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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-04-LA-072
Jose A. Mollinedo ) NAL/Acct. No.: 200532900004
Victorville, CA ) FRN: 0012227534
)
)
MEMORANDUM OPINION AND ORDER
Adopted: February 26, 2007 Released: February 28, 2007
By the Assistant Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order, issued pursuant to Section 405
of the Communications Act of 1934, as amended ("Act"), and Section
1.106 of the Commission's rules, we grant, to the extent indicated
herein, a Petition for Reconsideration ("Petition") filed on February
13, 2006, by Jose A. Mollinedo ("Mollinedo") of a Forfeiture Order
imposing a ten thousand dollar ($10,000) monetary forfeiture penalty
against him for willful and repeated violation of Section 301 of the
Act. The noted violation involves Mollinedo's operation of an
unlicensed radio transmitter on 90.9 MHz in Victorville, California.
For the reasons discussed below, we reduce the forfeiture amount to
five hundred dollars ($500).
II. BACKGROUND
2. On January 31, 2005, the Los Angeles Office issued a Notice of
Apparent Liability for Forfeiture ("NAL") in the amount of $10,000 to
Mollinedo, finding that Mollinedo apparently willfully and repeatedly
operated an unlicensed radio transmitter on 90.9 MHz in Victorville,
California. Mollinedo filed a response to the NAL on March 16, 2005
("Response"). In his Response, Mollinedo stated that he received bad
advice from an associate regarding the need for a license to operate,
and that since he received the NAL, he stopped operating the radio
equipment and destroyed it. On January 13, 2006, after reviewing
Mollinedo's Response, the Western Region, Enforcement Bureau, released
the Forfeiture Order, and imposed a $10,000 forfeiture on Mollinedo
for his willful and repeated violation of Section 301 of the Act. In
the Forfeiture Order, the Western Region noted that Mollinedo did not
deny operating radio transmitting equipment without a license, nor did
he deny that he received at least one of the Los Angeles Office
Notices prior to receiving the NAL. Rather than heed the official
warning, Mollinedo chose to listen to an associate who had told him
that he apparently did not need a license if he only played music but
did not play advertisements, and resumed operation of his radio
transmitting equipment without a license. The Western Region also
found in the Forfeiture Order that Mollinedo's assertion, that since
receipt of the NAL he no longer broadcasts and has destroyed his
equipment, did not provide a basis for reduction or cancellation of
the forfeiture. In his Petition, Mollenido seeks dismissal of the
forfeiture.
III. DISCUSSION
3. Reconsideration is appropriate only where the petitioner either
demonstrates a material error or omission in the underlying order or
raises additional facts not known or not existing until after the
petitioner's last opportunity to present such matters. A petition for
reconsideration that reiterates arguments that were previously
considered and rejected will be denied. Mollinedo raises two
arguments. First, Mollinedo again asserts that he relied on bad advice
from an associate. This argument has been thoroughly considered and
rejected, and thus does not support reconsideration of the Forfeiture
Order.
4. In his Petition, Mollinedo also, for the first time, asserts an
inability to pay the forfeiture. Mollinedo supplied personal financial
information to support this claim. In analyzing a financial hardship
claim, the Commission generally has looked to gross revenues as a
reasonable and appropriate yardstick in determining whether a licensee
is able to pay the assessed forfeiture. While we find that Mollinedo
willfully and repeatedly violated Section 301 of the Act, based upon
his inability to pay, we conclude that pursuant to Section 503(b) of
the Act and the Forfeiture Policy Statement, reduction of the $10,000
forfeiture to $500 is warranted.
IV. ORDERING CLAUSES
5. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
Communications Act of 1934, as amended, and Section 1.106 of the
Commission's Rules, Jose A. Mollinedo's Petition for Reconsideration,
filed February 13, 2006, IS GRANTED TO THE EXTENT INDICATED HEREIN AND
DENIED IN ALL OTHER RESPECTS.
6. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311 and 1.80(f)(4) of the Rules, Jose A. Mollinedo
IS LIABLE FOR A MONETARY FORFEITURE in the amount of five hundred
dollars ($500) for violations of Section 301 of the Act.
7. 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 of the forfeiture must be made
by check or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the NAL/Acct. No.
and FRN No. referenced above. Payment by check or money order may be
mailed to Federal Communications Commission, P.O.
Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may
be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106. Requests for full payment under an installment plan
should be sent to: Associate Managing Director - Financial Operations,
445 12^th Street, SW, Room 1-A625, Washington, D.C. 20554.
8. IT IS FURTHER ORDERED that this Order shall be sent by regular mail
and by certified mail, return receipt requested, to Jose A. Mollinedo,
at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
47 U.S.C. S 405.
47 C.F.R. S 1.106.
Mollinedo's filing is not captioned as a petition for reconsideration and
is in letter form. However, because it was timely filed, we are treating
it as a petition for reconsideration of the Forfeiture Order pursuant to
47 U.S.C. S 405 and 47 C.F.R. S 1.106.
Jose A. Mollinedo, 21 FCC Rcd 181 (EB 2006) ("Forfeiture Order").
47 U.S.C. S 301.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200532900004
(Enf. Bur., Western Region, Los Angeles Office, released January 31,
2005).
See 47 C.F.R. S 1.106(c); EZ Sacramento, Inc., 15 FCC Rcd 18257, (EB
2000), citing WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub. nom. Lorain
Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 383 U.S.
967 (1966).
EZ Sacramento, Inc., 15 FCC Rcd at 18257.
In his Petition, Mollinedo reiterates his claim that he was given
inaccurate advice from an associate concerning his need for a license.
Mollinedo raises no new facts or arguments in his Petition concerning this
issue, therefore, we find no reason to disturb the Western Region's
determination that "the advice Mollinedo received from an associate is
irrelevant here. Mollinedo was warned orally and in writing by Los Angeles
agents in March, 2004 that he needed a license and to discontinue
operation of his radio transmitting equipment, yet, despite these
warnings, Mollinedo resumed operation of his radio transmitting equipment
without Commission authorization in September, 2004." Forfeiture Order at
para. 9.
See PLB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992).
See PJB Communications, 7 FCC Rcd at 2089 (forfeiture not deemed excessive
where it represented approximately 2.02 percent of the violator's gross
revenues).
47 U.S.C. S 405.
47 C.F.R. S 1.106.
47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S 301.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-862
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Federal Communications Commission DA 07-862