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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File Numbers: EB-10-SF-0031
In the Matter of )
EB-10-SF-0135
Gabriel A. Garcia )
NAL/Acct. No.: 201132960002
San Jose, California )
FRN: 0020645396
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 9, 2011 Released: March 11, 2011
By the District Director, San Francisco District Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Gabriel A. Garcia ("Garcia"), apparently willfully and repeatedly
violated section 301 of the Communications Act of 1934, as amended
("Act"), by operating an unlicensed broadcast station on various FM
broadcast band frequencies in San Jose, California. We conclude that
Garcia is apparently liable for a forfeiture in the amount of
twenty-five thousand dollars ($25,000).
II. BACKGROUND
2. On March 12, 2010, the Enforcement Bureau's San Francisco Office ("San
Francisco Office") received a complaint from the Federal Aviation
Administration ("FAA") of interference to the Aviation Services band
from an unlicensed station identifying itself as radio station "KNRG"
operating on the frequency 92.9 MHz in San Jose, California. San
Francisco agents used radio direction-finding techniques to locate the
source of broadcast transmissions on 92.9 MHz to an antenna on the
roof of a residence at 243 N. 33rd Street, San Jose, California. The
agents took field strength measurements and determined that the signal
being broadcast exceeded the limits for operation under Part 15 of the
Commission's rules ("Rules) and therefore required a license. The
agents inspected the radio station after obtaining permission from the
landlord of the residence. During the inspection, the landlord
identified Garcia as the operator of the radio station "KNRG" on 92.9
MHz. Subsequent to the inspection, the operation ceased. A review of
the Commission's records showed no authorization issued to Garcia, or
anyone else for operation of a radio station on this frequency at this
location. On April 12, 2010, the San Francisco Office issued a Notice
of Unlicensed Operation ("NOUO") to Garcia for operating an FM
broadcast station on frequency 92.9 MHz from 243 N. 33rd Street, San
Jose, California, without a license. The NOUO warned Garcia that his
operation of an unlicensed radio station violated the Act, and
detailed the penalties for continued operation or further violations
of the Act or the Rules.
3. On May 6, 2010, in response to a complaint of an unlicensed radio
station operating on 93.7 MHz in San Jose, California, agents from the
San Francisco Office used radio direction-finding techniques to locate
the source of broadcast transmissions on 93.7 MHz to a residence
located at 10142 Sylvandale Avenue, San Jose, California. The agents
took field strength measurements and determined that the signal being
broadcast exceeded the limits for operation under Part 15 of the Rules
and therefore required a license. Searches of the Commission databases
found no evidence of a Commission authorization for this operation on
93.7 MHz in San Jose, California. Based on previous encounters and
California Department of Motor Vehicle identification, San Francisco
agents recognized and identified Garcia as the operator of the radio
station. Subsequent to an attempted inspection, the operation ceased.
On May 14, 2010, a second NOUO was issued to Garcia for operating an
unlicensed FM broadcast station on frequency 93.7 MHz from 10142
Sylvandale Avenue in San Jose, California.
4. On June 15, 2010, in response to additional complaints from the FAA
about an unlicensed station identifying itself as "KNRG" operating on
92.9 MHz in San Jose, California, agents from the San Francisco Office
used radio direction-finding techniques to locate the source of
broadcast transmissions on 92.9 MHz to the same residence at 10142
Sylvandale Avenue, San Jose, California and again identified Garcia as
the operator. The agents took field strength measurements and
determined that the signal being broadcast exceeded the limits for
operation under Part 15 of the Rules and therefore required a license.
Searches of the Commission databases found no evidence of a Commission
authorization for this operation on 92.9 MHz in San Jose, California.
Prior to leaving the site, the San Francisco agents issued a third
on-scene NOUO to Garcia for operating an unlicensed FM broadcast
station on 92.9 MHz from 10142 Sylvandale Avenue in San Jose,
California. Subsequent to an attempted inspection, the operation
ceased.
5. On July 23, 2010, in response to a complaint of an unlicensed station
operating on 104.3 MHz in San Jose, California, agents from the San
Francisco Office used radio direction-finding techniques to locate the
source of broadcast transmissions on 104.3 MHz to a residence at 15047
Joanne Avenue, San Jose, California. The agents made field strength
measurements and determined that the signal being broadcast exceeded
the limits for operation under Part 15 of the Rules and therefore
required a license. Again, the station identified as "KNRG." While
agents were on the scene, they observed an individual leave the
residence and then quickly return to the residence. The agents
identified the individual as Garcia. A review of the Commission's
records revealed that Garcia did not have a license for the operation
of a radio station on 104.3 MHz in San Jose, California. Subsequently,
the operation ceased. On August 10, 2010, the San Francisco Office
issued a fourth NOUO to Garcia for operating an FM broadcast station
on frequency 104.3 MHz from 15047 Joanne Avenue, San Jose, California
without a license.
III. DISCUSSION
6. 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) 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.
7. 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.
As discussed above, on March 12, 2010, May 6, 2010, June 15, 2010, and
July 23, 2010, San Francisco agents determined that Garcia was
operating a radio station on a frequency in the FM broadcast band
without a license. Because Garcia knowingly operated the station, we
find that the violations were willful. Moreover, because Garcia's
unlicensed operation occurred on more than one occasion, we find that
the violations were repeated. Based on the evidence before us, we find
that Garcia apparently willfully and repeatedly violated section 301
of the Act by operating radio transmission equipment without
Commission authorization on the frequencies 92.9 MHz, 93.7 MHz, and
104.3 MHz, on March 12, May 6, June 15, and July 23, 2010.
8. 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. We find Garcia's misconduct particularly egregious
because his operation resulted in apparent interference to the FAA's
Aviation Radio Services band. In addition, Garcia's unlicensed
operations continued despite multiple notices and warnings issued by
the San Francisco Office. The fact that Garcia continued to operate an
unlicensed radio station on several different occasions with full
knowledge that such activity violated the Act and the Rules
demonstrates a deliberate disregard for the Commission's requirements.
Thus, we find that an upward adjustment in the forfeiture amount of
$15,000 is warranted. Applying the Forfeiture Policy Statement,
section 1.80 of the Rules, and the statutory factors to the instant
case, we conclude that Garcia is apparently liable for a forfeiture in
the amount of twenty-five thousand dollars ($25,000).
IV. ORDERING CLAUSES
9. 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, Gabriel A. Garcia is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
twenty-five thousand dollars ($25,000) for violation of section 301 of
the Act.
10. 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, Gabriel A. Garcia SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
11. 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. Please contact the Financial Operations
Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with
any questions regarding payment procedures. Gabriel A. Garcia shall
also send electronic notification to WR-Response@fcc.gov on the date
said payment is made.
12. 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 Francisco Office, 5653 Stoneridge Drive, Suite
105, Pleasanton, CA 94588-8543 and must include the NAL/Acct. No.
referenced in the caption. An electronic copy shall also be sent to
WR-Response@fcc.gov.
13. 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.
14. 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 Gabriel A. Garcia at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Thomas N. Van Stavern
District Director
San Francisco District Office
Western Region
Enforcement Bureau
47 U.S.C. S: 301.
Garcia is the operator of a radio station that has been operating without
a license on various FM broadcast band frequencies and at various
locations in San Jose, California. The station identifies as "KNRG." See
infra P:P: 3, 4, and 5.
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 uV/m at three
meters. 47 C.F.R. S: 15.239. On March 12, 2010, the field strength
measurements indicated that the signal was more than 1,957 times greater
than the maximum permissible level for a non-licensed Part 15 transmitter.
Gabriel A. Garcia, Notice of Unlicensed Operation (Enf. Bur. San Francisco
Office, rel. April 12, 2010).
See 47 C.F.R. S: 15.239. On May 6, 2010, the signal strength measurement
was more than 3,110 times greater than the maximum permissible level.
Gabriel A. Garcia, Notice of Unlicensed Operation (Enf. Bur. San Francisco
Office, rel. May 14, 2010).
See 47 C.F.R. S: 15.239. On June 15, 2010, the signal strength measurement
was more than 6,770 times greater than the maximum permissible level.
Gabriel A. Garcia, On-Scene Notice of Unlicensed Operation (Enf. Bur. San
Francisco Office, issued on-scene June 15, 2010).
See 47 C.F.R. S: 15.239. On July 23, 2010, the measurements indicated that
the signal strength measurement was more than 2,089 times greater than the
maximum permissible level.
Gabriel A. Garcia, Notice of Unlicensed Operation (Enf. Bur. San Francisco
Office, rel. August 10, 2010).
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).
See, e.g., Gabriel A. Garcia, Notices of Unlicensed Operation (Enf. Bur.
San Francisco Office, rel. April 7, 2006; March 29, 2007; April 12, 2010;
May 14, 2010; and August 10, 2010); Gabriel A. Garcia, On-Scene Notice of
Unlicensed Operation (Enf. Bur. San Francisco Office, rel. February 26,
2008; and June 15, 2010). We note that the agents made several attempts to
inspect Garcia's radio station but Garcia denied them access to the
equipment. Based on the egregious nature of Garcia's conduct, we reserve
our right to issue a separate Notice of Apparent Liability for Forfeiture
for Garcia's refusal to permit inspection.
See 47 C.F.R. S: 1.80(b)(4). See also Lloyd Morris, Notice of Apparent
Liability for Forfeiture, 25 FCC Rcd 13736 P: 10 (Enf. Bur. 2010);
Nounoune Lubin, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd
12654 (Enf. Bur. 2010).
47 U.S.C. S:S: 301, 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.
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Federal Communications Commission DA 11-472
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Federal Communications Commission DA 11-472