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

In the matter of                 )
                                )
Everald Oliver Brown             )    File No.: EB-02-TP-575
2409 North Hastings Street       )    NAL/Acct. No. 200332700018
                                )    FRN 0007-9511-06
Orlando, Florida                 )


                  MEMORANDUM OPINION AND ORDER

Adopted:  November 3, 2004              Released:  November 5, 
2004

By the Chief, Enforcement Bureau:

I.   INTRODUCTION

     1.   In this Memorandum Opinion and Order, we deny an August 
        29, 2003 petition for reconsideration (``petition'') 
        filed by Everald Brown, who seeks reconsideration of a 
        July 22, 2003 Forfeiture Order,1 in which the 
        Enforcement Bureau imposed a monetary forfeiture in the 
        amount of ten thousand dollars ($10,000) for willful 
        violation of Section 301 of the Communications Act of 
        1934, as amended (``Act'').2  The noted violation 
        involves Mr. Brown's operation of an FM broadcast 
        station on the frequency 95.9 MHz without Commission 
        authorization.
II.       BACKGROUND

     2.   On October 30, 2002, two agents from the Commission's 
        Tampa, Florida Field Office (``Tampa Office'') working 
        in the Orlando, Florida, area observed an FM radio 
        station operating on 95.9 MHz.  The voice broadcasting 
        on the radio station identified the station only as 
        ``95.9.''  Commission databases showed no record of a 
        broadcast station licensed for 95.9 MHz in the Orlando 
        area.  Using direction-finding equipment and techniques, 
        the agents determined where the station was operating.  
        The agents took field strength measurements of the 
        station's signal and determined that the station 
        required a license to operate.3  The Commission's 
        records showed that no license had been issued for this 
        operation.
     3.   Still on October 30, 2002, the Tampa Office agents 
        inspected the station broadcasting on 95.9 MHz at the 
        determined location, the Rum Runner Caribbean Restaurant 
        and Lounge.  The manager of the restaurant led the 
        agents to a room containing the radio station.  A man at 
        the controls of the radio station was introduced as 
        Everald Oliver Brown, the ``DJ'' of the station.  The 
        agents recognized Mr. Brown's voice as the one they had 
        heard broadcasting on 95.9 MHz earlier in the day.  The 
        manager stated that the radio station had been operating 
        at the restaurant for about two weeks.  After being 
        warned by the agents about the unlicensed operation, Mr. 
        Brown turned off the transmitter. 
     4.   On March 31, 2003, the Tampa Office issued a Notice of 
        Apparent Liability for Forfeiture (``NAL'') to Mr. Brown 
        in the amount of ten thousand dollars ($10,000) for 
        apparent willful violation of Section 301 of the Act.4  
        Mr. Brown did not file a response to the NAL, and on 
        July 22, 2003, the Bureau issued the subject Forfeiture 
        Order finding Mr. Brown liable for a $10,000 monetary 
        forfeiture for willful violation of Section 301 of the 
        Act.5
     5.   In his petition, Mr. Brown states that he did not 
        respond to the NAL because he thought it was only a 
        warning letter.  Mr. Brown asserts that he ``had no 
        knowledge of the FCC's rules and regulations nor that 
        [his broadcasting] was unlawful.''  He also claimed that 
        he was not the owner or operator of that station; that 
        he had been told that the license was being applied for 
        by others; that he has since registered with the 
        American Radio Network (``ARN'') to go through the legal 
        steps to become a radio broadcaster; and lastly, that he 
        will send the Commission a copy of his credit report 
        which would show his inability to pay the proposed 
        forfeiture.  To date, the Commission has not received a 
        copy of Mr. Brown's credit report.
III.      DISCUSSION

     6.   The forfeiture amount in this case has been assessed in 
        accordance with Section 503(b) of the Communications Act 
        of 1934, as amended (``Act''),6 Section 1.80 of the 
        Rules,7 and The Commission's Forfeiture Policy Statement 
        and Amendment of Section 1.80 of the Rules to 
        Incorporate the Forfeiture Guidelines,8 (``Policy 
        Statement'').  Section 503(b) of the Act requires that 
        the Commission, in examining Mr. Brown's petition 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 such other matters 
        as justice may require.9
     7.   Section 301 of the Act prohibits unauthorized radio 
        operation:  ``No person shall use or operate any 
        apparatus for the transmission of energy or 
        communications or signals by radio . . . except under 
        and in accordance with this Act and with a license in 
        that behalf granted under the provisions of this 
        Act.''10  Mr. Brown's claim that he did not know the 
        station was operating illegally, and his subsequent 
        registration with the ARN does not negate the 
        willfulness of the violation.11  Moreover, Mr. Brown's 
        claim that he is not responsible for the illegal 
        operation of the station because he was not ``the owner 
        and operator'' of that station is without merit.  
        Regardless of whether Mr. Brown is the station's 
        ``owner,'' it is undisputed that, at the time of the 
        inspection, he was the station's actual operator and was 
        in charge of the station.  Mr. Brown, therefore, was 
        responsible for the station's operation in violation of 
        Section 301 of the Act at the time of the inspection.12  
        Similarly, Mr. Brown's claim that the agent had stated 
        he, the agent, was issuing only a warning is not 
        exculpating.13  Based on Mr. Brown's admissions with 
        respect to operating the station and the agents' 
        observations during the inspection, we conclude that Mr. 
        Brown willfully violated Section 301 of the Act. 
     8.   Finally, Mr. Brown contends that he cannot pay the 
        proposed forfeiture amount but has submitted no 
        financial documentation to support this claim.  As 
        stated in the NAL, the Commission will not consider 
        reducing or canceling a forfeiture on the basis 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; or (3) some 
        other reliable and objective documentation that 
        accurately reflects the petitioner's current financial 
        status.14
     9.   We have examined Mr. Brown's petition pursuant to the 
        statutory factors above, and in conjunction with the 
        Policy Statement as well.  As a result of our review, we 
        conclude that Mr. Brown willfully violated Section 301 
        of the Act and find no basis for cancellation or 
        reduction of the $10,000 monetary forfeiture.
IV.  ORDERING CLAUSES
     10.  Accordingly, IT IS ORDERED that, pursuant to Section 
        405 of the Act15 and Section 1.106 of the Rules,16 Mr. 
        Brown's petition for reconsideration of the July 22, 
        2003, Forfeiture Order is DENIED.
     11.  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.17  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 Forfeiture Collection Section, 
        Finance Branch, Federal Communications Commission, P.O. 
        Box 73482, Chicago, Illinois 60673-7482.  Payment by 
        overnight mail may be sent to Bank One/LB 73482, 525 
        West Monroe, 8th Floor Mailroom, Chicago, IL 60661.  
        Payment by wire transfer may be made to ABA Number 
        071000013, receiving bank Bank One, and account number 
        1165259.  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. 20554.18
     12.  IT IS FURTHER ORDERED THAT a copy of this Order shall 
        be sent by first class and certified mail, return 
        receipt requested, to Mr. Everald Oliver Brown, 2409 
        North Hastings Street, Orlando, Florida 32808-4320.

                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         David H. Solomon
                         Chief, Enforcement Bureau


_________________________

1  Everald   Oliver  Brown,   18  FCC   Rcd  15188   (Enf.   Bur. 
2003)(``Forfeiture Order'').
2 47 U.S.C.  301.
3 Section 15.239(b) of the Commission's Rules, 47 C.F.R.  
15.239(b), provides that non-licensed broadcasting in the 88-108 
MHz band is permitted only if the field strength of the 
transmissions does not exceed 250 V/m at three meters.  
Measurements showed that the field strength of the station's 
signal exceeded the permissible level for a non-licensed low-
power radio transmitter by 10,462 times. 
4 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200334700018 (Enf. Bur., Tampa Office, released March 31, 2003).
5 Forfeiture Order at 15188.
6 47 U.S.C.  503(b).
7 47 C.F.R.  1.80.
8 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
9 47 U.S.C.  503(b)(2)(D).
10 47 U.S.C.  301.
11 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), recon. denied, 7 FCC Rcd 3454 (1992).
12  See Jhony Desinor, 19 FCC Rcd 14137 (Enf. Bur. 2004) (finding 
an individual similarly liable for unauthorized radio operation).
13 Mr. Brown's claim that the agent stated he was issuing only a 
warning is not corroborated by the agent; regardless, the 
dispositive facts are that Mr. Brown violated Section 301 of the 
Act, and thus a sanction is appropriate
14 NAL at  11.
15 47 U.S.C.  405.
16 47 C.F.R.  1.106.
17 47 U.S.C.  504(a).
18 See 47 C.F.R.  1.1914.