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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                             )                                
                                                              
                             )                                
                                                              
     In the Matter of        )   File No.: EB-11-SD-0024      
                                                              
     Estevan J. Gutierrez    )   NAL/Acct. No.: 201132940006  
                                                              
     Las Vegas, New Mexico   )   FRN: 0021017025              
                                                              
                             )                                
                                                              
                             )                                


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: August 30, 2011  Released: September 1, 2011

   By the District Director, San Diego District Office, Western Region,
   Enforcement Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture  ("NAL"), we find
       that Estevan J. Gutierrez ("Gutierrez"), apparently willfully and
       repeatedly violated (1) section 301 of the Communications Act of 1934,
       as amended ("Act"), by operating on a frequency licensed to the Las
       Vegas, New Mexico, Police Department ("LVPD") without authorization,
       and (2) section 333 of the Act by willfully and maliciously
       interfering with the LVPD's licensed operations on that frequency. We
       conclude that Gutierrez is apparently liable for a forfeiture in the
       amount of twenty-five thousand dollars ($25,000).

   II. BACKGROUND

    2. On February 15, 2011, in response to a complaint from the LVPD of
       radio interference to their main dispatch channel of 159.150 MHz from
       an unknown male who was threatening LVPD officers, an agent from the
       Enforcement Bureau's San Diego Office ("San Diego Office") arrived in
       Las Vegas, New Mexico, with an FCC mobile direction-finding vehicle
       ("MDF") to investigate, locate, and assist in resolving the
       interference. The LVPD Deputy Chief informed the agent that the
       subject's use of the frequency included obscenities and threats
       against police officers and their families, and that it required the
       LVPD to use a backup channel for their dispatch operations. A LVPD
       sergeant identified the voice as that of Gutierrez, who was known to
       the sergeant from prior incidents in the City of Las Vegas. The LVPD
       sergeant then informed the San Diego agent that he believed that the
       individual interfering with the LVPD dispatch channel was Gutierrez.
       According to the LVPD, Gutierrez did not have a known current address.
       That evening the subject transmitted on 159.150 MHz making threats to
       LVPD officers. The San Diego agent, while accompanied by LVPD officers
       used radio direction-finding techniques to find the location of the
       transmissions from the subject on 159.150 MHz and determined that
       Gutierrez was mobile and was not transmitting from a fixed location.

    3. On February 16, 2011, Gutierrez began transmitting again and the agent
       used direction-finding techniques to follow the subject's various
       transmissions around the City of Las Vegas. Ultimately, the agent
       observed the highest signal strength from the subject's transmissions
       on 159.150 MHz on University Avenue near 7th Street. The agent drove
       the MDF vehicle around the block into an alley running parallel to
       University Avenue. As the agent drove through the alley he observed
       the strongest signal strength of the subject's transmission next to a
       duplex unit. The agent determined from the signal strength that the
       subject was transmitting from inside the duplex. The San Diego agent
       informed the LVPD sergeant that the subject and transmitter were in
       the duplex. The LVPD sergeant along with several other LVPD officers,
       observed Gutierrez inside the duplex holding a handheld radio and
       shortly thereafter apprehended Gutierrez within the duplex and also
       located the handheld radio Gutierrez had been holding. The San Diego
       agent and the LVPD sergeant identified the handheld radio as an Icom
       model IC-F50, tuned to 159.150 MHz, the frequency licensed to the City
       of Las Vegas that was receiving the interference.

   III. DISCUSSION

    4. Section 503(b) of the Act provides that any person who willfully or
       repeatedly fails to comply substantially with the terms and conditions
       of any license, or willfully or repeatedly fails to comply with any of
       the provisions of the Act or of any rule, regulation or order issued
       by the Commission thereunder, shall be liable for a forfeiture
       penalty. Section 312(f)(1) of the Act defines willful as the
       "conscious and deliberate commission or omission of [any] act,
       irrespective of any intent to violate the law. The legislative history
       to section 312(f)(1) of the Act clarifies that this definition of
       willful applies to both section 312 and 503(b) of the Act and the
       Commission has so interpreted the term in the section 503(b) context.
       The Commission may also assess a forfeiture for violations that are
       merely repeated, and not willful. The term "repeated" means the
       commission or omission of such act more than once or for more than one
       day.

    5. Section 301 of the Act states 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
       the Act and with a license granted under the provisions of the Act.  A
       review of Commission databases revealed that Gutierrez has no
       authorization to operate on 159.150 in the Las Vegas, New Mexico,
       area. As discussed above, on February 15, 2011 and February 16, 2011,
       Gutierrez operated a radio station on frequency 159.150 MHz without a
       license. Based on the evidence before us, we find that Gutierrez
       apparently willfully and repeatedly violated section 301 of the Act by
       operating radio transmission equipment without Commission
       authorization on the frequency 159.150 MHz on February 15, 2011, and
       February 16, 2011.

    6. Section 333 of the Act states that no person shall willfully or
       maliciously interfere with or cause interference to any radio
       communications of any station licensed under this Act.  The
       legislative history for section 333 identifies willful and malicious
       interference as "intentional jamming, deliberate transmission on top
       of the transmissions of authorized users already using specific
       frequencies in order to obstruct their communications, repeated
       interruptions, and the use and transmission of whistles, tapes,
       records, or other types of noisemaking devices to interfere with the
       communications or radio signals of other stations." Gutierrez's
       transmissions on February 15, 2011 and February 16, 2011, interfered
       with the licensed transmissions of the City of Las Vegas Police
       Department, contained threats against the officers in that police
       department and their families, and required the LVPD to use a backup
       dispatch channel rather than its licensed main dispatch channel on
       159.150 MHz. Based on the evidence before us, we find that Gutierrez
       apparently willfully and repeatedly violated section 333 of the Act by
       willfully and maliciously interfering with the LVPD's licensed
       operations, on February 15, 2011, and February 16, 2011.

    7. Pursuant to the Commission's Forfeiture Policy Statement and section
       1.80 of the Rules, the base forfeiture amount for operation without an
       instrument of authorization is $10,000, and the base forfeiture amount
       for interference is $7,000. In assessing the monetary forfeiture
       amount, we must also take into account the statutory factors set forth
       in section 503(b)(2)(E) of the Act, which include the nature,
       circumstances, extent, and gravity of the violations, 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. We find Gutierrez's misconduct particularly egregious because
       his unlicensed operation included willful and malicious interference
       to the LVPD's operations on 159.150 MHz, which included threats
       against the officers and their families, and required the LVPD to
       operate on a backup channel. Thus, we find that an upward adjustment
       of $8,000 to the combined base forfeiture of $17,000 is warranted.
       Applying the Forfeiture Policy Statement, section 1.80 of the Rules,
       and the statutory factors to the instant case, we conclude that
       Gutierrez is apparently liable for a $25,000 forfeiture.

   IV. ORDERING CLAUSES

    8. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
       Communications Act of 1934, as amended, and sections 0.111, 0.204(b),
       0.311, 0.314, and 1.80 of the Rules, Estevan J. Gutierrez is hereby
       NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
       twenty-five thousand dollars ($25,000) for violation of sections 301
       and 333 of the Act.

    9. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the Rules
       within thirty days of the release date of this Notice of Apparent
       Liability for Forfeiture, Estevan J. Gutierrez SHALL PAY the full
       amount of the proposed forfeiture or SHALL FILE a written statement
       seeking reduction or cancellation of the proposed forfeiture.

   10. Payment of the forfeiture must be made by credit card, check, or
       similar instrument, payable to the order of the Federal Communications
       Commission. The payment must include the NAL/Account Number and FRN
       referenced above. Payment by check or money order may be mailed to
       Federal Communications Commission, P.O. Box 979088, St. Louis, MO
       63197-9000. Payment by overnight mail may be sent to U.S. Bank -
       Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
       Louis, MO 63101. Payment by wire transfer may be made to ABA Number
       021030004, receiving bank TREAS/NYC, and account number 27000001. For
       payment by credit card, an FCC Form 159 (Remittance Advice) must be
       submitted.  When completing the FCC Form 159, enter the NAL/Account
       number in block number 23A (call sign/other ID), and enter the letters
       "FORF" in block number 24A (payment type code). Requests for full
       payment under an installment plan should be sent to:  Chief Financial
       Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
       Washington, D.C.  20554.    If you have questions regarding payment
       procedures, please contact the Financial Operations Group Help Desk at
       1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. Estevan J. Gutierrez
       shall send electronic notification on the date said payment is made to
       WR-Response@fcc.gov.

   11. The written statement seeking reduction or cancellation of the
       proposed forfeiture, if any, must include a detailed factual statement
       supported by appropriate documentation and affidavits pursuant to
       sections 1.80(f)(3) and 1.16 of the Rules. The written statement must
       be mailed to Federal Communications Commission, Enforcement Bureau,
       Western Region, San Diego Office, 4542 Ruffner Street, Suite 370, San
       Diego, CA 92111  and include the NAL/Acct. No. referenced in the
       caption. Estevan J. Gutierrez shall also email the written response to
       WR-Response@fcc.gov.

   12. The Commission will not consider reducing or canceling a forfeiture in
       response to a claim of inability to pay unless the petitioner submits:
       (1) federal tax returns for the most recent three-year period; (2)
       financial statements prepared according to generally accepted
       accounting practices ("GAAP"); or (3) some other reliable and
       objective documentation that accurately reflects the petitioner's
       current financial status. Any claim of inability to pay must
       specifically identify the basis for the claim by reference to the
       financial documentation submitted.

   13. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
       for Forfeiture shall be sent by both Certified Mail, Return Receipt
       Requested, and regular mail, to Estevan J. Gutierrez.

   FEDERAL COMMUNICATIONS COMMISSION

   James T. Lyon

   District Director

   San Diego District Office

   Western Region

   Enforcement Bureau

   47 U.S.C. S:S: 301, 333.

   The City of Las Vegas, New Mexico, is the licensee of Station WPVX804,
   with authorization to operate on 159.150 MHz in and around Las Vegas, New
   Mexico.

   The LVPD Deputy Chief also informed the San Diego agent that the during
   the previous three days, the subject made over 400 transmissions on
   159.150 MHz, and that the subject also gave false information to the fire
   department while operating on 159.150 MHz.

   47 U.S.C. S: 312(f)(1).

   H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
   [inserted in section 312] defines the terms `willful' and `repeated' for
   purposes of section 312, and for any other relevant section of the [A]ct
   (e.g., section 503).... As defined ... `willful' means that the licensee
   knew that he was doing the act in question, regardless of whether there
   was an intent to violate the law. `Repeated' means more than once, or
   where the act is continuous, for more than one day. Whether an act is
   considered to be `continuous' would depend upon the circumstances in each
   case. The definitions are intended primarily to clarify the language in
   sections 312 and 503, and are consistent with the Commission's application
   of those terms ...").

   See, e.g., Application for Review of Southern California Broadcasting Co.,
   Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recon. denied,
   7 FCC Rcd 3454 (1992) ("Southern California Broadcasting Co.").

   See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
   Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10 (2001) ("Callais
   Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
   television operator's repeated signal leakage).

   Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
   to violations for which forfeitures are assessed under section 503(b) of
   the Act, provides that "[t]he term "repeated," when used with reference to
   the commission or omission of any act, means the commission or omission of
   such act more than once or, if such commission or omission is continuous,
   for more than one day."

   47 U.S.C. S: 301.

   47 U.S.C. S: 333.

   H.R. Rep. No. 101-316, at 13 (1989).

   The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
   of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
   12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
   FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.

   47 U.S.C. S: 503(b)(2)(E).

   See 47 C.F.R. S: 1.80(b)(4). See also Gabriel A. Garcia, Notice of
   Apparent Liability for Forfeiture, 26 FCC Rcd 3750 (Enf. Bur. 2011)
   (upward adjustment warranted for unlicensed operation which resulted in
   interference to public safety radio operations).

   47 U.S.C. S:S: 301, 333, 503(b); 47 C.F.R. S:S: 0.111, 0.204(b), 0.311,
   0.314, 1.80.

   See 47 C.F.R. S: 1.1914.

   47 C.F.R. S:S: 1.80(f)(3), 1.16.

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 11-1475

                                       4

   Federal Communications Commission DA 11-1475