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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-FIELDSCR-12-00001027
)
Damian Anthony Ojouku Allen NAL/Acct. No.: 201232600013
)
Pompano Beach, FL FRN: 0021896410
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 16, 2012 Released: July 16, 2012
By the Resident Agent, Miami Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Damian Anthony Ojouku Allen apparently willfully and repeatedly
violated Section 301 of the Communications Act of 1934, as amended
(Act), by operating an unlicensed radio transmitter on the frequency
101.1 MHz in Pompano Beach, Florida. We conclude that Mr. Allen is
apparently liable for a forfeiture in the amount of twenty thousand
dollars ($20,000).
II. BACKGROUND
2. On October 20, 2011 and February 27, 2012, agents from the Enforcement
Bureau's Miami Office (Miami Office) used direction-finding techniques
to locate the source of radio frequency transmissions on the frequency
101.1 MHz to an FM transmitting antenna mounted on an antenna
structure at a commercial property in Pompano Beach, Florida. On both
dates, the agents heard the station engaged in live broadcasts.
Specifically, during the October 20, 2011 investigation, the agents
heard a live disc jockey (DJ), self-identified as DJ "Mikey Mike,"
promote an event called the "Mikey Mike Birthday Splash." The agents
determined that the signals on 101.1 MHz exceeded the limits for
operation under Part 15 of the Commission's rules (Rules), and
therefore required a license. Commission records showed no
authorization was issued to Mr. Allen or to anyone else for operation
of an FM broadcast station at or near this address.
3. On February 27, 2012, agents from the Miami Office, accompanied by the
commercial property owner, observed radio transmitting equipment,
including a power amplifier, which was connected via coaxial cable to
an FM transmitting antenna that was installed in a storage room. The
property owner told the agents that he rented the storage space to two
men named "Damian" and "Mike," and then retrieved the renters' contact
phone number, which he then dialed. An agent spoke by phone to an
individual, whom the property owner identified as "Mike." During the
phone conversation, Mike asked the agent what would happen to the
radio equipment. Shortly after the telephone conversation ended, it
appeared to the agents that Mike must have immediately contacted Mr.
Allen about the radio equipment, since Mr. Allen showed up at the
station, told the agents that the transmission equipment was his, and
then removed the equipment from the location.
III. DISCUSSION
4. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation, or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. Section 312(f)(1) of the Act defines "willful" as the
"conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law. The legislative
history to Section 312(f)(1) of the Act clarifies that this definition
of willful applies to both Sections 312 and 503(b) of the Act, and the
Commission has so interpreted the term in the Section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. The term "repeated" means the
commission or omission of such act more than once or for more than one
day.
A. Unlicensed Broadcast Operations
5. Section 301 of the Act states that no 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
the Act and with a license granted under the provisions of the Act.
For the purposes of Section 301, the word "operate" has been
interpreted to mean both the technical operation of the station, as
well as "the general conduct or management of a station as a whole, as
distinct from the specific technical work involved in the actual
transmission of signals." In other words, the use of the word
"operate" in Section 301 captures not just the "actual, mechanical
manipulation of radio apparatus," but also operation of a radio
station generally. To determine whether an individual is involved in
the general conduct or management of the station, we can consider
whether such individual exercises control over the station, which the
Commission has defined to include ". . . any means of actual working
control over the operation of the [station] in whatever manner
exercised."
6. We find that the record evidence in this case is sufficient to
establish that Mr. Allen violated Section 301 of the Act. On October
20, 2011 and February 27, 2012, agents from the Miami Office
determined that an unlicensed radio station on the frequency 101.1 MHz
operated from a commercial building in Pompano Beach, Florida. During
both dates, the agents heard the station engaged in live broadcasts. A
review of the Commission's records revealed that no license or
authorization was issued to anyone to operate a radio station on 101.1
MHz at this location. Under Section 301, Mr. Allen can be said to have
"operated" the unlicensed radio station on 101.1 MHz because the
evidence shows that Mr. Allen exercised control over the general
conduct or management of the station. According to the commercial
building owner, Mr. Allen and another individual (i.e., Michael
William Downer, aka DJ "Mikey Mike") were leasing space in the
building that housed the station, and the rented space appeared to the
agents to be used primarily for the purpose of operating the
unlicensed station. In addition, on February 27, 2012, Mr. Allen
admitted to the agents that he owned the transmitting equipment, and
then personally disconnected and removed the equipment from the
location. The foregoing facts indicate that Mr. Allen consciously
operated and/or otherwise was involved in the general conduct or
management of the unauthorized station and did so on more than one
day. We therefore conclude, based on the evidence before us, that Mr.
Allen apparently willfully and repeatedly violated Section 301 of the
Act by operating radio transmission equipment without the required
Commission authorization.
B. Proposed Forfeiture Amount
7. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for operation without an
instrument of authorization is $10,000. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in Section 503(b)(2)(E) of the Act, which include
the nature, circumstances, extent, and gravity of the violations, 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. In doing so, we find that the violations here warrant a
proposed forfeiture above the base amount. Commission records show
that the Miami Office previously issued several Notices of Unlicensed
Operation to Mr. Allen for operation of unlicensed stations on 102.1
MHz at other locations in Florida. The fact that Mr. Allen continued
to operate an unlicensed station after being put on notice multiple
times that his unlicensed operation of a radio station contravened the
Act, the Commission's rules, and related Commission orders
demonstrates a deliberate disregard for the Commission's requirements.
Thus, we find that an additional upward adjustment of $10,000 in the
forfeiture amount is warranted. Applying the Forfeiture Policy
Statement, Section 1.80 of the Rules, and the statutory factors to the
instant case, we conclude that Mr. Allen is apparently liable for a
forfeiture in the amount of $20,000.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, Damian Anthony
Ojouku Allen is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of twenty thousand dollars ($20,000) for
violations of Section 301 of the Act.
9. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture, Damian
Anthony Ojouku Allen SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
10. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Damian Anthony Ojouku Allen will also send
electronic notification on the date said payment is made to
SCR-Response@fcc.gov. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted. When completing
the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
11. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
12. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, South
Central Region, Miami Office, P.O. Box 520617, Miami, FL 33152-0617,
and include the NAL/Acct. No. referenced in the caption. Damian
Anthony Ojouku Allen also shall e-mail the written response to
SCR-Response@fcc.gov.
13. The Commission will not consider reducing or canceling a forfeiture in
response to a claim 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 (GAAP); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.
14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and First Class Mail to Damian Anthony Ojouku Allen at his
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Steven DeSena
Resident Agent
Miami Office
South Central Region
Enforcement Bureau
47 U.S.C. S: 301.
Part 15 of the Rules sets out the conditions and technical requirements
under which certain radio transmission devices may be used without a
license. In relevant part, Section 15.239 of the Rules provides that
non-licensed broadcasting in the 88-108 MHz band is permitted only if the
field strength of the transmission does not exceed 250 mV/m at three
meters. 47 C.F.R. S: 15.239.
The Enforcement Bureau has taken separate action against Michael William
Downer. See Michael William Downer, EB-FIELDSCR-12-00001027, Notice of
Apparent Liability for Forfeiture, DA 12-1094 (Enf. Bur. July 16, 2012).
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied,
7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term 'repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
47 U.S.C. S: 301.
See Campbell v. United States, 167 F.2d 451, 453 (5th Cir. 1948)
(comparing the use of the words "operate" and "operation" in Sections 301,
307, and 318 of the Act, and concluding that the word "operate" as used in
Section 301 of the Act means both the technical operation of the station
as well as the general conduct or management of the station).
Id.
Id. See also 47 U.S.C S: 307(c)(1).
See Revision of Rules and Policies for the Direct Broadcast Satellite
Service, 11 FCC Rcd 9712, 9747 (1995), recons. denied, DIRECTV, Inc. v.
FCC, 110 F.3d 816 (D.C. Cir. 1997).
The fact that someone else in addition to Mr. Allen may have been involved
in the station's operations does not make Mr. Allen any less of a
participant in the station's unlicensed operations. We have previously
held that, because Section 301 of the Act provides that "no person shall
use or operate" radio transmission equipment, the liability for unlicensed
operation may be assigned to any individual taking part in the operation
of the unlicensed station, regardless of who else may be responsible for
the operation. 47 U.S.C. S: 301 (emphasis added); see, e.g., Jean L.
Senatus, Forfeiture Order, 20 FCC Rcd 14418, at para. 11 (Enf. Bur. 2005);
Robert Brown, EB-10-BS-0050, Memorandum Opinion and Order, DA 12-929, 2012
WL 2391969 (Enf. Bur. June 22, 2012), aff'g, Forfeiture Order, 26 FCC Rcd
6854 (Enf. Bur. 2011), aff'g, Notice of Apparent Liability for Forfeiture,
25 FCC Rcd 13740 (Enf. Bur. 2010); Lloyd Morris, EB-09-BS-0046, Memorandum
Opinion and Order, DA 12-930, 2012 WL 2391973 (Enf. Bur. June 22, 2012),
aff'g, Forfeiture Order, 26 FCC Rcd 6856 (Enf. Bur. 2011), aff'g, Notice
of Apparent Liability for Forfeiture, 25 FCC Rcd 13736 (Enf. Bur. 2010).
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) (Forfeiture Policy Statement), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
See Damian Anthony Ojouku Allen, Notice of Unlicensed Operation (Enf. Bur.
June 2, 2010) (on file in EB-10-MA-0088); Damian Anthony Ojouku Allen and
Michael Downer, Hand-delivered Notice of Unlicensed Operation (Enf. Bur.
May 21, 2010) (on file in EB-10-MA-0088); Damien Allen and Michael Downer,
Hand-delivered Notice of Unlicensed Operation (Enf. Bur. July 1, 2010) (on
file in EB-10-MA-0123).
See, e.g., Whisler Fleurinor, Forfeiture Order, 26 FCC Rcd 14437 (Enf.
Bur. 2011), aff'g, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd
2478 (Enf. Bur. 2011) (imposing a $20,000 forfeiture for violations of
Section 301); Nounone Lubin, Forfeiture Order, 26 FCC Rcd 7758 (Enf. Bur.
2011), aff'g,Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 12654
(Enf. Bur. 2010) (imposing a $20,000 forfeiture for violations of Section
301).
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80.
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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Federal Communications Commission DA 12-1093
Federal Communications Commission DA 12-1093