NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: November 20, 2017 Released: November 21, 2017 By the Regional Director, Region Three, Enforcement Bureau:
I. INTRODUCTION. We propose a penalty of $15,000 against Mr. Juan Carlos Uribe for operating an unlicensed radio station on 101.5 MHz in Van Nuys, California. Mr. Uribe was warned by the Commission that the operation of an unlicensed station was illegal and that continued operation could result in further enforcement action. Nonetheless, Mr. Uribe apparently disregarded the warning and continued to broadcast on an unauthorized station.
Accordingly, the Commission now finds him apparently liable for violation of Section 301 of the Commissions Act, and proposes a penalty of $15,000. As the Commission has stated many times before, enforcement action in this area is critical because unlicensed radio stations undermine the Commission’s efforts to manage radio spectrum and can cause interference to licensed communications, including authorized broadcasts and public safety transmissions. Moreover, unlicensed radio stations do not broadcast Emergency Alert Service (EAS) messages, and thus create a public safety hazard for their listeners.
II. BACKGROUND. On October 4, 2016, in response to a complaint, an agent from the Commission’s Los Angeles Field Office (Los Angeles Office) used direction finding techniques to trace the source of an unauthorized radio transmission operating on 101.5 MHz to a commercial building located at 7335 Van Nuys Blvd. in Van Nuys, California. The agent took field strength measurements of the station’s signal and determined that the transmissions exceeded the limits for operation under Part 15 of the Commission’s rules and therefore required a license.
2 The agent then consulted Commission records and confirmed that the Commission had not authorized an FM broadcast station to operate on 101.5 MHz at or near the building. The agent also inspected the property, reviewed Mr. Uribe’s identification and made notes of his residential address, and spoke with Mr. Uribe. The agent hand-delivered a Notice of Unlicensed Operation (NOUO) to Mr. Uribe while he was on the property, which Mr. Uribe signed.
The investigation began under File No. EB-FIELDWR-16-00022674 and was subsequently assigned File No. EB- FIELDWR-16-00022797. Any future correspondence with the Commission concerning this matter should reflect the new case number. Section 15.239 of the Commission’s 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 micro volts per meter (“µVm”) at three meters. 47 CFR § 15.239.
Measurements showed that the field strength of the station’s signal exceeded the permissible level for a non-licensed Part 15 transmitter. Uribe, Notice of Unlicensed Operation, October 4, 2016 (on file in EBATS EB-FIELDWR-16-00022674).
On November 1, 2016, Mr. Uribe signed the UPS delivery receipt, indicating that he received the October 21 NOUO.
3. In November and December 2016, the complainant who reported the unauthorized station at 101.5 MHz contacted the Los Angeles Office again to report that a pirate station was operating on 95.1 MHz from the same location in Van Nuys, California, with what appeared to be an identical format to the station that previously operated on 101.5 MHz. On December 17, 2016, an agent from the Los Angeles Office investigated and found that Mr. Uribe was operating a radio station on 95.1 MHz from the same location that the agent inspected on October 4, 2016. The agent took field strength measurements and determined that the transmissions on 95.1 MHz exceeded the limits for operation under Part 15 of the Commission’s Rules and therefore required a license. The agent consulted the Commission’s records and confirmed that the Commission had not authorized an FM broadcast station to operate on 95.1 MHz at or near the building. The agent issued a second hand-delivered NOUO to Mr. Uribe, which he signed.
Also on December 17, 2016, in the presence of the agent, Mr. Uribe turned off the station. The agent also sent a NOUO dated December 21, 2016, to Mr. Uribe at his home and business addresses.
As noted above, Mr. Uribe operated on 101.5 MHz without a license and, after receiving written warning that operation of a radio station without a license was illegal, began operating an unauthorized station on a different frequency, 95.1 MHz. Thus, Mr. Uribe continued his operation of an unlicensed radio station even though he was fully aware that doing so violated Section 301 of the Act. 5. Section 503(b) of the Act authorizes the Commission to impose a forfeiture against any entity that “willfully or repeatedly fail[s] to comply with any of the provisions of [the Act] or of any rule, regulation, or order issued by the Commission.”
Here, Section 503(b)(2)(D) of the Act authorizes us to assess a forfeiture against Mr. Uribe of up to $19,246 for each violation or each day of a continuing violation, up to a statutory maximum of $144,344 for a single act or failure to act. In exercising our forfeiture authority, we must consider 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 the agent also sent a copy of this NOUO to Mr. Uribe through the U.S. Postal Service (USPS). That copy was returned to the Commission, stamped “unable to forward. Before leaving the area, the agent used direction finding techniques to confirm the station was not in operation. Since December 17, 2016, we have received no further complaints that Mr. Uribe is back on the air.
We propose a base forfeiture of $10,000 for Mr. Uribe’s violation of Section 301 of the Act by operating an unauthorized station. We have discretion, however, to depart from these guidelines, taking into account the particular facts of each individual case. Given the totality of the circumstances, and consistent with the Forfeiture Policy Statement, we conclude that an upward adjustment is warranted. Mr. Uribe received repeated written warnings that operation of an unlicensed radio station was illegal and that continued operation could result in further enforcement action, yet Mr. Uribe disregarded those warnings and continued to operate his unlicensed station. We therefore propose an upward adjustment of $5,000 based on the egregious nature of Mr. Uribe’s apparent violations of Section 301 of the Act.18 After applying the Forfeiture Policy Statement, Section 1.80 of the Commission’s rules, and the statutory factors, we propose a total forfeiture of $15,000, for which Mr. Uribe is apparently liable.
CONCLUSION. We have determined that Mr. Uribe apparently willfully violated Section 301 of the Act. As such, Mr. Uribe is apparently liable for a forfeiture of $15,000.