**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

)

## MEMORANDUM OPINION AND ORDER

**Adopted: March 31, 2003 Released: April 2, 2003**

By the Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this *Memorandum Opinion and Order* ("*Order*"), we grant in part
    and deny in part the petition for reconsideration filed on November
    1, 2002, by Richard Muñoz ("Mr. Muñoz"). Mr. Muñoz seeks
    reconsideration of the *Forfeiture Order*[^1] in which the Chief,
    Enforcement Bureau ("Bureau"), found him liable for a monetary
    forfeiture in the amount of ten thousand dollars (\$10,000) for
    willful and repeated violation of Section 301 of the Communications
    Act of 1934, as amended ("Act").[^2] The noted violation involves
    Mr. Muñoz's operation of a radio station on 105.1 MHz without
    Commission authorization. For the reasons discussed below, we reduce
    the monetary forfeiture to \$2,000.

####  II. BACKGROUND

2.  On April 20, 2002, agents from the Commission's Tampa, Florida,
    District Office ("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's signal to the Tree of Life Church at 2132
    Shadowlawn Drive, Naples, Florida. The agents determined through
    field strength measurements that the station's field strength was
    90,198 times greater than the permissible level[^3] for a
    non-licensed low-power radio transmitter and that, therefore, the
    station required a license to operate.

3.  The agents immediately inspected the station and found that the
    transmitting equipment was in operation. During the inspection, the
    agents interviewed Mr. Muñoz, who admitted that he operated the
    station. When asked whether he had a license for the station, Mr.
    Muñoz replied that a friend had submitted an application to the FCC
    and advised him that he could operate the station while the
    paperwork was being processed. The agents informed Mr. Muñoz that he
    could not operate the station without a license, directed him to
    terminate the unlicensed operation and hand delivered a warning
    letter to Mr. Muñoz. The warning letter advised Mr. Muñoz that
    operation of a radio station without a license violates Section 301
    of the Act, warned him to cease operation of the unlicensed station
    immediately, and set forth 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 authorized
    FM broadcast station. 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 at 2132 Shadowlawn Drive, Naples, Florida. The
    agents determined through field strength measurements that the
    station's field strength was 82,587 times greater than the
    permissible level for a non-licensed low-power radio transmitter and
    that, therefore, the station required a license to operate.

5.  On May 17, 2002, the Tampa Office issued a warning letter to Andrew
    DeLong, head Mr. of the Tree of Life Church. On May 24, 2002, the
    Tampa Office received a letter from Mr. DeLong stating that the Tree
    of Life Church leased space for the radio station to Mr. Muñoz and
    had no control over the operation of the station. In addition, Mr.
    DeLong stated that, following the May 17, 2002, warning letter, he
    spoke with Mr. Muñoz and Mr. Muñoz shut down the radio station.

6.  On June 5, 2002, the Tampa Office issued a *NAL*[^4] 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. Mr. Muñoz responded to the *NAL* seeking cancellation of the
    proposed forfeiture. On October 24, 2002, the Bureau released a
    *Forfeiture Order* affirming the *NAL*. In response to the
    *Forfeiture Order,* Mr. Muñoz admits that he operated the unlicensed
    station on 105.1 MHz and pledges that there will be no recurrence.
    He requests cancellation of the forfeiture on basis of contrition,
    his reliance on misleading advice from another unlicensed religious
    broadcaster and his inability to pay the forfeiture. To support his
    inability to pay claim, Mr. Muñoz submits copies of his 1999, 2000
    and 2001 federal income tax returns.

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III. **DISCUSSION**

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7.  Mr. Muñoz's pledge not to repeat his violations of Section 301 and
    his contrition do not mitigate his violations. As the Commission
    stated in *Seawest Yacht Brokers*, 9 FCC Rcd 6099, 6099 (1994),
    "corrective action taken to come into compliance with Commission
    rules or policy is expected, and does not nullify or mitigate any
    prior forfeitures or violations."[^5]

8.  Mr. Muñoz argues that his violations resulted from his reliance on
    misleading advice. Mr. Muñoz made a similar argument in his response
    to the *NAL*.[^6] We rejected that argument in the *Forfeiture
    Order* because after the inspection on April 20, 2002, Mr. Muñoz
    knew that his station's operation was unauthorized but despite the
    received warning he continued to operate the unlicensed station. He
    provides nothing new to support his support here, and we again
    reject it as a basis for cancellation of the forfeiture. We affirm
    the imposition of a forfeiture for Mr. Muñoz's unlicensed operation.
    However, we find that, on the basis of the financial information
    provided by Mr. Muñoz, the forfeiture should be reduced to \$2,000.

####  IV. ORDERING CLAUSES

9.  Accordingly, **IT IS ORDERED** that, pursuant to Section 405 of the
    Act[^7] and Section 1.106 of the Rules,[^8] Mr. Muñoz's petition for
    reconsideration of the October 24, 2002, *Forfeiture Order* **IS
    GRANTED** to the extent that the monetary forfeiture **IS REDUCED**
    to \$2,000 and **IS DENIED** in all other respects.

10. 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.[^9] 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.[^10]

11. **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, and to his attorney,
    Lewis H. Goldman, Esq., 45 Dudley Court, Bethesda, Maryland 20814.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 17 FCC Rcd 21132 (Enf. Bur. 2002).

[^2]: 47 U.S.C. § 301.

[^3]: Under Section 15.239 of the Commission's Rules ("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.

[^4]: *Richard Muñoz*, NAL Acct. No. 200232700011 (Enf. Bur., Tampa
    Office, rel. June 5, 2002).

[^5]: *See also AT&T Wireless Services, Inc.*, 17 FCC Rcd 21871 (2002).

[^6]: 17 FCC Rcd 21132, 21134 (Enf. Bur. 2002).

[^7]: 47 U.S.C. § 405.

[^8]: 47 C.F.R. § 1.106

[^9]: 47 U.S.C. § 504(a).

[^10]: *See* 47 C.F.R. § 1.1914.