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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File Number: EB-10-SF-0095
In the Matter of )
File Number: EB-10-SF-0105
Gabriel A. Garcia )
NAL/Acct. No.: 201132960003
San Jose, California )
FRN: 0020645396
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 4, 2011 Released: May 4, 2011
By the District Director, San Francisco District Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture, we find that
Gabriel A. Garcia ("Garcia"), apparently willfully and repeatedly
violated section 303(n) of the Communications Act of 1934, as amended
("Act"), by failing to allow inspection of an unlicensed broadcast
station operating 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. Garcia is the operator of a radio station which has been operating
without a license issued by the FCC on various FM broadcast band
frequencies and at various locations in San Jose, California. The
station identifies as "KNRG." The Enforcement Bureau's San Francisco
Office has issued numerous warnings and Notices of Unlicensed
Operation ("NOUOs"), as well as a Notice of Apparent Liability to
Garcia concerning unlicensed radio operations and detailing the
potential penalties for operating an unlicensed radio station, and for
further violations of the Act and the Commission's rules ("Rules"),
including failure to allow inspection of the unlicensed radio station.
3. On May 6, 2010, in response to a complaint of an unlicensed radio
station identifying itself as "KNRG" 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 to a residence located at 10142 Sylvandale Avenue, San
Jose, California. The agents took field strength measurements and
determined that the broadcast signal exceeded the limits for operation
under Part 15 of the Rules and therefore required a license. A review
of the Commission's records showed no authorization issued to Garcia
or anyone else for operation of a radio station on 93.7 MHz in San
Jose, California. San Francisco agents attempted to inspect the radio
station, but their request was refused by the operator. Based on prior
encounters, San Francisco agents recognized and identified Garcia as
the operator of the radio station. The agents issued an on-scene NOUO
to "KNRG" and Garcia on May 6, 2010, which in addition to notifying
Garcia that his radio station operation must be licensed and that
operation without a license violates section 301 of the Act,
specifically noted Garcia's "refusal to allow an inspection of your
radio equipment in violation of section 303(n) of the Communications
Act of 1934, as amended" and warned of various penalties, including
forfeiture, for refusal to allow inspection. On May 14, 2010, a formal
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. The formal NOUO warned Garcia that his operation of
an unlicensed radio station violated the Act, detailed the penalties
for continued operation or further violations of the Act or the Rules,
and included information on the authority of the FCC to inspect all
radio installations required to be licensed by the Act.
4. On June 15, 2010, in response to 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 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. San Francisco agents
attempted to inspect the radio station. Garcia refused and stated to
the agents, "Do you want to get shot?" Prior to leaving the site, the
San Francisco agents issued another on-scene NOUO to Garcia for
operating an unlicensed FM broadcast station, this time on 92.9 MHz,
from 10142 Sylvandale Avenue in San Jose, California, which again
specifically noted Garcia's "refusal to allow an inspection of your
radio equipment in violation of section 303(n)" of the Act and warned
of various penalties, including forfeiture, for refusal to allow
inspection.
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. 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 sections 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. "Repeated" means that the act was
committed or omitted more than once, or lasts more than one day.
6. Section 303(n) of the Act states that the Commission has the
"authority to inspect all radio installations associated with stations
required to be licensed by any Act." 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. San Francisco agents
determined that Garcia was operating a radio station on a frequency in
the FM broadcast band without a license in violation of section 301 of
the Act. As discussed above, on May 6, 2010, and June 15, 2010, Garcia
refused to allow the San Francisco agents to inspect his unlicensed
and unauthorized radio station. Garcia had notice that refusal to
allow an inspection of the radio station violated section 303(n) of
the Act. Because Garcia consciously and deliberately refused to allow
the requested inspections of the station, we find that the violations
of section 303(n) of the Act were willful. Moreover, because Garcia
refused to allow inspection of the radio station on more than one
occasion, we find that the violations of section 303(n) of the Act
were repeated. Based on the evidence before us, we find that Garcia
apparently willfully and repeatedly violated section 303(n) of the Act
by refusing to allow inspection of radio transmission equipment on May
6, 2010, and June 15, 2010.
7. Pursuant to the Commission's Forfeiture Policy Statement and section
1.80 of the Rules, the base forfeiture amount for failure to allow
inspection of radio equipment 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 Garcia's misconduct particularly egregious
because he had been warned several times that failure to allow
inspection violated the Communications Act, and threatened to shoot
the FCC agents during the June 15, 2010 attempted inspection. Thus, we
find that upward adjustments to $10,000 for the May 6, 2010, apparent
violation and $15,000 for the June 15, 2010, apparent violation are
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 total forfeiture in the amount
of twenty-five thousand dollars ($25,000).
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,
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 303(n)
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, 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.
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. 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.
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 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.
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 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: 303(n).
See, e.g. ,Gabriel A. Garcia, Notice of Apparent Liability for Forfeiture,
DA 11-472 (Enf. Bur., Western Reg., San Francisco Office, Rel. Mar. 11,
2011) ("Garcia March 2011 NAL")); Notice of Unlicensed Operation to
Gabriel A. Garcia, (Enf. Bur. San Francisco Office, August 10, 2010
(EB-10-SF-0135); May 14, 2010 (EB-10-SF-0095); April 12, 2010
(EB-10-SF-0031); March 29, 2007 (EB-07-SF-0045); and April 7, 2006
(EB-06-SF-0037)); On-Scene Notice of Unlicensed Operation (San Francisco
Office, June 15, 2010 (EB-10-SF-0105) and February 26, 2008
(EB-08-SF-0025)).
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 May 6, 2010, the signal strength
measurement was more than 3,110 times greater than the maximum permissible
level. On March 11, 2011, Garcia was issued a Notice of Apparent Liability
for willfully and repeatedly operating an unlicensed broadcast station in
violation of section 301 of the Act. See Garcia March 2011 NAL
On April 12, 2010, the San Francisco Office issued a 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. Gabriel A. Garcia, Notice
of Unlicensed Operation (Enf. Bur. San Francisco Office, rel. April 12,
2010). The NOUO warned Garcia that his operation of an unlicensed radio
station violated the Act, detailed the penalties for continued operation
or further violations of the Act or the Rules, and included information on
the authority of the FCC to inspect all radio installations required to be
licensed by the Act. See also supra note 2.
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.
The San Francisco agents left the premises and reported Garcia to the San
Jose Police Department.
Gabriel A. Garcia, On-Scene Notice of Unlicensed Operation (Enf. Bur. San
Francisco Office, issued on-scene June 15, 2010).
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 act
(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) ("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).
Southern California Broadcasting Co., 6 FCC Rcd at 4388, P: 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362, P: 9.
47 U.S.C. S: 303(n) (The Commission shall "[h]ave authority to inspect all
radio installations associated with stations required to be licensed by
any Act, or which the Commission by rule has authorized to operate without
a license under section 307 (e)(1) of this title, or which are subject to
the provisions of any Act, treaty, or convention binding on the United
States, to ascertain whether in construction, installation, and operation
they conform to the requirements of the rules and regulations of the
Commission, the provisions of any Act, the terms of any treaty or
convention binding on the United States, and the conditions of the license
or other instrument of authorization under which they are constructed,
installed, or operated.").
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).
See 47 C.F.R. S: 1.80(b)(4).
47 U.S.C. S:S: 303(n), 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.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 11-836
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Federal Communications Commission DA 11-836