**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Richard Muñoz ) File No. EB-02-TP-114

2132 Shadowlawn Drive ) NAL/Acct. No. 200232700011

Naples, Florida 34112 ) FRN 0007-0496-61

)

## FORFEITURE ORDER 

**Adopted: October 22, 2002 Released: October 24, 2002**

By the Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of ten thousand dollars (\$10,000) to
    Richard Muñoz for willful and repeated violation of Section 301 of
    the Communications Act of 1934, as amended ("Act").[^1] The noted
    violation involves Mr. Muñoz's operation of a radio station on 105.1
    MHz without Commission authorization.

2.  On June 5, 2002, the Commission's Tampa, Florida Field Office
    ("Tampa Office") issued a *Notice of Apparent Liability for
    Forfeiture* ("*NAL*") to Mr. Muñoz for a forfeiture in the amount of
    ten thousand dollars (\$10,000).[^2] Mr. Muñoz filed a response to
    the *NAL* on July 8, 2002.

####  II. BACKGROUND

3.  On April 20, 2002, agents from the Tampa Office investigated a
    complaint alleging that an unlicensed radio station was transmitting
    on frequency 105.1 MHz in the Naples, Florida area. A search of
    Commission records showed that there was no FM radio station
    licensed on 105.1 MHz in Naples, Florida. Using a mobile direction
    finding vehicle, the agents detected an FM radio station operating
    on 105.1 MHz and traced the station to the Tree of Life Church
    located at 2132 Shadowlawn Drive, Naples, Florida. The agents took
    field strength measurements of the station's signal and determined
    that the station required a license to operate.[^3] The agents
    interviewed several witnesses at the church who identified Richard
    Muñoz as the operator of the radio station transmitting on 105.1
    MHz. The witnesses also provided the agents a business card
    identifying Richard Muñoz as the pastor of a Spanish-language
    ministry called Mission Possible Ministries and a brochure
    advertising a radio program called "Mision Posible 105.1 MHz."
    Immediately thereafter, the agents inspected the station inside the
    church and found studio and transmitting equipment in operation. The
    agents interviewed Mr. Muñoz, who admitted that his ministry owned
    the radio station equipment and operated the station. The agents
    asked Mr. Muñoz if he had a license for the station and he replied
    that a friend had submitted an application to the FCC and had
    advised him that he could operate the station while the paperwork
    was being processed. The agents advised Mr. Muñoz that he could not
    operate the station without a license and directed him to terminate
    the unlicensed operation. Mr. Muñoz requested additional time to
    notify his listeners that the station had to go off the air. After
    the agents again advised Mr. Muñoz that he could not operate the
    station without a license and directed him to take the station off
    the air, Mr. Muñoz directed another person to turn off the
    transmitter. The agents then hand delivered to Mr. Muñoz a warning
    letter which advised him that operation of a radio station without a
    license violates Section 301 of the Act, ordered him to cease
    operation of the unlicensed station immediately, and listed the
    penalties for unauthorized operation of a radio station.

4.  On April 30, 2002, the Tampa Office received a complaint alleging
    that an unlicensed FM station operating on 105.1 MHz in Naples,
    Florida was causing interference to the reception of an FM broadcast
    station licensed to operate in Naples, Florida. On May 14, 2002,
    using a mobile direction finding vehicle, agents from the Tampa
    Office again detected an FM radio station operating on 105.1 MHz and
    traced the station to the Tree of Life Church located at 2132
    Shadowlawn Drive, Naples, Florida. The agents took field strength
    measurements of the station's signal and determined that the station
    required a license to operate.[^4] On May 17, 2002, the Tampa Office
    issued a warning letter to Andrew DeLong, the head pastor of the
    Tree of Life Church. The warning letter advised Mr. DeLong that
    operation of a radio station without a license violates Section 301
    of the Act, ordered him to cease operation of the unlicensed station
    transmitting on 105.1 MHz immediately, and listed the penalties for
    unauthorized operation of a radio station. On May 24, 2002, the
    Tampa Office received a letter from Mr. DeLong. In the letter, Mr.
    DeLong stated that Richard Muñoz was the operator of the radio
    station transmitting on 105.1 MHz, that Mr. Muñoz leased space for
    the radio station from the Tree of Life Church, and that the Tree of
    Life Church had no control over the operations of the radio station.
    Mr. DeLong further stated that after the agents' inspection of the
    station on April 20, 2002, Mr. Muñoz told him that it was a simple
    misunderstanding or a misplacement of the paperwork and returned the
    station to the air a short time later. Finally, Mr. DeLong stated
    that after receiving the May 17, 2002, warning letter, he spoke with
    Mr. Muñoz and Mr. Muñoz shut down the radio station.

5.  On June 5, 2002, the Tampa Office issued an *NAL* for a \$10,000
    forfeiture to Richard Muñoz for operating a radio station without a
    license in willful and repeated violation of Section 301 of the Act.
    In his response to the *NAL*, Mr. Muñoz admits that he operated the
    unlicensed station on 105.1 MHz, but requests cancellation of the
    forfeiture. Mr. Muñoz states that his church, Mission Possible
    Ministries, had agreed to purchase 50% of the radio station for
    \$15,000 from Daniel Morisma approximately eight months earlier. Mr.
    Muñoz maintains that Mr. Morisma told him that there was an
    application for the radio station on file at the FCC and that the
    station could go on the air while they were waiting for the
    application to be processed. Mr. Muñoz states that when the FCC
    agents came to the station on April 20, 2002, and directed him to
    shut down the unlicensed operation, he initially shut the station
    down but returned the station to the air a short time later after
    speaking with Mr. Morisma. According to Mr. Muñoz, Mr. Morisma told
    him that Mr. Morisma would get him the paperwork, that the station
    should go back on the air because the FCC would not visit again, and
    that if the FCC did visit again, it would issue a second warning
    before proceeding with any penalties. Mr. Muñoz asserts that the
    station had been using the time between the FCC's first and second
    visit to explain to listeners that they would soon be off the air
    because they had been lied to and scammed and that the station was a
    week away from dismantling when the FCC visited the station the
    second time. Finally, Mr. Muñoz submits that neither he nor his
    church has the funds to pay the \$10,000 forfeiture.

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III. **DISCUSSION**

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6.  The forfeiture amount in this case was assessed in accordance with
    Section 503(b) of the Act,[^5] Section 1.80 of the Commission's
    Rules ("Rules"),[^6] 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) ("*Policy Statement*"). In examining
    Mr. Muñoz'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.[^7]

7.  Section 301 of the Act prohibits radio operation "except under and
    in accordance with this Act and with a license in that behalf
    granted under the provisions of this Act."[^8] Mr. Muñoz does not
    dispute that he operated a radio station without a license on April
    20, 2002, and again on May 14, 2002. Accordingly, we conclude that
    Mr. Muñoz willfully and repeatedly violated Section 301 of the Act.

8.  Regarding Mr. Muñoz's explanation for the violation, we think that
    it is unfortunate that Mr. Muñoz may have been duped into believing
    that there was an application for the radio station on file with the
    FCC and that he could put the station on the air while the
    application was being processed. However, Mr. Muñoz clearly knew
    following the inspection of the station by FCC agents on April 20
    that the station was unlicensed. The agents orally warned Mr. Muñoz
    twice that the station was unlicensed and had to be shut down. The
    agents also gave Mr. Muñoz a written warning which advised him that
    operation of a radio station without a license violates Section 301
    of the Act, ordered him to cease operation of the unlicensed station
    immediately, and listed the penalties for failure to do so. Mr.
    Muñoz simply chose to ignore these warnings. That Mr. Muñoz may have
    believed that the FCC would issue a second warning before issuing a
    forfeiture or other penalty does not justify his continued violation
    of Section 301 or provide a basis for reduction of the forfeiture
    amount. Moreover, while Mr. Muñoz claims that the station was using
    the time between the FCC's first and second visit to notify
    listeners that the station had to go off the air, this does not
    justify the continued violation of Section 301. Under these
    circumstances, we conclude that no reduction of the forfeiture on
    this basis is warranted.

9.  Mr. Muñoz also maintains that neither he nor his church has the
    funds to pay a \$10,000 forfeiture. However, as stated in the *NAL*,
    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. Mr. Muñoz provided no financial
    documentation in support of his request for cancellation of the
    forfeiture and therefore we have no basis upon which to analyze his
    inability to pay claim.

10. We have examined Mr. Muñoz's response to the *NAL* pursuant to the
    statutory factors above, and in conjunction with the *Policy
    Statement* as well. As a result of our review, we conclude that Mr.
    Muñoz willfully and repeatedly violated Section 301 of the Act and
    that he has provided no basis for rescission or reduction of the
    \$10,000 forfeiture.

####  IV. ORDERING CLAUSES

11. Accordingly, **IT IS ORDERED** that, pursuant to Section 503 of the
    Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^9]
    Richard Muñoz **IS LIABLE FOR A MONETARY FORFEITURE** in the amount
    of ten thousand dollars (\$10,000) for willful and repeated
    violation of Section 301 of the Act.

12. 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.[^10] Payment may be made by
    mailing a check or similar instrument, payable to the order of the
    Federal Communications Commission, to the Federal Communications
    Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
    payment should reference NAL/Acct. No. 200232700011 and FRN
    0007-0496-61. Requests for full payment under an installment plan
    should be sent to: Chief, Revenue and Receivables Operations Group,
    445 12th Street, S.W., Washington, D.C. 20554.[^11]

13. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by Certified Mail Return Receipt Requested to Richard Muñoz, 2132
    Shadowlawn Drive, Naples, Florida 34112.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 U.S.C. § 301.

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200232700011 (Enf. Bur., Tampa Office, released June 5, 2002).

[^3]: Under Section 15.239 of the Commission's Rules, 47 C.F.R. §
    15.239, non-licensed broadcasting in the 88-108 MHz band is
    permitted only if the field strength of the transmissions does not
    exceed 250 µV/m at three meters. The agents' measurements indicated
    that the station's field strength extrapolated to three meters was
    22,549,576 µV/m. Thus, the station operating on 105.1 MHz exceeded
    the permissible level for a non-licensed low-power radio transmitter
    by 90,198 times.

[^4]: The agents' measurements indicated that the station's field
    strength extrapolated to three meters was 20,646,659 µV/m. Thus, the
    station operating on 105.1 MHz exceeded the permissible level for a
    non-licensed low-power radio transmitter by 82,587 times.

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. § 1.80.

[^7]: 47 U.S.C. § 503(b)(2)(D).

[^8]: 47 U.S.C. § 301.

[^9]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^10]: 47 U.S.C. § 504(a).

[^11]: *See* 47 C.F.R. § 1.1914.