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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-03-NY-379
Angel Avena )
Linden, NJ ) NAL/Acct. No.
200432380013
)
) FRN: 0010 3737 69
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 26, 2004
By the District Director, New York Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Angel Avena has apparently violated Section
301 of the Communications Act of 1934, as amended, (``Act'')1, by
operating an unlicensed radio transmitter on the frequency of
87.9 MHz. We conclude that Angel Avena is apparently liable for
a forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On November 7, 2003, the New York Office received
complaints about an illegal broadcast station located
in Middlesex County, NJ, operating on the frequency
87.9 MHz.
3. On November 19, 2003, a Commission agent, using a
mobile direction-finding vehicle, monitored the
frequency 87.9 MHz in Linden, NJ. The agent observed
an unauthorized radio broadcast on 87.9 MHz, and
identified the source of the broadcast as an FM
broadcast antenna on the roof of 18 East 17th Street,
Linden, NJ 07306. The agent conducted a station
inspection with Angel Avena, who acknowledged the
operation of the unlicensed radio station. There was
no evidence of a Commission authorization for this
operation in Linden, NJ. The agent advised Angel Avena
that a FCC station license is required for station
operation.
4. On November 19, 2003, the New York Office sent a
Warning Letter, by First Class Mail and Certified Mail
Return Receipt Requested, to Angel Avena for unlicensed
operation on the frequency 87.9 MHz.
5. On November 20, 2003, Commission agents, using a
mobile direction-finding vehicle, monitored the
frequency 87.9 MHz in Linden, NJ. The agents observed
an unauthorized radio broadcast on 87.9 MHz, and
positively identified the source of the broadcast as an
FM broadcast antenna on the roof of 18 East 17th
Street, Linden, NJ 07306. The agents conducted a
station inspection with Angel Avena, who again
acknowledged the operation of the unlicensed radio
station. There was no evidence of a Commission
authorization for this operation on 87.9 MHz in Linden,
NJ.
6. On December 1, 2003, the New York Office received a
reply to the warning letter. In the reply letter,
Angel Avena acknowledged the operation of transmitting
equipment on 87.9 MHz at 18 East 17th Street, Linden,
NJ 07306.
7. On January 6, 2004, a Commission agent, using a mobile
direction-finding vehicle, monitored the frequency 87.9
MHz in Linden, NJ. The agent observed an unauthorized
radio broadcast on 87.9 MHz, and positively identified
the source of the broadcast as an FM broadcast antenna
on the roof of 18 East 17th Street, Linden, NJ 07306.
There was no evidence of a Commission authorization for
this operation on 87.9 MHz in Linden, NJ.
8. On January 17, 2004, Commission agents, using a mobile
direction-finding vehicle, monitored the frequency 87.9
MHz in Linden, NJ. The agents observed an
unauthorized radio broadcast on 87.9 MHz, and
positively identified the source of the broadcast as an
FM broadcast antenna on the roof of 18 East 17th
Street, Linden, NJ 07306. There was no evidence of a
Commission authorization for this operation in Linden,
NJ.
III. DISCUSSION
9. Section 301 of the Act sets forth generally 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. Based on the evidence before us, we find that Angel
Avena operated radio transmission equipment on 87.9 MHz
on November 19, 2003, November 20, 2003, January 6,
2004, and January 17, 2004, without a Commission
authorization in willful2 and repeated3 violation of
Section 301 of the Act. A review of Commission's
records showed that there was no evidence of a
Commission authorization to operate this station on the
frequency 87.9 MHz in Linden, NJ.
11. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate
the Forfeiture Guidelines, 12 FCC Rcd 17087, 17113
(1997), recon. denied, 15 FCC Rcd 303(1999)
(``Forfeiture Policy Statement'')4, sets the base
forfeiture amount for operation without an instrument
of authorization at $10,000. In assessing the monetary
forfeiture amount, we must take into account the
statutory factors set forth in Section 503(b)(2)(D) of
the Act5, which include 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. Applying the
Forfeiture Policy Statement and the statutory factors
to the instant case and applying the inflation
adjustments, we believe that a ten thousand dollar
($10,000) monetary forfeiture is warranted.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act6 and Sections 0.111, 0.311 and 1.80
of the Commission's Rules7, Angel Avena. is hereby
NOTIFIED of his APPARENT LIABILITY FOR A FORFEITURE in
the amount of ten thousand dollars ($10,000) for
willfully and repeatedly violating Section 301 of the
Act.
13. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules, within thirty days of the
release date of this NOTICE OF APPARENT LIABILITY,
Angel Avena SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
14. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of
the Federal Communications Commission, to the
Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago,
Illinois 60673-7482. The payment should note the
NAL/Acct. No. 200432380013 and FRN: 0010-3737-69.
15. Any response to this NAL must be mailed to Federal
Communications Commission, New York Office, 201 Varick
Street, New York, NY 10014, and MUST INCLUDE THE
NAL/Acct. No. 200432380013.
16. 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.
17. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should
be sent to: Chief, Revenue and Receivable Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.8
18. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the
FCC is engaged in a two-year tracking process regarding
the size of entities involved in forfeitures. If you
qualify as a small entity and if you wish to be treated
as a small entity for tracking purposes, please so
certify to us within thirty (30) days of this NAL,
either in your response to the NAL or in a separate
filing to be sent to the Federal Communications
Commission, Enforcement Bureau, Spectrum Enforcement
Division, 445 12th Street, S.W., Washington, DC 20554.
Your certification should indicate whether you,
including your parent entity and its subsidiaries, meet
one of the definitions set forth in the list provided
by the FCC's Office of Communications Business
Opportunities (OCBO) set forth in Attachment A of this
Notice of Apparent Liability. This information will be
used for tracking purposes only. Your response or
failure to respond to this question will have no effect
on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have
questions regarding any of the information contained in
Attachment A, please contact OCBO at (202) 418-0990.
19. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail
Return Receipt Requested to Angel Avena, 18 East 17th
Street, Linden, NJ 07036.
FEDERAL COMMUNICATIONS
COMMISSION
Daniel W. Noel
District Director
New York Office
Attachment A - FCC Condensed List of Small Entities, October 2002
_________________________
1 47 U.S.C. § 301.
2 Section 312(f)(1) of the Act, 47 U.S.C. 312(f)(1), which
applies to Section 503(b) of the Act, provides that ``[t]he term
`willful', when used with reference to the commission or omission
of any act, means the conscious and deliberate commission or
omission of such act, irrespective of any intent to violate any
provision of this Act ....'' See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
3Section 312(f)(2), which also applies to Section 503(b),
provides: [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.
447 C.F.R. § 1.80.
5
47 U.S.C. § 503(b)(2)(D).
647 U.S.C. § 503(b).
747 C.F.R. §§ 0.111, and 0.311.
8 See 47 C.F.R. § 1.1914.