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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Josue Alusma ) File No.: EB-02-TP-260
Naples, Florida ) NAL/Acct. No. 200232700022
) FRN 0007-4959-97
MEMORANDUM OPINION AND ORDER
Adopted: February 23, 2004 Released: February
26, 2004
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 February 20, 2003 by Josue Alusma
(``Mr. Alusma''). Mr. Alusma seeks reconsideration of a
Forfeiture Order,1 in which the Chief, Enforcement Bureau,
issued 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. Alusma's
operation of a radio station on the frequency of 100.5 MHz
without Commission authorization. For the reasons
discussed below, we reduce the forfeiture amount to five
hundred dollars ($500).
II. BACKGROUND
2. On April 20, 2002, in connection with an
investigation of unlicensed FM broadcast stations in
Naples, Florida, agents from the Commission's Tampa,
Florida Field Office (``Tampa Office'') observed FM radio
broadcasts on the frequency 100.5 MHz. Commission records
showed no authorization for this operation in Naples,
Florida. Using electronic direction finding techniques,
the agents positively identified the source of the
transmissions to be an antenna mounted on a tower attached
to the back of an automobile repair shop building at 3639
Bayshore Dr., Naples, Florida. Based on field strength
measurements taken by the agents of the station's signal,
this station required a license to operate.
3. Immediately thereafter, still on April 20, 2002,
the agents interviewed the lessee of the entire property
who stated that part of the second floor was sub-leased to
another person. In a subsequent interview, the lessee
identified the sub-lessee as Mr. Alusma and Mireille
Alusma of Naples, Florida, and also identified Mr. Alusma
as the sub-lessee based on a comparison with the picture
on a copy of Mr. Alusma's driver's license. The agents
then went to the second floor space that was sub-leased to
Mr. Alusma to attempt an inspection of the radio station.
The agents saw a man leaving the vicinity of the sub-
leased space whom they later identified to be Mr. Alusma
based on a comparison with the picture on a copy of Mr.
Alusma's driver's license. Several people were on the
second floor and one of them approached the Commission
agents to answer their questions. The agents inspected
the radio station located on the second floor in the sub-
leased space and observed a radio transmitter, an RVR
Model VJ1000, an exciter, RVR Model TEX20-NV, and other
equipment associated with the station operation. The
agents hand delivered a written warning to the person
assisting with the inspection and to the lessee of the
entire space providing notice that the station's
unlicensed operation violated Section 301 of the Act and
warning of the penalties for the operation of the
unlicensed radio station.
4. On May 14, 2002, agents from the Tampa Office
drove to the Naples area to determine whether the station
on 100.5 MHz was still operating. Using electronic
direction finding techniques, the agents determined that
the station was broadcasting from an antenna mounted on a
two-story commercial building consisting of several
individually-owned suites, at 4995 Tamiami Trail East,
Naples, Florida. Based on field strength measurements
taken by the agents of the station's signal, this station
required a license to operate. The agents traced the
coaxial cable from the antenna down to Suite # 4995. The
agents observed a man leaving the area whom they later
identified as Mr. Alusma based on a comparison with the
picture on a copy of Mr. Alusma's driver's license. No
one was available in Suite # 4995 at the time. The agents
located and interviewed the owner of Suite # 4995 who
provided a copy of a lease identifying the lessee of Suite
# 4995 as Mr. Alusma.
5. On August 6, 2002, the Tampa Office issued a
Notice of Apparent Liability for Forfeiture (``NAL'')3 to
Mr. Alusma in the amount of $10,000 for operation of a
radio station on the frequency of 100.5 MHz without
Commission authorization in willful and repeated violation
of Section 301 of the Act. Mr. Alusma did not file a
response to the NAL, and on January 31, 2003 the
Enforcement Bureau issued a Forfeiture Order to Mr. Alusma
affirming the forfeiture amount. On February 20, 2003,
Mr. Alusma filed a petition for reconsideration. In his
petition Mr. Alusma requests cancellation of the
forfeiture amount. Mr. Alusma argues that he did not
violate any Commission rules regarding the radio station
operated on 100.5 MHz in Naples, Florida. Mr. Alusma
states that he hosted a show on this station and that the
station was owned by Bishop Ardouin Joseph. Mr. Alusma
contends that he had been told that ``the station was
perfectly legal'' and that he didn't have any way in which
to verify whether the station was in violation of the
Commission's rules. Mr. Alusma also argues that he is
unable to pay the forfeiture due to financial hardship.
In support of his argument of financial hardship, Mr.
Alusma includes various financial documents.
III. DISCUSSION
6. In The Commission's Forfeiture Policy Statement
and Amendment of Section 1.80 of the Rules to Incorporate
the Forfeiture Guidelines, the Commission adopted
guidelines for assessing base forfeiture amounts for
violations of the Act and the Commission's rules, and
``retain[ed] the discretion to take action in specific
cases as warranted.''4 The forfeiture guidelines
establish a $10,000 base forfeiture for operation without
a license.5 In assessing the forfeiture, the Commission
may adjust the base forfeiture by taking into account,
inter alia, a violator's ability to pay and other such
matters as justice may require.6 It is in this context,
that we consider Mr. Alusma's petition for
reconsideration.
7. Section 301 of the Act provides that no person
shall use or operate any apparatus for the transmission of
energy or communications or signals by radio within the
United States except under and in accordance with a
license. On April 20, 2002, agents from the Tampa Office
observed a radio transmitter, an RVR Model VJ1000, an
exciter, RVR Model TEX20-NV, and other equipment
associated with the operation of the radio station
operating on 100.5 MHz. Contrary to Mr. Alusma's
assertions regarding ownership of the unlicensed station,
agents from the Tampa Office determined that the station
was operating on April 20, 2002, from a location sub-
leased by Mr. Alusma, and that Mr. Alusma assisted in the
station's operation. On May 14, 2002, agents from the
Tampa Office determined that the station on 100.5 MHz was
operating from another location again sub-leased by Mr.
Alusma, and that he again assisted in the station's
operation. Commission records showed no authorization for
this operation. Therefore, we conclude that operation of
the station violated Section 301 of the Act, and that Mr.
Alusma, as sub-lessee of the station's operating location
and as a station operator, bears responsibility for the
willful and repeated violation.7 In light of our finding
that Mr. Alusma's violation was willful, his claim that he
thought the station was legal does not mitigate the
violation.8
8. We find however, that reduction of the proposed
forfeiture amount to $500 is appropriate. After
considering the financial information submitted, we find
that requiring Mr. Alusma to pay a $10,000 forfeiture
would impose a financial hardship and, consequently, we
lower the monetary forfeiture to $500.
IV. CONCLUSION
9. Accordingly, IT IS ORDERED that, pursuant to
Section 405 of the Act9 and Section 1.106 of the Rules,10
the Petition for Reconsideration of the Enforcement
Bureau's Forfeiture Order in this proceeding IS hereby
GRANTED IN PART AND DENIED IN PART.
10. IT IS FURTHER ORDERED that, pursuant to
Section 503(b) of the Act11 and Section 1.80(f) of the
Rules,12 Mr. Josue Alusma, shall, within 30 days of the
release of this Order, pay the amount of $500 for
violating Section 301 of the Act. If the forfeiture is
not paid within the specified period, the case may be
referred to the Department of Justice for collection
pursuant to Section 504(a) of the Act.13 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 note the
NAL/Acct. No. 200232700022 and FRN 0007-4959-97. Requests
for full payment under an installment plan should be sent
to: Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.14
11. IT IS FURTHER ORDERED THAT a copy of this Order shall
be sent by first class mail and certified mail, return receipt
requested, to Mr. Josue Alusma at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 Josue Alusma, 18 FCC Rcd 1031 (Enf. Bur. 2003).
2 47 U.S.C. § 301.
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232700022 (Enf. Bur., Tampa Office, released August 6, 2002).
4 12 FCC Rcd 17087, 17093 ¶ 8, recon. denied, 15 FCC Rcd 303
(1999).
5 Id. at 17113.
6 See 47 U.S.C. § 503(b)(2)(D); 47 C.F.R. § 1.80(b)(4).
7 In this context, ``willful'' means the conscious and deliberate
commission or omission of an act, irrespective of any intent to
violate statutory or regulatory requirements. A violation is
considered ``repeated'' if it continues for more than one day.
See 47 U.S.C. § 312(f); see also Southern California Broadcasting
Co., 6 FCC Rcd 4387, 4387-88, ¶ 5 (1991).
8 We note additionally, that the written warning delivered by the
agents from the Tampa Office to the unlicensed station on April
20, 2002, informed those associated with the station that the
unlicensed operation violated Section 301 of the Act.
9 47 U.S.C. § 405
10 47 C.F.R. § 1.106.
11 47 U.S.C. § 503(b)
12 47 C.F.R. § 1.80(f)
13 47 U.S.C. § 504(a).
14 See 47 C.F.R. § 1.1914.