Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In the Matter of                 )
                                )
Odino Joseph                     )    File No. EB-02-TP-300
c/o Noah's Ark Baptist Church    )    NAL/Acct. No. 200232700020
576 11th Street North            )    FRN 0007-3087-3
Naples, Florida 34102            )


                        FORFEITURE ORDER

Adopted:  August 14, 2003               Released:  August 18, 
2003

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

     1.   In  this  Forfeiture  Order  (``Order'')  we  issue   a 
monetary  forfeiture  in  the  amount  of  one  thousand  dollars 
($1,000)  to  Mr.  Odino  Joseph  (``Mr.  Joseph'')  for  willful 
violation of Section 301  of the Communications  Act of 1934,  as 
amended (``Act'').1  The  noted violation  involves Mr.  Joseph's 
operation of a radio station without Commission authorization.

     2.   On August  5,  2002, the  Commission's  Tampa,  Florida 
Field Office  (``Tampa  Office'')  issued a  Notice  of  Apparent 
Liability for Forfeiture (``NAL'') to Mr. Joseph for a forfeiture 
in the amount  of ten  thousand dollars  ($10,000).2  Mr.  Joseph 
filed a response to the NAL on September 24, 2002.

                         II.  BACKGROUND

     3.   On  April  22,  2002,  the  Tampa  Office  received   a 
complaint  from  a  Naples,  Florida  broadcaster  regarding   an 
unlicensed FM radio station operating on 104.3 MHz in the  Naples 
area.  On May 14, 2002, two agents from the Tampa Office drove to 
the  Naples,  Florida  area  to  investigate  the  complaint   of 
unlicensed operation on 104.3 MHz.  As the agents approached  the 
Naples area  they detected  an  FM radio  station on  104.3  MHz.  
Using  electronic  direction   finding  techniques,  the   agents 
positively identified the  source of the  transmissions to be  an 
antenna mounted on a tower attached to the back of Suite #530  in 
a strip mall located at 11th Street North, Naples, Florida.   The 
agents determined that the station exceeded the permissible level 
for a non-licensed low-power  radio transmitter by 31,953  times.  
Accordingly,  a  license  was  required  for  operation  of  this 
station.  FCC records  show no  license has been  issued for  the 
operation of an FM broadcast station at this location.  Thus, the 
station operated in  violation of  47 U.S.C.   301.  The  agents 
approached Suite #530 and interviewed a man near the suite.  This 
man stated that  he subleased  Suite #530 along  with a  ``Pastor 
Odino'' but that it was  ``Pastor Odino'' who operated the  radio 
station.  This man identified to  the agents the location of  the 
radio station  behind locked  doors  inside Suite  #530.   Inside 
Suite #530, the agents  found a handwritten  note with the  words 
``Pasteur Odino'' and a telephone number.  The agents observed  a 
van parked in  front of the  strip mall.  On  the van were  signs 
with the  words  ``Noah's  Ark Baptist  Church''  along  with  an 
address that identified  the location  of the  church as  another 
suite in the same strip mall.  The signs also listed a  telephone 
number and  the  name ``Pastor  Odino  Joseph'' as  the  church's 
pastor.  The agents  contacted Pastor Odino  Joseph at the  phone 
number found  during the  investigation.  During  this call,  Mr. 
Joseph admitted to the operation of the unlicensed radio  station 
on 104.3  MHz and  promised to  cease operation  until a  license 
could be obtained.

     4.   On August 5, 2002, the Tampa Office issued an NAL for a 
$10,000 forfeiture to  Mr. Joseph for  operating a radio  station 
without Commission authorization in willful violation of  Section 
301 of  the Act.   Mr. Joseph  filed  a response  to the  NAL  on 
September 24, 2002.  In his  response, Mr. Joseph admits that  he 
operated radio transmitting equipment, but requests  cancellation 
or reduction of the forfeiture  amount.  Mr. Joseph asserts  that 
although the violation was willful, it was not intentional.   Mr. 
Joseph argues  that the  facts of  this case  do not  warrant  an 
upward adjustment of the forfeiture amount.3  Further, Mr. Joseph 
contends  that  all  of  the  downward  adjustment  criteria  are 
applicable.4  

     5.   In support  of  his  argument  regarding  the  downward 
adjustment criteria, Mr. Joseph  indicates that his violation  is 
minor.  Mr. Joseph states that  the second criterion, good  faith 
or voluntary disclosure,  is also applicable  because he did  not 
attempt  to  conceal  the  origin  of  his  broadcast  or   evade 
detection.  Mr. Joseph also maintains that the signal strength of 
his transmissions was greater than he intended, which was only to 
reach within a couple of miles from his church.  Mr. Joseph  adds 
that he cooperated  with the Commission's  agents and  terminated 
all transmissions upon request.   In addition, Mr. Joseph  argues 
that he has a history of overall compliance.  Finally, Mr. Joseph 
asserts that  payment of  the proposed  $10,000 forfeiture  would 
impose  a  financial  hardship  on  him  and  submits   financial 
information  for  1999,  2000,  and  2001  in  support  of   this 
assertion.

                         III.   DISCUSSION

     6.   The  proposed  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. Joseph'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.   Mr. Joseph acknowledges in his response to the NAL that 
he operated  radio  transmitting  equipment  without  a  license.  
Accordingly, we  conclude  that  Mr.  Joseph  willfully  violated 
Section 301 of  the Act and  a forfeiture amount  of $10,000  was 
properly assessed.   The term  ``willful,''  as used  in  Section 
503(b) of  the Act,  does not  require a  finding that  the  rule 
violation was intentional or that the violator was aware that  it 
was committing a rule  violation.8  Rather, the term  ``willful'' 
simply requires that the violator  knew it was taking the  action 
in  question,  irrespective   of  any  intent   to  violate   the 
Commission's rules.9  Moreover, the NAL in this case proposed the 
base forfeiture amount of $10,000 for the violation10 and did not 
apply any of the upward adjustment criteria.  Thus, Mr.  Joseph's 
arguments that the  upward adjustment  criteria are  inapplicable 
are irrelevant.  

     8.   Mr. Joseph's claim that the violation was minor is  not 
supported by the facts.  Specifically,  we do not believe that  a 
non-licensed FM operation that exceeds the level for  permissible 
non-licensed low power operation by  more than 31,953 times is  a 
minor violation.  Moreover, we are not persuaded that a reduction 
on the basis of good  faith or voluntary disclosure is  warranted 
in this case.   There is  no evidence  that Mr.  Joseph made  any 
efforts to correct or voluntarily disclose the violation prior to 
our investigation of this matter.11  Also, Mr. Joseph purports to 
have a history of overall compliance with the Commission's  Rules 
to support his claim for  reduction of the forfeiture.   However, 
in light  of  the  fact  that Mr.  Joseph  is  not  a  Commission 
licensee,  we  do  not  believe  he  has  any  history  with  the 
Commission upon which a  history of overall compliance  reduction 
can be based.   Furthermore, although Mr.  Joseph has  terminated 
all transmissions, remedial action  taken to correct a  violation 
is not a  mitigating factor.12  Finally,  based on the  financial 
documentation provided by Mr. Joseph, we conclude that payment of 
the proposed $10,000  would impose  a financial  hardship on  Mr. 
Joseph.  Therefore, we will reduce the forfeiture from $10,000 to 
$1,000.


                       IV.  ORDERING CLAUSES

     9.   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,13 Mr. Odino Joseph IS LIABLE FOR A MONETARY FORFEITURE  in 
the amount of one thousand dollars ($1,000) for willful violation 
of Section 301 of the Act.

     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.14  
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. 
200232700020 and  FRN  0007-3087-3.  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. 20554.15

     11.  IT IS FURTHER ORDERED that  a copy of this Order  shall 
be sent by  first class  mail and certified  mail return  receipt 
requested to Mr.  Odino Joseph,  576 11th  Street North,  Naples, 
Florida 34102, and  to his  counsel, Marc L.  Shapiro, Esq.,  720 
Goodlette Road North, Suite 304, Naples, Florida 34102.

                         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. 
200232700020 (Enf. Bur., Tampa Office, released August 5, 2002).
3 See 47 C.F.R.   1.80(b)(4) Note to Paragraph (b)(4):   Section 
II. Adjustment Criteria  for Section  503 Forfeitures  (egregious 
misconduct; ability  to  pay/relative  disincentive;  intentional 
violation;  substantial  harm;  prior   violations  of  any   FCC 
requirements;  substantial   economic  gain;   and  repeated   or 
continuous violation). 
4 See 47 C.F.R.   1.80(b)(4) Note to Paragraph (b)(4):   Section 
II.  Adjustment  Criteria  for  Section  503  Forfeitures  (minor 
violation; good faith or voluntary disclosure; history of overall 
compliance; and inability to pay).
5 47 U.S.C.  503(b).
6 47 C.F.R.  1.80.
7 47 U.S.C.  503(b)(2)(D).
8 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,' 
... 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).  
9  Id.  
10 47 C.F.R.  1.80(b)(4).
11 See, e.g., Radio One Licenses, Inc., FCC 03-101 (released July 
22, 2003).
12 See, e.g.,  AT&T Wireless  Services, Inc., 17  FCC Rcd  21866, 
21871 (2002);  Seawest  Yacht Brokers,  9  FCC Rcd  6099  (1994); 
Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
13 47 C.F.R.  0.111, 0.311, 1.80(f)(4).
14 47 U.S.C.  504(a).
15 See 47 C.F.R.  1.1914.