******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                   Before the

   Federal Communications Commission

   Washington, D.C. 20554

   In the Matter of Estevan J. Gutierrez Las Vegas, New Mexico ) ) ) ) ) File
   No.: EB-11-SD-0024 NAL/Acct. No.: 201132940006 FRN: 0021017025




                                FORFEITURE ORDER

   Adopted: November 6, 2013 Released: November 7, 2013

   By the Regional Director, Western Region, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
       the amount of twenty-five thousand dollars ($25,000) to Estevan J.
       Gutierrez for willfully and repeatedly violating Sections 301 and 333
       of the Communications Act of 1934, as amended (Act).^ The noted
       violations involved Mr. Gutierrez's operation on a frequency without
       authorization, and his willful and malicious interference with
       licensed operations.

   II. BACKGROUND

    2. On September 1, 2011, the Enforcement Bureau's San Diego Office (San
       Diego Office) issued a Notice of Apparent Liability for Forfeiture
       (NAL) for twenty-five thousand dollars ($25,000) to Mr. Gutierrez for
       operation, without authorization, on frequency 159.150 MHz, a
       frequency licensed to the Las Vegas, New Mexico, Police Department
       (LVPD),^ and his willful and malicious interference with the LVPD's
       licensed operations on that frequency.^ In response to the NAL, Mr.
       Gutierrez does not deny the violations, but requests cancellation or
       reduction of the forfeiture based on his inability to pay.^

   III. DISCUSSION

    3. The proposed forfeiture amount in this case was assessed in accordance
       with Section 503(b) of the Act,^ Section 1.80 of the Commission's
       rules (Rules),^ and the Forfeiture Policy Statement.^ In examining Mr.
       Gutierrez's NAL Response, Section 503(b)(2)(E) 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.^

    4. We affirm the NAL's finding that Mr. Gutierrez violated Sections 301
       and 333 of the 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.^ Section 333 of the Act states that no
       person shall willfully or maliciously interfere with or cause
       interference to any radio communications of any station licensed under
       this Act.^  As reflected in the NAL, on February 15 and 16, 2011, an
       agent from the San Diego Office, accompanied by LVPD officers, used
       direction-finding techniques to locate Mr. Gutierrez's transmissions
       on frequency 159.150 MHz as Mr. Gutierrez moved about Las Vegas, New
       Mexico, causing interference to the LVPD's operations on frequency
       159.150 MHz.^ Once the agent finally located Mr. Gutierrez's
       transmission emanating from a duplex unit, Mr. Gutierrez was
       apprehended and arrested by the LVPD officers. A review of the
       Commission's records confirmed that Mr. Gutierrez did not have a
       license to operate on frequency 159.150 MHz in Las Vegas, New Mexico.
       Based on the undisputed evidence, we conclude that Mr. Gutierrez
       willfully and repeatedly violated Sections 301 and 333 of the Act by
       operating on frequency 159.150 MHz without the required Commission
       authorization and by willfully and maliciously interfering with the
       LVPD's licensed operations on frequency 159.150 MHz.

    5. In response to the NAL, Mr. Gutierrez requests cancellation or
       reduction of the $25,000 forfeiture, asserting that his financial
       circumstances make it difficult for him to pay the forfeiture.^ With
       regard to an individual's or entity's inability to pay a claim, the
       Commission has determined that gross income or revenues are generally
       the best indicator of an ability to pay a forfeiture.^ Mr. Gutierrez
       has produced no documentation to support his claim of an inability to
       pay. In addition, we note that a party's inability to pay is only one
       factor in our forfeiture calculation analysis, and is not
       dispositive.^ We have previously rejected inability to pay claims in
       cases of repeated or otherwise egregious violations.^ Given the
       evidence presented in this case, we find that all the aforementioned
       Section 503(b)(2)(E) factors militate against cancellation or
       reduction of the forfeiture notwithstanding Mr. Gutierrez's purported
       financial circumstances. There is nothing on the record in this case
       that warrants any leniency or mitigation of the proposed forfeiture
       amount, given the undisputed evidence that Mr. Gutierrez willfully and
       maliciously interfered with the public safety radio operations of the
       LVPD for multiple days, and only stopped after he was apprehended and
       arrested. Therefore, after consideration of the entire record and the
       factors listed above, we find that a forfeiture in the amount of
       $25,000 is warranted.^

   IV. ORDERING CLAUSES

    6. 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(f)(4) of the Commission's rules, Estevan J.
       Gutierrez IS LIABLE FOR A MONETARY FORFEITURE in the amount of
       twenty-five thousand dollars ($25,000) for violations of Sections 301
       and 333 of the Act.^

    7. Payment of the forfeiture shall be made in the manner provided for in
       Section 1.80 of the Rules within thirty (30) calendar days after the
       release date of this Forfeiture Order.^  If the forfeiture is not paid
       within the period specified, the case may be referred to the U.S.
       Department of Justice for enforcement of the forfeiture pursuant to
       Section 504(a) of the Act.^  Estevan J. Gutierrez shall send
       electronic notification of payment to WR-Response@fcc.gov on the date
       said payment is made.  The payment must be made by check or similar
       instrument, wire transfer, or credit card, and must include the
       NAL/Account number and FRN referenced above. Regardless of the form of
       payment, a completed FCC Form 159 (Remittance Advice) must be
       submitted.^ When completing the FCC Form 159, enter the Account Number
       in block number 23A (call sign/other ID) and enter the letters "FORF"
       in block number 24A (payment type code).  Below are additional
       instructions you should follow based on the form of payment you
       select:

     * Payment by check or money order must be made payable to the order of
       the Federal Communications Commission.  Such payments (along with the
       completed Form 159) must be mailed to Federal Communications
       Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
       via overnight mail to U.S. Bank - Government Lockbox #979088,
       SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.

     * Payment by wire transfer must be made to ABA Number 021030004,
       receiving bank TREAS/NYC, and Account Number 27000001.  To complete
       the wire transfer and ensure appropriate crediting of the wired funds,
       a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
       the same business day the wire transfer is initiated.

     * Payment by credit card must be made by providing the required credit
       card information on FCC Form 159 and signing and dating the Form 159
       to authorize the credit card payment. The completed Form 159 must then
       be mailed to Federal Communications Commission, P.O. Box 979088, St.
       Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
       Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
       Louis, MO 63101.

   8. Any request for full payment over time under an installment plan should
   be sent to:  Chief Financial Officer--Financial Operations, Federal
   Communications Commission, 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 by phone, 1-877-480-3201,
   or by e-mail, ARINQUIRIES@fcc.gov.

   9. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
   First Class and Certified Mail, Return Receipt Requested, to Estevan J.
   Gutierrez at his address of record.

   FEDERAL COMMUNICATIONS COMMISSION

   Rebecca L. Dorch

   Regional Director, Western Region

   Enforcement Bureau

   ^ 47 U.S.C. SS 301, 333.

   ^ The City of Las Vegas, New Mexico, is the licensee of Station WPVX804,
   with authorization to operate on 159.150 MHz in and around Las Vegas, New
   Mexico.

   ^ Estevan J. Gutierrez, Notice of Apparent Liability for Forfeiture, 26
   FCC Rcd 12542 (Enf. Bur. 2011) (NAL). A comprehensive recitation of the
   facts and history of this case can be found in the NAL and is incorporated
   herein by reference.

   ^ See Letter from Estevan J. Gutierrez to San Diego Office, Western
   Region, Enforcement Bureau (Sep. 15, 2011) (on file in EB-11-SD-0024) (NAL
   Response); see also Letter from Estevan J. Gutierrez to San Diego Office,
   Western Region, Enforcement Bureau (Apr. 23, 2012) (on file in
   EB-11-SD-0024).

   ^ 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), recons. denied, 15 FCC Rcd 303 (1999)
   (Forfeiture Policy Statement).

   ^ 47 U.S.C. S 503(b)(2)(E).

   ^ See NAL supra note 3.

   ^ 47 U.S.C. S 301.

   ^ 47 U.S.C. S 333. The legislative history for Section 333 identifies
   willful and malicious interference as "intentional jamming, deliberate
   transmission on top of the transmissions of authorized users already using
   specific frequencies in order to obstruct their communications, repeated
   interruptions, and the use and transmission of whistles, tapes, records,
   or other types of noisemaking devices to interfere with the communications
   or radio signals of other stations." H.R. Rep. No. 101-316, at 13 (1989).

   ^ See NAL, 26 FCC Rcd at 12542-43, paras. 2-3.  The LVPD Deputy Chief
   informed the agent that the Mr. Gutierrez's use of the frequency included
   obscenities and threats against police officers and their families, that
   it required the LVPD to use a backup channel for their dispatch
   operations, and that during the previous three days, Mr. Gutierrez made
   over 400 transmissions on 159.150 MHz, including giving false information
   to the fire department. See id at 12542, para. 2 n. 3.

   ^ See NAL Response.

   ^ See PJB Communications of Virginia, Inc., Memorandum Opinion and Order,
   7 FCC Rcd 2088 (1992) (forfeiture not deemed excessive where it
   represented approximately 2.02 percent of the violator's gross revenues);
   Hoosier Broadcasting Corp.,  Memorandum Opinion and Order, 15 FCC Rcd 8640
   (2000) (forfeiture not deemed excessive where it represented approximately
   7.6 percent of the violator's gross revenues); 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).

   ^ See 47 U.S.C. S 503(b)(2)(E).

   ^ See, e.g., Kevin W. Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur.
   2011) (holding that violator's repeated acts of malicious and intentional
   interference outweighed evidence concerning his ability to pay), aff'd,
   Memorandum Opinion and Order, 28 FCC Rcd 1170 (Enf. Bur. 2013); Hodson
   Broadcasting, Forfeiture Order, 24 FCC Rcd 13699 (Enf. Bur. 2009) (holding
   that permittee's continued unauthorized operation outweighed its inability
   to pay claim); Whisler Fleurinor, Forfeiture Order, 28 FCC Rcd 1087 (Enf.
   Bur. 2013) (rejecting inability to pay claim because violator's
   demonstrated inability to pay was outweighed by the gravity of repeated
   operation of an unlicensed radio station).

   ^ If Mr. Gutierrez believes that paying this amount presents financial
   difficulties, we note that he could always pursue an installment plan to
   lessen the immediate impact of the forfeiture. See infra para. 8.

   ^ 47 U.S.C. SS 301, 333, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
   1.80(f)(4).

   ^ 47 C.F.R. S 1.80.

   ^ 47 U.S.C. S 504(a).

   ^ An FCC Form 159 and detailed instructions for completing the form may be
   obtained at http://www.fcc.gov/Forms/Form159/159.pdf.

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

   Federal Communications Commission DA 13-2133

   4

   Federal Communications Commission DA 13-2133