Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File Number EB-06-KC-067     |
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| Matthew H. Britcher              | ) | NAL/Acct. No. 200632560003   |
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| Bettendorf, Iowa                 | * | FRN 0015021801               |
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## FORFEITURE ORDER

**Adopted:** August 8, 2006 **Released:** August 10, 2006

By the Regional Director, South Central Region, Enforcement Bureau:

I.  **INTRODUCTION**

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1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of seventeen thousand dollars (\$17,000) to
    Matthew H. Britcher ("Mr. Britcher"), for willful and repeated
    violation of Sections 301 and 303(n) of the Communications Act of
    1934, as amended ("Act").[^1] The noted violations involve operating
    an unlicensed radio transmitter and refusing to allow inspection of
    the station.

**II. BACKGROUND**

2.  On April 18, 2006, in response to information regarding an
    unlicensed radio station in Bettendorf, Iowa, an agent from the
    Enforcement Bureau's Kansas City Office ("Kansas City Office")
    monitored broadcast transmissions on 103.3 MHz in Bettendorf, Iowa.
    A voice on the broadcast identified the station as "power
    one-oh-three." The agent, using direction finding techniques,
    located the transmissions on 103.3 MHz to the Northwest Bank
    building located at 2550 Middle Road, Bettendorf, Iowa. The agent
    took field strength measurements and determined that the signals
    being broadcast exceeded the limits for operation under Part 15 of
    the Commission's Rules ("Rules")[^2] and therefore required a
    license. The agent observed a building directory identifying "Class
    Act" and "www.pmor.com" as occupants of Suite 300. The building
    manager told the agent that the only radio station he knew of in the
    building was "PMOR/Class Act Entertainment" which the manager said
    broadcast over the internet. The agent went to the roof of the
    building and confirmed that radio transmissions emanated from an
    antenna mounted on the roof. At the agent's request, the building
    manager telephoned the contact for "PMOR/Class Act Entertainment"
    and Mr. Britcher arrived a short time later. Mr. Britcher identified
    himself as the "promotions director" of "103-point-3." Mr. Britcher
    stated that the radio station did not need a license because the
    station operated pursuant to "the War Powers Act." The agent served
    a Notice of Unlicensed Radio Operation ("Notice") on Mr. Britcher
    with an attached copy of Sections 301 and 303(n) of the Act. The
    Notice stated that the unlicensed operation of the radio station
    must be discontinued immediately, that operation of radio
    transmitting equipment without a valid radio station authorization
    constituted a violation of Section 301 of the Act, and that failure
    to stop the operation could result in various penalties, including
    substantial monetary fines, forfeiture of the equipment, and
    criminal sanctions. The agent requested to inspect the radio station
    inside the office space leased by Mr. Britcher, but Mr. Britcher
    refused stating "there was no warrant." The agent told Mr. Britcher
    of his obligation to allow an inspection of the station pursuant to
    Section 303(n) of the Act, and Mr. Britcher again refused.

3.  On April 19, 2006, the Kansas City Office agent again monitored
    broadcast transmissions on 103.3 MHz in Bettendorf, Iowa, and, using
    direction finding techniques, located broadcast transmissions on
    103.3 MHz to 2550 Middle Road in Bettendorf, Iowa. This was the same
    location as that determined to be the source of the unlicensed
    transmissions operating on 103.3 MHz on April 18, 2006. The agent
    made field strength measurements and determined that the station
    still exceeded the limits for operation under Part 15 of the Rules
    and, therefore, still required a license.[^3]

4.  The Kansas City Office received a response dated May 10, 2006, to
    the Notice issued on April 18, 2006 to Mr. Britcher.[^4] The
    response stated that the station "Power Hits 103.3" has authority to
    operate pursuant to 47 C.F.R. § 73.3542, and that the station has
    applied for authority according to that section. The response
    included an "application" for authority for Mr. Britcher to operate
    under that section.

5.  On June 9, 2006, the Kansas City Office issued to Mr. Britcher a
    *Notice of Apparent Liability for Forfeiture* ("*NAL*") in the
    amount of \$17,000 that found Mr. Britcher had willfully and
    repeatedly violated Sections 301 and 303(n) of the Act by operating
    an unlicensed radio transmitter and failing to allow inspection.[^5]

6.  On June 19, 2006, the Commission's mailroom in Washington, D.C.
    received a letter dated June 13, 2006, from Mr. Britcher's counsel
    of record to the Secretary of the Commission. The letter purported
    to be an "Informal application for broadcast operation" under
    Section 73.3542 of the Rules to operate an FM station on 103.3 MHz
    by Class Act Entertainment, Jason Duncan, Matthew Britcher, and
    Power Hits 103.3. Attached to the letter was a document titled
    "Informal Application for Emergency Authorization to Operate a Radio
    Station Under 47 CFR 73.3542" showing Mr. Britcher as the applicant.
    The contents of this document appear identical to the "application"
    submitted by Mr. Britcher's counsel of record to the Kansas City
    Office on May 11 and May 15, 2006. As of the release date of this
    *Order*, no action has been taken by the Commission regarding this
    "application."

7.  On July 10, 2006, the Kansas City Office received via electronic
    mail a response to the *NAL* from Mr. Britcher's legal counsel
    ("Response").[^6] In his Response, Mr. Britcher requests
    cancellation or reduction of the proposed forfeiture, arguing: that
    he has authority to operate since he has applied for emergency
    authority under Section 73.3542 of the Commission's Rules; that any
    Commission enforcement action against him is preemptive,
    unauthorized and unconstitutional since the Commission has not
    responded to his request for emergency authority; that his
    Constitutional rights are being infringed; and that no court has
    ruled on the constitutionality of the Commission's forfeiture
    procedures.

**III. DISCUSSION**

8.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Act,[^7] Section 1.80 of the
    Rules,[^8] and *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines*.[^9] In examining Mr. Britcher'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 other such matters as justice
    may require.[^10]

9.  Section 301 of the Act requires 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.[^11] Mr. Britcher does
    not deny operating radio transmitting equipment but makes several
    arguments that he has authority to operate and that Commission
    enforcement action against him is improper. Section 303(n) of the
    Act states that the Commission has the authority to inspect all
    radio installations associated with stations required to be licensed
    to ascertain whether, in operation, they conform to the requirements
    of the rules and regulations of the Commission.[^12] Mr. Britcher's
    response does not deny his refusal to allow inspection and does not
    address this violation.

10. Mr. Britcher first argues that the he and the station's other
    operator applied for "emergency right to broadcast under 47 CFR
    73.3542" and that, since the Commission has not responded to that
    request, the Commission is barred from any forfeiture action, thus
    making Commission enforcement action "preemptive," "unauthorized,"
    and "unconstitutional." Section 73.3542 of the Rules states in
    pertinent part:

> \(a\) Authority may be granted, on a temporary basis, in extraordinary
> circumstances requiring emergency operation to serve the public
> interest. Such situations include: emergencies involving danger to
> life and property; a national emergency proclaimed by the President or
> the Congress of the U.S.A. and; the continuance of any war in which
> the United States is engaged, and where such action is necessary for
> the national defense or security or otherwise in furtherance of the
> war effort.
>
> \(1\) An informal application may be used. The FCC may grant such
> construction permits, station licenses, modifications or renewals
> thereof, without the filing of a formal application.[^13]

We disagree. The rule states that the Commission may grant authority
upon informal application. At no time has Mr. Britcher provided evidence
of any authority so granted by the Commission. In his response dated May
10, 2006, to the Notice of Unlicensed Radio Operation, Mr. Britcher
stated that he has "made the informal application in the past, if not
received, please consider the attached sheet their informal application
to operate a radio station under 47 CFR 73.3542." Mr. Britcher's
response included an undated and unsigned document titled "Informal
Application for Emergency Authorization to Operate a Radio Station." Mr.
Britcher communicated this application and response to the Kansas City
Office via electronic mail on May 11, 2006. On May 18, 2006, the
District Director, Kansas City Office, acknowledged receipt of the email
by return email to Mr. Britcher's counsel of record, stating: "This will
acknowledge receipt of your email response and the hard copy via USPS.
The Enforcement Bureau does not handle license authorizations.  Please
refer to information on the Media Bureau's web site at www.fcc.gov &
http://www.fcc.gov/mb/audio/howtoapply.html." The Kansas City Office
agent researched the Commission's broadcast station databases and found
no license, authorization, or application attributed to Mr. Britcher or
that authorized the operation of the station operated by Mr. Britcher in
Bettendorf, Iowa. Likewise, Mr. Britcher's Response to the *NAL*
provides no evidence of any proper application or authorization.
Therefore, we find that Mr. Britcher had no authority to operate his
radio station under Section 73.3542 of the Rules because there was no
evidence he had ever made proper application to the Commission under
that rule, and, even if he had, no authorization has ever been granted
to him to operate that station. Mr. Britcher further argues that any
forfeiture action by the Commission is barred "until the process 47 CFR
73.3542" is complete." As we have already noted, there is no evidence
that any such application process was initiated by Mr. Britcher until
after the unlicensed station was found operating by the Commission
agent. Even if he had applied, the act of applying for a Commission
broadcast license confers no authority to operate on the applicant and
does not bar the Commission from enforcement action if an applicant
chooses to operate without authority. Such an interpretation of our
rules would make meaningless the licensing requirement of Section 301 of
the Act since all one would need to obtain authorization would be to
apply without any review or approval by the Commission.

11. Mr. Britcher next argues that any action by the Enforcement Bureau
    is "preemptive and unauthorized" and "therefore unconstitutional."
    Mr. Britcher provides no bases for this argument. The Commission,
    and by delegated authority its Enforcement Bureau, are authorized to
    commence monetary forfeiture actions such as the instant matter
    against Mr. Britcher.[^14]

12. Finally, Mr. Britcher states that he has argued in previous
    responses that his constitutional rights are being infringed. The
    Response to the *NAL* provides no further discussion of this claim.
    In Mr. Britcher's response to the Notice of Unlicensed Radio
    Operation, he claimed "1^st^ amendment rights to operate a radio
    station" and "that the denial of more broadcasting stations in the
    Illinois/Iowa Quad Cities area is an infringement of their 1^st^
    Amendment rights." We disagree. The U.S. Supreme Court has
    repeatedly held that there is no constitutional right to use radio
    facilities without a license.[^15] In addition, the Commission's
    licensing processes are irrelevant to whether Mr. Britcher operated
    radio transmitting equipment without the required authorization.

13. We have examined Mr. Britcher's response to the *NAL* pursuant to
    the statutory factors above, and in conjunction with the *Forfeiture
    Policy Statement*. We conclude that Mr. Britcher willfully and
    repeatedly violated Section 301 of the Act on April 18 and April 19,
    2006, by operating radio transmitting equipment at 2550 Middle Road,
    Bettendorf, Iowa, on 103.3 MHz without the required Commission
    authorization. Also, we conclude that Mr. Britcher willfully and
    repeatedly violated Section 303(n) of the Act on April 18, 2006, by
    refusing to allow inspection of his radio station after the agent
    advised him of the statutory requirement for him to do so and in
    response to two official requests by a Commission representative. We
    find no basis for cancellation or reduction of the proposed \$17,000
    forfeiture.

**IV. ORDERING CLAUSES**

14. **ACCORDINGLY,** **IT IS ORDERED** that, pursuant to Section 503(b)
    of the Communications Act of 1934, as amended, and Sections 0.111,
    0.311 and 1.80(f)(4) of the Commission's Rules,[^16] Matthew H.
    Britcher **IS LIABLE FOR A MONETARY FORFEITURE** in the amount of
    \$17,000 for willful and repeated violation of Sections 301 and
    303(n) of the Act.[^17]

15. 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.[^18] 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 12th Street, S.W., Room 1A625, Washington, D.C.
    20554.[^19]

16. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class Mail and Certified Mail Return Receipt Requested to
    Matthew H. Britcher, Bettendorf, Iowa; and an additional copy to Mr.
    Britcher's counsel of record, Arshia Javaherian, The Law Center,
    Rock Island, Illinois.

**FEDERAL COMMUNICATIONS COMMISSION**

Dennis P. Carlton

Regional Director, South Central Region

Enforcement Bureau

[^1]: 47 U.S.C. §§ 301, 303(n).

[^2]: 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 μV/m at three
    meters. 47 C.F.R. § 15.239. On April 18, 2006, the measurements
    indicated that the signal was 28642 times greater than the maximum
    permissible level for a non-licensed Part 15 transmitter.

[^3]: The measurements made on April 19, 2006, indicated that the signal
    was 33,520 times greater than the maximum permissible level for a
    non-licensed Part 15 transmitter.

[^4]: The Kansas City Office received the response via email on May 11,
    2006, and received a hard copy via regular mail on May 15, 2006.
    This response was by legal counsel stating he represented both Mr.
    Britcher and Jason Duncan, another operator of the unlicensed radio
    station. The response stated it served as a formal response to both
    the Notice issued to Mr. Britcher and a Notice of Unlicensed
    Operation mailed to Jason Duncan.

[^5]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200632560003 (Enf. Bur., South Central Region, Kansas City Office,
    released June 9, 2006).

[^6]: The Response by legal counsel indicates it is responding to NALs
    issued to both Mr. Britcher and Jason Duncan. No hard copy of the
    Response has been received.

[^7]: 47 U.S.C. § 503(b).

[^8]: 47 C.F.R. § 1.80.

[^9]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999)
    ("*Forfeiture Policy Statement*").

[^10]: 47 U.S.C. § 503(b)(2)(D).

[^11]: 47 U.S.C. § 301.

[^12]: 47 U.S.C. § 303(n).

[^13]: 47 C.F.R. § 73.3542(a).

[^14]: *See* 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80.

[^15]: *See Red Lion Broadcasting Co. v. FCC*, 395 U.S. 367, 388 (1969);
    *National Broadcasting Co. v. United States*, 319 U.S. 190, 227
    (1943); and *United States v. Dunifer*, 997 F.Supp. 1235 (N.D.
    Calif. 1998), aff'd on other grounds, 219 F.3d 1004 (9^th^ Cir.
    2000).

[^16]: 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^17]: 47 U.S.C. §§ 301, 303(n).

[^18]: 47 U.S.C. § 504(a).

[^19]: *See* 47 C.F.R. § 1.1914.