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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                           )                               
                                                           
                           )                               
                                                           
     In the Matter of      )   File No: EB-10-NY-0185      
                                                           
     Bernabe Moreno        )   NAL/Acct. No: 201132380004  
                                                           
     Passaic, New Jersey   )   FRN: 0019865922             
                                                           
                           )                               
                                                           
                           )                               


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: February 10, 2011 Released: February 11, 2011

   By the District Director, New York Office, Northeast Region, Enforcement
   Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       that Bernabe Moreno ("Mr. Moreno"), 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 102.3 MHz in Passaic, New Jersey. We conclude that Mr.
       Moreno is apparently liable for a forfeiture in the amount of ten 
       thousand dollars ($10,000).

   II. BACKGROUND

    2. On April 3 and April 7, 2010, in response to a complaint, agents of
       the Enforcement Bureau's New York Office ("New York Office") used
       mobile direction-finding techniques to monitor the frequency 102.3 MHz
       in Passaic, New Jersey, and determined the source of the transmissions
       to be a radio station operating from a building located at 251 Monroe
       Street. The agents observed an FM broadcast antenna on the roof of the
       building and a coaxial cable going from the antenna on the roof to the
       second floor of the building. The agents subsequently took field
       strength measurements and 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. A review of the
       Commission's records revealed no evidence of a Commission
       authorization for operation of a radio station on 102.3 MHz in
       Passaic, New Jersey.

    3. On April 7, 2010, agents from the New York Office returned to the
       building on 251 Monroe Street to conduct an inspection of the radio
       station and knocked on the door of Suite 201. A male answered the door
       and identified himself as Bernabe Moreno. Mr. Moreno told the agents
       that he owns and operates the station on 102.3 MHz at this location.
       The agents observed that the station was active at the time of the
       inspection until Mr. Moreno turned off the station at the agents'
       request. The agents verbally warned Mr. Moreno about the consequences
       of continued operation of an unlicensed radio station and provided him
       with a written Notice of Unlicensed Operation, requiring him to cease
       operation of the station.

   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. 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.

    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.
       Agents determined that an unlicensed broadcast station operated on
       102.3 MHz from Suite 201 at 251 Monroe Street in Passaic, New Jersey
       on April 3, and April 7, 2010. During an interview with agents on
       April 7, 2010, Mr. Moreno admitted to operating the radio station at
       this location. Because Mr. Moreno operated the station knowingly, we
       find that the apparent violation was willful. Because the operation
       occurred on more than one day, we find the apparent violation was
       repeated.  Based on the evidence before us, we find that on April 3,
       and April 7, 2010, Mr. Moreno apparently willfully and repeatedly
       violated Section 301 of the Act by operating radio transmission
       equipment without the required Commission authorization.

    6. 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. Applying the Forfeiture Policy Statement, Section 1.80,
       and the statutory factors to the instant case, we conclude that Mr.
       Moreno is apparently liable for a forfeiture in the amount of $10,000.

   IV. ORDERING CLAUSES

    7. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
       Communications Act of 1934, as amended, and Sections 0.111, 0.311,
       0.314, and 1.80 of the Rules, Bernabe Moreno is hereby NOTIFIED of
       this APPARENT LIABILITY FOR A FORFEITURE in the amount of ten thousand
       dollars ($10,000) for violations of Section 301 of the Act.

    8. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
       Commission's Rules, within thirty (30) days of the release date of
       this Notice of Apparent Liability for Forfeiture, Bernabe Moreno SHALL
       PAY the full amount of the proposed forfeiture or SHALL FILE a written
       statement seeking reduction or cancellation of the proposed
       forfeiture.

    9. 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[s] 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.   Please contact the Financial Operations
       Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with
       any questions regarding payment procedures. Bernabe Moreno  shall send
       electronic notification on the date said payment is made to
       NER-Response@fcc.gov.

   10. 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, must be mailed to Federal Communications Commission, Enforcement
       Bureau, Northeast Region, New York Office, 201 Varick Street, Suite
       1151, New York, NY 10014, and must include the NAL/Acct. No.
       referenced in the caption. The statement should also be emailed to
       NER-Response@fcc.gov.

   11. 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.

   12. 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 Bernabe Moreno at his address
       of record.

   FEDERAL COMMUNICATIONS COMMISSION

   Daniel W. Noel

   District Director

   New York Office

   Northeast 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. Measurements showed that the field strength
   of the station's signal exceeded the permissible level for a non-licensed
   Part 15 transmitter.

   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.

   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).

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

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

   (...continued from previous page)

   Federal Communications Commission DA 11-258

                                       2

   Federal Communications Commission DA 11-258