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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Jose Torres Licensee of Station N3TX Philadelphia,
Pennsylvania ) ) ) ) ) ) ) File No.: EB-08-PA-0180 NAL/Acct. No.:
200932400002 FRN: 0001831825
Memorandum opinion and order
Adopted: March 19, 2013 Released: March 19, 2013
By the Chief, Enforcement Bureau:
I. Introduction
1. In this Memorandum Opinion and Order (MO&O), we grant in part and deny
in part the Petition for Reconsideration (Petition) filed by Jose
Torres, licensee of amateur radio station N3TX in Philadelphia,
Pennsylvania.^ Mr. Torres seeks reconsideration of the Forfeiture
Order issued by the Enforcement Bureau's Northeast Region (Northeast
Region) on May 16, 2011.^ The Forfeiture Order imposed a monetary
forfeiture against Mr. Torres in the amount of $4,000 for willful and
repeated operation of his amateur radio station on an unauthorized
frequency in violation of Section 1.903(a) of the Commission's rules
(Rules).^ For the reasons set forth below, the Petition is granted in
part and denied in part and the forfeiture amount is reduced to three
thousand five hundred dollars ($3,500).
II. Background
2. On January 6, 2009, the Enforcement Bureau's Philadelphia Office
(Philadelphia Office) issued a Notice of Apparent Liability for
Forfeiture (NAL) in the amount of $4,000 to Mr. Torres for apparently
willfully and repeatedly operating his amateur radio station on the
unauthorized frequency 26.71 MHz at his residence in violation of
Section 1.903(a) of the Rules.^ On February 17, 2009, Mr. Torres met
with agents in the Philadelphia Office to respond to the apparent
findings in the NAL.^ During the meeting, Mr. Torres claimed that he
was not at home during the alleged unauthorized operations on April
17, 2008, and June 2, 2008. In the Forfeiture Order, the Northeast
Region considered and found no merit in this argument, affirmed the
findings in the NAL, and assessed a $4,000 forfeiture.^
3. In the Petition, Mr. Torres claims that the forfeiture should be
cancelled or reduced because he did not admit to operating his amateur
radio station on 26.71 MHz and the Northeast Region erred in
concluding that he did.^ In addition, Mr. Torres reiterates his claims
made in his response to the NAL that he was not at home on April 17,
2008, and June 2, 2008, when the alleged unauthorized transmissions on
26.71 MHz occurred.^ Finally, Mr. Torres submits new financial
information in support of his request for cancellation or reduction
based on his inability to pay the forfeiture amount.^
III. Discussion
4. Reconsideration is appropriate only where the petitioner either
demonstrates a material error or omission in the underlying order or
raises additional facts not known or not existing until after the
petitioner's last opportunity to present such matters.^ A petition for
reconsideration that reiterates arguments that were previously
considered and rejected will be denied.^ As discussed below, we find
that Mr. Torres's Petition fails to demonstrate a material error in
the Forfeiture Order and reiterates arguments previously presented to
and rejected by the Northeast Region. We therefore deny
reconsideration of the Petition on this basis. We do, however, find
that reconsideration of Mr. Torres's ability to pay the forfeiture
amount is warranted based on newly submitted financial documentation.
We therefore affirm the Northeast Region's finding that Mr. Torres
willfully and repeatedly operated on an unauthorized frequency in
violation of Section 1.903(a) of the Rules, but reduce the forfeiture
amount to $3,500.
5. First, we reject Mr. Torres's claim that we committed a material error
because we incorrectly concluded "for the first time" in the
Forfeiture Order that he admitted to operating his amateur station on
26.71 MHz without authorization. In the Forfeiture Order, the
Northeast Region did not state that Mr. Torres admitted to the
unauthorized operations on April 17, 2008, and June 2, 2008, at issue
in the current proceeding. Rather, the Northeast Region noted that Mr.
Torres admitted to operating on 26.71 MHz without authorization in
response to a Notice of Violation issued by the Philadelphia Office in
2007.^ In the Forfeiture Order, the Northeast Region concluded that
Mr. Torres operated on an unauthorized frequency based on evidence
obtained by agents from the Philadelphia Office. Specifically, the
agents determined that unauthorized transmissions on 26.71 MHz were
emanating from Mr. Torres's residence on April 17, 2008, and June 2,
2008.^ Second, to the extent Mr. Torres claims in his Petition that he
was not at home on those days, the Northeast Region previously
considered and rejected that claim and reconsideration therefore is
not warranted on this basis. We therefore decline to cancel or reduce
the forfeiture on these grounds and affirm the Northeast Region's
finding that Mr. Torres willfully and repeatedly violated Section
1.903(a) of the Rules by operating on an unauthorized frequency.
6. Mr. Torres reasserts his claim that the forfeiture would pose a
financial hardship and submits updated financial information. Having
reviewed Mr. Torres's newly submitted documentation, we find
sufficient basis to reduce the forfeiture to $3,500, an amount within
the range determined by the Bureau to not be excessive.^ However, we
caution Mr. Torres 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. Torres's financial circumstances.
IV. ordering clauses
7. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
Communications Act of 1934, as amended,^ and Section 1.106 of the
Commission's rules,^ that the Petition for Reconsideration filed by
Jose Torres IS GRANTED IN PART AND DENIED IN PART.
8. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311, and 1.80(f)(4) of the Commission's rules,^ Jose
Torres IS LIABLE FOR A MONETARY FORFEITURE in the amount of three
thousand five hundred dollars ($3,500) for violations of Section
1.903(a) of the Commission's rules.
9. 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 Memorandum Opinion and 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.^ Jose Torres shall send
electronic notification of payment to [1]NER-Response@fcc.gov on the
date said payment is made.
10. 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.
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, [2]ARINQUIRIES@fcc.gov.
11. IT IS FURTHER ORDERED that this Memorandum Opinion and 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
P. Michele Ellison
Chief, Enforcement Bureau
^ See Jose Torres, Petition for Reconsideration (June 15, 2011) (on file
in EB-08-PA-0180) (Petition).
^ Jose Torres, Forfeiture Order, 26 FCC Rcd 6813 (Enf. Bur., Northeast
Region 2011) (Forfeiture Order), aff'g, Notice of Apparent Liability for
Forfeiture, NAL/Acct. No. 200932400002 (Enf. Bur., Philadelphia Office,
rel. Jan. 6, 2009) (NAL). A comprehensive recitation of the facts and
history of this case can be found in the NAL and Forfeiture Order and is
incorporated herein by reference.
^ 47 C.F.R. S 1.903(a).
^ NAL, supra note 2. See 47 C.F.R. S 1.903(a).
^ Mr. 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. Mr. Torres's statements were
recorded with his consent. See Forfeiture Order, 26 FCC Rcd at 6814, n.7.
^ Forfeiture Order, supra note 2.
^ Petition at 2.
^ Id. at 4-6.
^ Id. at 6.
^ See 47 C.F.R. S 1.106(c); EZ Sacramento, Inc., Memorandum Opinion and
Order, 15 FCC Rcd 18257, (Enf. Bur. 2000), citing WWIZ, Inc., 37 FCC 685,
686 (1964), aff'd sub. nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C.
Cir. 1965), cert. denied, 383 U.S. 967 (1966).
^ EZ Sacramento, Inc., 15 FCC Rcd at 18257.
^ We reached this conclusion based on Mr. Torres's statement in his NOV
Response that "[w]ith this writing respond I agree to the Notice listed
above. I fully understand the violation. According to my license N3TX I
will transmit where I'm authorized, at the Extra Class portion only." See
Forfeiture Order, 26 FCC Rcd at 6813, para. 2. See also Jose Torres,
Notice of Violation, NOV No. V20083240007 (Enf. Bur., Philadelphia Office,
rel. Jan. 3, 2008) (NOV); Jose Torres, Response to NOV (on file in
EB-08-PA-0180) (NOV Response).
^ In addition, during the 2008 investigation, agents recognized Mr.
Torres's voice from the 2007 investigation. In his Petition, Mr. Torres
mistakenly believes that the Northeast Region stated in the Forfeiture
Order that it confirmed by listening to audio recordings that it was his
voice on recordings taken during the 2008 investigation. See Petition at
3. The Forfeiture Order states "[t]he 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." Forfeiture Order, 26 FCC Rcd at 6814, para. 5. The reference to
Mr. Torres conceding the voice was his relates to his admission in
response to the 2007 NOV. That is, during the 2007 investigation, agents
inspected Torres's station and obtained audio recordings of the
unauthorized transmissions. See Forfeiture Order, 26 FCC Rcd at 6813, n.4.
Based on the recordings from 2007, and Mr. Torres's admission to the 2007
NOV, agents concluded that by admitting to the operation on 26.71 MHz on
December 11, 2007, he was therefore admitting that it was his voice that
agents heard on December 11, 2007. Accordingly, agents concluded that the
voice they heard in 2008 was the same voice they heard "and that Mr.
Torres conceded was his" in 2007.
^ 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).
^ See 47 U.S.C. S 503(b)(2)(E) (requiring 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).
^ Dexter Blake, Memorandum Opinion and Order, 27 FCC Rcd 15087 (Enf. Bur.
2012), aff'd in part, [3]Forfeiture Order, 25 FCC Rcd 10038 (Enf. Bur.,
Northeast Region 2010) (reducing forfeiture based on inability to pay, but
warning that future violations of the same kind may not be reduced due to
financial circumstances); Kevin W. Bondy, Forfeiture Order, 26 FCC Rcd
7840 (Enf. Bur., Western Region 2011) (holding that violator's repeated
acts of malicious and intentional interference outweigh evidence
concerning his ability to pay) (petition for reconsideration pending);
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). See Michael W. Perry, Forfeiture Order, 27 FCC Rcd
2281, 2284, para. 8 (2012) (reducing forfeiture based on inability to pay,
but warning that future violations of the same kind may not be reduced due
to financial circumstances).
^47 U.S.C. S 405.
^47 C.F.R. S 1.106.
^47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.311, 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.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 13-500
5
Federal Communications Commission DA 13-500
References
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