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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                        )                                
                                                         
                        )                                
     In the Matter of       File No: EB-11-SJ-0028       
                        )                                
     Eleuterio Lebron       NAL/Acct. No.: 201132680003  
                        )                                
     Guayama, PR            FRN: 0020992913              
                        )                                
                                                         
                        )                                


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: September 21, 2011 Released: September 21, 2011

   By the Resident Agent, San Juan Office, South Central Region, Enforcement
   Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       that Eleuterio Lebron ("Mr. Lebron"), apparently willfully and
       repeatedly violated section 301 of the Communications Act of 1934, as
       amended ("Act"), by operating an unlicensed radio transmitter on the
       frequency 88.5 MHz in Guayama, Puerto Rico. We conclude that Mr.
       Lebron is apparently liable for a forfeiture in the amount of fifteen
       thousand dollars ($15,000).

   II. BACKGROUND

    2. On June 22 and 23, 2011, in response to a complaint, agents from the
       Enforcement Bureau's San Juan Office ("San Juan Office"), used
       direction-finding techniques to locate the source of radio frequency
       transmissions on the frequency 88.5 MHz to a building located at
       Barrio Mosquito, Carretera 3, Km 148.9, Guayama, Puerto Rico. On both
       days, the agents determined that the signals being broadcast exceeded
       the limits for operation under Part 15 of the Commission's rules
       ("Rules") and therefore required a license. On June 29, 2011, agents
       from the San Juan Office inspected the station located in the building
       previously identified on June 22 and 23, 2011. During the inspection,
       the operator of the station telephoned Mr. Lebron, who confirmed with
       the agents that he was the station owner. Mr. Lebron then instructed
       the operator to take the station off the air and the agents confirmed
       that the operation on the frequency 88.5 MHz ceased. A review of
       Commission records shows that Mr. Lebron does not hold any
       authorization to broadcast on any frequency in Guayama, Puerto Rico.

   III. DISCUSSION

    3. 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.

    4. Section 301 of the Act requires 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. For the purposes of
       section 301, the word "operate" has been interpreted to mean both the
       technical operation of the station, as well as "the general conduct or
       management of a station as a whole, as distinct from the specific
       technical work involved in the actual transmission of signals." In
       other words, the use of the word "operate" in section 301 of the Act
       captures not just the "actual, mechanical manipulation of radio
       apparatus" but also operation of a radio station generally. To
       determine whether an individual is involved in the general conduct or
       management of the station, we can consider whether such individual
       exercises control over the station, which the Commission has defined
       to include ". . . any means of actual working control over the
       operation of the [station] in whatever manner exercised." On June 22,
       23, and 29, 2011, agents from the San Juan Office determined that an
       unlicensed radio station on the frequency 88.5 MHz operated from a
       building located at Barrio Mosquito, Carretera 3, Km 148.9, Guayama,
       Puerto Rico. Because Mr. Lebron is the owner of the unlicensed station
       at this location and he controlled the station's operations, we find
       that he willfully operated the station in apparent violation of the
       Rules. Because the operation occurred on more than one day, we find
       that the apparent violation was repeated. Based on the evidence before
       us, we find that Mr. Lebron apparently willfully and repeatedly
       violated section 301 of the Act by operating radio transmission
       equipment without the required Commission authorization.

    5. 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. 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. In this regard, we take into account the fact that on
       February 9, 2010 Mr. Lebron operated an unlicensed station on the same
       frequency from the same location and was warned verbally and in
       writing that such action violated the Act. The fact that Mr. Lebron
       continued to operate after being put on notice that his unlicensed
       operation contravened the Act, the Commission's rules, and related
       Commission orders, demonstrates a deliberate disregard for the
       Commission's requirements warranting an upward adjustment of $5,000.
       Applying the Forfeiture Policy Statement, section 1.80 of the Rules,
       and the statutory factors to the instant case, we conclude that Mr.
       Lebron is apparently liable for a total forfeiture in the amount of
       $15,000.

   IV. ORDERING CLAUSES

    6. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
       Communications Act of 1934, as amended, and sections 0.111, 0.204,
       0.311, 0.314 and 1.80 of the Commission's rules, Eleuterio Lebron is
       hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
       amount of fifteen thousand dollars ($15,000) for violations of section
       301 of the Act.

    7. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the
       Commission's rules within thirty days of the release date of this
       Notice of Apparent Liability for Forfeiture, Eleuterio Lebron SHALL
       PAY the full amount of the proposed forfeiture or SHALL FILE a written
       statement seeking reduction or cancellation of the proposed
       forfeiture.

    8. 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 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.  For questions about payment procedures,
       please contact the Financial Operations Group Help Desk at
       1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. Eleuterio Lebron shall
       also send an email notification to  SCR-Response@fcc.gov  on the date
       said payment is made.

    9. 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, if
       any, shall be mailed to Federal Communications Commission, Enforcement
       Bureau, South Central Region, San Juan Office, Room 762, Federal
       Building, Hato Rey, Puerto Rico, and must include the NAL/Acct. No.
       referenced in the caption. The written statement shall also be emailed
       to SCR-Response@fcc.gov.

   10. 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.

   11. 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 Eleuterio Lebron at his address of
       record.

   FEDERAL COMMUNICATIONS COMMISSION

   William Berry

   Resident Agent

   Southeast Region

   Enforcement Bureau

   47 U.S.C. S: 301.

   Part 15 of the Rules sets out the conditions and technical requirements
   under which certain radio transmission devices may be used without a
   license. In relevant part, section 15.239 of the Rules provides that
   non-licensed broadcasting in the 88-108 MHz band is permitted only if the
   field strength of the transmission does not exceed 250 mV/m at three
   meters. 47 C.F.R. S: 15.239.

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

   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).

   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." See Callais Cablevision, Inc.

   47 U.S.C. S: 301.

   See Campbell v. United States, 167 F.2d 451, 453 (5th Cir. 1948)
   (comparing the use of the words "operate" and "operation" in sections 301,
   307, and 318 of the Act and concluding that the word "operate" as used in
   section 301 of the Act means both the technical operation of the station
   as well as the general conduct or management of the station).

   Id. See also 47 U.S.C S: 307(c)(1).

   See Revision of Rules and Policies for the Direct Broadcast Satellite
   Service, 11 FCC Rcd 9712, 9747 (1995), recon. denied, DIRECTV, Inc. v.
   FCC, 110 F.3d 816 (D.C. Cir. 1997).

   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 Eleuterio Lebron, Notice of Unlicensed Operation (Enf. Bur., San Juan
   Office, rel. March 2, 2010).

   See Robert Brown, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd
   13740 (Enf. Bur. 2010); Loyd Morris, Notice of Apparent Liability for
   Forfeiture, 25 FCC Rcd 13736 (Enf. Bur. 2010).

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

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

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

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 11 -1578

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   Federal Communications Commission DA 11 -1578