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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Everald Oliver Brown ) File No. EB-02-TP-575
Orlando, Florida ) NAL/Acct. No. 200332700018
) FRN: 0007-9511-06
MEMORANDUM OPINION AND ORDER
Adopted: January 24, 2007 Released: January 26, 2007
By the Assistant Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order ("Order"), we grant in part and
deny in part
a petition for reconsideration ("petition") filed by Mr. Everald Oliver
Brown ("Mr. Brown") on
December 6, 2004. Mr. Brown seeks reconsideration of a Memorandum Opinion
and Order (MO&O) in which the Enforcement Bureau ("Bureau") denied Mr.
Brown's previous petition for reconsideration of a Bureau Forfeiture
Order, which found Mr. Brown liable for 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"). The noted
violation involves Mr. Brown's operation of an unlicensed FM broadcast
station on the frequency 95.9 MHz in the Orlando, Florida area. For the
reasons discussed below, we reduce the forfeiture amount to six hundred
2. On March 31, 2003, the District Director of the Commission's Tampa,
Florida Field Office ("Tampa Office") issued a Notice of Apparent
Liability for Forfeiture ("NAL") in the amount of $10,000 to Mr. Brown for
the apparent willful violation of Section 301 of the Act based on
observations by the Tampa Office that Mr. Brown was operating an
unlicensed FM broadcast station as referenced above. Mr. Brown did not
file a response to the NAL, and on July 22, 2003, the Bureau released a
Forfeiture Order finding Mr. Brown liable for a $10,000 monetary
forfeiture for willful violation of Section 301 of the Act. Mr. Brown
filed a petition for reconsideration of the Forfeiture Order stating that
he failed to respond to the NAL because he believed it was a warning
notice. In addition, he asserted that he had no prior knowledge of the
Commission's rules and regulations and was unaware that his broadcast
operations were illegal. Further, Mr. Brown contended that he "neither
owned [n]or normally operated" the station. Finally, Mr. Brown indicated
that he would provide documentation which would demonstrate his inability
to pay the forfeiture amount.
3. The Bureau reviewed Mr. Brown's petition for reconsideration and found
his arguments to be without merit. The Bureau also declined to cancel or
reduce the forfeiture amount because
Mr. Brown failed to provide financial documentation to support his claim
of inability to pay. On November 5, 2004, the Bureau issued a Memorandum
Opinion and Order denying Mr. Brown's petition for reconsideration and
affirming the Forfeiture Order.
4. In his current petition, Mr. Brown does not dispute our finding that he
committed the violation referenced above. He does contend, however, that
his actions were not willful and that once warned of the violation, he
ceased broadcast operations of the station. In addition, Mr. Brown
maintains that he "will not ever violate [the] FCC's rules and regulations
again." He requests cancellation of the forfeiture and has provided
documentation to support his claim of financial hardship.
5. The willfulness of Mr. Brown's actions was previously discussed in the
Bureau's MO&O. He has raised no new arguments for us to address herein. We
also find no reason to cancel the forfeiture based on Mr. Brown's decision
to discontinue the station's operation. We have, however, examined the
financial documentation submitted with Mr. Brown's petition and will
reconsider the forfeiture amount pursuant to the statutory factors
prescribed by Section 503(b) of the Act , Section 1.80(b)(4) of the Rules,
and The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines. In analyzing a
financial hardship claim, the Commission generally has looked to gross
revenues as a reasonable and appropriate yardstick in determining whether
a licensee is able to pay the assessed forfeiture. While we find that Mr.
Brown willfully violated Section 301 of the Act, based upon his inability
to pay, we conclude that pursuant to Section 503(b) of the Act and the
Forfeiture Policy Statement that reduction of the $10,000 forfeiture to
$600 is warranted.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED that, pursuant to Sections 405 of the Act
and Sections 1.80(i) and 1.106 of the Rules, the December 6, 2004 petition
for reconsideration filed by Mr. Everald Oliver Brown IS GRANTED TO THE
EXTENT INDICATED HEREIN AND DENIED IN ALL OTHER RESPECTS.
7. 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. 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
Federal Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA 15251.
Payment by wire transfer may be made to ABA Number 043000261, receiving
bank Mellon Bank, and account number 911-6106. Requests for full payment
under an installment plan should be sent to: Associate Managing Director -
Financial Operations, 445 12^th Street, SW, Room 1-A625, Washington, D.C.
8. IT IS FURTHERED ORDERED that a copy of this Order shall be sent by
first class and certified mail, return receipt requested, to the address
of record for Mr. Everald Oliver Brown.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Bureau Chief
Everald Oliver Brown, 19 FCC Rcd 21983 (Enf. Bur. 2004)("MO&O").
Everald Oliver Brown, 18 FCC Rcd 15188 (Enf. Bur. 2003)("Forfeiture
47 U.S.C. S 301.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200332700018
(Enf. Bur., Tampa Office, released March 31, 2003).
Everald Oliver Brown, 19 FCC Rcd at 21984 (the term willful, in the
context of violations for which forfeitures are assessed is the conscious
and deliberate commission or omission of such act, irrespective of any
intent to violate any provision of the Act or any rule or regulation of
AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21875 (2002); Seawest
Yacht Brokers, 9 FCC Rcd 6099 (1994) (corrective action taken to comply
with the rules is expected, and does not mitigate any prior forfeitures or
violations); Odino Joseph, 18 FCC Rcd 16522, 16524 (Enf. Bur. 2003)
(remedial action taken to terminate unauthorized broadcast operations is
not a mitigating factor).
47 U.S.C. S 503(b).
47 C.F.R. S 1.80(b)(4).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992).
See Local Long Distance, Inc., 16 FCC Rcd at 10025 (forfeiture not deemed
excessive where it represented approximately 7.9 percent of the violator's
gross revenues); Hoosier Broadcasting Corporation, 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); Alpha
Ambulance, Inc., FCC 04-19, 2, n.15 (February 5, 2004), citing PJB
Communications, 7 FCC Rcd at 2089 (forfeiture not deemed excessive where
it represented approximately 2.02 percent of the violator's gross
47 U.S.C. S 405.
47 C.F.R. 1.80(i) and 1.106.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
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Federal Communications Commission DA 07-192
Federal Communications Commission DA 07-192