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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Jean Richard Salvador Miami, Florida ) ) ) ) ) File No.:
EB-FIELDSCR-13-00009676 NAL/Acct. No.: 201432600002 FRN: 0023464704
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 26, 2014 Released: March 26, 2014
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 Jean Richard Salvador 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
89.5 MHz in Miami, Florida. We conclude that Mr. Salvador is
apparently liable for a forfeiture in the amount of fifteen thousand
dollars ($15,000).
II. BACKGROUND
2. On June 28, 2013, in response to a complaint, 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 89.5 MHz to a transmitting antenna
mounted in a tree on the property of a multi-family residence in
Miami, Florida. The agents took field strength measurements of the
station's signal and determined that the transmissions on 89.5 MHz
exceeded the limits for operation under Part 15 of the Commission's
rules (Rules),^ and therefore required a license. The agents consulted
the Commission's records and confirmed that no authorization had been
issued to Mr. Salvador, or to anyone else, for the operation of an FM
broadcast station at or near the multi-family residence in Miami,
Florida.
3. On July 5, 2013, agents from the Miami Office again used
direction-finding techniques to locate the source of transmissions on
the frequency 89.5 MHz to the transmitting antenna identified on June
28, 2013. The agents then traced the coaxial cable from the
transmitting antenna into the rear facing window of Apartment 2 of the
multi-family residence. Agents knocked on the door of Apartment 2 at
approximately 11:30 am. Approximately 3 minutes later, the agents
observed that the radio station on 89.5 MHz ceased operation. A male
then answered the door and identified himself as "Richard Salvador,"
but would not provide any identification. In response to agents'
questions regarding the transmissions on 89.5 MHz, Mr. Salvador stated
that his friend operated the radio station. After purportedly
receiving permission from his friend, Mr. Salvador eventually allowed
the agents to inspect the unlicensed station. The agents observed that
the coaxial cable that entered the rear window of Apartment 2 was
connected to an unmarked, homemade FM transmitter and other equipment.
Mr. Salvador told the agents that he turned the radio transmitter on
and off at different times on multiple days on behalf of his friend,
but did not provide any additional information regarding his friend or
his operation of the station. Mr. Salvador then voluntarily
relinquished the transmitter to the agents, allegedly after receiving
permission from his friend. The agents did not witness any other
persons present at Apartment 2 besides Mr. Salvador.
4. Prior to leaving Apartment 2, the agents issued an on-scene Notice of
Unlicensed Operation (NOUO) to Mr. Salvador, which he signed, and
which warned that operation of an unlicensed station violated the Act
and the Rules and could result in further enforcement action.^ Agents
later determined that "Richard Salvador's" legal name is "Jean Richard
Salvador."^ In addition, evidence obtained from the Internet
identifies Mr. Salvador as a DJ known as Konpaman for BREEZ FM 89.5 in
Miami, Florida. According to the domain registrar, "Richard Salvador"
registered the domain name for BREEZ FM's webpage.
5. On September 17, 2013, in response to another complaint, agents from
the Miami Office again used direction-finding techniques to locate the
source of radio frequency transmissions on the frequency 89.5 MHz to a
transmitting antenna at the same multi-family residence in Miami,
Florida. The agents took field strength measurements of the station's
signal and determined that the transmissions on 89.5 MHz once again
exceeded the limits for operation under Part 15 of the Rules and
required a license. The agents consulted the Commission's records and
re-confirmed that no authorization had been issued to Mr. Salvador, or
to anyone else, for the operation of an FM broadcast station at or
near the multi-family residential residence in Miami, Florida.
III. DISCUSSION
6. Section 503(b) of the 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
7. We find that the record evidence in this case is sufficient to
establish that Mr. Salvador violated Section 301 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.^
On June 28, July 5, and September 17, 2013, agents from the Miami
Office determined that an unlicensed radio station on the frequency
89.5 MHz was operating from Mr. Salvador's residence. A review of the
Commission's records revealed that no license or authorization was
issued to Mr. Salvador, or to anyone else, to operate a radio station
on 89.5 MHz at this location. Although Mr. Salvador alleged that his
friend operated the unlicensed station, publicly available information
identifies Mr. Salvador as an organizer and DJ for the unlicensed
station marketing itself as BREEZ FM 89.5 in Miami, Florida. The
totality of the evidence convinces us that Mr. Salvador is the friend
referenced during the July 5, 2013 inspection. However, even if Mr.
Salvador is not the friend, he exercised control over the unlicensed
station by turning off the transmitter on July 5, 2013 and operating
the transmitter on other days. Thus, Mr. Salvador was also an operator
of the unlicensed station and equally liable for a forfeiture under
Section 301 of the Act.^ Based on the evidence before us, we find Mr.
Salvador apparently willfully and repeatedly violated Section 301 of
the Act by operating radio transmission equipment on the frequency
89.5 MHz without the required Commission authorization.
B. Proposed Forfeiture
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.^ We find that the violations here warrant a proposed
forfeiture above the base amount. On July 5, 2013, Mr. Salvador was
issued an on-scene NOUO explaining that unlicensed operation of a
radio station violated the Act and could subject him to further
enforcement action, including a substantial monetary forfeiture.
Despite having acknowledged receipt of the NOUO, Mr. Salvador
continued to operate an unlicensed radio station on 89.5 MHz from his
residence in Miami, Florida. The fact that Mr. Salvador continued to
operate an unlicensed station after being put on notice that his
actions contravened the Act, the Rules, and related Commission orders
demonstrates a deliberate disregard for the Commission's authority and
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. Salvador is apparently
liable for a forfeiture in the amount of fifteen thousand dollars
($15,000) for operating an unlicensed radio station.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Sections 0.111, 0.204, 0.311, 0.314, and 1.80 of the Rules,
Jean Richard Salvador 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 Act.^
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
within thirty (30) calendar days of the release date of this Notice of
Apparent Liability for Forfeiture, Jean Richard Salvador SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
11. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account Number
and FRN referenced above. Mr. Salvador shall also send electronic
notification on the date said payment is made to
[1]SCR-Response@fcc.gov. 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.
12. Any request for making 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.
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. Jean Richard
Salvador also shall e-mail the written response to
[2]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 principles (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 First Class Mail to Jean Richard Salvador at his
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Stephanie Dabkowski
Resident Agent
Miami Office
South Central 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.
^ Richard Salvadore, On Scene Notice of Unlicensed Operation (July 5,
2013) (on file in EB-FIELDSCR-13-00009676). The agent mistakenly added an
"e" to Mr. Salvador's name when filling out the NOUO.
^ On July 5, 2013, "Richard Salvador" identified the vehicle parked in
front of Apartment 2 as his. Using the vehicle identification number, an
agent consulted Lexis Nexis and determined the vehicle was registered to
"Jean Richard Salvador" at Apartment 2 of the multi-family dwelling. Lexis
Nexis lists "Richard Salvador" and "Richard Salvadore" as two of many name
variations associated with "Jean Richard Salvador." Lexis Nexis
Investigative Portal Homepage,
http://www.lexisnexis.com/government/solutions/investigative/ (last
visited Nov. 14, 2013).
^ 47 U.S.C. S 503(b).
^ 47 U.S.C. S 312(f)(1).
^ H.R. Rep. No. 97-765, 97^th 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., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388, para. 5 (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, para. 9.
^ 47 U.S.C. S 301.
^ See, e.g., Glen Rubash, Forfeiture Order, 28 FCC Rcd 15922, 15924, para.
5 (Enf. Bur. 2013) ("[L]iability for unlicensed operation may be assigned
to any individual taking part in the operation of the unlicensed station,
regardless of who else may be responsible for the operation."); Durrant
Clarke, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 6982,
6984, para. 7 (Enf. Bur. 2011) (finding the fact that someone else may
have been involved in the operation of unlicensed station does not lessen
culpability); Vicot Chery, Notice of Apparent Liability for Forfeiture, 25
FCC Rcd 14596, 14598, paras. 6-7 (Enf. Bur. 2010) (finding that someone
who leased space housing unlicensed transmitter and turned the transmitter
off exercised control over and operated that station); Jean L. Senatus,
Forfeiture Order, 20 FCC Rcd 14418, 14420, para. 11 (Enf. Bur. 2005) ("The
Act does not provide that a forfeiture can be assessed only where we are
able to identify all individuals involved in the operation of an
unlicensed station.").
^ 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 Robert Brown, Memorandum Opinion and Order, 27 FCC Rcd 6975 (Enf.
Bur. 2012), aff'g, Forfeiture Order, 26 FCC Rcd 6854 (Enf. Bur. 2011),
aff'g, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 13740 (Enf.
Bur. 2010) (upwardly adjusted proposed forfeiture by $5,000 because
violator operated an unlicensed radio station after receiving a written
warning that such action violated the Act and Rules); Loyd Morris,
Memorandum Opinion and Order, 27 FCC Rcd 6979 (Enf. Bur. 2012), aff'g,
Forfeiture Order, 26 FCC Rcd 6856 (Enf. Bur. 2011), aff'g, Notice of
Apparent Liability for Forfeiture, 25 FCC Rcd 13736 (Enf. Bur. 2010)
(upwardly adjusted proposed forfeiture by $5,000 because violator operated
an unlicensed radio station after receiving a written warning that such
action violated the Act and Rules).
^ 47 U.S.C. S 301, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80.
^ 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.
^ 47 C.F.R. SS 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 14-386
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Federal Communications Commission DA 14-386
References
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