Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
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,
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).
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.
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
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
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
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
San Diego District Office
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
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,
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.80(f)(3), 1.16.
(...continued from previous page)
Federal Communications Commission DA 11-1475
Federal Communications Commission DA 11-1475