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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                            )                                
                                                             
                            )                                
                                File Number: EB-10-SF-0095   
     In the Matter of       )                                
                                File Number: EB-10-SF-0105   
     Gabriel A. Garcia      )                                
                                NAL/Acct. No.: 201132960003  
     San Jose, California   )                                
                                FRN: 0020645396              
                            )                                
                                                             
                            )                                


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: May 4, 2011 Released: May 4, 2011

   By the District Director, San Francisco District Office, Western Region,
   Enforcement Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture, we find that
       Gabriel A. Garcia ("Garcia"), apparently willfully and repeatedly
       violated section 303(n)  of the Communications Act of 1934, as amended
       ("Act"), by failing to allow inspection of an unlicensed broadcast
       station operating on various FM broadcast band frequencies in San
       Jose, California. We conclude that Garcia is apparently liable for a
       forfeiture in the amount of twenty-five  thousand dollars ($25,000).

   II. BACKGROUND

    2. Garcia is the operator of a radio station which has been operating
       without a license issued by the FCC on various FM broadcast band
       frequencies and at various locations in San Jose, California. The
       station identifies as "KNRG." The Enforcement Bureau's San Francisco
       Office has issued numerous warnings and Notices of Unlicensed
       Operation ("NOUOs"), as well as a Notice of Apparent Liability to
       Garcia concerning unlicensed radio operations and detailing the
       potential penalties for operating an unlicensed radio station, and for
       further violations of the Act and the Commission's rules ("Rules"),
       including failure to allow inspection of the unlicensed radio station.

    3. On May 6, 2010, in response to a complaint of an unlicensed radio
       station identifying itself as "KNRG" operating on 93.7 MHz in San
       Jose, California, agents from the San Francisco Office used radio
       direction-finding techniques to locate the source of broadcast
       transmissions to a residence located at 10142 Sylvandale Avenue, San
       Jose, California. The agents took field strength measurements and
       determined that the broadcast signal exceeded the limits for operation
       under Part 15 of the Rules and therefore required a license. A review
       of the Commission's records showed no authorization issued to Garcia
       or anyone else for operation of a radio station on 93.7 MHz in San
       Jose, California. San Francisco agents attempted to inspect the radio
       station, but their request was refused by the operator. Based on prior
       encounters, San Francisco agents recognized and identified Garcia as
       the operator of the radio station. The agents issued an on-scene NOUO
       to "KNRG" and Garcia on May 6, 2010, which in addition to notifying
       Garcia that his radio station operation must be licensed and that
       operation without a license violates section 301 of the Act,
       specifically noted Garcia's "refusal to allow an inspection of your
       radio equipment in violation of section 303(n) of the Communications
       Act of 1934, as amended" and warned of various penalties, including
       forfeiture, for refusal to allow inspection. On May 14, 2010, a formal
       NOUO was issued to Garcia for operating an unlicensed FM broadcast
       station on frequency 93.7 MHz from 10142 Sylvandale Avenue in San
       Jose, California.  The formal NOUO warned Garcia that his operation of
       an unlicensed radio station violated the Act, detailed the penalties
       for continued operation or further violations of the Act or the Rules,
       and included information on the authority of the FCC to inspect all
       radio installations required to be licensed by the Act.

    4. On June 15, 2010, in response to complaints from the FAA about an
       unlicensed station identifying itself as "KNRG" operating on 92.9 MHz
       in San Jose, California, agents from the San Francisco Office used
       radio direction-finding techniques to locate the source of broadcast
       transmissions to the same residence at 10142 Sylvandale Avenue, San
       Jose, California and again identified Garcia as the operator. The
       agents took field strength measurements and determined that the signal
       being broadcast exceeded the limits for operation under Part 15 of the
       Rules and therefore required a license. Searches of the Commission
       databases found no evidence of a Commission authorization for this
       operation on 92.9 MHz in San Jose, California. San Francisco agents
       attempted to inspect the radio station. Garcia refused and stated to
       the agents, "Do you want to get shot?" Prior to leaving the site, the
       San Francisco agents issued another on-scene NOUO to Garcia for
       operating an unlicensed FM broadcast station, this time on 92.9 MHz,
       from 10142 Sylvandale Avenue in San Jose, California, which again
       specifically noted Garcia's "refusal to allow an inspection of your
       radio equipment in violation of section 303(n)" of the Act and warned
       of various penalties, including forfeiture, for refusal to allow
       inspection.

   III. DISCUSSION

    5. 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.  Section 312(f)(1) of the Act defines willful as "the
       conscious and deliberate commission or omission of [any] act,
       irrespective of any intent to violate" the law. The legislative
       history to section 312(f)(1) of the Act clarifies that this definition
       of willful applies to both sections 312 and 503(b) of the Act and the
       Commission has so interpreted the term in the section 503(b) context.
       The Commission may also assess a forfeiture for violations that are
       merely repeated, and not willful.  "Repeated" means that the act was
       committed or omitted more than once, or lasts more than one day.

    6. Section 303(n) of the Act states that the Commission has the
       "authority to inspect all radio installations associated with stations
       required to be licensed by any Act."  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.  San Francisco agents
       determined that Garcia was operating a radio station on a frequency in
       the FM broadcast band without a license in violation of section 301 of
       the Act. As discussed above, on May 6, 2010, and June 15, 2010, Garcia
       refused to allow the San Francisco agents to inspect his unlicensed
       and unauthorized radio station. Garcia had notice that refusal to
       allow an inspection of the radio station violated section 303(n) of
       the Act. Because Garcia consciously and deliberately refused to allow
       the requested inspections of the station, we find that the violations
       of section 303(n) of the Act were willful. Moreover, because Garcia
       refused to allow inspection of the radio station on more than one
       occasion, we find that the violations of section 303(n) of the Act
       were repeated. Based on the evidence before us, we find that Garcia
       apparently willfully and repeatedly violated section 303(n) of the Act
       by refusing to allow inspection of radio transmission equipment on May
       6, 2010, and June 15, 2010.

    7. Pursuant to the Commission's Forfeiture Policy Statement and section
       1.80 of the Rules, the base forfeiture amount for failure to allow
       inspection of radio equipment 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, any history
       of prior offenses, ability to pay, and other such matters as justice
       may require. We find Garcia's misconduct particularly egregious
       because he had been warned several times that failure to allow
       inspection violated the Communications Act, and threatened to shoot
       the FCC agents during the June 15, 2010 attempted inspection. Thus, we
       find that upward adjustments to $10,000 for the May 6, 2010, apparent
       violation and $15,000 for the June 15, 2010, apparent violation are
       warranted. Applying the Forfeiture Policy Statement, section 1.80 of
       the Rules, and the statutory factors to the instant case, we conclude
       that Garcia is apparently liable for a total forfeiture in the amount
       of twenty-five thousand dollars ($25,000).

   IV. ORDERING CLAUSES

    8. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
       Communications Act of 1934, as amended, and sections 0.111, 0.204,
       0.311, 0.314 and 1.80 of the Rules, Gabriel A. Garcia is hereby
       NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
       twenty-five thousand dollars ($25,000) for violation of section 303(n)
       of the Act.

    9. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the Rules
       within thirty days of the release date of this Notice of Apparent
       Liability for Forfeiture, Gabriel A. Garcia SHALL PAY the full amount
       of the proposed forfeiture or SHALL FILE a written statement seeking
       reduction or cancellation of the proposed forfeiture.

   10. Payment of the forfeiture must be made by credit card, check, or
       similar instrument, payable to the order of the Federal Communications
       Commission. The payment must include the NAL/Account Number and FRN
       referenced above. Payment by check or money order may be mailed to
       Federal Communications Commission, P.O. Box 979088, St. Louis, MO
       63197-9000. Payment by overnight mail may be sent to U.S. Bank -
       Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
       Louis, MO 63101. Payment by wire transfer may be made to ABA Number
       021030004, receiving bank TREAS/NYC, and account number 27000001. For
       payment by credit card, an FCC Form 159 (Remittance Advice) must be
       submitted.  When completing the FCC Form 159, enter the NAL/Account
       number in block number 23A (call sign/other ID), and enter the letters
       "FORF" in block number 24A (payment type code). Requests for full
       payment under an installment plan should be sent to:  Chief Financial
       Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
       Washington, D.C.  20554.    Please contact the Financial Operations
       Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with
       any questions regarding payment procedures. Gabriel A. Garcia  shall
       also send electronic notification to WR-Response@fcc.gov on the date
       said payment is made.

   11. The written statement seeking reduction or cancellation of the
       proposed forfeiture, if any, must include a detailed factual statement
       supported by appropriate documentation and affidavits pursuant to
       sections 1.80(f)(3) and 1.16 of the Rules. The written statement must
       be mailed to Federal Communications Commission, Enforcement Bureau,
       Western Region, San Francisco Office, 5653 Stoneridge Drive, Suite
       105, Pleasanton, CA 94588-8543  and must include the NAL/Acct. No.
       referenced in the caption. An electronic copy shall also be sent to
       WR-Response@fcc.gov.

   12. 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.

   13. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
       for Forfeiture shall be sent by both Certified Mail, Return Receipt
       Requested, and regular mail, to Gabriel A. Garcia at his address of
       record.

   FEDERAL COMMUNICATIONS COMMISSION

   Thomas N. Van Stavern

   District Director

   San Francisco District Office

   Western Region

   Enforcement Bureau

   47 U.S.C. S: 303(n).

   See, e.g. ,Gabriel A. Garcia, Notice of Apparent Liability for Forfeiture,
   DA 11-472 (Enf. Bur., Western Reg., San Francisco Office, Rel. Mar. 11,
   2011) ("Garcia March 2011 NAL")); Notice of Unlicensed Operation to
   Gabriel A. Garcia, (Enf. Bur. San Francisco Office, August 10, 2010
   (EB-10-SF-0135); May 14, 2010 (EB-10-SF-0095); April 12, 2010
   (EB-10-SF-0031); March 29, 2007 (EB-07-SF-0045); and April 7, 2006
   (EB-06-SF-0037)); On-Scene Notice of Unlicensed Operation (San Francisco
   Office, June 15, 2010 (EB-10-SF-0105) and February 26, 2008
   (EB-08-SF-0025)). 

   Part 15 of the Rules sets out the conditions and technical requirements
   under which certain radio transmission devices may be used without a
   license. In relevant part, 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 uV/m at three
   meters. 47 C.F.R. S: 15.239. On May 6, 2010, the signal strength
   measurement was more than 3,110 times greater than the maximum permissible
   level. On March 11, 2011, Garcia was issued a Notice of Apparent Liability
   for willfully and repeatedly operating an unlicensed broadcast station in
   violation of section 301 of the Act. See  Garcia March 2011 NAL

   On April 12, 2010, the San Francisco Office issued a NOUO to Garcia for
   operating an FM broadcast station on frequency 92.9 MHz from 243 N. 33rd
   Street, San Jose, California, without a license. Gabriel A. Garcia, Notice
   of Unlicensed Operation (Enf. Bur. San Francisco Office, rel. April 12,
   2010). The NOUO warned Garcia that his operation of an unlicensed radio
   station violated the Act, detailed the penalties for continued operation
   or further violations of the Act or the Rules, and included information on
   the authority of the FCC to inspect all radio installations required to be
   licensed by the Act. See also supra note 2.

   Gabriel A. Garcia, Notice of Unlicensed Operation (Enf. Bur. San Francisco
   Office, rel. May 14, 2010).

   See 47 C.F.R. S: 15.239. On June 15, 2010, the signal strength measurement
   was more than 6,770 times greater than the maximum permissible level.

   The San Francisco agents left the premises and reported Garcia to the San
   Jose Police Department.

   Gabriel A. Garcia, On-Scene Notice of Unlicensed Operation (Enf. Bur. San
   Francisco Office, issued on-scene June 15, 2010).

   47 U.S.C. S: 503(b).

   47 U.S.C. S: 312(f)(1).

   H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
   [inserted in section 312] defines the terms `willful' and `repeated' for
   purposes of section 312, and for any other relevant section of the act
   (e.g., section 503).... As defined ... `willful' means that the licensee
   knew that he was doing the act in question, regardless of whether there
   was an intent to violate the law. `Repeated' means more than once, or
   where the act is continuous, for more than one day. Whether an act is
   considered to be `continuous' would depend upon the circumstances in each
   case. The definitions are intended primarily to clarify the language in
   sections 312 and 503, and are consistent with the Commission's application
   of those terms ...").

   See, e.g., Application for Review of Southern California Broadcasting Co.,
   Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) ("Southern
   California Broadcasting Co.").

   See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
   Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10 (2001) ("Callais
   Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
   television operator's repeated signal leakage).

   Southern California Broadcasting Co., 6 FCC Rcd at 4388, P: 5; Callais
   Cablevision, Inc., 16 FCC Rcd at 1362, P: 9.

   47 U.S.C. S: 303(n) (The Commission shall "[h]ave authority to inspect all
   radio installations associated with stations required to be licensed by
   any Act, or which the Commission by rule has authorized to operate without
   a license under section 307 (e)(1) of this title, or which are subject to
   the provisions of any Act, treaty, or convention binding on the United
   States, to ascertain whether in construction, installation, and operation
   they conform to the requirements of the rules and regulations of the
   Commission, the provisions of any Act, the terms of any treaty or
   convention binding on the United States, and the conditions of the license
   or other instrument of authorization under which they are constructed,
   installed, or operated.").

   47 U.S.C. S: 301.

   The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
   of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
   12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
   FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.

   47 U.S.C. S: 503(b)(2)(E).

   See, e.g.,  Gabriel A. Garcia, Notices of Unlicensed Operation (Enf. Bur.
   San Francisco Office, rel. April 7, 2006; March 29, 2007; April 12, 2010;
   May 14, 2010; and August 10, 2010); Gabriel A. Garcia, On-Scene Notice of
   Unlicensed Operation  (Enf. Bur. San Francisco Office, rel. February 26,
   2008; and June 15, 2010).

   See 47 C.F.R. S: 1.80(b)(4).

   47 U.S.C. S:S: 303(n), 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
   1.80.

   See 47 C.F.R. S: 1.1914.

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 11-836

                                       2

   Federal Communications Commission DA 11-836