Federal Communications Commission DA 15-1071 Before the Federal Communications Commission Washington, DC 20554 In the Matter of Ivan Angeles Passaic, New Jersey ) ) ) ) ) File No.: EB-FIELDNER-15-00019896 NAL/Acct. No.: 201532380004 FRN: 0024912602 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: September 25, 2015 Released: September 25, 2015 By the District Director, New York Office, Northeast Region, Enforcement Bureau: I. INTRODUCTION 1. We propose a penalty of $15,000 against Ivan Angeles for operating an unlicensed radio station on 91.9 MHz in Passaic, New Jersey. The Commission previously warned Mr. Angeles that operation of this unlicensed station was illegal and that continued operation could result in further enforcement action. Mr. Angeles’ deliberate disregard of the Commission’s warning warrants a significant penalty. Commission action in this area is essential because unlicensed radio stations create a danger of interference to licensed communications and undermine the Commission’s authority over FM broadcast radio operations. II. BACKGROUND 2. Mr. Angeles has a history of operating unlicensed FM stations in New Jersey. In 2012 and 2013, Mr. Angeles received four Notices of Unlicensed Operation for operating a pirate station on 91.9 MHz from various locations within Passaic. 1 On February 11, 2015, in response to continued complaints of unlicensed operation in Passaic, New Jersey, agents from the Enforcement Bureau’s New York Office (New York Office) used mobile direction-finding techniques to locate the source of radio frequency transmissions on the frequency 91.9 MHz to an FM antenna mounted on the roof of a single family dwelling located at 434 Gregory Avenue, Passaic, New Jersey. The agents recorded the station, took field strength measurements of the station’s signal and determined that the transmissions on 91.9 MHz exceeded the limits for operation under Part 15 of the Commission’s rules (Rules), 2 and therefore required a license. The agents consulted the Commission’s records and confirmed that no authorization had been issued to Mr. Angeles, or to anyone else, for the operation of an FM broadcast station at or near this residence in Passaic, New Jersey. 3. On August 31, 2015, in response to additional complaints of unlicensed operation, agents from the New York Office again used mobile direction-finding techniques to identify the source of transmissions on the frequency 91.9 MHz to 434 Gregory Avenue, Passaic, New Jersey, a single family 1 Ivan Angeles, Notice of Unlicensed Operation (March 21, 2012) (on file in EB-FIELDNER-12-00001294); Ivan Angeles, Notice of Unlicensed Operation (September 26, 2012) (on file in EB-FIELDNER-13-00016577); Suceli Sanchez and Ivan Angeles, Notice of Unlicensed Operation (May 8, 2013) (on file in EB-FIELDNER-13- 00008494); Ivan Angeles, Notice Of Unlicensed Operation (September 26, 2013 (on file in EB-FIELDNER-13- 00011482). 2 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 ?V/m at three meters. 47 C.F.R. § 15.239. Federal Communications Commission DA 15-1071 2 dwelling. The agents again recorded the station, took field strength measurements of the station’s signal, confirmed that the transmissions exceeded the limits for operation under Part 15 of the Commission’s rules, and determined that no authorization had been issued to Mr. Angeles or to anyone else, for the operation of a station at or near this single family dwelling. A search of property records for 434 Gregory Drive confirmed that this property is owned by Ivan Angeles and Suceli Sanchez. A subsequent search of the Internet revealed that a radio station calling itself La Raza purports to operate on 91.9 MHz in New Jersey and that “La Raza 91.9 FM” belongs to Mr. Ivan Angeles. 3 4. On August 31, 2015, the New York Office issued a Notice of Unlicensed Operation to Mr. Ivan Angeles stating that his operation of a radio station at 91.9 MHz violated Section 301 of the Communications Act of 1934, as amended (Act) 4 , must cease immediately, and could subject him to significant forfeitures. 5 Mr. Angeles did not respond to the Notice. III. DISCUSSION 5. We find that Mr. Angeles apparently willfully and repeatedly violated Section 301 of the Act. 6 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 without a license granted by the Commission. On February 11, 2015, and August 31, 2015, agents from the New York Office determined that an unlicensed radio station operated on 91.9 MHz from Mr. Angeles’ residence. Mr. Angeles was warned by the Commission that such unlicensed operations violated the Act. As a result, we find Mr. Angeles apparently willfully and repeatedly violated Section 301 of the Act by operating an unlicensed radio station. 6. 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. 7 Here, Section 503(b)(2)(D) of the Act authorizes us to assess a forfeiture against Mr. Angeles of up to $16,000 for each day of a continuing violation, up to a statutory maximum of $122,500 for a single act or failure to act. 8 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 such other matters as justice may require.” 9 In addition, the Commission has established forfeiture guidelines; they establish base 3 The website for “La Raza 91.9 FM” (http://www.larazanj.com) includes a copyright mark and the statement “La Raza 91.9 FM is a register mark of Mr. Ivan Angeles” (accessed on Sept. 23, 2015). 4 47 U.S.C. § 301. 5 Ivan Angeles, Notice of Unlicensed Operation (August 31, 2015) (on file in EB-FIELDNER-15-00019896). 6 47 U.S.C. § 301. 7 47 U.S.C. § 503(b). 8 See 47 U.S.C. § 503(b)(2)(D); 47 C.F.R. § 1.80(b)(7). These amounts reflect inflation adjustments to the forfeitures specified in Section 503(b)(2)(D) ($10,000 per violation or per day of a continuing violation and $75,000 per any single act or failure to act). The Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. No. 101- 410, 104 Stat. 890, as amended by the Debt Collection Improvement Act of 1996, Pub. L. No. 104-134, Sec. 31001, 110 Stat. 1321, requires the Commission to adjust its forfeiture penalties periodically for inflation. See 28 U.S.C. § 2461 note (4). The Commission most recently adjusted its penalties to account for inflation in 2013. See Amendment of Section 1.80(b) of the Commission’s Rules, Adjustment of Civil Monetary Penalties to Reflect Inflation, Order, 28 FCC Rcd 10785 (Enf. Bur. 2013); see also Inflation Adjustment of Monetary Penalties, 78 Fed. Reg. 49,370-01 (Aug. 14, 2013) (setting Sept. 13, 2013, as the effective date for the increases). 9 47 U.S.C. § 503(b)(2)(E). Federal Communications Commission DA 15-1071 3 penalties for certain violations and identify criteria that we consider when determining the appropriate penalty in any given case. 10 Under these guidelines, we may adjust a forfeiture upward for violations that are egregious, intentional, or repeated, or that cause substantial harm or generate substantial economic gain for the violator. 11 7. Section 1.80(b) of the Rules sets a base forfeiture of $10,000 for operation without an instrument of authorization. 12 We have discretion, however, to depart from these guidelines, taking into account the particular facts of each individual case. 13 We find that the violations here warrant a proposed forfeiture above the base amount. On multiple occasions, Mr. Angeles was issued warnings explaining that unlicensed operation of a radio station violated the law and could subject him to further enforcement action, including a substantial monetary forfeiture. Despite having received these warnings, Mr. Angeles continued to operate the unlicensed radio station. The fact that Mr. Angeles continued to operate an unlicensed station after being put on notice that his actions contravened the Act, the Rules, and related Commission orders demonstrates a deliberate disregard for the Commission’s authority and requirements. Thus, we find that an upward adjustment in the forfeiture amount of $5,000 is warranted. 14 After applying the Forfeiture Policy Statement, Section 1.80 of the Rules, and the statutory factors, we propose a total forfeiture of $15,000, for which Mr. Angeles is apparently liable. IV. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act 15 and Section 1.80 of the Rules, 16 Ivan Angeles is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of fifteen thousand dollars ($15,000) for willful and repeated violations of Section 301 of the Act. 17 9. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules, 18 within thirty (30) calendar days of the release date of this Notice of Apparent Liability for Forfeiture, Ivan Angeles SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture consistent with paragraph 13 below. 10 47 C.F.R. § 1.80(b)(8), Note to paragraph (b)(8). 11 Id. 12 47 C.F.R. § 1.80(b). 13 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, 17098–99, para. 22 (1997) (noting that “[a]lthough we have adopted the base forfeiture amounts as guidelines to provide a measure of predictability to the forfeiture process, we retain our discretion to depart from the guidelines and issue forfeitures on a case-by-case basis, under our general forfeiture authority contained in Section 503 of the Act”) (Forfeiture Policy Statement), recons. denied, Memorandum Opinion and Order, 15 FCC Rcd 303 (1999). 14 See Robert Brown, Memorandum Opinion and Order, 27 FCC Rcd 6975 (Enf. Bur. 2012), aff’g, Forfeiture Order, 26 FCC Rcd 6854 (Enf. Bur. 2011), aff’g, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 13740 (Enf. Bur. 2010) (upwardly adjusted proposed forfeiture by $5,000 because violator operated an unlicensed radio station after receiving a written warning that such action violated the Act and Rules); Loyd Morris, Memorandum Opinion and Order, 27 FCC Rcd 6979 (Enf. Bur. 2012), aff’g, Forfeiture Order, 26 FCC Rcd 6856 (Enf. Bur. 2011), aff’g, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 13736 (Enf. Bur. 2010) (same). 15 47 U.S.C. § 503(b). 16 47 C.F.R. § 1.80. 17 47 U.S.C. § 301. 18 47 C.F.R. § 1.80. Federal Communications Commission DA 15-1071 4 10. Payment of the forfeiture must be made by check or similar instrument, wire transfer, or credit card, and must include the NAL/Account Number and FRN referenced above. Ivan Angeles shall send electronic notification of payment to NER-Response@fcc.gov on the date said payment is made. Regardless of the form of payment, a completed FCC Form 159 (Remittance Advice) must be submitted. 19 When completing the FCC Form 159, enter the Account Number in block number 23A (call sign/other ID) and enter the letters “FORF” in block number 24A (payment type code). Below are additional instructions that should be followed based on the form of payment selected: • Payment by check or money order must be made payable to the order of the Federal Communications Commission. Such payments (along with the completed Form 159) must be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197- 9000, or sent via overnight mail to U.S. Bank – Government Lockbox #979088, SL-MO-C2- GL, 1005 Convention Plaza, St. Louis, MO 63101. • Payment by wire transfer must be made to ABA Number 021030004, receiving bank TREAS/NYC, and Account Number 27000001. To complete the wire transfer and ensure appropriate crediting of the wired funds, a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on the same business day the wire transfer is initiated. • Payment by credit card must be made by providing the required credit card information on FCC Form 159 and signing and dating the Form 159 to authorize the credit card payment. The completed Form 159 must then be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank – Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. 11. Any request for making full payment over time under an installment plan should be sent to: Chief Financial Officer—Financial Operations, Federal Communications Commission, 445 12th Street, SW, Room 1-A625, Washington, DC 20554. 20 Questions regarding payment procedures should be directed to the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov. 12. 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 1.16 and 1.80(f)(3) of the Rules. 21 The written statement must be mailed to the Federal Communications Commission, Enforcement Bureau, Northeast Region, New York Office, 201 Varick Street, Suite 1151, New York, NY 10014, and must include the NAL/Account Number referenced in the caption. The statement must also be e-mailed to NER-Response@fcc.gov. 13. 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; 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. 19 An FCC Form 159 and detailed instructions for completing the form may be obtained at http://www.fcc.gov/Forms/Form159/159.pdf. 20 See 47 C.F.R. § 1.1914. 21 47 C.F.R. §§ 1.16, 1.80(f)(3). Federal Communications Commission DA 15-1071 5 14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for Forfeiture shall be sent by first class mail and certified mail, return receipt requested, to Ivan Angeles at his address of record. FEDERAL COMMUNICATIONS COMMISSION Stephen Maguire District Director New York Office Northeast Region Enforcement Bureau