**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

) File No. EB-03-NY-125

)

L.A.C.A., State of New York, Inc. )

) NAL/Acct. No. 200432380007

Bronx, NY )

) FRN: 0007 8304 58

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Released: February 24, 2004**

By the District Director, New York Office, Enforcement Bureau:

# I. INTRODUCTION

1\. In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
find that L.A.C.A., State of New York, Inc. ("L.A.C.A.") has apparently
violated Section 301 of the Communications Act of 1934, as amended,
("Act")[^1], by operating an unlicensed radio transmitter on the
frequencies 96.1 MHz and 96.5 MHz. We conclude that L.A.C.A. is
apparently liable for a forfeiture in the amount of ten thousand dollars
(\$10,000).

###### II. BACKGROUND

2.  On June 19, 2003, the New York Office received complaints about an
    illegal broadcast station located in Bronx, NY, operating on the
    frequency 96.1 MHz, and causing interference to a FCC licensed radio
    station in New York, NY, operating on the frequency 96.3 MHz.

3.  On June 21, 2003, a Commission agent, using a mobile
    direction-finding vehicle, monitored the frequency 96.1 MHz in
    Bronx, NY. The agent observed an unauthorized radio broadcast on
    96.1 MHz, and positively determined the source of the broadcast to a
    FM broadcast antenna on the roof of 1112 Garrison Avenue, Bronx,
    NY 10474. The agent then conducted a station inspection with Rev.
    Fernando Rodriguez, president of L.A.C.A., who acknowledged the
    operation of the unlicensed radio station. The agent advised Rev.
    Rodriguez that the station on 96.1 MHz was causing interference to
    an FCC licensed station operating on 96.3 MHz. There was no evidence
    of a Commission authorization for this operation in Bronx, NY.

4.  On June 23, 2003, the New York Office sent a Warning Letter, by Fax,
    First Class Mail and Certified Mail Return Receipt Requested, to
    L.A.C.A. for unlicensed operation on the frequency 96.1 MHz. In a
    June 25, 2003, telephone call with a Commission agent, Rev.
    Rodriguez acknowledged receipt of the faxed copy of the Warning
    Letter. The New York Office did not receive a written reply to the
    Warning Letter.

5.  On June 26, 2003, a Commission agent, using a mobile
    direction-finding vehicle, monitored the frequency 96.1 MHz in
    Bronx, NY, observed unauthorized radio broadcast on 96.1 MHz, and
    positively determined the source of the broadcast to a FM broadcast
    antenna on the roof of 1112 Garrison Avenue, Bronx, NY 10474.

6.  On August 4, 2003, the New York Office received a fax complaint
    letter from an FCC licensed station, in New York, NY, concerning
    interference to their broadcast on 96.3 MHz from a station in Bronx,
    NY, transmitting on 96.1 MHz.

7.  On August 6, 2003, an agent from the FCC New York Office contacted
    Rev. Rodriguez by telephone and advised him of the complaint of
    interference being caused from a station operating on 96.1 MHz in
    Bronx, NY.

8.  On September 22, 2003, the New York Office received another fax
    complaint letter from a FCC licensed station in New York, NY,
    concerning interference to their broadcast signal on 96.3 MHz, from
    a station in Bronx, NY, transmitting on 96.5 MHz.

9.  On September 22, 2003, Commission agents, using a mobile
    direction-finding vehicle, monitored the frequency 96.5 MHz in the
    Bronx, NY, and observed an unauthorized radio broadcast on 96.5 MHz,
    and positively determined the source of the broadcast to a FM
    broadcast antenna on the roof of 1112 Garrison Avenue, Bronx, NY
    10474.

10. On September 27, 2003, Commission agents, using a mobile
    direction-finding vehicle, monitored the frequency 96.5 MHz in
    Bronx, NY, and observed an unauthorized radio broadcast on 96.5 MHz,
    and positively determined the source of the broadcast to a FM
    broadcast antenna on the roof of 1112 Garrison Avenue, Bronx,
    NY 10474. The agents conducted a station inspection with Rev.
    Rodriguez and advised him of the station operation that was again
    causing interference to an FCC licensed station operating on 96.3
    MHz. There was no evidence of a Commission authorization for this
    operation in Bronx, NY.

### 

### III. DISCUSSION

11. Section 301 of the Act sets forth generally 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.

12. Based on the evidence before us, we find that L.A.C.A. willfully[^2]
    and repeatedly[^3] operated radio transmission equipment on: 96.1
    MHz on June 21, 2003 and June 26, 2003; 96.5 MHz on September 22,
    2003 and September 27, 2003, without a Commission authorization, in
    violation of Section 301 of the Act. A review of Commission's
    records showed that there was no evidence of a Commission
    authorization to operate this station on the frequencies, 96.1 MHz
    or 96.5 MHz in Bronx, NY.

13. *The Commission's Forfeiture Policy Statement and Amendment of
    Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines*,
    12 FCC Rcd 17087, 17113 (1997), *recon. denied*, 15 FCC Rcd
    303(1999) ("*Forfeiture Policy Statement*")[^4], sets the base
    forfeiture amount for operation without an instrument of
    authorization for the service at \$10,000. In assessing the monetary
    forfeiture amount, we must take into account the statutory factors
    set forth in Section 503(b)(2)(D) of the Act[^5], which include 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. Applying the *Forfeiture Policy Statement* and the
    statutory factors to the instant case and applying the inflation
    adjustments, we believe that a ten thousand dollar (\$10,000)
    monetary forfeiture is warranted.

##### IV. ORDERING CLAUSES

14. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
    Act[^6] and Sections 0.111, 0.311 and 1.80 of the Commission's
    Rules[^7], L.A.C.A. is hereby NOTIFIED of their APPARENT LIABILITY
    FOR A FORFEITURE in the amount of ten thousand dollars (\$10,000)
    for willfully and repeatedly violating Section 301 of the Act.

15. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
    Commission\'s Rules, within thirty days of the release date of this
    NOTICE OF APPARENT LIABILITY, L.A.C.A 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 may be made by mailing a check or similar
    instrument, payable to the order of the Federal Communications
    Commission, to the Forfeiture Collection Section, Finance Branch,
    Federal Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482. The payment should note the NAL/Acct. No. 200432380007
    and FRN: 0007 8304 58.

17. Any response to this NAL must be mailed to Federal Communications
    Commission, Spectrum Enforcement Division, 445 12th Street, S.W.,
    Washington, D.C. 20554, and MUST INCLUDE THE NAL/Acct. No.
    200432380007.

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 under an installment plan should be sent to: Chief,
    Revenue and Receivable Operations Group, 445 12th Street, S.W.,
    Washington, D.C. 20554.[^8]

20. Under the Small Business Paperwork Relief Act of 2002, Pub L. No.
    107-198, 116 Stat. 729 (June 28, 2002), the FCC is engaged in a
    two-year tracking process regarding the size of entities involved in
    forfeitures. If you qualify as a small entity and if you wish to be
    treated as a small entity for tracking purposes, please so certify
    to us within thirty (30) days of this NAL, either in your response
    to the NAL or in a separate filing to be sent to the Spectrum
    Enforcement Division. Your certification should indicate whether
    you, including your parent entity and its subsidiaries, meet one of
    the definitions set forth in the list provided by the FCC's Office
    of Communications Business Opportunities (OCBO) set forth in
    Attachment A of this Notice of Apparent Liability. This information
    will be used for tracking purposes only. Your response or failure to
    respond to this question will have no effect on your rights and
    responsibilities pursuant to Section 503(b) of the Communications
    Act. If you have questions regarding any of the information
    contained in Attachment A, please contact OCBO at (202) 418-0990.

21. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
    LIABILITY shall be sent by Certified Mail Return Receipt Requested
    to L.A.C.A., 1112 Garrison Avenue, Bronx, NY 10474.

FEDERAL COMMUNICATIONS COMMISSION

Daniel W. Noel

District Director

New York Office

Attachment A -- FCC Condensed List of Small Entities, October 2002

[^1]: 47 U.S.C. § 301.

[^2]: Section 312(f)(1) of the Act, 47 U.S.C. 312(f)(1), which applies
    to 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
    ...." *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^3]: Section 312(f)(2), which also applies to Section 503(b), provides:
    \[t\]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.

[^4]: 47 C.F.R. § 1.80.

[^5]: ^?^47 U.S.C. § 503(b)(2)(D).

[^6]: 47 U.S.C. § 503(b).

[^7]: 47 C.F.R. §§ 0.111, and 0.311.

[^8]: See 47 C.F.R. § 1.1914.