**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+---------------------------------+---+----------------------------------+
| In the Matter of                | ) | File Number: EB-07-NY-067        |
|                                 |   |                                  |
| Nicolas Paula                   | ) | NAL/Acct. No: 200832380001       |
|                                 |   |                                  |
| Bronx, New York                 | ) | FRN: 0016 3880 01                |
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|                                 | ) |                                  |
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|                                 | ) |                                  |
|                                 |   |                                  |
|                                 | ) |                                  |
|                                 |   |                                  |
|                                 | ) |                                  |
+---------------------------------+---+----------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE {#notice-of-apparent-liability-for-forfeiture .unnumbered}

Released: November 6, 2007

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

# INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Nicolas Paula apparently willfully and repeatedly violated
    Sections 301 of the Communications Act of 1934, as amended ("Act"),
    by operating an unlicensed radio transmitter on the frequency 94.5
    MHz, and willfully violated Section 303(n) of the Act by failing to
    permit a station inspection.[^1] We conclude, pursuant to Section
    503(b) of Act,[^2] that Nicolas Paula is apparently liable for a
    forfeiture in the amount of seventeen thousand dollars (\$17,000).

# BACKGROUND

2.  In February, 2007, the FCC's Enforcement Bureau received several
    complaints from New York City area radio broadcasters of an
    unlicensed station operating on 94.5 MHz. The complaints were
    subsequently forwarded to the Enforcement Bureau's New York Office
    for further investigation.

3.  On March 3, 2007, Commission agents, using a mobile
    direction-finding vehicle, monitored the frequency 94.5 MHz in
    Bronx, New York. The agents observed a radio broadcast on 94.5 MHz
    and identified the source of the transmissions as an FM broadcasting
    antenna mounted on the roof of an apartment building at 317 East
    178^th^ Street, Bronx, NY. The agents took field strength
    measurements and determined that the signals being broadcast
    exceeded the limits for operation under Part 15 of the Commission's
    Rules ("Rules")[^3] and therefore required a license. An agent
    searched Commission databases and found no evidence of a Commission
    authorization for this operation on 94.5 MHz in Bronx, New York.

4.  After completing the field strength measurements on March 3, 2007,
    the agents returned to 317 East 178^th^ Street and observed the FM
    antenna mounted on the roof and antenna coaxial cable that ran into
    a window of Apartment 5B of 317 East 178^th^ Street. The agents rang
    the doorbell to apartment 5B and no one answered. The agents left a
    hand-delivered Notice of Unlicensed Operation ("NOUO") under the
    door of Apartment 5B. The NOUO warned the resident that operation of
    the unlicensed radio station on 94.5 MHz violated 47 U.S.C. § 301;
    outlined the potential penalties for operating an unlicensed station
    in violation of 47 U.S.C. § 301, including seizure of the equipment,
    fines and imprisonment; and directed the operator of the station to
    terminate operation of the unlicensed station immediately. The NOUO
    offered the station operator ten days to reply. The New York Office
    did not receive a reply to the NOUO.

5.  On March 14, 2007, a Commission agent, using a mobile
    direction-finding vehicle, monitored the frequency 94.5 MHz in
    Bronx, New York. The agents observed a radio broadcast on 94.5 MHz
    and identified the source of the transmissions as an FM broadcasting
    antenna mounted on the roof of an apartment building at 317 East
    178^th^ Street, Bronx, NY. The agent took field strength
    measurements and determined that the signals being broadcast
    exceeded the limits for operation under Part 15 of the Rules and
    therefore required a license. An agent searched Commission databases
    and found no evidence of a Commission authorization for this
    operation on 94.5 MHz in Bronx, New York.

6.  After completing the field strength measurements on March 14, 2007,
    the agent returned to 317 East 178^th^ Street and observed the FM
    antenna mounted on the roof and antenna coaxial cable that ran into
    a window of Apartment 5B of 317 East 178^th^ Street. The agent went
    to Apartment 5B where he spoke to a resident of the apartment who
    identified himself as Nicolas Paula. Nicolas Paula stated that he
    was the operator of the station and owner of the transmitting
    equipment. Mr. Paula refused to turn off the transmitter and refused
    to allow inspection of the station. The agent orally warned Mr.
    Paula of the consequences of operating an unlicensed broadcast
    station and failing to permit an inspection.

7.  On March 31, 2007, Commission agents, using a mobile
    direction-finding vehicle, monitored the frequency 94.5 MHz in
    Bronx, New York. The agents observed a radio broadcast on 94.5 MHz
    and identified the source of the transmissions as an FM broadcasting
    antenna mounted on the roof of an apartment building at 317 East
    178^th^ Street, Bronx, NY. The agents took field strength
    measurements and determined that the signals being broadcast
    exceeded the limits for operation under Part 15 of the Rules and
    therefore required a license. An agent searched Commission databases
    and found no evidence of a Commission authorization for this
    operation on 94.5 MHz in Bronx, New York.

8.  On April 6, 2007, the New York Office sent a Notice of Unlicensed
    Operation (NOUO), by First Class and Certified Mail Return Receipt
    Requested, to Nicolas Paula at 317 East 178^th^ Street, Apartment
    5B, Bronx, NY 10457. The NOUO warned Paula that operation of the
    unlicensed radio station on 94.5 MHz violated 47 U.S.C. § 301;
    outlined the potential penalties for operating an unlicensed station
    in violation of 47 U.S.C. § 301, including seizure of the equipment,
    fines and imprisonment; and directed the operator of the station to
    terminate operation of the unlicensed station immediately. The NOUO
    offered Paula ten days to reply. The New York Office did not receive
    a reply to the NOUO. On May 7, 2007, the certified letter was
    returned undelivered to the New York Office by the U.S. Postal
    Service. The letter sent by First Class Mail was not returned.

# DISCUSSION

9.  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. The term "willful" as used in
    Section 503(b) of the Act has been interpreted to mean simply that
    the acts or omissions are committed knowingly.[^4] The term
    "repeated" means the commission or omission of such act more than
    once or for more than one day.[^5]

10. 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 except under and in
    accordance with the Act and with a license granted under the
    provisions of the Act. On March 3, 14, and 31, Nicolas Paula
    operated radio transmission equipment on the frequency 94.5 MHz from
    his residence at 317 East 178^th^ Street, Apartment 5B, Bronx, NY,
    without the required Commission authorization. Paula admitted to
    operating the station, but continued to operate the station
    notwithstanding the issuance of two Notices of Unlicensed Operation
    and an oral warning. We therefore find that Paula's operation of his
    station without a license was willful. Because the unlicensed
    operation continued for more than one day, the violation was
    repeated.

11. Section 303(n) states that the Commission has authority to inspect
    all radio installations associated with stations required to be
    licensed to ascertain whether, in operation, they conform to the
    requirements of the rules and regulations of the Commission. On
    March 14, 2007, agents orally warned Paula that failure to allow an
    inspection of his station could subject him to enforcement action.
    Notwithstanding this warning, Paula refused to allow agents to
    inspect the station, therefore, his violation was willful.

12. Based on the evidence before us, we find that Nicolas Paula
    apparently willfully and repeatedly violated Section 301 of the Act
    by operating radio transmission equipment on 94.5 MHz in Bronx, NY
    on March 3, 14, and 31, 2007 without a Commission authorization, and
    willfully violated Section 303(n) of the Act by failing to allow an
    inspection of his station on March 14, 2007.

13. Pursuant to *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines* (\"*Forfeiture Policy Statement*\"), and Section 1.80 of
    the Rules, the base forfeiture amount for operation without an
    instrument of authorization is \$10,000, and the base forfeiture
    amount for failure to permit a station inspection is \$7,000.[^6] In
    assessing the monetary forfeiture amount, we must also take into
    account the statutory factors set forth in Section 503(b)(2)(E) of
    the Act, which include the nature, circumstances, extent, and
    gravity of the violations, and with respect to the violator, the
    degree of culpability, and history of prior offenses, ability to
    pay, and other such matters as justice may require.[^7] Applying the
    *Forfeiture Policy Statement*, Section 1.80, and the statutory
    factors to the instant case, we conclude that Nicolas Paula is
    apparently liable for a \$17,000 forfeiture.

# ORDERING CLAUSES

14. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Communications Act of 1934, as amended, and Sections 0.111,
    0.311, 0.314 and 1.80 of the Commission\'s Rules, Nicolas Paula is
    hereby **NOTIFIED** of this **APPARENT LIABILITY FOR A FORFEITURE**
    in the amount of seventeen thousand dollars (\$17,000) for
    violations of Sections 301 and 303(n) of the Act.[^8]

15. **IT IS FURTHER ORDERED** that, pursuant to Section 1.80 of the
    Commission\'s Rules, within thirty (30) days of the release date of
    this Notice of Apparent Liability for Forfeiture, Nicolas Paula
    **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 must be made by check or similar
    instrument, payable to the order of the Federal Communications
    Commission. The payment must include the NAL/Acct. No. and FRN No.
    referenced above. Payment by check or money order may be mailed to
    Federal Communications Commission, P.O. Box 358340, Pittsburgh, PA
    15251-8340. Payment by overnight mail may be sent to Mellon Bank /LB
    358340, 500 Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment
    by wire transfer may be made to ABA Number 043000261, receiving bank
    Mellon Bank, and account number 911-6106.

17. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Northeast Region, New York Office,
    201 Varick Street, Suite 1151, New York, NY 10014, and must include
    the NAL/Acct. No. referenced in the caption.

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 for Forfeiture under an installment plan should be sent
    to: Associate Managing Director, Financial Operations, 445 12th
    Street, S.W., Room 1A625, Washington, D.C. 20554.[^9]

20. **IT IS FURTHER ORDERED** that a copy of this Notice of Apparent
    Liability for Forfeiture shall be sent by Certified Mail, Return
    Receipt Requested, and regular mail, to Nicolas Paula at his address
    of record.

FEDERAL COMMUNICATIONS COMMISSION

Daniel W. Noel

District Director

New York Office

Northeast Region

Enforcement Bureau

[^1]: 47 U.S.C. §§ 301, 303(n).

[^2]: 47 U.S.C. § 503(b).

[^3]: 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 μV/m at three
    meters. 47 C.F.R. § 15.239. Measurements showed that the field
    strength of the station's signal exceeded the permissible level for
    a non-licensed Part 15 transmitter.

[^4]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies
    to violations for which forfeitures are assessed under 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 or
    any rule or regulation of the Commission authorized by this Act...."
    *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387 (1991).

[^5]: Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
    applies to violations for which forfeitures are assessed under
    Section 503(b) of the Act, provides that "\[t\]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."

[^6]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^7]: 47 U.S.C. § 503(b)(2)(E).

[^8]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80, 47
    U.S.C. §§ 301, 303(n).

[^9]: *See* 47 C.F.R. § 1.1914.