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Before the
Federal Communications Commission
Washington, D.C. 20554
) )
In the Matter of ) File No.: EB-10-TP-0016
Vincent E. Aversa, Jr. ) NAL/Acct. No: 201132700002
Indialantic, FL ) FRN: 0020584777
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 7, 2011 Released: February 8, 2011
By the District Director, Tampa Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Vincent E. Aversa, Jr. ("Mr. Aversa") apparently willfully and
repeatedly violated section 301 of the Communications Act of 1934, as
amended ("Act") and section 80.13 of the Commission's rules ("Rules"),
by operating radio transmission equipment without a license on the
International Distress, Safety, and Calling Channel ("Marine Safety
Channel 16"). We conclude that Mr. Aversa is apparently liable for a
forfeiture in the amount of twenty thousand dollars ($20,000).
II. BACKGROUND
2. On February 1, 2010, the United States Coast Guard ("USCG") contacted
agents at the Enforcement Bureau's Tampa Field Office ("Tampa Office")
regarding interference the USCG had been receiving on Marine Safety
Channel 16. Specifically, a man later identified as Mr. Aversa had
been operating on Marine Safety Channel 16 periodically since November
of 2009 to relay non-emergency information. The USCG later provided
multiple audio recordings of what appeared to be Mr. Aversa operating
on Marine Safety Channel 16 covering a three-month period lasting
between December of 2009 and February of 2010. On all but one of the
recordings, the USCG warned this individual on the air that his
transmissions on Marine Safety Channel 16 were unauthorized, and, on
several of the recordings, the USCG directed him to cease
transmitting.
3. On February 10 and 11, 2010, agents from the Tampa Office used
direction-finding techniques to locate the source of transmissions on
Marine Safety Channel 16 to an automobile being driven by Mr. Aversa
in Melbourne, Florida. On both days during the course of these
transmissions, the USCG again warned Mr. Aversa on the air that his
transmissions on Marine Safety Channel 16 were unauthorized and
directed him to cease transmission. On both days, the agents also
observed Mr. Aversa alone in his vehicle, talking on a hand held
microphone, which was connected to a marine radio. Moreover, the
agents heard Mr. Aversa's voice through the car window and on the FCC
vehicle receiver. A review of the Commission's records revealed that
Mr. Aversa does not have a license to operate a radio station on
Marine Safety Channel 16 in Melbourne, Florida, or any other location.
4. On February 12, 2010, agents from the Tampa Office again used
direction-finding techniques to locate the source of transmissions on
Marine Safety Channel 16 and other Marine channels, lasting almost two
continuous hours, to an automobile driven by Mr. Aversa in Melbourne,
Florida. While being interviewed by the agents after Mr. Aversa
exited the automobile, Mr. Aversa admitted to operating a radio to
talk on Marine Safety Channel 16 and other Marine channels and
voluntarily relinquished his marine radio.
III. DISCUSSION
5. 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. The term "willful" as used in section 503(b) of the Act has
been interpreted to mean simply that the acts or omissions are
committed knowingly. The term "repeated" means the commission or
omission of such act more than once or for more than one day.
6. 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.
Section 80.13 of the Rules states that, except for ship stations,
stations in the maritime service must be licensed by the FCC either
individually or by fleet. Marine Safety Channel 16 is the
international distress, safety, and calling channel and is designed to
be used for distress, urgency, safety, call and reply radiotelephony
communications. As discussed above, Mr. Aversa does not hold a license
to operate a land-based station on Channel 16 (156.800 MHz). According
to audio recordings provided by the USCG, there were many unauthorized
communications to the USCG made on Marine Safety Channel 16 by a voice
later identified as Mr. Aversa between December 2009 and February
2010, despite USCG warnings on the air that such communications were
unauthorized. On February 10, 11, and 12, 2010, agents from the Tampa
Office observed Mr. Aversa operating a marine radio on Marine Safety
Channel 16. On February 12, 2010, Mr. Aversa admitted to agents from
the Tampa Office that he operated his marine radio on Marine Safety
Channel 16 and other Marine channels. Because Mr. Aversa knowingly
operated on Marine Safety Channel 16 and other Marine channels, we
find that the apparent violation is willful. Moreover, because agents
observed Mr. Aversa's unlicensed operations on three separate
occasions (all of which occurred after Mr. Aversa received multiple
audio warnings from the USCG), we find that the apparent violation was
repeated.
7. Pursuant to section 1.80 of the Rules and the Commission's Forfeiture
Policy Statement, 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. Based on the criteria in section 503(b)(2)(E) of the Act,
and the upward adjustment criteria in the Forfeiture Policy Statement,
we find that an upward adjustment in the amount of $10,000 is
warranted. We find that his apparent willful and repeated operation on
a Marine Safety Channel is particularly egregious based on the
intentional nature of the violation, and because Mr. Aversa: (1)
operated a marine radio on an unlicensed basis for over four months;
(2) transmitted continuously for hours at a time about
non-safety-related topics thereby hindering access to a Marine Safety
Channel; and (3) disregarded repeated warnings from the USCG about his
unauthorized operation. Applying the Forfeiture Policy Statement,
section 1.80 of the Rules, and the statutory factors, we conclude that
Mr. Aversa is apparently liable for a forfeiture in the amount of
$20,000.
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, and 1.80 of the Rules, Vincent Aversa, Jr. is hereby NOTIFIED
of this APPARENT LIABILITY FOR A FORFEITURE in the amount of twenty
thousand dollars ($20,000) for violation of section 301 of the Act and
section 80.13 of the Rules.
9. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the Rules,
within thirty (30) days of the release date of this Notice of Apparent
Liability for Forfeiture, Vincent Aversa, Jr. 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 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. 20554.8 If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. Mr. Aversa shall also send electronic
notification to SCR-Response@fcc.gov on the date said payment is
made.
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,
South Central Region, Tampa Office, 4010 W. Boy Scout Blvd., Suite
425, Tampa Florida, 33607, and must include the NAL/Acct. No.
referenced in the caption. The statement should also be emailed to
SCR-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 Vincent Aversa, Jr. at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Ralph Barlow
District Director
Tampa Office
South Central Region
Enforcement Bureau
47 U.S.C. S: 301; 47 C.F.R. S: 80.13.
The frequency 156.800 MHz, channel 16, is the international distress,
safety, and calling channel. See 47 C.F.R. S: 80.369(e)(3).
Mr. Aversa was also heard and seen by agents from the Tampa Office
operating on Marine Channels 71, 81, 82, 84, 85, 87, and 88 in violation
of section 301 of the Act and section 80.13 of the Rules.
47 U.S.C. S: 503(b).
Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
violations for which forfeitures are assessed under section 503(b) of the
Act, provides that "[t]he term `willful,' when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act or any rule or regulation of the Commission
authorized by this Act...." See, e.g., Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991), recon. denied, 7
FCC Rcd 3454 (1992).
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 C.F.R. S: 80.13(a).
47 C.F.R. S: 80.369.
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).
Id.; 47 C.F.R. S: 1.80(b)(4); see also Forfeiture Policy Statement, 12 FCC
Rcd at 17100 - 01; Robert Brown, Notice of Apparent Liability for
Forfeiture, 25 FCC Rcd 13740 (Enf. Bur. 2010) (assessed proposed
forfeiture of $15,000 for violation of section 301 of the Act because
violations occurred on two days and with full knowledge that such action
violated the rules); Loyd Morris, Notice of Apparent Liability for
Forfeiture, 25 FCC Rcd 13736 (Enf. Bur. 2010) (assessed proposed
forfeiture of $15,000 for violation of section 301 of the Act because
violations occurred on two days and with full knowledge that such action
violated the rules); American Taxi and Shuttle, Inc., Notice of Apparent
Liability for Forfeiture, 25 FCC Rcd 13387 (Enf. Bur. 2010) (assessed
proposed forfeiture of $20,000 for violation of section 302 of the Act
because violations occurred on three days and with full knowledge that
such action violated the rules).
On February 10, 11, and 12, 2010, agents from the Tampa Office recorded
Mr. Aversa's transmissions. Mr. Aversa discussed various conspiracy
theories, sang songs, and described local landmarks, but he did not
mention anything about ships in distress.
47 C.F.R. S:S: 0.111, 0.204(b), 0.311, 1.80, 80.13; 47 U.S.C. S: 301.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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(continued....)
Federal Communications Commission DA 11-232
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Federal Communications Commission DA 11 -232