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                                   Before the

   Federal Communications Commission

   Washington, D.C. 20554

   In the Matter of Juan R. Nieves, Jr. Summerfield, Florida ) ) ) ) ) File
   No.: EB-FIELDSCR-13-00009579 NAL/Acct. No.: 201432700001 FRN: 0023056757




                                FORFEITURE ORDER

   Adopted: January 22, 2014 Released: January 22, 2014

   By the Regional Director, South Central Region, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
       the amount of one thousand five hundred dollars ($1,500) to Juan R.
       Nieves, Jr. for willfully and repeatedly violating Section 301  of the
       Communications Act of 1934, as amended (Act).^ The noted violations
       involved Mr. Nieves' operation of an unlicensed radio transmitter on
       the frequency 97.7 MHz in Summerfield, Florida.

   II. BACKGROUND

    2. On October 25, 2013, the Enforcement Bureau's Tampa Office (Tampa
       Office) issued a Notice of Apparent Liability for Forfeiture  (NAL) ^
       to Mr. Nieves for operating an unlicensed radio transmitter in
       Summerfield, Florida.^ As reflected in the NAL, on May 24, May 30,
       June 14, and June 25, 2013, agents from the Tampa Office determined
       that an unlicensed radio station was operating on the frequency 97.1
       MHz from a residence in Summerfield, Florida.^ On June 25, 2013,
       agents from the Tampa Office inspected the unlicensed station and
       interviewed Mr. Nieves, who admitted to operating the station for over
       a year.^

    3. In response to the NAL, Mr. Nieves apologized for violating the Act
       and requested reduction or cancellation of the proposed forfeiture.^
       He stated that he is an unemployed retired person who lives solely on
       social security and cannot afford to pay the $15,000 proposed
       forfeiture.^

   III. DISCUSSION

    4. 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.
       Nieves' 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.^

    5. We affirm the NAL's finding that Mr. Nieves 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.^ It is undisputed that Mr. Nieves operated an
       unlicensed radio station for over a year on the frequency 97.7 MHz
       from a residence that he rented in Summerfield, Florida. Therefore,
       based on the evidence before us, we conclude that Mr. Nieves willfully
       and repeatedly violated Section 301 of the Act by operating radio
       transmission equipment without the required Commission authorization.

    6. In the NAL Response, Mr. Nieves also states that he is unable to pay
       the $15,000 forfeiture.^ With regard to an individual or entity's
       inability to pay claim, the Commission has determined that gross
       revenues are generally the best indicator of an ability to pay a
       forfeiture.^ Based on the financial documents provided by Mr. Nieves,
       we find sufficient basis to reduce the forfeiture to $1,500.^ However,
       we caution Mr. Nieves 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. Nieves' financial
       circumstances.

   IV. ORDERING CLAUSES

    7. 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(f)(4) of the
       Rules, Juan R. Nieves, Jr. IS LIABLE FOR A MONETARY FORFEITURE in the
       amount of one thousand five hundred dollars ($1,500) for violations of
       Section 301 of the Act.^

    8. 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 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.^  Juan R. Nieves, Jr. shall send electronic notification
       of payment to SCR-Response@fcc.gov on the date said payment is made.

    9. 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.

   10. 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.

   11. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
   First Class and Certified Mail, Return Receipt Requested, to Juan R.
   Nieves, Jr. at his address of record.

   FEDERAL COMMUNICATIONS COMMISSION

   Dennis P. Carlton

   Regional Director, South Central Region

   Enforcement Bureau

   ^ 47 U.S.C. S 301.

   ^ Juan R. Nieves, Jr., Notice of Apparent Liability for Forfeiture, 28 FCC
   Rcd 14683 (Enf. Bur. 2013) (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 14683, paras. 2-3.

   ^ Id at 14683, para. 3.

   ^ Letter from Juan R. Nieves, Jr. to Ralph Barlow, District Director,
   Tampa Office, South Central Region, Enforcement Bureau at 1 (received Nov.
   22, 2013) (on file in EB-FIELDSCR-13-00009579) (NAL Response).

   ^ 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).

   ^ See NAL supra note 2.

   ^ 47 U.S.C. S 301.

   ^ NAL Response at 1.

   ^ See 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).

   ^ This forfeiture amount falls within the percentage range that the
   Commission has previously found acceptable. See supra note 14. We note
   that Mr. Nieves may request to pay the $1,500 in installments, if he is
   unable to pay the $1,500 in one lump sum. See infra para. 10.

   ^ 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).

   ^ 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 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 14-69

   2

   Federal Communications Commission DA 14-69