After affirming it was going to uphold a forfeiture in the amount of $4000 to Jose Torres, N3TX, of Philadelphia, Pennsylvania, the FCC decided to lower the fine to $3500. The FCC issued the fine in May 2011, saying that Torres’ willful and repeated operation on an unauthorized frequency in April and June 2008 was in violation of Section 1.903(a) of the FCC’s rules. The reduction is based on the Petition for Reconsideration Torres filed in July 2011, asking that the FCC cancel or reduce the fine based on his inability to pay the full amount.

Background
On January 6, 2009, the FCC’s Philadelphia Office issued Torres a Notice of Apparent Liability for Forfeiture (NAL) for $4000 “for apparently willfully and repeatedly operating his amateur radio station on the unauthorized frequency 26.71 MHz at his residence in violation of Section 1.903(a) of the FCC’s rules.” The next month, Torres met with agents in the Philadelphia Office to respond to the findings in the NAL. According to the FCC, Torres claimed that he was not at home on April 17, 2008 and June 2, 2008 -- the dates of the alleged unauthorized operations -- but the FCC did not agree and assessed the $4000 fine.

In July 2011, Torres filed a Petition for Reconsideration seeking a cancellation or reduction of the fine, claiming that he did not operate his Amateur Radio station on 26.71 MHz and that the FCC erred in concluding that he did, nor was he at home on the dates in question. Torres also submitted financial information to the FCC in support of his request, based on his inability to pay the forfeiture amount.

The FCC Lowers the Forfeiture Amount
According to the FCC, reconsideration is appropriate only where the petitioner “either demonstrates a material error or omission in the underlying order, or raises additional facts not known or not existing until after the petitioner’s last opportunity to present such matters. A Petition for Reconsideration that reiterates arguments that were previously considered and rejected will be denied.”

In a Memorandum Opinion and Order (MO&O) issued March 19, the FCC granted Torres’ Petition in part, but also denied it in part, finding that Torres failed to demonstrate a “material error in the Forfeiture Order and reiterates arguments previously presented to and rejected by the Northeast Region [of the FCC]. We therefore deny reconsideration of the Petition on this basis.”

However, the FCC also found that based upon Torres’ inability to pay the full $4000 (based on the documentation the Torres submitted to the FCC), the FCC agreed to lower the fine to $3500, even though it said that Torres was guilty of violating Section 1.903(a) of its rules. The FCC, however, did caution Torres that “a party’s inability to pay is only one factor in our forfeiture calculation analysis, and is not dispositive. We have previously rejected inability to pay claims in cases of repeated or otherwise egregious violations. Therefore, future violations of this kind may result in significantly higher forfeitures that may not be reduced due to Mr Torres’s financial circumstances.”

Torres has until April 18, 2013 to pay the $3500 fine. If he does not do so, the FCC may refer the case to the Department of Justice for enforcement of the forfeiture.