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                                   Before the

   Federal Communications Commission

   Washington, D.C. 20554

   In the Matter of Bernabe Moreno Passaic, New Jersey ) ) ) ) ) ) File No:
   EB-10-NY-0185 NAL/Acct. No: 201132380004 FRN: 0019865922




                                FORFEITURE ORDER

   Adopted: February 22, 2013 Released: February 22, 2013

   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 one thousand dollars ($1,000) to Bernabe Moreno for
       willfully and repeatedly violating Section 301 of the Communications
       Act of 1934, as amended (Act).^ The noted violations involved Mr.
       Moreno's operation of an unlicensed radio transmitter on the frequency
       102.3 MHz in Passaic, New Jersey.

   II. BACKGROUND

    2. On February 11, 2011, the Enforcement Bureau's New York Office issued
       a Notice of Apparent Liability for Forfeiture  (NAL) ^ for ten
       thousand dollars ($10,000) to Mr. Moreno for operating an unlicensed
       radio station in Passaic, New Jersey.^ At the time of the inspection,
       Mr. Moreno admitted to FCC agents that he owned and operated the
       station.^ In response to the NAL, Mr. Moreno clarifies his initial
       admissions to the agents and requests cancellation or reduction of the
       forfeiture.^ Specifically, Mr. Moreno now states that he was not the
       owner of the station, but was just "in charge" of the station. ^ Mr.
       Moreno further states that the owner (who he identifies simply as
       "Casique") never informed him that the station was unlicensed.^ Mr.
       Moreno also asserts that he is unable to pay the proposed forfeiture
       based on his financial circumstances.^

   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.
       Moreno's 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.^ After considering Mr.
       Moreno's response in light of these statutory factors, we deny his
       request for cancellation of the forfeiture, but grant his request for
       a forfeiture reduction based on his inability to pay claim.

    4. We affirm the NAL's finding that Mr. Moreno violated 301 of the Act.
       Section 301 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 captures not just the "actual, mechanical manipulation of radio
       apparatus,"^ but also operation of a radio station generally.^ Thus,
       even if Mr. Moreno is now denying ownership of the unlicensed station,
       he still can found in violation of Section 301 because--by Mr.
       Moreno's own admission in his response--he was "in charge" of the
       station and was hired by the station's owner to program the station's
       music.^ As such, Mr. Moreno consciously operated and/or otherwise was
       involved in the general conduct or management of the unlicensed
       station.^ Furthermore, the fact that the station's owner did not
       advise Mr. Moreno that the station was unlicensed does not excuse the
       violation. In this respect, it is well established that the Commission
       does not consider ignorance of the law or reliance on erroneous or
       misleading advice from third parties as mitigating circumstances that
       justify cancellation or reduction of a forfeiture, and we see no
       reason to depart from that long-established policy in this case.^ We
       therefore conclude that Mr. Moreno willfully and repeatedly violated
       Section 301 of the Act by operating radio transmission equipment
       without the required Commission authorization.

    5. Mr. Moreno also requests cancellation or reduction of the forfeiture
       based on his inability to pay. With regard to an individual or
       entity's inability to pay claim, the Commission has determined that,
       in general, gross revenues are the best indicator of an ability to pay
       a forfeiture.^ Based on the financial documents provided by Mr.
       Moreno, we find sufficient basis to reduce the forfeiture to $1,000.^
       However, we caution Mr. Moreno 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.^ Therefore,
       future violations of this kind may result in significantly higher
       forfeitures that may not be reduced due to Mr. Moreno's financial
       circumstances.

   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, Bernabe Moreno
       IS LIABLE FOR A MONETARY FORFEITURE in the amount of one thousand
       dollars ($1,000) for violations of Section 301 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.^  Bernabe Moreno shall send electronic
       notification of payment to NER-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 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, [1]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 Bernabe
   Moreno at his address of record.

   FEDERAL COMMUNICATIONS COMMISSION

   G. Michael Moffitt

   Regional Director

   Northeast Region

   Enforcement Bureau

   ^ 47 U.S.C. S 301.

   ^ Bernabe Moreno, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd
   1355 (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.

   ^ Id. at 1355, para. 3. Mr. Moreno also demonstrated control over the
   station by turning off the station at the agents' request. Id.

   ^ Letter from Bernabe Moreno to the New York Office, Northeast Region,
   Enforcement Bureau (March 7, 2011) (on file in EB-10-NY-0185) (NAL
   Response).

   ^ See id.

   ^ See id.

   ^ 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).

   ^ 47 U.S.C. S 301.

   ^ [2]Campbell v. United States, 167 F.2d 451, 453 (5th Cir. 1948)
   (comparing the use of the words "operate" and "operation" in [3]Sections
   301, [4]307, and [5]318 of the Act, and concluding that the word "operate"
   as used in [6]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 also [7]47 U.S.C. S 307(c)(1). 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." 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).

   ^ NAL Response at 1. In addition, it does not appear that Mr. Moreno is
   denying his initial admission to the agents that he operated the station,
   which separately confirms a Section 301 violation.

   ^ See, e.g., Donald J. Payne, Forfeiture Order, 22 FCC Rcd 10776 (Enf.
   Bur. 2007) (holding that "liability for unlicensed operation may be
   assigned to any individual participating in the operation of the
   unlicensed station, regardless of who else may be responsible for the
   operation").

   ^ See Southern California Broadcasting Co., Memorandum Opinion and Order,
   6 FCC Rcd 4387, 4387, para. 3 (1991) (holding that ignorance of the law or
   inadvertent mistakes are not mitigating circumstances that can serve to
   justify a forfeiture reduction). Accord Dexter Blake, Memorandum Opinion
   and Order, 27 FCC Rcd 15087 (Enf. Bur. 2012), aff'd in part, [8]Forfeiture
   Order, 25 FCC Rcd 10038 (Enf. Bur. 2010) (finding that misleading advice
   from third parties does not constitute a mitigating circumstances that
   justifies cancellation or reduction of a forfeiture); Paisa 2 Car and
   Limousine Service, Inc., Memorandum Opinion and Order, 26 FCC Rcd 14423,
   14424, para. 5 (Enf. Bur. 2011) (declining to cancel forfeiture based on
   licensee's claim that it did not know that it was operating on
   unauthorized frequency).

   ^ See PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd
   2088, 2089 (1992) (forfeiture not deemed excessive where it represented
   approximately 2.02 percent of the violator's gross revenues); Local Long
   Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000) (forfeiture not
   deemed excessive where it represented approximately 7.9 percent of the
   violator's gross revenues); Hoosier Broadcasting Corporation, Forfeiture
   Order, 15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it
   represented approximately 7.6 percent of the violator's gross revenues).

   ^ This forfeiture amount falls within the percentage range that the
   Commission has previously found acceptable. See supra note 18.

   ^ See 47 U.S.C. S 503(b)(2)(E) (requiring the Commission to 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 such other matters as justice may
   require).

   ^ See Whisler Fleurinor, Forfeiture Order, DA 13-175 (Enf. Bur. rel. Feb.
   8, 2013) (finding that violator's demonstrated inability to pay was
   outweighed by repeated operation of an unlicensed radio station); Kevin W.
   Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur. 2011) (holding that
   violator's repeated acts of malicious and intentional interference
   outweigh evidence concerning his ability to pay); Hodson Broadcasting
   Corp., Forfeiture Order, 24 FCC Rcd 13699 (Enf. Bur. 2009) (holding that
   permittee's continued operation at variance with its construction permit
   constituted an intentional and continuous violation, which outweighed
   permittee's evidence concerning its ability to pay the proposed
   forfeitures).

   ^ 47 U.S.C. SS 301, 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 13-262

   2

   Federal Communications Commission DA 13-262

References

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