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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-06-SJ-036
Oreste Abreu ) NAL/Acct. No. 200732680003
Gurabo, Puerto Rico ) FRN: 0015726433
)
)
FORFEITURE ORDER
Adopted: January 24, 2007 Released: January 26, 2007
By the Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of five hundred dollars ($500) to Oreste Abreu for willful
and repeated violation of Section 301 of the Commission's Act of 1934,
as amended ("Act"). The noted violation involves Mr. Abreu's operation
of an unlicensed radio transmitter.
II. BACKGROUND
2. On September 8, 2006, while in the Gurabo area for other investigative
work, agents from the Commission's San Juan Office of the Enforcement
Bureau ("San Juan Office") monitored radio broadcast transmissions on
91.7 MHz from over 10 miles from the signals' source. A search of the
Commission's databases revealed no authorization for a broadcast
station on that frequency in that area. An agent, using direction
finding techniques, located the source of the transmissions to a
building located at 189 Andres Arus Street, Gurabo, Puerto Rico. The
building had a banner identifying the station as Radio Uncion y Fuego.
The agent inspected the station and found a Ramsey FM transmitter in
use. Based on the agent's experience with this equipment and the
distance that the signal was heard, the agent concluded that the
signals being broadcast exceeded the limits for operation under Part
15 of the Commission's Rules ("Rules"), and, therefore, required a
license. The operator of the station admitted to owning the station
but refused to identify him self. He was later identified as Oreste
Abreu. Mr. Abreu could not produce a license to operate the
transmitter. The agent informed him that his actions violated the Act
and the Rules, and he ceased operations.
3. On September 14 and 21, 2006, agents from the San Juan Office
monitored broadcast transmissions on 91.7 MHz in Gurabo, Puerto Rico.
On both days, the agents, using direction finding techniques, located
the source of the transmissions to the same building where the
transmissions on 91.7 MHz emanated on September 8, 2006. The agents
took field strength measurements of the transmissions and determined
that the signals being broadcast exceeded the limits for operation
under Part 15 of the Rules and therefore required a license. The
agents searched Commission databases and found no evidence of a
Commission authorization for operation of a station on 91.7 MHz in
Gurabo, Puerto Rico.
4. On November 15, 2006, the San Juan Office issued a Notice of Apparent
Liability for Forfeiture to Mr. Abreu in the amount of ten thousand
dollars ($10,000) for the apparent willful and repeated violation of
Section 301 of the Act. Mr. Abreu submitted a response to the NAL
requesting a reduction or cancellation of the proposed forfeiture
based on his inability to pay.
III. DISCUSSION
5. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd
17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy
Statement"). In examining Mr. Abreu's response, Section 503(b) 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.
6. Section 301 of the Act requires 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. In particular, Section 301
states that "[n]o person shall use or operate any apparatus for the
transmission of energy or communications or signals by radio (a) from
one place in any State, Territory, or possession of the United States
or in the District of Columbia to another place in the same State,
Territory, possession, or District; . . . except under and in
accordance with this chapter and with a license in that behalf granted
under the provisions of this chapter." On September 8, 14, and 21,
2006, Mr. Abreu operated an unlicensed radio station on 91.7 MHz from
a building on Andres Arus Street in Gurabo, Puerto Rico. On September
8, 2006, Mr. Abreu admitted owning and operating the radio station. On
September 8, 2006, Mr. Abreu was warned orally that operation of a
radio station without a license violates the Rules and the Act and
should cease. Mr. Abreu ceased operations at the end of the inspection
on September 8, 2006, but resumed operations by September 14, 2006.
Mr. Abreu does not deny any of the facts set forth in the NAL. Thus,
based on the evidence, we find that Mr. Abreu willfully and repeatedly
violated Section 301 of the Act by operating a radio transmitter
without the required authorization from the Commission.
7. In his response to the NAL, Mr. Abreu asserts that a $10,000
forfeiture would produce a financial hardship and requests that the
forfeiture be cancelled or significantly reduced. The Commission has
determined that, in general, an entity's gross revenues are the best
indicator of its ability to pay a forfeiture. After reviewing Mr.
Abreu's financial documentation, we conclude that a reduction of the
forfeiture to $500 would be appropriate.
8. We have examined Mr. Abreu's response to the NAL pursuant to the
statutory factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that Mr. Abreu
willfully and repeatedly violated Section 301 of the Act. Although
cancellation of the proposed monetary forfeiture is not warranted,
reduction of the forfeiture amount to $500 is appropriate based on Mr.
Abreu's demonstrated inability to pay.
IV. ORDERING CLAUSES
9. 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(f)(4) of the Commission's Rules, Oreste Abreu IS LIABLE FOR A
MONETARY FORFEITURE in the amount of five hundred dollars ($500) for
violation of Section 301 of the Act.
10. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within 30 days of the release of this Order.
If the forfeiture is not paid within the period specified, the case
may be referred to the Department of Justice for collection pursuant
to Section 504(a) of the Act. Payment of the forfeiture must be made
by check or similar instrument, payable to the order of the Federal
Communications Commission.\001 The payment must include the NAL/Acct.
No. and FRN No. referenced above.\001 Payment by\001check or money
order may be mailed to Federal Communications Commission, P.O.
Box\001358340,\001Pittsburgh, PA 15251-8340.\001 Payment by overnight
mail may be sent to\001Mellon Bank\001/LB\001358340,\001500 Ross
Street, Room 1540670, Pittsburgh, PA 15251.\001\001 Payment by wire
transfer may be made to ABA Number\001043000261, receiving
bank\001Mellon Bank, and account number\001911-6106. Requests for full
payment under an installment plan should be sent to: Associate
Managing Director, Financial Operations, 445 12th Street, S.W., Room
1A625, Washington, D.C. 20554.
11. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Oreste Abreu at
his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 U.S.C. S 301.
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.
Devices compliant with Part 15 typically have a range of less than one
mile.
The measurements taken on September 14, 2006 indicated that the signal was
60 times greater than the maximum permissible level for a non-licensed
Part 15 transmitter. The measurements taken on September 21, 2006
indicated that the signal was 368 times greater than the maximum
permissible level for a non-licensed Part 15 transmitter.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732680003
(Enf. Bur., San Juan Office, November 15, 2006) ("NAL").
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 301.
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,' ... 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).
The 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." 47 U.S.C. S 312(f)(2).
See PJB Communications of Virginia, Inc., 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., 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, 15 FCC Rcd 8640 (2002) (forfeiture not deemed
excessive where it represented approximately 7.6 percent of the violator's
gross revenues).
47 U.S.C. SS 301, 503(b); 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-167
2
Federal Communications Commission DA 07-167