**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-06-KC-067       |
|                                  |   |                                 |
| Jason L. Duncan                  | ) | NAL/Acct. No. 200632560004      |
|                                  |   |                                 |
| Bettendorf, IA                   | ) | FRN 0015021819                  |
|                                  |   |                                 |
|                                  | ) |                                 |
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|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+
|                                  |   |                                 |
+----------------------------------+---+---------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE {#notice-of-apparent-liability-for-forfeiture .unnumbered}

> Released: **June 9, 2006**

By the District Director, Kansas City District Office, South Central
Region, Enforcement Bureau:

# INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Jason L. Duncan ("Duncan"), apparently willfully and
    repeatedly violated Section 301 of the Communications Act of 1934,
    as amended ("Act"),[^1] by operating an unlicensed radio
    transmitter. We conclude, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended ("Act"),[^2] that Duncan is
    apparently liable for forfeiture in the amount of ten thousand
    dollars (\$10,000).

# BACKGROUND

2.  On April 10, 2006, the Enforcement Bureau's Kansas City Office
    received information concerning an unauthorized broadcast station
    operating on 103.3 MHz in Bettendorf, Iowa. A search of the
    Commission's databases revealed no authorization for a broadcast
    station to operate on 103.3 MHz in Bettendorf, Iowa.

3.  On April 18, 2006, a Kansas City agent 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")[^3]
    and therefore required a license. 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. The agent hand-delivered a Notice of Unlicensed Radio
    Operation and a copy of Section 301 of the Act to another operator
    of the radio station.

4.  On April 19, 2006, an agent from the Commission's Kansas City Office
    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.
    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.[^4]

5.  On May 2, 2006, the Kansas City Office mailed to Duncan at the radio
    station address a Notice of Unlicensed Operation ("Notice").

6.  On May 11, 2006, the Kansas City office received a written response
    ("Response") to the Notice.[^5] 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.

# DISCUSSION

7.  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. The term \"willful\" as used in
    Section 503(b) has been interpreted to mean simply that the acts or
    omissions are committed knowingly.[^6] The term "repeated" means the
    commission or omission of such act more than once or for more than
    one day.[^7]

8.  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. In particular, Section
    301 states that "\[n\]o person shall use or operate any apparatus
    for the transmission of energy or communications or signals by
    radio (a) from one place in any State, Territory, or possession of
    the United States or in the District of Columbia to another place in
    the same State, Territory, possession, or District; . . . except
    under and in accordance with this chapter and with a license in that
    behalf granted under the provisions of this chapter."[^8] On April
    18, 2006, and April 19, 2006, Duncan operated radio transmitting
    equipment at 2550 Middle Road, Bettendorf, Iowa, on 103.3 MHz
    without the required Commission authorization. Duncan claimed
    authority to operate the radio station under 47 C.F.R. § 73.3542.
    Duncan provided no evidence of any authority granted by the
    Commission to operate this station. Based on the evidence before us,
    we find Duncan apparently willfully and repeatedly violated Section
    301 of the Act by operating radio transmission apparatus without a
    license on 103.3 MHz in Bettendorf, Iowa, on April 18 and 19, 2006.

9.  Pursuant to *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines*, ("*Forfeiture Policy Statement*") and Section 1.80 of
    the Rules, the base forfeiture amount for operation without an
    instrument of authorization is \$10,000.[^9] In assessing the
    monetary forfeiture amount, we must also take into account the
    statutory factors set forth in Section 503(b)(2)(D) of the Act,
    which include 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] Applying the
    *Forfeiture Policy Statement*, Section 1.80, and the statutory
    factors to the instant case, we conclude that Mr. Duncan is
    apparently liable for a \$10,000 forfeiture

# ORDERING CLAUSES

10. 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 of the Commission\'s Rules, Jason L. Duncan is hereby
    **NOTIFIED** of this **APPARENT LIABILITY FOR A** **FORFEITURE** in
    the amount of ten thousand dollars (\$10,000) for violations of
    Section 301 of the Act.[^11]

11. **IT IS FURTHER ORDERED** that, pursuant to Section 1.80 of the
    Commission\'s Rules within thirty days of the release date of this
    Notice of Apparent Liability for Forfeiture, Jason L. Duncan **SHALL
    PAY** the full amount of the proposed forfeiture or **SHALL FILE** a
    written statement seeking reduction or cancellation of the proposed
    forfeiture.

12. 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.

13. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, South Central Region, Kansas City
    District Office, 520 NE Colbern Road, Lee's Summit, MO 64086-4711,
    and must include the NAL/Acct. No. referenced in the caption.

14. 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.

15. Requests for payment of the full amount of this Notice of Apparent
    Liability for Forfeiture under an installment plan should be sent
    to: Associate Managing Director -- Financial Operations, Room 1A625,
    445 12th Street, S.W., Washington, D.C. 20554.[^12]

16. **IT IS FURTHER ORDERED** that a copy of this Notice of Apparent
    Liability for Forfeiture shall be sent by Certified Mail, Return
    Receipt Requested, and regular mail, to Jason L. Duncan, with an
    additional copy to Duncan's legal counsel, Arshia Javaherian, The
    Law Center, 329 18^th^ Street, Suite 600, Rock Island, Illinois
    61201.

**FEDERAL COMMUNICATIONS COMMISSION**

Robert C. McKinney

District Director

Kansas City District Office

South Central Region

Enforcement Bureau

[^1]: 47 U.S.C. § 301.

[^2]: 47 U.S.C. § 503(b).

[^3]: 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. Devices
    compliant with Part 15 typically have a range of less than one mile.

[^4]: 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.

[^5]: The Response was by legal counsel stating he represented both
    Duncan and Matthew Britcher, another operator of the unlicensed
    radio station. The Response stated it served as a formal response to
    both the Notice issued to Duncan and the Notice of Unlicensed
    Operation hand-delivered to Matthew Britcher.

[^6]: 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\', when
    used with reference to the commission or omission of any act, 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....\" *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^7]: Section 312(f)(2) of the Act, 47 U.S.C. § 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."

[^8]: 47 U.S.C. § 301.

[^9]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^10]: 47 U.S.C. § 503(b)(2)(D).

[^11]: 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80; 47 U.S.C. §
    301.

[^12]: *See* 47 C.F.R. § 1.1914.