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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:


    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).


    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


    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

    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.


    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,

    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.


   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,

   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

   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



   Federal Communications Commission DA 07-862