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$25K Forfeiture for Willful and Malicious Interference with Police

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Released: November 7, 2013

Federal Communications Commission

DA 13-2133


Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
Estevan J. Gutierrez
)
File No.: EB-11-SD-0024
)
NAL/Acct. No.: 201132940006
Las Vegas, New Mexico
)
FRN: 0021017025

FORFEITURE ORDER

Adopted: November 6, 2013

Released: November 7, 2013

By the Regional Director, Western Region, Enforcement Bureau:

I.

INTRODUCTION

1.
In this Forfeiture Order (Order), we issue a monetary forfeiture in the amount of twenty-
five thousand dollars ($25,000) to Estevan J. Gutierrez for willfully and repeatedly violating Sections 301
and 333 of the Communications Act of 1934, as amended (Act).1 The noted violations involved Mr.
Gutierrez’s operation on a frequency without authorization, and his willful and malicious interference with
licensed operations.

II.

BACKGROUND

2.
On September 1, 2011, the Enforcement Bureau’s San Diego Office (San Diego Office)
issued a Notice of Apparent Liability for Forfeiture (NAL) for twenty-five thousand dollars ($25,000) to Mr.
Gutierrez for operation, without authorization, on frequency 159.150 MHz, a frequency licensed to the Las
Vegas, New Mexico, Police Department (LVPD),2 and his willful and malicious interference with the
LVPD’s licensed operations on that frequency.3 In response to the NAL, Mr. Gutierrez does not deny the
violations, but requests cancellation or reduction of the forfeiture based on his inability to pay.4

III.

DISCUSSION

3.
The proposed forfeiture amount in this case was assessed in accordance with Section
503(b) of the Act,5 Section 1.80 of the Commission’s rules (Rules),6 and the Forfeiture Policy Statement.7


1 47 U.S.C. §§ 301, 333.
2 The City of Las Vegas, New Mexico, is the licensee of Station WPVX804, with authorization to operate on
159.150 MHz in and around Las Vegas, New Mexico.
3 Estevan J. Gutierrez, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 12542 (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.
4 See Letter from Estevan J. Gutierrez to San Diego Office, Western Region, Enforcement Bureau (Sep. 15, 2011)
(on file in EB-11-SD-0024) (NAL Response); see also Letter from Estevan J. Gutierrez to San Diego Office,
Western Region, Enforcement Bureau (Apr. 23, 2012) (on file in EB-11-SD-0024).
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 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).

Federal Communications Commission

DA 13-2133

In examining Mr. Gutierrez’s 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.8
4.
We affirm the NAL’s finding that Mr. Gutierrez violated Sections 301 and 333 of the Act.9
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 Section 333 of the Act states that no
person shall willfully or maliciously interfere with or cause interference to any radio communications of any
station licensed under this Act.11 As reflected in the NAL, on February 15 and 16, 2011, an agent from the
San Diego Office, accompanied by LVPD officers, used direction-finding techniques to locate Mr.
Gutierrez’s transmissions on frequency 159.150 MHz as Mr. Gutierrez moved about Las Vegas, New
Mexico, causing interference to the LVPD’s operations on frequency 159.150 MHz.12 Once the agent
finally located Mr. Gutierrez’s transmission emanating from a duplex unit, Mr. Gutierrez was apprehended
and arrested by the LVPD officers. A review of the Commission’s records confirmed that Mr. Gutierrez did
not have a license to operate on frequency 159.150 MHz in Las Vegas, New Mexico. Based on the
undisputed evidence, we conclude that Mr. Gutierrez willfully and repeatedly violated Sections 301 and 333
of the Act by operating on frequency 159.150 MHz without the required Commission authorization and by
willfully and maliciously interfering with the LVPD’s licensed operations on frequency 159.150 MHz.
5.
In response to the NAL, Mr. Gutierrez requests cancellation or reduction of the $25,000
forfeiture, asserting that his financial circumstances make it difficult for him to pay the forfeiture.13 With
regard to an individual’s or entity’s inability to pay a claim, the Commission has determined that gross
income or revenues are generally the best indicator of an ability to pay a forfeiture.14 Mr. Gutierrez has
produced no documentation to support his claim of an inability to pay. In addition, we note that a party’s
inability to pay is only one factor in our forfeiture calculation analysis, and is not dispositive.15 We have
previously rejected inability to pay claims in cases of repeated or otherwise egregious violations.16 Given


8 47 U.S.C. § 503(b)(2)(E).
9 See NAL supra note 3.
10 47 U.S.C. § 301.
11 47 U.S.C. § 333. The legislative history for Section 333 identifies willful and malicious interference as “intentional
jamming, deliberate transmission on top of the transmissions of authorized users already using specific frequencies in
order to obstruct their communications, repeated interruptions, and the use and transmission of whistles, tapes, records,
or other types of noisemaking devices to interfere with the communications or radio signals of other stations.” H.R.
Rep. No. 101-316, at 13 (1989).
12 See NAL, 26 FCC Rcd at 12542–43, paras. 2–3. The LVPD Deputy Chief informed the agent that the Mr.
Gutierrez’s use of the frequency included obscenities and threats against police officers and their families, that it
required the LVPD to use a backup channel for their dispatch operations, and that during the previous three days,
Mr. Gutierrez made over 400 transmissions on 159.150 MHz, including giving false information to the fire
department. See id at 12542, para. 2 n. 3.
13 See NAL Response.
14 See PJB Communications of Virginia, Inc., Memorandum Opinion and Order, 7 FCC Rcd 2088 (1992) (forfeiture
not deemed excessive where it represented approximately 2.02 percent of the violator’s gross revenues); 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).
15 See 47 U.S.C. § 503(b)(2)(E).
16 See, e.g., 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,
2

Federal Communications Commission

DA 13-2133

the evidence presented in this case, we find that all the aforementioned Section 503(b)(2)(E) factors militate
against cancellation or reduction of the forfeiture notwithstanding Mr. Gutierrez’s purported financial
circumstances. There is nothing on the record in this case that warrants any leniency or mitigation of the
proposed forfeiture amount, given the undisputed evidence that Mr. Gutierrez willfully and maliciously
interfered with the public safety radio operations of the LVPD for multiple days, and only stopped after he
was apprehended and arrested. Therefore, after consideration of the entire record and the factors listed
above, we find that a forfeiture in the amount of $25,000 is warranted.17

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,
Estevan J. Gutierrez

IS LIABLE FOR A MONETARY FORFEITURE

in the amount of twenty-five
thousand dollars ($25,000) for violations of Sections 301 and 333 of the Act.18
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.19 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.20 Estevan J. Gutierrez shall send electronic
notification of payment to WR-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.21 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:
Ÿ
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.
Ÿ
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.
Ÿ
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





Memorandum Opinion and Order, 28 FCC Rcd 1170 (Enf. Bur. 2013); Hodson Broadcasting, Forfeiture Order, 24
FCC Rcd 13699 (Enf. Bur. 2009) (holding that permittee’s continued unauthorized operation outweighed its
inability to pay claim); Whisler Fleurinor, Forfeiture Order, 28 FCC Rcd 1087 (Enf. Bur. 2013) (rejecting inability to
pay claim because violator’s demonstrated inability to pay was outweighed by the gravity of repeated operation of an
unlicensed radio station).
17 If Mr. Gutierrez believes that paying this amount presents financial difficulties, we note that he could always
pursue an installment plan to lessen the immediate impact of the forfeiture. See infra para. 8.
18 47 U.S.C. §§ 301, 333, 503(b); 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80(f)(4).
19 47 C.F.R. § 1.80.
20 47 U.S.C. § 504(a).
21 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
3

Federal Communications Commission

DA 13-2133

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 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. 20554.22 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.
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 Estevan J. Gutierrez at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau


22 See 47 C.F.R. § 1.1914.
4

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