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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-07-NY-067
Nicolas Paula ) NAL/Acct. No: 200832380001
Bronx, New York ) FRN: 0016 3880 01
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 6, 2007
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 Nicolas Paula apparently willfully and repeatedly violated
Sections 301 of the Communications Act of 1934, as amended ("Act"), by
operating an unlicensed radio transmitter on the frequency 94.5 MHz,
and willfully violated Section 303(n) of the Act by failing to permit
a station inspection. We conclude, pursuant to Section 503(b) of Act,
that Nicolas Paula is apparently liable for a forfeiture in the amount
of seventeen thousand dollars ($17,000).
II. BACKGROUND
2. In February, 2007, the FCC's Enforcement Bureau received several
complaints from New York City area radio broadcasters of an unlicensed
station operating on 94.5 MHz. The complaints were subsequently
forwarded to the Enforcement Bureau's New York Office for further
investigation.
3. On March 3, 2007, Commission agents, using a mobile direction-finding
vehicle, monitored the frequency 94.5 MHz in Bronx, New York. The
agents observed a radio broadcast on 94.5 MHz and identified the
source of the transmissions as an FM broadcasting antenna mounted on
the roof of an apartment building at 317 East 178th Street, Bronx, NY.
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") and therefore required a
license. An agent searched Commission databases and found no evidence
of a Commission authorization for this operation on 94.5 MHz in Bronx,
New York.
4. After completing the field strength measurements on March 3, 2007, the
agents returned to 317 East 178th Street and observed the FM antenna
mounted on the roof and antenna coaxial cable that ran into a window
of Apartment 5B of 317 East 178th Street. The agents rang the doorbell
to apartment 5B and no one answered. The agents left a hand-delivered
Notice of Unlicensed Operation ("NOUO") under the door of Apartment
5B. The NOUO warned the resident that operation of the unlicensed
radio station on 94.5 MHz violated 47 U.S.C. S: 301; outlined the
potential penalties for operating an unlicensed station in violation
of 47 U.S.C. S: 301, including seizure of the equipment, fines and
imprisonment; and directed the operator of the station to terminate
operation of the unlicensed station immediately. The NOUO offered the
station operator ten days to reply. The New York Office did not
receive a reply to the NOUO.
5. On March 14, 2007, a Commission agent, using a mobile
direction-finding vehicle, monitored the frequency 94.5 MHz in Bronx,
New York. The agents observed a radio broadcast on 94.5 MHz and
identified the source of the transmissions as an FM broadcasting
antenna mounted on the roof of an apartment building at 317 East 178th
Street, Bronx, NY. The agent took field strength measurements and
determined that the signals being broadcast exceeded the limits for
operation under Part 15 of the Rules and therefore required a license.
An agent searched Commission databases and found no evidence of a
Commission authorization for this operation on 94.5 MHz in Bronx, New
York.
6. After completing the field strength measurements on March 14, 2007,
the agent returned to 317 East 178th Street and observed the FM
antenna mounted on the roof and antenna coaxial cable that ran into a
window of Apartment 5B of 317 East 178th Street. The agent went to
Apartment 5B where he spoke to a resident of the apartment who
identified himself as Nicolas Paula. Nicolas Paula stated that he was
the operator of the station and owner of the transmitting equipment.
Mr. Paula refused to turn off the transmitter and refused to allow
inspection of the station. The agent orally warned Mr. Paula of the
consequences of operating an unlicensed broadcast station and failing
to permit an inspection.
7. On March 31, 2007, Commission agents, using a mobile direction-finding
vehicle, monitored the frequency 94.5 MHz in Bronx, New York. The
agents observed a radio broadcast on 94.5 MHz and identified the
source of the transmissions as an FM broadcasting antenna mounted on
the roof of an apartment building at 317 East 178th Street, Bronx, NY.
The agents took field strength measurements and determined that the
signals being broadcast exceeded the limits for operation under Part
15 of the Rules and therefore required a license. An agent searched
Commission databases and found no evidence of a Commission
authorization for this operation on 94.5 MHz in Bronx, New York.
8. On April 6, 2007, the New York Office sent a Notice of Unlicensed
Operation (NOUO), by First Class and Certified Mail Return Receipt
Requested, to Nicolas Paula at 317 East 178th Street, Apartment 5B,
Bronx, NY 10457. The NOUO warned Paula that operation of the
unlicensed radio station on 94.5 MHz violated 47 U.S.C. S: 301;
outlined the potential penalties for operating an unlicensed station
in violation of 47 U.S.C. S: 301, including seizure of the equipment,
fines and imprisonment; and directed the operator of the station to
terminate operation of the unlicensed station immediately. The NOUO
offered Paula ten days to reply. The New York Office did not receive a
reply to the NOUO. On May 7, 2007, the certified letter was returned
undelivered to the New York Office by the U.S. Postal Service. The
letter sent by First Class Mail was not returned.
III. DISCUSSION
9. 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) of the Act has
been interpreted to mean simply that the acts or omissions are
committed knowingly. The term "repeated" means the commission or
omission of such act more than once or for more than one day.
10. 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. On
March 3, 14, and 31, Nicolas Paula operated radio transmission
equipment on the frequency 94.5 MHz from his residence at 317 East
178th Street, Apartment 5B, Bronx, NY, without the required Commission
authorization. Paula admitted to operating the station, but continued
to operate the station notwithstanding the issuance of two Notices of
Unlicensed Operation and an oral warning. We therefore find that
Paula's operation of his station without a license was willful.
Because the unlicensed operation continued for more than one day, the
violation was repeated.
11. Section 303(n) states that the Commission has authority to inspect all
radio installations associated with stations required to be licensed
to ascertain whether, in operation, they conform to the requirements
of the rules and regulations of the Commission. On March 14, 2007,
agents orally warned Paula that failure to allow an inspection of his
station could subject him to enforcement action. Notwithstanding this
warning, Paula refused to allow agents to inspect the station,
therefore, his violation was willful.
12. Based on the evidence before us, we find that Nicolas Paula apparently
willfully and repeatedly violated Section 301 of the Act by operating
radio transmission equipment on 94.5 MHz in Bronx, NY on March 3, 14,
and 31, 2007 without a Commission authorization, and willfully
violated Section 303(n) of the Act by failing to allow an inspection
of his station on March 14, 2007.
13. 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 operation without an instrument of
authorization is $10,000, and the base forfeiture amount for failure
to permit a station inspection is $7,000. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in Section 503(b)(2)(E) 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. Applying the Forfeiture Policy Statement, Section 1.80,
and the statutory factors to the instant case, we conclude that
Nicolas Paula is apparently liable for a $17,000 forfeiture.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Nicolas Paula is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
seventeen thousand dollars ($17,000) for violations of Sections 301
and 303(n) of the Act.
15. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules, within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture, Nicolas Paula SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
16. 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 Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon Bank /LB 358340, 500
Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire
transfer may be made to ABA Number 043000261, receiving bank Mellon
Bank, and account number 911-6106.
17. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, New York Office, 201
Varick Street, Suite 1151, New York, NY 10014, and must include the
NAL/Acct. No. referenced in the caption.
18. 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.
19. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director, Financial Operations, 445 12th Street,
S.W., Room 1A625, Washington, D.C. 20554.
20. 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 Nicolas Paula at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
District Director
New York Office
Northeast Region
Enforcement Bureau
47 U.S.C. S:S: 301, 303(n).
47 U.S.C. S: 503(b).
Section 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 mV/m at three meters. 47 C.F.R. S:
15.239. Measurements showed that the field strength of the station's
signal exceeded the permissible level for a non-licensed Part 15
transmitter.
Section 312(f)(1) of the Act, 47 U.S.C. S: 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).
Section 312(f)(2) of the Act, 47 U.S.C. S: 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."
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S:1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 47 U.S.C.
S:S: 301, 303(n).
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
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Federal Communications Commission