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United States v. Frank, No. 11-50848 (5th Cir.)

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Released: September 13, 2012
Case: 11-50848 Document: 00511978168 Page: 1 Date Filed: 09/07/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

F I L E D

September 7, 2012
No. 11-50848
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
RAYMOND FRANK,
Defendant - Appellant
Appeal from the United States District Court for
the Western District of Texas
USDC No. 1:10-CV-957
Before KING, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:*
On July 23, 2009, the Federal Communications Commission (“FCC”)
responded to a complaint concerning an unlicensed radio station broadcasting
on the frequency 100.1 MHz in the Austin, Texas area. FCC agents discovered
that signals coming from Raymond Frank’s residence exceeded the limits for
operation without a license under 47 U.S.C. § 301(a).
1 The FCC issued a Notice
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Sect
1
ion 301 states, in part, 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

Case: 11-50848 Document: 00511978168 Page: 2 Date Filed: 09/07/2012
No. 11-50848
of Unlicensed Operation to Frank warning him that his transmissions were not
authorized and about the possible penalties he would incur if he continued his
transmissions. Frank responded that he had ceased his transmissions.
After receiving another complaint and detecting a signal at a frequency of
90.1 MHz from Frank’s home on two additional occasions, the FCC issued a
Notice of Apparent Liability to Frank on August 13, 2009. Frank responded to
the Notice of Apparent Liability by asserting that the FCC did not have
jurisdiction over the matter, arguing that 47 U.S.C. § 301 was unconstitutional,
and requesting that the forfeiture order be canceled. On November 9, 2009, the
FCC issued a forfeiture order imposing a $10,000 forfeiture penalty against
Frank.
When Frank failed to pay the order, the FCC referred the matter to the
Department of Justice, which filed a complaint in the United States District
Court for the Western District of Texas for judicial enforcement pursuant to 47
U.S.C. § 504(a).2 On two occasions prior to trial, Frank moved to dismiss the
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 . . . .” 47 U.S.C. § 301.
S
2
ection 504(a) states that:
The forfeitures provided for in this chapter shall be payable into the Treasury
of the United States, and shall be recoverable, except as otherwise provided
with respect to a forfeiture penalty determined under section 503(b)(3) of this
title, in a civil suit in the name of the United States brought in the district
where the person or carrier has its principal operating office or in any district
through which the line or system of the carrier runs: Provided, That any suit for
the recovery of a forfeiture imposed pursuant to the provisions of this chapter
shall be a trial de novo: Provided further, That in the case of forfeiture by a
ship, said forfeiture may also be recoverable by way of libel in any district in
which such ship shall arrive or depart. Such forfeitures shall be in addition to
any other general or specific penalties provided in this chapter. It shall be the
duty of the various United States attorneys, under the direction of the Attorney
General of the United States, to prosecute for the recovery of forfeitures under
this chapter. The costs and expenses of such prosecutions shall be paid from the
appropriation for the expenses of the courts of the United States.
47 U.S.C. § 504(a).
2

Case: 11-50848 Document: 00511978168 Page: 3 Date Filed: 09/07/2012
No. 11-50848
action based on various procedural and legal challenges to the validity of the
FCC’s regulations and the forfeiture order against him. The district court
concluded that it lacked jurisdiction to address these challenges because such
challenges should have been raised via an administrative appeal of the forfeiture
order itself, subject to judicial review by this court. It then determined that its
own jurisdiction in the enforcement action was limited to factual determinations
and denied both motions to dismiss. The district court then set an evidentiary
hearing to decide: “(1) whether the FCC’s allegations in the Forfeiture Order
were true; (2) whether the allegations found to be true met the elements
required for liability; and (3) whether the amount of the forfeiture penalty was
appropriate in light of the facts.”
According to the district court, Frank did not deny the government’s
factual allegations at the hearing. The district court found that the allegations
in the forfeiture order met the elements required for liability and had been
proven based on Frank’s own admissions and the testimony of the government’s
witnesses. The district court also concluded that the amount of the forfeiture
order was not unreasonably high and entered judgment for the government in
the amount of $10,000 plus interest.
Frank appeals the denial of his motions to dismiss but does not challenge
the factual basis for the district court’s order. He instead makes various pro se
legal arguments,3 above all that the FCC lacked authority under the Commerce
Clause to regulate intrastate radio broadcasts and that § 301(a) of the
Communications Act only applies to targeted “point to point” intrastate
communications. His arguments are foreclosed by our recent decision in the
related case, United States v. Stevens, -- F.3d ---, 2012 WL 3516204 (5th Cir.
August 16, 2012), where we held that district courts do not have jurisdiction to
3 Frank discursively criticizes de novo review and 47 C.F.R. § 15.239(b). These two
points are inapplicable to his circumstances and without merit.
3

Case: 11-50848 Document: 00511978168 Page: 4 Date Filed: 09/07/2012
No. 11-50848
review legal challenges to government actions in 47 U.S.C. § 504(a) proceedings
to enforce forfeiture orders issued by the FCC.4
Therefore, we AFFIRM the judgment of the district court.
4 Frank’s case involves the same radio station as Stevens, which was adjudicated by the
same district judge. The two lawsuits have nearly identical pleadings, motions, and briefing,
including Freedom of Information Act requests by Deborah Stevens.
4

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