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$15K Forfeiture to Juan R. Nieves for Unlicensed Operations

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Released: October 25, 2013

Federal Communications Commission

DA 13-2066

Before the

Federal Communications Commission

Washington, D.C. 20554

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

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted: October 24, 2013

Released: October 25, 2013
By the District Director, Tampa Office, South Central Region, Enforcement Bureau:

I.

INTRODUCTION

1.
In this Notice of Apparent Liability for Forfeiture (NAL), we find that Juan R. Nieves, Jr.
apparently willfully and repeatedly violated Section 301 of the Communications Act of 1934, as amended
(Act),1 by operating an unlicensed radio transmitter on the frequency 97.7 MHz in Summerfield, Florida.
We conclude that Mr. Nieves is apparently liable for a forfeiture in the amount of fifteen thousand dollars
($15,000).

II.

BACKGROUND

2.
In response to a complaint about a possible unlicensed station operating on 97.7 MHz,
agents from the Enforcement Bureau's Tampa Office (Tampa Office) used direction-finding techniques to
locate the source of radio frequency transmissions on the frequency 97.7 MHz on three separate days (May
24, May 30, and June 14, 2013) to an FM transmitting antenna located at a residence in Summerfield,
Florida. On each of those three days, the agents took field strength measurements of the station's signal and
determined that the signals on 97.7 MHz exceeded the limits for operation under Part 15 of the
Commission's rules (Rules),2 and therefore required a license. The agents consulted the Commission's
records and confirmed that no authorization had been issued to Mr. Nieves, or to anyone else, for the
operation of an FM broadcast station in Summerfield, Florida.
3.
On June 25, 2013, agents from the Tampa Office again used direction-finding techniques
to confirm that the unlicensed station on 97.7 MHz was still in operation from the same location in
Summerfield, Florida identified on May 24, May 30, and June 14, 2013. Agents from the Tampa Office
inspected the unlicensed radio station and interviewed Mr. Nieves. He admitted renting the residence
housing the station, owning the transmitter, and being the sole responsible party for the unlicensed station.


1 47 C.F.R. 301.
2 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
V/m at three meters. 47 C.F.R. 15.239.

Federal Communications Commission

DA 13-2066

He claimed to have operated the station on 97.7 MHz for over a year. Mr. Nieves also stated that he had
been in the broadcast industry for many years, was a former officer of a low power station in Summerfield,
Florida, and knew he needed a license to operate.3

III.

DISCUSSION

4.
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.4 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.5
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,6 and the Commission has so interpreted the term in the Section 503(b)
context.7 The Commission may also assess a forfeiture for violations that are merely repeated, and not
willful.8 The term "repeated" means the commission or omission of such act more than once or for more
than one day.9

A.

Unlicensed Broadcast Operations

5.
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.10 On May 24, May 30,
June 14, and June 25, 2013, agents from the Tampa Office determined that an unlicensed radio station on
the frequency 97.7 MHz was operating 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. A review of the Commission's records revealed that no license or


3 Mr. Nieves was an "Officer" of Station WJRN-LP in Summerfield, Florida. See File No. BON-20040825ACE.
4 47 U.S.C. 503(b).
5 47 U.S.C. 312(f)(1).
6 H.R. Rep. No. 97-765, 97th 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 . . . .").
7 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).
8 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).
9 Section 312(f)(2) of the Act, 47 U.S.C. 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.
10 47 U.S.C. 301.
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Federal Communications Commission

DA 13-2066

authorization was issued to Mr. Nieves or to anyone else to operate a radio station on 97.7 MHz at this
location. Because Mr. Nieves consciously operated the station on more than one day, the apparent violation
of the Act was both willful and repeated. Based on the evidence before us, we find that Mr. Nieves
apparently willfully and repeatedly violated Section 301 of the Act by operating radio transmission
equipment without the required Commission authorization.

B.

Proposed Forfeiture

6.
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 $10,000.11 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.12 In doing so, we find that the violations here warrant a proposed
forfeiture above the base amount. The record evidence in this case shows that Mr. Nieves was an officer of
a low power FM station, and as such was familiar with the Commission's requirements. Mr. Nieves
admitted that he had been in the broadcast industry for many years and knew that he was operating the radio
station without a license. Nevertheless, Mr. Nieves operated the unlicensed station for over a year, in
deliberate disregard for the Act and the Commission's requirements. Thus, we find that an upward
adjustment of $5,000 in the forfeiture amount is warranted.13 Applying the Forfeiture Policy Statement,
Section 1.80 of the Rules, and the statutory factors to the instant case, we conclude that Mr. Nieves is
apparently liable for a forfeiture in the amount of $15,000.

IV.

ORDERING CLAUSES

7.
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 of the Commission's rules, Juan
R. Nieves, Jr. 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.14
8.

IT IS FURTHER ORDERED

that, pursuant to Section 1.80 of the Commission's rules,
within thirty (30) calendar days of the release date of this Notice of Apparent Liability for Forfeiture, Juan
R. Nieves, Jr.

SHALL PAY

the full amount of the proposed forfeiture or

SHALL FILE

a written statement
seeking reduction or cancellation of the proposed forfeiture.


11 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. 1.80.
12 47 U.S.C. 503(b)(2)(E).
13 See, e.g., Albert R. Knighten, Jr., Notice of Apparent Liability for Forfeiture, 27 FCC Rcd 6073 (Enf. Bur. 2012)
(proposing $5,000 or 50 percent upward adjustment because violator repeatedly operated an unlicensed station
despite knowing that the station required a license); Robert Brown, Memorandum Opinion and Order, 27 FCC Rcd
6975 (Enf. Bur. 2012) (upholding $5,000 or 50 percent upward adjustment because violator received one prior
warning that his actions violated Section 301 of the Act); Loyd Morris, Memorandum Opinion and Order, 27 FCC
Rcd 6979 (Enf. Bur. 2012) (upholding $5,000 or 50 percent upward adjustment because violator received one prior
warning that his actions violated Section 301 of the Act).
14 47 U.S.C. 301, 503(b); 47 C.F.R. 0.111, 0.204, 0.311, 0.314, 1.80.
3

Federal Communications Commission

DA 13-2066

9.
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. Juan R. Nieves, Jr.
shall also send electronic notification on the date said payment is made to SCR-Response@fcc.gov.
Regardless of the form of payment, a completed FCC Form 159 (Remittance Advice) must be
submitted.15 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 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. 20554.16 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.
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.17 Mail the written statement to Federal
Communications Commission, Enforcement Bureau, South Central Region, Tampa Office, 4010 W. Boy
Scout Blvd., Suite 425, Tampa, FL 33607-5744, and include the NAL/Acct. No. referenced in the caption.
Juan R. Nieves also shall e-mail the written response to SCR-Response@fcc.gov.
12.
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 practices (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 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
16 See 47 C.F.R. 1.1914.
17 47 C.F.R. 1.16, 1.80(f)(3).
4

Federal Communications Commission

DA 13-2066

13.

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 Juan R.
Nieves, Jr. at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director
Tampa Office
South Central Region
Enforcement Bureau
5

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