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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Jose A. Mollinedo ) File Number: EB-04-LA-072
)
Victorville, CA ) NAL/Acct. No. 200532900004
)
) FRN 0012227534
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January
31, 2005
By the District Director, Los Angeles District Office, Western
Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Jose A. Mollinedo, (``Mollinedo'')
apparently willfully and repeatedly violated Section 301 of the
Communications Act of 1934, as amended (``Act''),1 by operating
an unlicensed radio transmitter on 90.9 MHz in Victorville,
California. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"),2 that Mollinedo
is apparently liable for forfeiture in the amount of ten
thousand dollars ($10,000).
II. BACKGROUND
2. On March 8, 2004, the Commission's Los Angeles Office
received information concerning an unauthorized broadcast
station operating on 90.9 MHz in Victorville, California. That
same day, agents from the Los Angeles office used mobile
direction finding techniques to locate broadcast transmissions
on 90.9 MHz emanating from a private residence at 12650 Cobalt
Road, in Victorville, California. The agents took field
strength measurements and determined that the signals being
broadcast exceeded the limits for operation under Part 15 of
the Commission's Rules (``Rules'')3 and therefore required a
license. When agents knocked at the residence door, they
received no answer. The agents left a Notice of Unauthorized
Operation (``Notice'') at the door of the residence.
3. On March 12, 2004, Los Angeles agents monitored 90.9
MHz in the Victorville, California area and used mobile
direction finding techniques to locate broadcast transmissions
on 90.9 MHz emanating from the private residence at 12650
Cobalt Road, in Victorville, California. The agents approached
the house and identified themselves to the owner of the
residence, Jose A. Mollinedo. The agents then requested an
inspection. Mollinedo allowed the inspection and admitted
ownership and operation of the station. He also acknowledged
receiving the Notice that the agents had left at the residence
four days earlier.4
4. On March 30, 2004, the Commission's Los Angeles Office
sent Mollinedo a detailed Notice of Unlicensed Operation, which
gave Mollinedo an opportunity to reply. The Los Angeles Office
received a receipt from the Post Office indicating that the
Notice of Unlicensed Operation had been received, but no reply
was received. In May and June of 2004, Los Angeles agents
monitored 90.9 MHz in the Victorville, California area on
several occasions and found that the station was not
broadcasting.
5. In June and July of 2004, the Los Angeles Office
received information that an unauthorized radio station on 90.9
MHz in Victorville, California had resumed broadcasting. On
September 20, 2004, agents from the Commission's Los Angeles
Office again monitored and used mobile direction finding
techniques to locate broadcast transmissions on 90.9 MHz
emanating from the private residence at 12650 Cobalt Road, in
Victorville, California. The agents made field strength
measurements and determined that the signals being broadcast
were essentially unchanged from their previous measurements.
The measurements indicated that the station still exceeded the
limits for operation under Part 15 of the Rules and, therefore,
still required a license.5 When agents knocked at the
residence door, they received no answer.
6. On September 27, 2004, Commission's Los Angeles Office
sent Mollinedo another Notice of Unlicensed Operation, which
again gave Mollinedo an opportunity to reply. The copy of the
Notice sent via Certified Mail was returned by the Post Office
after multiple delivery attempts. The copy of the Notice sent
via regular mail was not returned. No reply was received. On
November 26, 2004, agents reviewed the Commission's records and
found that no authorization had been issued for any station to
operate on 90.9 MHz in Victorville, California.
III. DISCUSSION
7. 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. The term "willful"
as used in Section 503(b) has been interpreted to mean simply
that the acts or omissions are committed knowingly.6 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day.7
8. Section 301 of the Act requires that no person shall
use or operate any apparatus for the transmission of energy of
communications or signals by radio within the United States
except under and in accordance with the Act and with a license.
On March 8, 2004, March 12, 2004, and September 20, 2004,
Mollinedo apparently operated radio transmitting equipment at
12650 Cobalt Road, Victorville, California, on 90.9 MHz without
the required Commission authorization. Mollenido received
notice on March 8, 2004, that his operation of the station was
unauthorized. He acknowledged operation of the station to
Commission agents on March 12, 2004. Therefore, his violation
is willful. Mollenido's violation occurred on more than one
day, therefore, it is repeated. Based on the evidence before
us, we find Mollinedo apparently willfully and repeatedly
violated Section 301 of the Act by operating radio transmission
apparatus without a license on 90.9 MHz.
9. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, ("Forfeiture Policy
Statement"), and Section 1.80 of the Rules, the base forfeiture
amount for operating without an instrument of authorization is
$10,000.8 In assessing the monetary forfeiture amount, we must
also take into account the statutory factors set forth in
Section 503(b)(2)(D) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, and with
respect to the violator, the degree of culpability, and history
of prior offenses, ability to pay, and other such matters as
justice may require.9 Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors, we find
that Mollenido is apparently liable for a forfeiture of
$10,000.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as amended,
and Sections 0.111, 0.311 and 1.80 of the Commission's Rules,
Jose A. Mollinedo is hereby NOTIFIED of this APPARENT LIABILITY
FOR A FORFEITURE in the amount of ten thousand dollars
($10,000) for violations of Section 301 of the Act.10
11. 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 for
Forfeiture, Jose A. Mollinedo SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
12. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check
or money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259.
13. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region,
Los Angeles District Office, 18000 Studebaker Rd. Suite 660,
Cerritos, CA 90703, and must include the NAL/Acct. No.
referenced in the caption.
14. 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. Requests for payment of the full amount of this
Notice of Apparent Liability for Forfeiture under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.11
16. IT IS FURTHER ORDERED that a copy of this Notice
of Apparent Liability for Forfeiture shall be sent by Certified
Mail, Return Receipt Requested, and regular mail, to Jose A.
Mollinedo.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director
Los Angeles District Office
Western Region
Enforcement Bureau
_________________________
147 U.S.C. § 301.
247 U.S.C. § 503(b).
3Section 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. On March 8, 2004, the
measurements indicated that the signa
4The Los Angeles agents issued another Notice of Unlicensed
Operation to Mollenido immediately after the inspection on March
12, 2004. Mollenido signed the Notice to acknowledge receipt.
5The measurements made on September 20, 2004, indicated that the
signal was 5000 times greater than the maximum permissible level
for a non-licensed Part 15 transmitter.
6Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
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 or any rule or regulation of the Commission authorized
by this Act...." See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
7Section 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.''
812 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
947 U.S.C. § 503(b)(2)(D).
10 47 U.S.C. § 301, 47 C.F.R. §§ 0.111, 0.311, 1.80.
11 See 47 C.F.R. § 1.1914.