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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-03-TP-035
)
Donald Donovan Jackson ) NAL/Acct. No. 200332700023
1418 27th Avenue, South )
St. Petersburg, Florida ) FRN No. 000-890-9301
FORFEITURE ORDER
Adopted: August 5, 2004 Released: August 10, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of three thousand dollars
($3,000) to Donald Donovan Jackson for willful and repeated
violations of Section 301 of the Communications Act of 1934, as
amended, (``Act'').1 The noted violations involve Mr. Jackson's
operation of an FM broadcast station on the frequency 102.1 MHz
without Commission authorization.
2. On May 14, 2003, the Commission's Tampa Field Office
(``Tampa Office'') issued a Notice of Apparent Liability for
Forfeiture (``NAL'') to Mr. Jackson for a forfeiture in the
amount of twenty thousand dollars ($20,000).2 Mr. Jackson filed
a response to the NAL on June 10, 2003. In his response, Mr.
Jackson requested either cancellation or a substantial reduction
of the forfeiture.
II. BACKGROUND
3. On November 23, 2002, after receiving a complaint
regarding a pirate radio station in the St. Petersburg, Florida,
area, agents from the Tampa Office observed a radio broadcast
station operating on the frequency 102.1 MHz. The agents used
direction-finding techniques and determined that the broadcasts
originated from suite #200-D of a commercial office building
located at 21 9th Street South, St. Petersburg, Florida. Field
strength measurements taken near the sight of the broadcast
indicated that the signal strength exceeded the permissible
limits for a non-licensed station.3 A search of Commission
records revealed no FM radio station licensed to operate on
frequency 102.1 MHz in the St Petersburg, Florida, area. The
agents proceeded to interview the owner of the commercial
building, who provided the agents with a copy of the lease for
suite #200-D, and informed them that Donald Donovan Jackson
leased that unit and operated the radio station within.
4. On January 15, 2003, agents from the Tampa Office
interviewed Mr. Jackson and conducted an inspection of the radio
station after again observing a radio broadcast station
operating on frequency 102.1 MHz from 21 9th Street South, Suite
#200-D, St. Petersburg, Florida. During the interview, Mr.
Jackson admitted to leasing Suite #200-D and operating the radio
station on frequency 102.1 MHz from that location. At that
time, Mr. Jackson also demonstrated how the broadcast station
operated, and agreed, at the agents' request, to shut down the
station.
5. During the interview, one of the agents recognized Mr.
Jackson as the subject of a previously issued warning letter
regarding an unlicensed radio station operating on frequency
102.1 MHz in April 2002 from a nearby location. The agents
observed, and Mr. Jackson confirmed, that the radio transmitter
and equipment rack were the same as those used during Mr.
Jackson's prior, unlicensed operation in April 2002.
6. On May 14, 2003, the Tampa Office issued an NAL to
Donald Donovan Jackson for operation of a radio broadcast
station on the frequency 102.1 MHz without Commission
authorization.4 On June 10, 2003, Mr. Jackson responded to the
NAL. In his response, Mr. Jackson acknowledged that he
possessed no authority to operate a radio broadcast station, but
requested either a cancellation or a substantial reduction of
the forfeiture, citing an inability to pay. In support of his
inability to pay, Mr. Jackson submitted various financial
statements, and stated that he operated the radio station at a
loss. Mr. Jackson further characterized his operation of the
station as a ``public service,'' and claimed that he never
received financial gain from its operation as additional
justification for cancellation or reduction of the forfeiture.
III. DISCUSSION
7. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended, (``Act''),5 Section 1.80 of the 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 Donald
Jackson'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 such other matters as justice may require.7
8. Section 301 of the Act mandates that ``[n]o person
shall use or operate any apparatus for the transmission of
energy or communications or signals by radio'' within the United
States ``except under and in accordance with this Act and with a
license in that behalf granted under the provisions of this
Act.''8 It is undisputed that Mr. Jackson, on November 23,
2002, and January 15, 2003, operated a radio broadcast station
on frequency 102.1 MHz without Commission authorization in
willful9 and repeated10 violation of Section 301 of the Act.
9. Mr. Jackson requested that the Commission consider his
service to the community when assessing the appropriate
forfeiture amount, stating that he intended only ``to provide a
public service to the local Caribbean population via the radio
station.'' We have previously rejected similar arguments
concerning the asserted merits of violators' programming when
assessing the appropriate forfeiture amount, and we therefore
reject Mr. Jackson's claim of public service here.11 Mr.
Jackson further claimed, as a mitigating factor, that he never
operated the radio broadcast station for the purposes of
financial gain. We note, however, that operation for purposes
other than financial gain will not, on its own, warrant the
cancellation or reduction of a forfeiture.12
10. Finally, Mr. Jackson requested that the Commission
either cancel or substantially reduce the forfeiture based on
his inability to pay. After reviewing the financial documents
submitted, we conclude that payment of the proposed $20,000
forfeiture would impose financial hardship on Mr. Jackson, and
we therefore reduce the forfeiture to $3,000 based on Mr.
Jackson's inability to pay.13
11. We have examined Donald Donovan Jackson's response to
the NAL 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. Jackson willfully and
repeatedly violated Section 301 of the Communications Act of
1934, as amended. While we find no basis for canceling the
forfeiture, we reduce the total amount of the forfeiture to
$3,000 based on Mr. Jackson's inability to pay.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Act, and Sections 0.111, 0.311 and
1.80(f)(4) of the Rules,14 Donald Donovan Jackson IS LIABLE FOR
A MONETARY FORFEITURE in the amount of three thousand dollars
($3,000) for his violation of Section 301 of the Act.
13. 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.15 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 must include
the FCC Registration Number (FRN) and the NAL/Acct. No.
referenced in the caption. Requests for full payment under an
installment plan should be sent to: Chief, Revenue and
Receivables Group, 445 12th Street, S.W., Washington, D.C.
20554.16
14. IT IS FURTHER ORDERED that a copy of this Order
shall be sent via First Class Mail and Certified Mail, Return
Receipt Requested, to Donald Donovan Jackson, 1418 27th Avenue
South, St. Petersburg, Florida 33705-3439, and to his counsel,
Tamara Felton Dudley, Tamara Felton Dudley, P.A., P.O. Box
12661, 2500 34th Street South, St. Petersburg, Florida 33733.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 U.S.C. § 301.
2 Notice of Apparent Liability for Forfeiture, File No. EB-03-TP-
035, NAL/Acct. No. 200332700023 (Enf. Bur., Tampa Office,
released May14, 2003).
3 See 47 C.F.R. § 15.239(b).
4 NAL at ¶ 1.
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 47 U.S.C. § 301.
9 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 ....''
10 Section 312(f)(2) of the Act provides that ``[t]he term
`repeated,' ... means the commission or omission of such act more
than once or, if such commission or omission is continuous, for
more than one day.'' 47 U.S.C. § 312(f)(2). The Conference
Report for Section 312(f)(2) indicates that Congress intended to
apply this definition to Section 503 of the Act as well as
Section 312. See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51
(1982).
11 See WPGS, Inc., 18 FCC Rcd 11332, 11334 (Enf. Bur. 2003)
(concluding, ``we do not think that any reduction of the proposed
forfeiture is warranted based on the asserted merits of
WPGS(AM)'s programming'').
12 Cf. Concilio Mission Cristiana Fuente de Agua Viva, 17 FCC Rcd
19132, 19134 (Enf. Bur. 2002) (concluding that no reduction of
the forfeiture was warranted based on the violator's status as a
non-profit entity alone), recon. denied, 18 FCC Rcd 6210 (Enf.
Bur. 2003).
13 See PJB Communications, 7 FCC Rcd at 2089 (forfeiture not
deemed excessive where it represented approximately 2.02 percent
of the violator's gross revenues); Local Long Distance, Inc., 15
FCC Rcd 24385, 24389 ¶ 11 (2000), recon. denied, 16 FCC Rcd
10023, 10025 ¶ 6 (2001) (forfeiture not deemed excessive where it
represented approximately 7.9 percent of the violator's gross
revenues); Hoosier Broadcasting Corporation,14 FCC Rcd 3356 (CIB
1999), recon. denied, 15 FCC Rcd 8640, 8641 (Enf. Bur. 2002)
(forfeiture not deemed excessive where it represented
approximately 7.6 percent of the violator's gross revenues).
14 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
15 47 U.S.C. § 504(a).
16 See 47 C.F.R. § 1.1914.