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Bernabe Moreno

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Released: February 22, 2013

Federal Communications Commission

DA 13-262


Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
Bernabe Moreno
)
File No: EB-10-NY-0185
)
NAL/Acct. No: 201132380004
Passaic, New Jersey
)
FRN: 0019865922
)

FORFEITURE ORDER

Adopted:

February 22, 2013

Released:

February 22, 2013
By the Regional Director, Northeast Region, Enforcement Bureau:

I.

INTRODUCTION

1.
In this Forfeiture Order (Order), we issue a monetary forfeiture in the amount of one
thousand dollars ($1,000) to Bernabe Moreno for willfully and repeatedly violating Section 301 of the
Communications Act of 1934, as amended (Act).1 The noted violations involved Mr. Moreno’s operation of
an unlicensed radio transmitter on the frequency 102.3 MHz in Passaic, New Jersey.

II.

BACKGROUND

2.
On February 11, 2011, the Enforcement Bureau’s New York Office issued a Notice of
Apparent Liability for Forfeiture (NAL) for ten thousand dollars ($10,000) to Mr. Moreno for operating an
unlicensed radio station in Passaic, New Jersey.2 At the time of the inspection, Mr. Moreno admitted to
FCC agents that he owned and operated the station.3 In response to the NAL, Mr. Moreno clarifies his initial
admissions to the agents and requests cancellation or reduction of the forfeiture.4 Specifically, Mr. Moreno
now states that he was not the owner of the station, but was just “in charge” of the station. Mr. Moreno
further states that the owner (who he identifies simply as “Casique”) never informed him that the station was
unlicensed.5 Mr. Moreno also asserts that he is unable to pay the proposed forfeiture based on his financial
circumstances.6


1 47 U.S.C. § 301.
2 Bernabe Moreno, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 1355 (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.
3 Id. at 1355, para. 3. Mr. Moreno also demonstrated control over the station by turning off the station at the agents’
request. Id.
4 Letter from Bernabe Moreno to the New York Office, Northeast Region, Enforcement Bureau (March 7, 2011) (on
file in EB-10-NY-0185) (NAL Response).
5 See id.
6 See id.

Federal Communications Commission

DA 13-262

III.

DISCUSSION

3.
The proposed forfeiture amount in this case was assessed in accordance with Section
503(b) of the Act,7 Section 1.80 of the Commission’s rules (Rules),8 and the Forfeiture Policy
Statement
.9 In examining Mr. Moreno’s 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.10 After considering Mr. Moreno’s response in light of these statutory
factors, we deny his request for cancellation of the forfeiture, but grant his request for a forfeiture reduction
based on his inability to pay claim.
4.
We affirm the NAL’s finding that Mr. Moreno violated 301 of the Act. Section 301 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.11 For the purposes of Section 301, the word “operate” has been
interpreted to mean both the technical operation of the station, as well as “the general conduct or
management of a station as a whole, as distinct from the specific technical work involved in the actual
transmission of signals.”12 In other words, the use of the word “operate” in Section 301 captures not just
the “actual, mechanical manipulation of radio apparatus,”13 but also operation of a radio station
generally.14 Thus, even if Mr. Moreno is now denying ownership of the unlicensed station, he still can
found in violation of Section 301 because—by Mr. Moreno’s own admission in his response—he was “in
charge” of the station and was hired by the station’s owner to program the station’s music.15 As such, Mr.
Moreno consciously operated and/or otherwise was involved in the general conduct or management of the
unlicensed station.16 Furthermore, the fact that the station’s owner did not advise Mr. Moreno that the
station was unlicensed does not excuse the violation. In this respect, it is well established that the
Commission does not consider ignorance of the law or reliance on erroneous or misleading advice from


7 47 U.S.C. § 503(b).
8 47 C.F.R. § 1.80.
9 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).
10 47 U.S.C. § 503(b)(2)(E).
11 47 U.S.C. § 301.
12 Campbell v. United States, 167 F.2d 451, 453 (5th Cir. 1948) (comparing the use of the words “operate” and
“operation” in Sections 301, 307, and 318 of the Act, and concluding that the word “operate” as used in Section 301
of the Act means both the technical operation of the station as well as the general conduct or management of the
station).
13 Id.
14 Id. See also 47 U.S.C. § 307(c)(1). To determine whether an individual is involved in the general conduct or
management of the station, we can consider whether such individual exercises control over the station, which the
Commission has defined to include “. . . any means of actual working control over the operation of the [station] in
whatever manner exercised.” See Revision of Rules and Policies for the Direct Broadcast Satellite Service, 11 FCC
Rcd 9712, 9747 (1995), recons. denied, DIRECTV, Inc. v. FCC, 110 F.3d 816 (D.C. Cir. 1997).
15 NAL Response at 1. In addition, it does not appear that Mr. Moreno is denying his initial admission to the agents
that he operated the station, which separately confirms a Section 301 violation.
16 See, e.g., Donald J. Payne, Forfeiture Order, 22 FCC Rcd 10776 (Enf. Bur. 2007) (holding that “liability for
unlicensed operation may be assigned to any individual participating in the operation of the unlicensed station,
regardless of who else may be responsible for the operation”).
2

Federal Communications Commission

DA 13-262

third parties as mitigating circumstances that justify cancellation or reduction of a forfeiture, and we see
no reason to depart from that long-established policy in this case.17 We therefore conclude that Mr.
Moreno willfully and repeatedly violated Section 301 of the Act by operating radio transmission equipment
without the required Commission authorization.
5.
Mr. Moreno also requests cancellation or reduction of the forfeiture based on his inability to
pay. With regard to an individual or entity’s inability to pay claim, the Commission has determined that,
in general, gross revenues are the best indicator of an ability to pay a forfeiture.18 Based on the financial
documents provided by Mr. Moreno, we find sufficient basis to reduce the forfeiture to $1,000.19
However, we caution Mr. Moreno that a party’s inability to pay is only one factor in our forfeiture
calculation analysis, and is not dispositive.20 We have previously rejected inability to pay claims in cases
of repeated or otherwise egregious violations.21 Therefore, future violations of this kind may result in
significantly higher forfeitures that may not be reduced due to Mr. Moreno’s financial circumstances.

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, Bernabe Moreno

IS LIABLE FOR A MONETARY FORFEITURE

in the amount of one
thousand dollars ($1,000) for violations of Section 301 of the Act.22


17 See Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4387, para. 3
(1991) (holding that ignorance of the law or inadvertent mistakes are not mitigating circumstances that can serve to
justify a forfeiture reduction). Accord Dexter Blake, Memorandum Opinion and Order, 27 FCC Rcd 15087 (Enf.
Bur. 2012), aff’d in part, Forfeiture Order, 25 FCC Rcd 10038 (Enf. Bur. 2010) (finding that misleading advice from
third parties does not constitute a mitigating circumstances that justifies cancellation or reduction of a forfeiture);
Paisa 2 Car and Limousine Service, Inc., Memorandum Opinion and Order, 26 FCC Rcd 14423, 14424, para. 5
(Enf. Bur. 2011) (declining to cancel forfeiture based on licensee’s claim that it did not know that it was operating
on unauthorized frequency).
18 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).
19 This forfeiture amount falls within the percentage range that the Commission has previously found acceptable.
See supra
note 18.
20 See 47 U.S.C. § 503(b)(2)(E) (requiring the 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).
21 See Whisler Fleurinor, Forfeiture Order, DA 13-175 (Enf. Bur. rel. Feb. 8, 2013) (finding that violator’s
demonstrated inability to pay was outweighed by repeated operation of an unlicensed radio station); Kevin W. Bondy,
Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur. 2011) (holding that violator’s repeated acts of malicious and
intentional interference outweigh evidence concerning his ability to pay); 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).
22 47 U.S.C. §§ 301, 503(b); 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80(f)(4).
3

Federal Communications Commission

DA 13-262

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.23 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.24 Bernabe Moreno shall send
electronic notification of payment to NER-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.25 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 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 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. 20554.26 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.


23 47 C.F.R. § 1.80.
24 47 U.S.C. § 504(a).
25 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
26 See 47 C.F.R. § 1.1914.
4

Federal Communications Commission

DA 13-262

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 Bernabe Moreno at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
Regional Director
Northeast Region
Enforcement Bureau
5

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