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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
File Number EB-08-PA-0180
Jose Torres )
NAL/Acct. No. 200932400002
Licensee of Station N3TX )
FRN 0001 83 1825
Philadelphia, Pennsylvania )
)
)
FORFEITURE ORDER
Adopted: May 13, 2011 Released: May 16, 2011
By the Regional Director, Northeast Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of four thousand dollars ($4,000) to Jose Torres
("Torres"), the licensee of Amateur Extra Class Station N3TX in
Philadelphia, Pennsylvania, for willfully and repeatedly operating his
amateur station on an unauthorized frequency at his residence, in
violation of section 1.903(a) of the Commission's Rules. In this
Order, we consider Torres's request that we cancel the forfeiture
because he was not at his residence at the time of the unauthorized
transmissions and his request that, in the event the forfeiture is not
cancelled, it be reduced based on his inability to pay.
II. BACKGROUND
2. After receiving a complaint of interference, agents in the Enforcement
Bureau's Philadelphia Office ("Philadelphia Office") used mobile
direction finding equipment on April 17, 2008, and June 2, 2008 to
determine that the source of the interference was unauthorized radio
transmissions on 26.71 MHz emanating from Torres's residence. Torres's
Amateur Extra Class License does not permit operation on 26.71 MHz.
Torres previously was warned about not operating on 26.71 MHz on
December 11, 2007 and received a Notice of Violation for operating on
this unauthorized frequency from his residence, in violation of
section 1.903(a) of the Rules. In response to the Notice of Violation,
Torres admitted to operating on the unauthorized frequency of 26.71
MHz.
3. On January 6, 2009, the Philadelphia Office issued a Notice of
Apparent Liability for Forfeiture ("NAL") in the amount of $4,000 to
Torres for operating on an unauthorized frequency on April 17, 2008
and June 2, 2008. Torres met with agents in the Philadelphia Office on
February 17, 2009, to respond to the apparent findings in the NAL.
During the meeting, Torres claimed that he was not at home during the
alleged unauthorized operations on April 17, 2008, and June 2, 2008,
and he submitted cell phone records in support of this claim. Torres
also submitted his most recent three years of federal tax returns to
support his request for a reduction based on an inability to pay.
III. DISCUSSION
4. The proposed forfeiture amount in this case was assessed in accordance
with section 503(b) of the Act, section 1.80 of the Rules, and the
Commission's Forfeiture Policy Statement. In examining Torres's
response, section 503(b) of the Act requires that the Commission take
into account the nature, circumstances, extent and gravity of the
violation 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 have considered Torres's
response to the NAL in light of these statutory factors and have found
that cancellation or reduction of the forfeiture is not warranted for
the reasons discussed below.
5. Section 1.903(a) of the Rules provides that stations in the Wireless
Radio Service must be used and operated only in accordance with the
rules applicable to their particular service and with a valid
authorization granted by the Commission. Section 1.903(b) provides
that the holding of an authorization does not create any rights beyond
the terms, conditions and period specified in the authorization. As an
Extra Class amateur licensee, Torres is not permitted to operate on
26.71 MHz. Nevertheless, agents found that, on April 17, 2008, and
June 2, 2008, unauthorized transmissions on 26.71 MHz were emanating
from Torres's residence. The voice that the agents heard during the
transmissions on April 17, 2008, and June 2, 2008, is the same voice
that agents heard, and that Torres conceded was his, on December 11,
2007.
6. We find no merit to Torres's claim that he was not at home when the
unauthorized transmissions took place at his residence on April 17,
2008, and June 2, 2008. The cell phone records Torres submitted are
evidence of nothing more than the fact that he was using his cell
phone and not the landline phone located in his home. It does not
prove that he was not at home at the time of the unauthorized
transmissions. During his interview with agents at the Philadelphia
Office on February 17, 2009, Torres provided no other information or
documentation to support his claim that he was not at home at the time
of the unauthorized transmissions. At no time does Torres claim or
provide evidence that someone else in his house was responsible for
the unauthorized transmissions. We therefore find that cancellation of
the forfeiture on this basis is not warranted.
7. We likewise decline to reduce the forfeiture based on Torres's claimed
inability to pay. In support of his request, Torres submitted three
years of individual tax returns. With regard to an individual's or
entity's inability to pay, the Commission has determined that, in
general, gross revenues are the best indicator of an ability to pay a
forfeiture. We have reviewed Torres's documentation and conclude that
a reduction of the forfeiture is not warranted.
8. We have examined the Response to the NAL pursuant to the statutory
factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that Torres
willfully and repeatedly violated section 1.903(a) of the Rules.
Considering the entire record and the factors listed above, we find
that a forfeiture in the amount of $4,000 is warranted.
IV. ORDERING CLAUSES
9. ACCORDINGLY, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended ("Act"), and sections 0.111,
0.311, 0.314 and 1.80(f)(4) of the Commission's Rules, Jose Torres IS
LIABLE FOR A MONETARY FORFEITURE in the amount of $4,000 for willfully
and repeatedly violating section 1.903(a) of the Commission's Rules.
10. Payment of the forfeiture shall be made in the manner provided for in
section 1.80 of the Rules within 30 days of the release of this Order.
If the forfeiture is not paid within the period specified, the case
may be referred to the Department of Justice for collection pursuant
to section 504(a) of the Act. Payment of the forfeiture must be made
by check or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the NAL/Account
Number and FRN Number 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.
Jose Torres shall also send electronic notification on the date said
payment is made to NER-Response@fcc.gov
11. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Jose Torres
at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
Regional Director, Northeast Region
Enforcement Bureau
47 U.S.C. S: 1.903(a).
On April 17, 2008, the unauthorized transmission occurred between 8:00 pm
and 9:30 pm and on June 2, 2008, between 3:00 pm and 3:40 pm.
See 47 U.S.C. S: 97.301.
See Jose Torres, Notice of Violation, NOV No. V20083240007, released
January 3, 2008. The NOV also included a violation for failure to transmit
a call sign identification, in violation of Section 97.119(a) of the
Rules. During the 2007 investigation, agents inspected Torres's station
and obtained audio recordings of the unauthorized transmissions.
Specifically, Mr. Torres wrote: "With this writing respond [sic] I agree
to the Notice listed above. I fully understand this violation. According
to my license N3TX I will transmit where I'm authorized, at the Extra
Class portion only."
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932400002
(Enf. Bur., Philadelphia Office, rel. January 6, 2009).
The meeting with Torres took place in the Philadelphia Office on February
17, 2009. Torres requested the meeting based on an alleged language
barrier and his inability to properly refute in writing the findings in
the NAL. Two FCC agents and the Philadelphia Office's Spanish-speaking
Office Assistant were present during the meeting. Torres's statements were
recorded with his consent.
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
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), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
Policy Statement").
47 U.S.C. S: 503(b)(2)(E).
See e.g. PJB Communications of Virginia, Inc., Memorandum Opinion and
Order, 7 FCC Rcd 2088, 2089 (1992) (licensee's gross revenues are the best
indicator of its ability to pay a forfeiture and use of gross revenues to
determine a party's ability to pay is reasonable, appropriate, and a
useful yardstick in helping to analyze a licensee's financial condition).
See e.g., Coleman Enterprises, Inc. D/B/A Local Long Distance, Inc., Order
of Forfeiture, 15 FCC Rcd 24385 (2000) (forfeiture not deemed excessive
where it represented approximately 7.9 percent of the violator's gross
revenues); Hoosier Broadcasting Corporation, Memorandum Opinion and Order,
15 FCC Rcd 8640 (EB 2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross revenues).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80(f)(4),
1.903(a), 1.903(b), 11.35(a).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 11- 874
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Federal Communications Commission DA 11- 874