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Jose Torres

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Released: March 19, 2013

Federal Communications Commission

DA 13-500

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
Jose Torres
)
File No.: EB-08-PA-0180
)
NAL/Acct. No.: 200932400002
Licensee of Station N3TX
)
FRN: 0001831825
Philadelphia, Pennsylvania
)
)

MEMORANDUM OPINION AND ORDER

Adopted:

March 19, 2013

Released:

March 19, 2013
By the Chief, Enforcement Bureau:

I.

INTRODUCTION

1.
In this Memorandum Opinion and Order (MO&O), we grant in part and deny in part the
Petition for Reconsideration (Petition) filed by Jose Torres, licensee of amateur radio station N3TX in
Philadelphia, Pennsylvania.1 Mr. Torres seeks reconsideration of the Forfeiture Order issued by the
Enforcement Bureau’s Northeast Region (Northeast Region) on May 16, 2011.2 The Forfeiture Order
imposed a monetary forfeiture against Mr. Torres in the amount of $4,000 for willful and repeated operation
of his amateur radio station on an unauthorized frequency in violation of Section 1.903(a) of the
Commission’s rules (Rules).3 For the reasons set forth below, the Petition is granted in part and denied in
part and the forfeiture amount is reduced to three thousand five hundred dollars ($3,500).

II.

BACKGROUND

2.
On January 6, 2009, the Enforcement Bureau’s Philadelphia Office (Philadelphia Office)
issued a Notice of Apparent Liability for Forfeiture (NAL) in the amount of $4,000 to Mr. Torres for
apparently willfully and repeatedly operating his amateur radio station on the unauthorized frequency 26.71
MHz at his residence in violation of Section 1.903(a) of the Rules.4 On February 17, 2009, Mr. Torres met
with agents in the Philadelphia Office to respond to the apparent findings in the NAL.5 During the meeting,
Mr. Torres claimed that he was not at home during the alleged unauthorized operations on April 17, 2008,


1 See Jose Torres, Petition for Reconsideration (June 15, 2011) (on file in EB-08-PA-0180) (Petition).
2 Jose Torres, Forfeiture Order, 26 FCC Rcd 6813 (Enf. Bur., Northeast Region 2011) (Forfeiture Order), aff’g,
Notice of Apparent Liability for Forfeiture,
NAL/Acct. No. 200932400002 (Enf. Bur., Philadelphia Office, rel. Jan.
6, 2009) (NAL). A comprehensive recitation of the facts and history of this case can be found in the NAL and
Forfeiture Order and is incorporated herein by reference.
3 47 C.F.R. § 1.903(a).
4 NAL, supra note 2. See 47 C.F.R. § 1.903(a).
5 Mr. Torres requested the meeting based on an alleged language barrier and his inability to properly refute in
writing the findings in the NAL. Two FCC agents and the Philadelphia Office’s Spanish-speaking Office Assistant
were present during the meeting. Mr. Torres’s statements were recorded with his consent. See Forfeiture Order, 26
FCC Rcd at 6814, n.7.

Federal Communications Commission

DA 13-500

and June 2, 2008. In the Forfeiture Order, the Northeast Region considered and found no merit in this
argument, affirmed the findings in the NAL, and assessed a $4,000 forfeiture.6
3.
In the Petition, Mr. Torres claims that the forfeiture should be cancelled or reduced because
he did not admit to operating his amateur radio station on 26.71 MHz and the Northeast Region erred in
concluding that he did.7 In addition, Mr. Torres reiterates his claims made in his response to the NAL that he
was not at home on April 17, 2008, and June 2, 2008, when the alleged unauthorized transmissions on
26.71 MHz occurred.8 Finally, Mr. Torres submits new financial information in support of his request for
cancellation or reduction based on his inability to pay the forfeiture amount.9

III.

DISCUSSION

4.
Reconsideration is appropriate only where the petitioner either demonstrates a material
error or omission in the underlying order or raises additional facts not known or not existing until after the
petitioner’s last opportunity to present such matters.10 A petition for reconsideration that reiterates
arguments that were previously considered and rejected will be denied.11 As discussed below, we find that
Mr. Torres’s Petition fails to demonstrate a material error in the Forfeiture Order and reiterates arguments
previously presented to and rejected by the Northeast Region. We therefore deny reconsideration of the
Petition on this basis. We do, however, find that reconsideration of Mr. Torres’s ability to pay the forfeiture
amount is warranted based on newly submitted financial documentation. We therefore affirm the Northeast
Region’s finding that Mr. Torres willfully and repeatedly operated on an unauthorized frequency in
violation of Section 1.903(a) of the Rules, but reduce the forfeiture amount to $3,500.
5.
First, we reject Mr. Torres’s claim that we committed a material error because we
incorrectly concluded “for the first timein the Forfeiture Order that he admitted to operating his amateur
station on 26.71 MHz without authorization. In the Forfeiture Order, the Northeast Region did not state
that Mr. Torres admitted to the unauthorized operations on April 17, 2008, and June 2, 2008, at issue in the
current proceeding. Rather, the Northeast Region noted that Mr. Torres admitted to operating on 26.71
MHz without authorization in response to a Notice of Violation issued by the Philadelphia Office in 2007.12
In the Forfeiture Order, the Northeast Region concluded that Mr. Torres operated on an unauthorized
frequency based on evidence obtained by agents from the Philadelphia Office. Specifically, the agents
determined that unauthorized transmissions on 26.71 MHz were emanating from Mr. Torres’s residence on


6 Forfeiture Order, supra note 2.
7 Petition at 2.
8 Id. at 4–6.
9 Id. at 6.
10 See 47 C.F.R. § 1.106(c); EZ Sacramento, Inc., Memorandum Opinion and Order, 15 FCC Rcd 18257, (Enf. Bur.
2000), citing WWIZ, Inc., 37 FCC 685, 686 (1964), aff’d sub. nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C.
Cir. 1965), cert. denied, 383 U.S. 967 (1966).
11 EZ Sacramento, Inc., 15 FCC Rcd at 18257.
12 We reached this conclusion based on Mr. Torres’s statement in his NOV Response that “[w]ith this writing respond
I agree to the Notice listed above. I fully understand the violation. According to my license N3TX I will transmit
where I’m authorized, at the Extra Class portion only.” See Forfeiture Order, 26 FCC Rcd at 6813, para. 2. See also
Jose Torres
, Notice of Violation, NOV No. V20083240007 (Enf. Bur., Philadelphia Office, rel. Jan. 3, 2008)
(NOV); Jose Torres, Response to NOV (on file in EB-08-PA-0180) (NOV Response).
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Federal Communications Commission

DA 13-500

April 17, 2008, and June 2, 2008.13 Second, to the extent Mr. Torres claims in his Petition that he was not at
home on those days, the Northeast Region previously considered and rejected that claim and
reconsideration therefore is not warranted on this basis. We therefore decline to cancel or reduce the
forfeiture on these grounds and affirm the Northeast Region’s finding that Mr. Torres willfully and
repeatedly violated Section 1.903(a) of the Rules by operating on an unauthorized frequency.
6.
Mr. Torres reasserts his claim that the forfeiture would pose a financial hardship and
submits updated financial information. Having reviewed Mr. Torres’s newly submitted documentation,
we find sufficient basis to reduce the forfeiture to $3,500, an amount within the range determined by the
Bureau to not be excessive.14 However, we caution Mr. Torres 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 Therefore, future violations of this
kind may result in significantly higher forfeitures that may not be reduced due to Mr. Torres’s financial
circumstances.


13 In addition, during the 2008 investigation, agents recognized Mr. Torres’s voice from the 2007 investigation. In
his Petition, Mr. Torres mistakenly believes that the Northeast Region stated in the Forfeiture Order that it
confirmed by listening to audio recordings that it was his voice on recordings taken during the 2008 investigation.
See Petition at 3. The Forfeiture Order states “[t]he voice that the agents heard during the transmissions on April
17, 2008, and June 2, 2008, is the same voice that agents heard, and that Torres conceded was his, on December 11,
2007.” Forfeiture Order, 26 FCC Rcd at 6814, para. 5. The reference to Mr. Torres conceding the voice was his
relates to his admission in response to the 2007 NOV. That is, during the 2007 investigation, agents inspected
Torres’s station and obtained audio recordings of the unauthorized transmissions. See Forfeiture Order, 26 FCC
Rcd at 6813, n.4. Based on the recordings from 2007, and Mr. Torres’s admission to the 2007 NOV, agents
concluded that by admitting to the operation on 26.71 MHz on December 11, 2007, he was therefore admitting that
it was his voice that agents heard on December 11, 2007. Accordingly, agents concluded that the voice they heard
in 2008 was the same voice they heard “and that Mr. Torres conceded was his” in 2007.
14 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).
15 See 47 U.S.C. § 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).
16 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., Northeast Region 2010) (reducing forfeiture based on inability to pay, but
warning that future violations of the same kind may not be reduced due to financial circumstances); Kevin W. Bondy,
Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur., Western Region 2011) (holding that violator’s repeated acts of
malicious and intentional interference outweigh evidence concerning his ability to pay) (petition for reconsideration
pending); 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). See
Michael W. Perry
, Forfeiture Order, 27 FCC Rcd 2281, 2284, para. 8 (2012) (reducing forfeiture based on inability to
pay, but warning that future violations of the same kind may not be reduced due to financial circumstances).
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DA 13-500

IV.

ORDERING CLAUSES

7.
Accordingly,

IT IS ORDERED

that, pursuant to Section 405 of the Communications
Act of 1934, as amended,17 and Section 1.106 of the Commission’s rules,18 that the Petition for
Reconsideration filed by Jose Torres

IS GRANTED IN PART AND DENIED IN PART

.
8.

IT IS ALSO ORDERED

that, pursuant to Section 503(b) of the Act, and Sections 0.111,
0.311, and 1.80(f)(4) of the Commission’s rules,19 Jose Torres

IS LIABLE FOR A MONETARY
FORFEITURE

in the amount of three thousand five hundred dollars ($3,500) for violations of Section
1.903(a) of the Commission’s rules.
9.
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 Memorandum Opinion and Order.20 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.21 Jose Torres shall send
electronic notification of payment to NER-Response@fcc.gov on the date said payment is made.
10.
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.22 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.


1747 U.S.C. § 405.
1847 C.F.R. § 1.106.
1947 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
20 47 C.F.R. § 1.80.
21 47 U.S.C. § 504(a).
22 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
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DA 13-500

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. 20554.23 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 this Memorandum Opinion and Order shall be sent
by First Class Mail and Certified Mail, Return Receipt Requested, to Jose Torres at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau


23 See 47 C.F.R. § 1.1914.
5

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