Click here for Adobe Acrobat version
Click here for Microsoft Word version
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.
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 )
Adopted: August 14, 2003 Released: August 18,
By the Chief, Enforcement Bureau:
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.
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
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
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
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
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,
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
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).
10 47 C.F.R. § 1.80(b)(4).
11 See, e.g., Radio One Licenses, Inc., FCC 03-101 (released July
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.