**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

) File No. EB-02-NY-216

)

Fernando Alejandro ) NAL/Acct. No. 200332380011

Bronx, NY )

) FRN: 0007-9608-34

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

> **Released: January 10, 2003**

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

# I. INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Fernando Alejandro has apparently violated Section 301 of
    the Communications Act of 1934 ("Act") [^1], as amended, by
    operating an unlicensed radio transmitter on the frequency 95.1 MHz.
    We conclude that Fernando Alejandro is apparently liable for a
    forfeiture in the amount of ten thousand dollars (\$10,000).

###### II. BACKGROUND

2.  On September 16, 2002, the FCC New York Office received a complaint
    about an illegal broadcast station in Bronx, NY.

3.  On September 20, 2002, Commission agents, using a mobile
    direction-finding vehicle, monitored the frequency 95.1 MHz in
    Bronx, NY. The agents observed unauthorized radio broadcast on 95.1
    MHz, and identified the source of the unauthorized transmissions as
    El Fin Se Acerca Church, 2151 Jerome Avenue, Bronx, NY 10453. The
    agents observed an FM broadcast antenna on the roof of the building.
    There was no evidence of a Commission authorization for this
    operation in Bronx, NY.

4.  On October 3, 2002, Commission agents conducted a station inspection
    of the radio station, Radio Mision Evangelistica, located inside the
    church El Fin Se Acerca Church, 2151 Jerome Avenue, Bronx, NY 10453.
    An agent spoke to the pastor of the church, Mr. Fernando Alejandro,
    by telephone, and informed him he was operating an illegal radio
    station and to cease all operations. The agents left a hand
    delivered warning letter with the son of Fernando Alejandro.

5.  On October 4, 2002, a Commission agent spoke to Mr. Alejandro by
    telephone, and he acknowledged receiving the hand delivered warning
    letter. The agent also asked Mr. Alejandro about a flyer posted
    inside the radio station, Radio Mision Evangelistica, located inside
    El Fin Se Acerca Church. The flyer announced a concert being held at
    the church on October 12, 2002, presented by Radio Mision
    Evangelistica, 95.1 FM. Mr. Alejandro said he was not planning on
    broadcasting the concert on air on 95.1 MHz. The New York Office
    sent a Warning Letter, by First Class and Certified Mail, Return
    Receipt Requested, to Mr. Fernando Alejandro for unlicensed
    operation on the frequency 95.1 MHz. The New York Office did not
    receive a reply to the Warning Letter.

6.  On October 12, 2002, Commission agents, using a mobile
    direction-finding vehicle, monitored the frequency 95.1 MHz in
    Bronx, NY. The agents again observed an unauthorized radio broadcast
    on 95.1 MHz, and identified the source of the unauthorized
    transmissions as El Fin Se Acerca Church, 2151 Jerome Avenue, Bronx,
    NY 10453. The agents conducted a station inspection and spoke to Mr.
    Alejandro about the continued unlicensed operation on the frequency
    95.1 MHz. During the inspection, the agents noticed that the
    unauthorized broadcast on 95.1 MHz had ceased.

### III. DISCUSSION

7.  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. A review of Commission's records
    showed that there was no evidence of a Commission authorization to
    operate this station on the frequency, 95.1 MHz, in Bronx, NY.

8.  Based on the evidence before us, we find that, Fernando Alejandro
    was responsible for the operation of radio transmission equipment on
    95.1 MHz on September 20, 2002, and October 12, 2002, without a
    Commission authorization in willful[^2] and repeated[^3] violation
    of Section 301 of the Act.

9.  *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 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

10. 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], Fernando Alejandro is hereby NOTIFIED of his APPARENT
    LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars
    (\$10,000) for willfully violating Section 301 of the Act.

11. 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, Fernando Alejandro SHALL PAY the full
    amount of the proposed forfeiture or SHALL FILE a written statement
    seeking reduction or cancellation of the proposed forfeiture.

12. 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. 200332380011
    and FRN: 0007-9608-34.

13. Any response to this NAL must be mailed to Federal Communications
    Commission, Enforcement Bureau, Technical and Public Safety
    Division, 445 12th Street, S.W., Washington, D.C. 20554 and MUST
    INCLUDE THE NAL/Acct. No. 200332380011.

14. 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.

15. 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]

16. 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 Technical and
    Public Safety 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.

17. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
    LIABILITY shall be sent by Certified Mail, Return Receipt Requested,
    to Fernando Alejandro, El Fin Se Acerca Church, 2151 Jerome Avenue,
    Bronx, NY 10453.

FEDERAL COMMUNICATIONS COMMISSION

Daniel W. Noel

District Director

> New York Office

Attachment A-FCC 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.