station exceeded the permissible level for a non-
licensed station by 1,936 times.
8Section 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).
9As provided by 47 U.S.C. § 312(f)(2), a continuous
violation is ``repeated'' if it continues for more than one
day. The Conference Report for Section 312(f)(2)
indicates that Congress intended to apply this definition
to Section 503 of the Act as well as Section 312. See H.R.
Rep. 97th Cong. 2d Sess. 51 (1982). See Southern
California Broadcasting Company, 6 FCC Rcd 4387, 4388
(1991) and Western Wireless Corporation, 18 FCC Rcd 10319
at fn. 56 (2003).
1047 C.F.R. §§ 0.111, and 0.311.
11 47 U.S.C. § 504(a).
12 See 47 C.F.R. § 1.1914.