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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-FIELDSCR-12-00001177
)
Luis Ernesto Rivas, Jr. NAL/Acct. No.: 201232600010
)
Miami, Florida FRN: 0021815568
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 5, 2012 Released: June 5, 2012
By the Resident Agent, Miami Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Luis Ernesto Rivas, Jr., 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
89.1 MHz in Miami, Florida. We conclude that Mr. Rivas is apparently
liable for a forfeiture in the amount of fifteen thousand dollars
($15,000).
II. BACKGROUND
2. On March 2 and March 9, 2012, agents from the Enforcement Bureau's
Miami Office (Miami Office) used direction-finding techniques to
locate the source of radio frequency transmissions on the frequency
89.1 MHz to an FM transmitting antenna mounted on the rooftop of a
condominium building in Miami, Florida. On March 2, 2012, the agents
determined that the signals on 89.1 MHz exceeded the limits for
operation under Part 15 of the Commission's rules (Rules), and
therefore required a license. Commission records showed that no
authorization was issued to Mr. Rivas or to anyone else for operation
of an FM broadcast station at or near this address. While monitoring
the station on March 9, 2012, agents from the Miami Office heard an
advertisement referring to "The Streets FM."
3. That same day, the Miami Office agents went to the roof of the
building that the agents' direction-finding techniques identified as
the source of the unlicensed transmission, and were accompanied by
staff of the building's condominium association. The agents observed
radio transmitting equipment on the building's rooftop, including an
FM transmitter connected via coaxial cable to an FM transmitting
antenna and a laptop. The laptop's screen displayed a Facebook webpage
stating "UNDERGROUND STATION IN MIAMI @ USTREAM: GO TO OUR WEBSITE
WWW.THESTREETSFM.COM...ON 89.1 MIAMI #1 UNDERGROUND STATION . . . ."
Later that day, an individual identifying himself as "June Rivas"
attempted to claim the radio transmitting equipment from the
condominium association. A staff member of the condominium association
identified a picture of Mr. Rivas as "June Rivas."
4. An agent from the Miami Office thereafter found the station's website,
www.thestreetsfm.com, which referred to "The Streets Ent., LLC."
Florida Department of State, Division of Corporation's records list
Mr. Rivas as a managing member of an inactive business called "The
Streets Ent., LLC." Agents also found a webpage that stated that
"Junior Rivas" was the "CEO" of "thestreetsfm." The webpage for
"thestreetsfm" also contained a document describing payment terms for
the station, which listed Mr. Rivas's home address. Agents from the
Miami Office also identified Mr. Rivas by comparing his Florida
driver's license photograph to pictures of "Junior Rivas" posted on
the Internet.
III. DISCUSSION
5. Section 503(b) of 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. The term "repeated" means the
commission or omission of such act more than once or for more than one
day.
A. Unlicensed Broadcast Operations
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.
For the purposes of Section 301, the word "operate" has been
interpreted to mean both the technical operation of the station, as
well as "the general conduct or management of a station as a whole, as
distinct from the specific technical work involved in the actual
transmission of signals." In other words, the use of the word
"operate" in Section 301 of the Act captures not just the "actual,
mechanical manipulation of radio apparatus," but also operation of a
radio station generally. To determine whether an individual is
involved in the general conduct or management of the station, we can
consider whether such individual exercises control over the station,
which the Commission has defined to include ". . . any means of actual
working control over the operation of the [station] in whatever manner
exercised."
7. Based on the record evidence in this case, we find that Mr. Rivas
apparently willfully and repeatedly violated Section 301 of the Act,
by operating an unlicensed radio transmitter on the frequency 89.1 MHz
in Miami, Florida. On March 2 and March 9, 2012, agents from the Miami
Office determined that an unlicensed radio station on the frequency
89.1 MHz operated from a condominium rooftop in Miami, Florida. A
review of the Commission's records revealed that no license or
authorization was issued to anyone to operate a radio station on 89.1
MHz at this location. Under Section 301, Mr. Rivas can be said to have
"operated" the unlicensed radio station on 89.1 MHz because the
evidence shows that Mr. Rivas exercised control over the general
conduct or management of the station. Specifically, the facts show
that Mr. Rivas was responsible for operation of the station. A staff
member of the condominium association for the building, where the
unlicensed station was located, stated that Mr. Rivas identified
himself as "June Rivas" while attempting to collect the radio
transmitting equipment from the rooftop. The unlicensed station's
website describes itself as "thestreetsfm," and "Junior Rivas" is
described as the CEO of "thestreetsfm." Mr. Rivas's picture matches
that of "Junior Rivas" on the Internet. Mr. Rivas is also the managing
member of "The Streets Ent., LLC," and Mr. Rivas's home address is
listed on the station's webpage. All of these facts indicate that Mr.
Rivas consciously operated and/or otherwise was involved in the
general conduct or management of the unauthorized station and did so
on more than one day. Therefore, we find that Mr. Rivas apparently
willfully and repeatedly violated Section 301 of the Act by operating
radio transmission equipment without the required Commission
authorization.
B. Proposed Forfeiture Amount
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.
9. We find that the violations here warrant a proposed forfeiture above
the base amount. Commission records show that the Miami Office
previously issued a Notice of Unlicensed Operation to Mr. Rivas for
operation of an unlicensed station on the same frequency (i.e., 89.1
MHz) at a commercial property in Opa-locka, Florida on November 6,
2007. The fact that Mr. Rivas continued to operate an unlicensed
station after being put on notice that his actions contravened the
Act, the Commission's rules, and related Commission orders
demonstrates a deliberate disregard for the Commission's requirements.
Thus, we find that an upward adjustment in the forfeiture amount of
$5,000 is warranted. Applying the Forfeiture Policy Statement, Section
1.80 of the Rules, and the statutory factors to the instant case, we
conclude that Mr. Rivas is apparently liable for a forfeiture in the
amount of $15,000.
IV. ORDERING CLAUSES
10. 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 Commission's rules, Luis Ernesto Rivas,
Jr. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of fifteen thousand dollars ($15,000) for violations of
Section 301 of the Rules.
11. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture, Luis Ernesto
Rivas, Jr. SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
12. 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.
Regardless of the form of payment, 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. If you have questions regarding
payment procedures, please contact the Financial Operations Group Help
Desk at 1-877-480-3201 or E-mail: ARINQUIRIES@fcc.gov. Luis Ernesto
Rivas, Jr. will also send electronic notification on the date said
payment is made to SCR-Response@fcc.gov.
13. 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 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, Miami Office, P.O. Box 520617, Miami, FL 33152-0617,
and include the NAL/Acct. No. referenced in the caption. Luis Ernesto
Rivas, Jr. also shall e-mail the written response to
SCR-Response@fcc.gov.
14. 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.
15. 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 Luis Ernesto Rivas, Jr. at his address
of record.
FEDERAL COMMUNICATIONS COMMISSION
Stephanie Dabkowski
Resident Agent
Miami Office
South 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.
Florida Department of State, Division of Corporations Homepage,
www.sunbiz.org (last visited March 26, 2012).
LinkedIn webpage, www.linkedin.com (last visited Mar. 12, 2012) (on file
EB-10-MA-0097).
Facebook homepage, www.facebook.com/THESTREETSFM (last visited Sept. 1,
2011) (on file EB-10-MA-0097).
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), recons. denied,
7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
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." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
47 U.S.C. S: 301.
See Campbell v. United States, 167 F.2d 451, 453 (5th Cir. 1948)
(comparing the use of the words "operate" and "operation" in Sections 301,
307, and 318 of the Act, and concluding that the word "operate" as used in
Section 301 of the Act means both the technical operation of the station
as well as the general conduct or management of the station).
Id.
Id. See 47 U.S.C S: 307(c)(1).
See Revision of Rules and Policies for the Direct Broadcast Satellite
Service, 11 FCC Rcd 9712, 9747 (1995), recons. denied, DIRECTV, Inc. v.
FCC, 110 F.3d 816 (D.C. Cir. 1997).
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), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
See Luis Ernesto Rivas, Jr., Notice of Unlicensed Operation (Enf. Bur.
rel. Nov. 6, 2007) (on file in EB-07-MA-079).
See Robert Brown, Forfeiture Order, 26 FCC Rcd 6854 (Enf. Bur. 2011),
aff'g, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 13740 (Enf.
Bur. 2010) (petition for reconsideration pending); Loyd Morris, Forfeiture
Order, 26 FCC Rcd 6856 (Enf. Bur. 2011), aff'g, Notice of Apparent
Liability for Forfeiture, 25 FCC Rcd 13736 (Enf. Bur. 2010) (petition for
reconsideration pending).
47 U.S.C. S:S: 301, 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.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
Federal Communications Commission DA 12-876
3
Federal Communications Commission DA 12-876