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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| Jason L. Duncan                  | ) | NAL/Acct. No. 200632560004   |
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| Bettendorf, Iowa                 | * | FRN 0015021819               |
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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 ten thousand dollars (\$10,000) to
    Jason L. Duncan ("Mr. Duncan"), for willful and repeated violation
    of Section 301 of the Communications Act of 1934, as amended
    ("Act").[^1] The noted violation involves operating an unlicensed
    radio transmitter.

**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 Matthew Britcher ("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. During this interview, Mr. Britcher was accompanied
    by an unidentified man who videotaped the interview.

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.  On April 25, 2006, the Kansas City Office agent received a telephone
    call from a person identifying himself as Jason Duncan. Mr. Duncan
    stated that he was the person videotaping the interview of Mr.
    Britcher on April 18, 2006. The agent explained to Mr. Duncan the
    Notice that was issued to Mr. Britcher. Mr. Duncan stated that he
    had seen the Notice and read it.

5.  On May 2, 2006, a Notice of Unlicensed Operation was issued to Jason
    Duncan ("Duncan Notice"). This notice warned Mr. Duncan that
    operation of the unlicensed radio station on 103.3 MHz violated 47
    U.S.C. § 301; outlined the potential penalties for operating an
    unlicensed station in violation of 47 U.S.C. § 301, including
    seizure of the equipment, fines and imprisonment; and directed the
    operators of the station to terminate operation of the unlicensed
    station immediately.

6.  The Kansas City Office received a response dated May 10, 2006, to
    the Duncan Notice.[^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
    to operate under that section.

7.  On June 9, 2006, the Kansas City Office issued to Mr. Duncan a
    *Notice of Apparent Liability for Forfeiture* ("*NAL*") in the
    amount of \$10,000 that found Mr. Duncan had willfully and
    repeatedly violated Section 301 of the Act by operating an
    unlicensed radio transmitter.[^5]

8.  On June 19, 2006, the Commission's mailroom in Washington, D.C.
    received a letter dated June 13, 2006, from Mr. Duncan'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." The contents of this document appear
    identical to the "application" submitted by Mr. Duncan'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."

9.  On July 10, 2006, the Kansas City Office received via electronic
    mail a response to the *NAL* from Mr. Duncan's legal counsel
    ("Response").[^6] In his Response, Mr. Duncan 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**

10. 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. Duncan'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]

11. 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. Duncan 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.

12. Mr. Duncan first argues that the he 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.[^12]

We disagree. The rule states that the Commission may grant authority
upon informal application. At no time has Mr. Duncan 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. Duncan 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. Duncan's response included an
undated and unsigned document titled "Informal Application for Emergency
Authorization to Operate a Radio Station." Mr. Duncan 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.
Duncan'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. Duncan or
that authorized the operation of the station operated by Mr. Duncan in
Bettendorf, Iowa. Likewise, Mr. Duncan's Response to the *NAL* provides
no evidence of any proper application or authorization. Therefore, we
find that Mr. Duncan 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. Duncan 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. Duncan 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.

13. Mr. Duncan next argues that any action by the Enforcement Bureau is
    "preemptive and unauthorized" and "therefore unconstitutional." Mr.
    Duncan 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. Duncan.[^13]

14. Finally, Mr. Duncan 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.
    Duncan'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.[^14] In addition, the Commission's licensing
    processes are irrelevant to whether Mr. Duncan operated radio
    transmitting equipment without the required authorization.

15. We have examined Mr. Duncan's response to the *NAL* pursuant to the
    statutory factors above, and in conjunction with the *Forfeiture
    Policy Statement*. We conclude that Mr. Duncan 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. We find no basis for cancellation or reduction of the
    proposed \$10,000 forfeiture.

**IV. ORDERING CLAUSES**

16. **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,[^15] Jason L. Duncan
    **IS LIABLE FOR A MONETARY FORFEITURE** in the amount of \$10,000
    for willful and repeated violation of Section 301 of the Act.[^16]

17. 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 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.[^18]

18. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class Mail and Certified Mail Return Receipt Requested to
    Jason L. Duncan, Bettendorf, Iowa; and an additional copy to Mr.
    Duncan'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.

[^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 Mr. Duncan. The response stated it served as a formal
    response to both the Notice issued to Mr. Britcher and the Notice of
    Unlicensed Operation mailed to Mr. Duncan.

[^5]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200632560004 (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 Mr. 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 C.F.R. § 73.3542(a).

[^13]: *See* 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80.

[^14]: *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).

[^15]: 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^16]: 47 U.S.C. § 301.

[^17]: 47 U.S.C. § 504(a).

[^18]: *See* 47 C.F.R. § 1.1914.