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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,
By the Chief, Enforcement Bureau:
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
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
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
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.
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
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,
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.
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 µV/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.