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

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Released: February 1, 2012
Case: 11-50848 Document: 00511744157 Page: 1 Date Filed: 02/01/2012

BRIEF FOR APPELLEE
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

NO. 11-50848

UNITED STATES OF AMERICA,
PLAINTIFF - APPELLEE,
V.
RAYMOND FRANK,
DEFENDANT - APPELLANT.

ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF TEXAS



ROBERT PITMAN
UNITED STATES ATTORNEY


GARY W. WRIGHT
ASSISTANT UNITED STATES ATTORNEY


UNITED STATES ATTORNEY‘S OFFICE
WESTERN DISTRICT OF TEXAS
601 N.W. LOOP 410, SUITE 600
SAN ANTONIO, TEXAS 78216-5597
(210) 384-7340
(210) 384-7358 (FAX)

ATTORNEYS FOR PLAINTIFF-APPELLEE
UNITED STATES OF AMERICA

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STATEMENT REGARDING ORAL ARGUMENT


The United States agrees with Appellant that the issues presented in
this case do not require oral argument.






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TABLE OF CONTENTS


JURISDICTIONAL STATEMENT .................................................................. 1
ISSUES PRESENTED FOR REVIEW ............................................................ 2
STATEMENT OF THE CASE ......................................................................... 2
COUNTERSTATEMENT OF FACTS ............................................................. 4
I.
REGULATORY BACKGROUND ........................................................... 4
II. PRIOR PROCEEDINGS ........................................................................... 7
SUMMARY OF ARGUMENT ......................................................................12
ARGUMENT ..................................................................................................15
I.
STANDARD OF REVIEW .....................................................................15
II. THE DISTRICT COURT PROPERLY DETERMINED
THAT IT WAS WITHOUT JURISDICTION TO
CONSIDER CHALLENGES TO THE VALIDITY OF FCC
STATUTES AND REGULATIONS. ......................................................15

III. THE DISTRICT COURT CORRECTLY HELD MR.
FRANK LIABLE FOR BROADCASTING WITHOUT A
LICENSE. ................................................................................................24

A. The undisputed evidence shows that Mr. Frank was
broadcasting without a license or other authorization
from the FCC. ...................................................................................24

B. Mr. Frank‘s legal objections are without merit. ..................................25
1. Mr. Frank did not have to consent to regulation or
otherwise apply for a license for the FCC‘s rules to
apply. .............................................................................................25

2. Mr. Frank‘s broadcasts fall within Section 301‘s
licensing requirement. ...................................................................27
3. Section 15.239(b) of the FCC‘s Rules does not provide
a defense to Mr. Frank‘s unlicensed broadcasting. .......................29
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CONCLUSION ...............................................................................................32
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TABLE OF AUTHORITIES


CASES


Action for Childrens Television v. FCC (ACT I),
827 F. Supp. 4 (D.D.C. 1993), aff’d, 59 F.3d
1249 (D.C. Cir. 1995) (ACT II) ...................................................................16
AT&T Corp. v. FCC, 323 F.3d 1081 (D.C. Cir.
2003) ............................................................................................................20
Bywater Neighborhood Ass’n v. Tricarico, 879 F.2d
165, 167 (5th Cir. 1989), cert. denied, 494 U.S.
1004 (1990) .......................................................................................... 17, 18
Chevron U.S.A., Inc. v. Natural Res. Def. Council,
467 U.S. 837 (1984) ....................................................................................23
City of Arlington v. FCC, No. 10-60039, slip. op.
(5th Cir. Jan. 23, 2012) ................................................................................23
Coal. for Noncommercial Media v. FCC, 249 F.3d
1005 (D.C. Cir. 2001) ..................................................................................27
Columbia Broad. Sys., Inc. v. United States, 316
U.S. 407 (1942) ...........................................................................................17
Dresser v. MEBA Med. & Benefits Plan, 628 F.3d
705 (5th Cir. 2010) ......................................................................................15
FCC v. ITT World Commc’ns, Inc., 466 U.S. 463
(1984) ................................................................................................... 16, 19
FCC v. Pottsville Broad. Co., 309 U.S. 134 (1940) ........................................29
FCC v. Summa Corp., 447 F. Supp. 923 (D. Nev.
1978) ..................................................................................................... 18, 19
Fisher’s Blend Station, Inc. v. Tax Comm’n, 297
U.S. 650 (1936) ...........................................................................................27
Grid Radio v. FCC, 278 F.3d 1314 (D.C. Cir. 2002) .............................. 21, 22
KVUE, Inc. v. Austin Broad. Corp., 709 F.2d 922
(5th Cir. 1983), aff’d mem., 465 U.S. 1092 (1984) .................................5, 29
La Voz Radio de la Communidad v. FCC, 223 F.3d
313 (6th Cir. 2000) ......................................................................................23
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Ligon v. LaHood, 614 F.3d 150 (5th Cir. 2010),
cert. denied, 131 S.Ct. 3063 ................................................................. 15, 18
Nat’l Broad. Co., Inc. v. United States, 319 U.S.
190 (1943) ............................................................................................ 22, 27
Pleasant Broad. Co. v. FCC, 564 F.2d 496 (D.C.
Cir. 1977) .....................................................................................................24
Red Lion Broad. Co., Inc. v. FCC, 395 U.S. 367
(1969) ..........................................................................................................22
SBC Commc’ns, Inc. v. FCC, 373 F.3d 140 (D.C.
Cir. 2004) .....................................................................................................20
Sw. Bell Tel. v. Ark. Pub. Serv., 738 F.2d 901 (8th
Cir. 1984), vacated and remanded on other
grounds
, 476 U.S. 1167 (1986) ...................................................................19
Tanglewood E. Homeowners v. Charles-Thomas,
Inc., 849 F.2d 1568 (5th Cir. 1988) .............................................................15
Teemac v. Henderson, 298 F.3d 452 (5th Cir. 2002) ......................................15
Telecomm. Research & Action Ctr. v. FCC (TRAC),
750 F.2d 70 (D.C. Cir. 1984) ......................................................................18
U.S. Nuclear Regulatory Comm’n v. Radiation
Tech., Inc., 519 F. Supp. 1266 (D.N.J. 1981) .............................................24
United States v. Any and All Radio Station
Transmission Equip. (Bent Oak), 204 F.3d 658
(6th Cir. 2000) .............................................................................................23
United States v. Any and All Radio Station
Transmission Equip. (Laurel Avenue), 207 F.3d
458 (8th Cir. 2000), cert. denied, 531 U.S.
1071(2001) ..................................................................................... 17, 19, 22
United States v. Brown, 661 F.2d 855 (10th Cir.
1981) (per curiam) .......................................................................................27
United States v. Butterfield, 91 F. Supp. 2d 704 (D.
Vt. 2000) ............................................................................................... 27, 28
United States v. Daniels, 418 F. Supp. 1074 (D.S.D.
1976) ............................................................................................................19
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United States v. Dunifer, 219 F.3d 1004, 1008-09
(9th Cir. 2000) ...................................................................................... 21, 22
United States v. First City Nat’l Bank of Houston,
386 U.S. 361, 368 (1967) ............................................................................19
United States v. Ganley, 300 F. Supp. 2d 200, 202-
03 (D. Me. 2004) .........................................................................................28
United States v. Neely, 595 F. Supp. 2d 662, 669
(D.S.C. 2009) ...............................................................................................18
United States v. Neset, 235 F.3d 415 (8th Cir. 2000) .....................................22
United States v. TravelCenters of America, 597 F.
Supp. 2d 1222, 1225-26 (D. Or. 2007)........................................................18
Weissinger v. United States, 423 F.2d 795, 798 (5th
Cir. 1970) .....................................................................................................15

STATUTES


28 U.S.C. § 1291 ............................................................................................... 2
28 U.S.C. § 1331 ............................................................................................... 1
28 U.S.C. § 1345 ............................................................................................... 1
28 U.S.C. § 1355(a) ........................................................................................... 1
28 U.S.C. §§ 2341 et seq. ............................................................................7, 17
28 U.S.C. § 2342 ...................................................................................... 16, 17
28 U.S.C. § 2342(1)........................................................................................... 7
47 U.S.C. § 154(i) ............................................................................................. 5
47 U.S.C. § 301 .................................... 2, 4, 5, 9, 12, 14, 15, 21, 25, 26, 31, 32
47 U.S.C. § 301(a) ........................................................................ 14, 28, 29, 30
47 U.S.C. § 301(b)...........................................................................................29
47 U.S.C. § 301(d)...........................................................................................29
47 U.S.C. § 307(a) ............................................................................................. 5
47 U.S.C. § 307(e) ............................................................................................. 6
47 U.S.C. § 312 ................................................................................................. 6
47 U.S.C. § 312(f)(1) ........................................................................................ 6
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47 U.S.C. § 312(f)(2) ........................................................................................ 6
47 U.S.C. § 401(a) ...........................................................................................22
47 U.S.C. § 402(a) ........................................................................ 10, 13, 16, 21
47 U.S.C. § 402(b)...........................................................................................17
47 U.S.C. § 503 ...............................................................................................13
47 U.S.C. § 503(b)(1) ........................................................................................ 6
47 U.S.C. § 503(b)(2)(E) ................................................................................... 6
47 U.S.C. § 503(b)(3)(B) ................................................................................16
47 U.S.C. § 503(b)(4) ........................................................................................ 7
47 U.S.C. § 503(b)(4)(A) .................................................................................. 9
47 U.S.C. § 504(a) ............................................................ 1, 3, 7, 13, 16, 18, 23

REGULATIONS


47 C.F.R. § 1.2 ................................................................................................21
47 C.F.R. § 1.3 ................................................................................................21
47 C.F.R. § 1.80(b)(4) ....................................................................................... 6
47 C.F.R. § 1.115(k) ........................................................................................20
47 C.F.R. § 1.401 ............................................................................................21
47 C.F.R. § 1.80(b)(4) ....................................................................................... 6
47 C.F.R. pt. 15 ...........................................................................................5, 25
47 C.F.R. § 15.1 ..............................................................................................31
47 C.F.R. § 15.1(b) ......................................................................................6, 31
47 C.F.R. § 15.239(b) ..................................................................... 5, 14, 30, 31

ADMINISTRATIVE DECISIONS


Raymond Frank, 24 FCC Rcd 13660 (Enf. Bur.
2009) ............................................................................................... 2, 8, 9, 10
Raymond Frank, NAL No. 200932540003 (Enf.
Bur. 2009) ...................................................................................................... 9
Raymond Frank, No. W20073250004 (Enf. Bur.
2007) .............................................................................................................. 8
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Revision of Part 15 of the Rules Regarding the
Operation of Radio Frequency Devices Without
an Individual License
, 4 FCC Rcd 3493 (1989),
recon. denied, 5 FCC Rcd 1110 (1990). .....................................................31

LEGISLATIVE HISTORY


Communications Amendments Act of 1982, Pub. L.
No. 97-259, 96 Stat. 1087............................................................................28


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Case: 11-50848 Document: 00511744157 Page: 10 Date Filed: 02/01/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

NO. 11-50848

UNITED STATES OF AMERICA,
PLAINTIFF - APPELLEE,
V.
RAYMOND FRANK,
DEFENDANT - APPELLANT.

ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT
OF TEXAS

BRIEF FOR APPELLEE

JURISDICTIONAL STATEMENT

The United States is authorized by statute to recover monetary
forfeitures imposed by the Federal Communications Commission (―FCC‖ or
―Commission‖) in a civil action in district court. 47 U.S.C. § 504(a). The
district court had jurisdiction over the government‘s suit under 28 U.S.C. §§
1331, 1345, and 1355(a). On June 23, 2011, the district court entered a final


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1
order of judgment against Appellant (RE Tab 3, R.281; R.288). On
September 8, 2011, Appellant filed a notice of appeal (RE Tab 2, R.364)
within the 60 days permitted by Fed R. App. P. 4(a)(1)(B). This Court has
jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.

ISSUES PRESENTED FOR REVIEW

1. Whether the district court properly held that it lacked jurisdiction to
consider Appellant‘s challenges to the validity of FCC regulations.
2. Whether the district court properly held that Appellant violated 47 U.S.C.
§ 301 by operating an FM radio station and broadcasting without a license or
other authorization from the Federal Communications Commission.

STATEMENT OF THE CASE

This case involves the government‘s suit to enforce an order of the
Federal Communications Commission imposing a $10,000 monetary
forfeiture against Appellant Raymond Frank for operating an unlicensed FM
radio broadcast station from his home in Austin, Texas, in violation of section
301 of the Communications Act of 1934, as amended (the ―Act‖), 47 U.S.C.
§ 301. See Raymond Frank, 24 FCC Rcd 13660 (Enf. Bur. 2009)

1 ―RE xxx‖ refers to Appellant‘s Record Excerpts. Because each Tab of the Record
Excerpts contains a number of related documents, for each reference we have also cited
the specific page of the Record, designated ―R.xxx‖ as well.

2
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(―
2
Forfeiture Order‖) (RE Tab 4; Pl. Exh. 1). Because Mr. Frank failed to
pay the FCC‘s forfeiture order, the government filed a complaint (SRE Tab 1,
3
R.7) in the United States District Court for the Western District of Texas for
judicial enforcement pursuant to 47 U.S.C. § 504(a).

Mr. Frank twice moved to dismiss the action prior to trial (SRE Tab 2,
R.56; SRE Tab 3, R.78), raising a variety of procedural, legal, and
constitutional challenges to the validity of the FCC and its regulations
generally, as well as the specific Forfeiture Order at issue. In an order filed
April 15, 2011 (―April 15 Order‖), the district court denied both motions,
finding that it lacked jurisdiction to address such challenges in an
enforcement action under 47 U.S.C. § 504(a). April 15 Order at 17 (RE Tab
3, R.187). The district court set an evidentiary hearing and bench trial limited
to determining: (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. April 15 Order at 17 (RE Tab 3, R.187).

2 A related appeal, United States v. Stevens, No. 11-50862, which involves the
enforcement by the same district court judge of a separate monetary forfeiture imposed
against two other Austin residents by the FCC for unlicensed broadcasting, raises nearly
identical issues on appeal. See June 23 Order at 2 n.1 (RE Tab 3, R.282).
3 ―SRE‖ refers to the government‘s Supplemental Record Excerpts, followed by a
Record citation.

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After a bench trial, the district court found, in an order filed on June 23,
2011 (―June 23 Order‖), that (1) the allegations in the FCC‘s Forfeiture
Order had been proved; (2) they established that Mr. Frank violated federal
law and FCC regulations against unlicensed broadcasting; and (3) the amount
of the forfeiture was not unreasonably high. June 23 Order at 7 (RE Tab 3,
R.287). The district court accordingly entered judgment (―June 23
Judgment‖) in favor of the government in the amount of $10,000 plus
interest. June 23 Order at 7 (RE Tab 3, R.287); June 23 Judgment (RE Tab
3, R.288).
Mr. Frank has appealed. Notice of Appeal (RE Tab 2, R.364).

COUNTERSTATEMENT OF FACTS

I.

REGULATORY BACKGROUND

The Communications Act seeks ―to maintain the control of the United
States over all the channels of radio transmission; and to provide for the use
of such channels, but not the ownership thereof, by persons for limited
periods of time, under licenses granted by Federal authority.‖ 47 U.S.C.
file:///C:/Documents%20and%20Settings/Ellen.Miles/Users/Student/Documents/Documents/Stevens%20broef%20edits/RLINK">§ 3http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=47USCAS301&FindType=L">01. To that end, the statute provides 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,

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Territory, possession, or District . . . except under and in accordance with this
Act and with a license in that behalf granted under the provisions of this Act.‖
Ibid.; see also KVUE, Inc. v. Austin Broad. Corp., 709 F.2d 922, 932 (5th Cir.
1983) (noting the comprehensive federal regulation of broadcasting under the
Communications Act‘s licensing provision), aff’d mem., 465 U.S. 1092
(1984).
Under the Communications Act, the FCC has the power to issue
licenses for radio broadcasting ―if the public convenience, interest, or
necessity will be served thereby.‖ 47 U.S.C. § 307(a). The Act also
generally authorizes the Commission to issue rules and regulations
implementing the statute‘s provisions. 47 U.S.C. § 154(i).
The Commission by rule has exempted certain low-power radio
transmission devices, such as garage door openers, from licensing under Part
15 of its regulations. 47 C.F.R. pt. 15. For Part 15 radio transmissions in the
FM broadcast band (88-108 MHz), the Commission's rules require that the
field strength of any unlicensed radio emissions not exceed 250 microvolts
per meter at 3 meters. 47 C.F.R. § 15.239(b). The Part 15 rules make clear
that unless otherwise exempted, ―[t]he operation of an intentional or
unintentional radiator that is not in accordance with the regulations in this

5
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part must be licensed pursuant to the provisions of sectiohttp://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=47USCAS301&FindType=L">n 301 of the . . .
Act.‖
4
47 C.F.R. § 15.1(b).
Under the Communications Act, ―[a]ny person who is determined by
5
the Commission . . . to have . . . willfully or repeatedly failed to comply with
any of the provisions of this chapter or of any rule, regulation, or order issued
by the Commission under this chapter . . . shall be liable to the United States
for a forfeiture penalty.‖ 47 U.S.C. § 503(b)(1). In determining a forfeiture
penalty, the Commission considers ―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 such other
matters as justice may require.‖ 47 U.S.C. § 503(b)(2)(E); 47 C.F.R. §
1.80(b)(4) and note thereto.

4 The Act also empowers the Commission to authorize the operation of radio stations by
rule, rather than by individual license, in the ―citizens band radio service,‖ the ―radio
control service,‖ the ―aviation radio service,‖ and the ―maritime radio service.‖ 47 U.S.C.
§ 307(e). Those services are not at issue in this case.
5 Section 312 of the Act defines ―willful‖ and ―repeated‖ as applicable to violations for
which forfeitures are assessed under section 503(b). 47 U.S.C. § 312. Section 312(f)(1)
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.‖ 47 U.S.C. § 312(f)(1). Section 312(f)(2)
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.‖ 47 U.S.C. §
312(f)(2).

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The Communications Act authorizes the Commission to institute
monetary forfeiture proceedings by issuing a Notice of Apparent Liability
(―NAL‖), and providing the person to whom the NAL is issued an
opportunity to show, in writing, why no forfeiture penalty should be imposed.
6
47 U.S.C. § 503(b)(4). Any forfeiture penalty that the Commission decides
to impose is recoverable in a ―civil suit in the name of the United States‖
pursuant to section 504(a) of the Act, which shall be a ―trial de novo.‖ 47
U.S.C. §§ 503(b)(4); 504(a).
Finally, proceedings to ―enjoin, set aside, annul or suspend any order
of the Commission‖ under the Communications Act must be brought as
provided in the Hobbs Administrative Orders Review Act, 28 U.S.C. §§ 2341
et seq., in the federal courts of appeal, which have ―exclusive jurisdiction‖ to
review ―all final orders of the Federal Communications Commission.‖ 28
U.S.C. § 2342(1).

II.

PRIOR PROCEEDINGS

This case began on January 23, 2007, when agents from the Houston
Office of the FCC‘s Enforcement Bureau (―Houston Office‖) investigated a
complaint about an unlicensed radio station in the Austin, Texas area. See

6 Alternatively, at the Commission‘s discretion, it can impose a monetary forfeiture
against a person after notice and an opportunity for a formal hearing before the
Commission or an administrative law judge. 47 U.S.C. § 503(b)(3). This procedure was
not used in this case.

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Forfeiture Order, ¶ 2 (RE Tab 4; Pl. Exh. 1). On that date, the FCC agents
confirmed that signals on frequency 100.1 MHz were being transmitted from
Mr. Frank‘s residence in Austin, Texas. Id.
On February 22, 2007, the Enforcement Bureau sent a Notice of
Unlicensed Operation (―Notice‖) to Mr. Frank warning him that his operation
of a radio station without a license violated federal law and subjected him to
serious penalties, including monetary fines. See Raymond Frank, No.
W20073250004 (Enf. Bur. 2007) (―Notice‖) at 1 (SRE Tab 4; R.67). The
Notice emphasized the importance of complying strictly with the licensing
requirements of the Communications Act and stated that operation of radio
transmitting equipment without proper authority granted by the Commission
should cease immediately. Id. On March 5, 2007, Mr. Frank filed a written
response to the FCC‘s Notice, stating that the transmissions had ceased. See
Forfeiture Order, ¶ 3 (RE Tab 4; Pl. Exh. 1).
In response to an additional complaint about an unlicensed radio
station operating in the Austin, Texas area, on July 22, 2009 and August 3,
2009, FCC agents from the Houston Office confirmed that the unauthorized

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FM radio broadcasts were being transmitted from Mr. Frank‘s home on
7
frequency 90.1 MHz. See Forfeiture Order, ¶¶ 4-5 (RE Tab 4; Pl. Exh. 1).
On August 13, 2009, the Houston Office issued an NAL to Mr. Frank
pursuant to 47 U.S.C. § 503(b)(4)(A). See Raymond Frank, NAL No.
200932540003 (Enf. Bur. 2009) (―NAL‖) (RE Tab 4; Pl. Exh. 4). The NAL
listed the dates and times of the alleged illegal broadcasts and preliminarily
assessed a forfeiture of $10,000 against Mr. Frank for ―willfully‖ and
―repeatedly‖ operating an unlicensed station in violation of 47 U.S.C. § 301.
Id. ¶¶ 2, 4-5, 7-9 (RE Tab 4; Pl. Exh. 4).
In his response to the NAL, Mr. Frank again did not deny that he had
operated the radio station without a license. Instead, he disputed the FCC‘s
jurisdiction over intrastate communications and asserted that he was not
liable for the proposed forfeiture amount. See Forfeiture Order, ¶¶ 6, 9-10
(RE Tab 4; Pl. Exh. 1).

7 The field strength measurements of the signals emanating from Mr. Frank‘s residence
conducted on both July 22, 2009 and August 3, 2009, established that the emission of the
unlicensed station far exceeded the 250 microvolts/meter limit set forth in the FCC‘s Part
15 rules, 47 C.F.R. § 15.239(b). See June 23 Order at 4 & n.2 (RE Tab 3, R.284) (finding
that the FCC‘s measurements indicated an average field strength of over thirteen thousand
times the Part 15 limit); see also July 22 Field Measurements (SRE Tab 5; Pl. Exh. 9);
(showing power level 13,048 times the Part 15 limit); Aug. 3 Field Measurements (SRE
Tab 6; Pl. Exh. 11) (showing power level 15,434 times the Part 15 limit).


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On November 9, 2009, the FCC‘s Enforcement Bureau issued a
Forfeiture Order. Forfeiture Order (RE Tab 4; Pl. Exh. 1). In the Forfeiture
Order, the Bureau considered and rejected Mr. Frank‘s claim that the FCC
had no jurisdiction over his unlicensed radio station, id., ¶¶ 8-11 (RE Tab 4,
Pl. Exh. 1), and ordered Mr. Frank to pay a forfeiture of $10,000 for his
―willful‖ and ―repeated‖ violations of the broadcast licensing requirement of
47 U.S.C. § 301, id. ¶ 12 (RE Tab 4; Pl. Exh. 1).
Mr. Frank failed to pay the $10,000 forfeiture penalty and continued
8
his unlicensed broadcasts. Consequently, on December 16, 2010, the United
States filed an action (SRE Tab 1, R.7) in the United States District Court for
the Western District of Texas for judicial enforcement. Mr. Frank filed two
motions to dismiss the government‘s suit (SRE Tab 2, R.56; SRE Tab 3,
R.78). In his motions, he challenged the FCC‘s authority to regulate his
activity, the validity of the FCC regulations he violated, and the procedures
the Commission used in issuing the Forfeiture Order.
Relying on 47 U.S.C. § 402(a)‘s grant of exclusive jurisdiction over
final orders of the FCC to the federal courts of appeal, the district court
concluded that it lacked ―the authority to entertain challenges to the validity

8 See June 23 Order at 4-5 & n.5 (RE Tab 3, R.285) (noting that the evidence
established that ―transmissions were once again emanating from Frank‘s home‖ by May
27, 2011).

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of FCC orders, even in the context of enforcement actions.‖ Apr. 15 Order at
14 (RE Tab 3, R.184). Instead, it had jurisdiction in a suit by the government
to enforce a monetary forfeiture to determine ―three things: (1) whether the
facts alleged by the FCC are true; (2) whether the set of facts found by the
court to be true are sufficient to establish liability; and (3) whether the size of
the fine is appropriate in light of the facts.‖ Id.
On May 31, 2011, the district court conducted an evidentiary hearing
and bench trial (RE Tab 3, R.266). On June 23, 2011, the court issued an
order entering judgment in favor of the United States. June 23 Order at 7
(RE Tab 3, R.287). The court noted that Mr. Frank had raised ―several legal
and constitutional challenges to the validity of the FCC‘s regulations and the
Forfeiture Order during the proceedings,‖ but that these had been rejected in
its April 15, 2011 Order, and were in any event ―meritless, frivolous,
incomprehensible, or simply beyond the jurisdiction of the Court to
consider.‖ Id. at 3 (RE Tab 3, R.283). The court further observed that Mr.
Frank ―did not deny—and to this Court‘s knowledge, has never denied—the
factual allegations against him,‖ including that ―he was ‗broadcasting a
signal‘‖ and lived at the address the FCC identified ―as the source of the
offending radio signal.‖ Id. at 4-5 (RE Tab 3, R.284-85). The court stated
that while ―[Mr.] Frank may disagree with the law, . . . he is not above it.‖ Id.

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at 6 (RE Tab 3, R.286) (characterizing Mr. Frank‘s arguments to the contrary
as ―composed of equal parts wishful thinking, cherry-picked quotations, and
archaic legal terminology‖). On the basis of the testimony of the
government‘s witnesses regarding the violation, as well as Mr. Frank‘s
corroborating statements, the court found that: (1) the allegations in the
FCC‘s Forfeiture Order were true; (2) they were sufficient to establish Mr.
Frank‘s liability under federal law and FCC regulations; and (3) the amount
of the forfeiture penalty was ―not unreasonably high.‖ Id. at 7 (RE Tab 3,
R.287). Accordingly, the district court entered judgment in favor of the
United States in the amount of $10,000, plus interest. Id.; June 23 Judgment
(RE Tab 3, R.288).

SUMMARY OF ARGUMENT

Section 301 of the Communications Act provides that ―no person shall
use or operate any apparatus for the transmission of energy or communication
or signals by radio . . . except under and in accordance with this Act and with
a license.‖ 47 U.S.C. § 301. In this case, the undisputed facts establish that
Mr. Frank was broadcasting from his residence in Austin, Texas in violation
of the Act‘s longstanding requirement that persons engaged in radio
broadcasting obtain an FCC license. Br. at 7; Oct. Response at 1 (RE Tab 4;
Pl. Exh. 16); June 23 Order at 4-5 (RE Tab 3, R.284-85). The FCC is

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authorized to impose monetary forfeitures for violations of the
Communications Act, including section 301, see 47 U.S.C. § 503, and Mr.
Frank does not challenge the reasonableness of the forfeiture amount. June
23 Order at 5 (RE Tab 3, R.285).
Instead, Mr. Frank challenges the validity and constitutionality of the
Communications Act‘s radio licensing requirement and the FCC‘s
implementing licensing rules and regulations. See, e.g., Br. at 5-6. He
maintains that the intrastate operation of an FM radio station is outside the
jurisdiction of the FCC and requests that the district court‘s judgment
upholding the FCC‘s monetary forfeiture be set aside. Br. at 51.
The Court should affirm the district court‘s judgment. The district
court properly concluded that under the framework for judicial review
established by the Communications Act, Mr. Frank‘s challenges to the
validity and constitutionality of FCC rules and regulations are within the
exclusive jurisdiction of the courts of appeal. See Apr. 15 Order (RE Tab 3,
R.171); 47 U.S.C. § 402(a). In a forfeiture enforcement proceeding brought
in district court pursuant to 47 U.S.C. § 504(a), the district court was limited
to a de novo review of only factual determinations.
Even if the district court had jurisdiction over any of Mr. Frank‘s legal
challenges to the FCC‘s authority, there is no basis for overturning the

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judgment against him. Section 301‘s broadcast licensing requirement is a
valid exercise of Congress‘ powers under the Commerce Clause, which does
not depend on what Mr. Frank terms an ―animating action‖ (Br. at 7) or on
his consent to regulation (Br. at 8). Nor is section 301(a) limited to ―point-to-
point‖ communications rather than FM broadcasting. Br. at 9-35. By its
terms, the section prohibits persons from using equipment to transmit radio
signals, of any kind, ―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.‖ 47 U.S.C. § 301(a). A broadcast
signal travels from one place to another just as much as any other radio
transmission. Mr. Frank‘s argument to the contrary is frivolous.
Finally, the validity of section 15.239(b) of the Commission‘s rules, 47
C.F.R. § 15.239(b), which excludes from the licensing requirement those
broadcasting at a power level below 250 microvolts per meter at 3 meters, is
irrelevant because Mr. Frank was operating far in excess of those limits. See
June 23 Order at 4 & n.2 (RE Tab 3, R.284); July 22 Field Measurements
(SRE Tab 5; Pl. Exh. 9); Aug. 3 Field Measurements (SRE Tab 6; Pl. Exh.
11).
In sum, the undisputed facts show that Mr. Frank was broadcasting
without a license in violation of section 301 of the Communications Act, and

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were thus liable for the monetary forfeiture that the Commission imposed.
The judgment of the district court should be affirmed.

ARGUMENT

I.

STANDARD OF REVIEW

This Court reviews de novo the district court‘s decision, as a matter of
law, that it lacked the power to consider certain defenses. Tanglewood E.
Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1572, 1574 (5th Cir.
1988); Ligon v. LaHood, 614 F.3d 150, 154 (5th Cir. 2010) (―We review
questions of subject matter jurisdiction de novo.‖), cert. denied, 131 S.Ct.
3063. A district court‘s interpretation of a statute or regulation is a question
of law that is reviewed de novo. Dresser v. MEBA Med. & Benefits Plan, 628
F.3d 705, 707 (5th Cir. 2010); Teemac v. Henderson, 298 F.3d 452, 456 (5th
Cir. 2002). Review of the district court‘s findings of fact made in the bench
trial, however, ―are not to be set aside on appeal unless clearly erroneous.‖
Weissinger v. United States, 423 F.2d 795, 798 (5th Cir. 1970).

II.

THE DISTRICT COURT PROPERLY DETERMINED
THAT

IT

WAS

WITHOUT

JURISDICTION

TO

CONSIDER CHALLENGES TO THE VALIDITY OF FCC
STATUTES AND REGULATIONS.

The district court correctly concluded that it lacked jurisdiction over
Mr. Frank‘s ―constitutional, legal, and procedural challenges to the FCC, its
regulations, and the forfeiture order issued against him.‖ Apr. 15 Order at 1-

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2 (RE Tab 3, R.171-72). The court held that such challenges are in the
exclusive jurisdiction of the court of appeals. Id. at 8 (RE Tab 3, R.178).
This Court should affirm that ruling.
The Communications Act vests district courts with jurisdiction in
recovery actions brought by the government to enforce unpaid monetary
forfeitures assessed by the FCC. See 47 U.S.C. §§ 503(b)(3)(B); 504(a).
This jurisdiction of the district courts over FCC matters, however, is only ―a
sliver of the [FCC] jurisdictional pie.‖ Action for Childrens Television v.
FCC (ACT I), 827 F. Supp. 4, 10 (D.D.C. 1993), aff’d, 59 F.3d 1249 (D.C.
Cir. 1995) (ACT II).
The general rule is that the courts of appeal have exclusive jurisdiction
to hear challenges to FCC orders. 47 U.S.C. § 402(a); 28 U.S.C. § 2342; see
ACT I, 827 F. Supp. at 10; see also FCC v. ITT World Commc’ns, Inc., 466
U.S. 463, 468 (1984). Specifically, section 402(a) of Title 47 of the United
States Code specifies that any challenge to the validity of an FCC order or
regulation must be brought under the Hobbs Administrative Orders Review
Act, §§ 2341 et seq., which in turn provides that the court of appeals
generally have ―exclusive jurisdiction to enjoin, set aside, suspend (in whole
or in part), or to determine the validity of (1) all final orders of the Federal
Communications Commission made reviewable by section 402(a) of title 47.‖

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28 U.S.C. § 2342; see also Columbia Broad. Sys., Inc. v. United States, 316
U.S. 407, 425 (1942) (holding that the FCC‘s promulgation of regulations is
9
an order reviewable under section 402(a)).
Thus, this Court has recognized that in suits involving the FCC,
―special [judicial review] rules apply.‖ Bywater Neighborhood Ass’n v.
Tricarico, 879 F.2d 165, 167 (5th Cir. 1989), cert. denied, 494 U.S. 1004
(1990). Indeed, ―[i]t is hard to think of clearer language [than 47 U.S.C.
402(a) and 28 U.S.C. 2342] confining the review of regulations to the Courts
of Appeal.‖ United States v. Any and All Radio Station Transmission Equip.
(Laurel Avenue), 207 F.3d 458, 463 (8th Cir. 2000), cert. denied, 531 U.S.
1071(2001).
Because Congress has vested exclusive jurisdiction over FCC
regulatory actions in the courts of appeal, such actions ordinarily may not be
reviewed in a district court. That is because ―[s]pecific grants of jurisdiction
to the courts of appeals override general grants of jurisdiction to the district
courts.‖ Ligon v. LaHood, 614 F.3d 150, 154 (5th Cir. 2010), cert. denied,
131 S.Ct. 3063; accord Telecomm. Research & Action Ctr. v. FCC (TRAC),
750 F.2d 70, 77 (D.C. Cir. 1984) (―[A] statute which vests jurisdiction in a

9 In addition, section 402(b) of Title 47 provides that the United States Court of Appeals
for the District of Columbia Circuit has exclusive jurisdiction to review FCC orders
regarding individual license applications, modifications, revocations, or suspensions. 47
U.S.C. § 402(b).

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particular court cuts off original jurisdiction in other courts in all cases
covered by that statute.‖); see Bywater, 879 F.2d at 168 (discussing
―Congress‘s specific and obvious intent to restrict to the circuit courts any
appeals from rulings of the FCC‖); see also United States v. Neely, 595 F.
Supp. 2d 662, 669 (D.S.C. 2009); United States v. TravelCenters of America,
597 F. Supp. 2d 1222, 1225-26 (D. Or. 2007).
The direction in section 504 that actions for the recovery of monetary
forfeitures shall be brought by the United States in district court pursuant to a
―trial de novo,‖ 47 U.S.C. § 504(a), is thus a limited exception to the general
rule that federal law gives the courts of appeal exclusive jurisdiction over
challenges to FCC orders and regulations.
We agree with Mr. Frank that under this de novo standard, district
courts ―are not limited to a review of the administrative record before the
FCC, and the FCC‘s findings carry no weight whatsoever.‖ Br. at 38 (citing
FCC v. Summa Corp., 447 F. Supp. 923, 925 (D. Nev. 1978)). Rather, ―[t]he
words ‗de novo‘ mean that ‗the court should make an independent
determination of the issues.‘‖ Summa, 447 F. Supp. at 925 (quoting United
States v. First City Nat’l Bank of Houston, 386 U.S. 361, 368 (1967)); United
States v. Daniels, 418 F. Supp. 1074, 1080-81 (D.S.D. 1976).

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But those ―issues‖ which the court must ―independent[ly] determine‖
are those concerning questions of fact, and not challenges to the validity of
the underlying statutes or regulations. A contrary conclusion would
undermine the Supreme Court‘s determination that the exclusive jurisdiction
of the court of appeals may not be evaded by seeking relief or raising
defenses in the district court. ITT, 466 U.S. at 468; see also Laurel Avenue,
207 F.3d at 463 (―A defensive attack on the FCC regulations is as much an
evasion of the exclusive jurisdiction of the Court of Appeals as is a
preemptive strike by seeking an injunction. . . . ‗Where exclusive jurisdiction
is mandated by statute, a party cannot bypass the procedure by characterizing
its position as a defense to an enforcement action.‘‖) (quoting Sw. Bell Tel. v.
Ark. Pub. Serv., 738 F.2d 901, 906 (8th Cir. 1984), vacated and remanded on
other grounds, 476 U.S. 1167 (1986)).
In sum, given the general rule whereby FCC orders are reviewable only
in the courts of appeal, the district court correctly determined that the scope
of its authority to review FCC forfeitures ―de novo‖ was limited to
determining whether the facts alleged were true, whether they supported the
agency‘s determination that there was a violation of federal communications
law or FCC regulation, and whether the amount of the forfeiture was not

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unreasonable. See Apr. 15 Order at 2-3, 8, 14, 17 (RE Tab 3, R.172-73, 178,
184, 187).
Importantly, these statutory jurisdictional rules did not deprive Mr.
Frank of the ability to challenge the validity of the FCC‘s Forfeiture Order or
the agency‘s regulations against unlicensed broadcasting. After exhausting
10
his administrative remedies, Mr. Frank could have paid the Forfeiture Order
and raised his challenges in the court of appeals. See, e.g., SBC Commc’ns,
Inc. v. FCC, 373 F.3d 140 (D.C. Cir. 2004); AT&T Corp. v. FCC, 323 F.3d
1081 (D.C. Cir. 2003).
Alternatively, Mr. Frank could have petitioned for a declaratory ruling
to have the Commission clarify its interpretation of the reach of the licensing
requirement or for a rulemaking to change the licensing rules in his favor. In
addition, he could have applied for a waiver of the license requirement (or
any other regulation) ―for good cause shown.‖11 If the Commission denied
his requests, or Mr. Frank was otherwise still aggrieved, he could have

10 In this case, because the Forfeiture Order was issued by the Enforcement Bureau
pursuant to delegated authority, Mr. Frank would have been required to file an Application
for Review as a ―condition precedent to judicial review.‖ 47 C.F.R. § 1.115(k).
11 Section 1.2 provides that the Commission on motion may issue a declaratory ruling to
―terminat[e] a controversy‖ or to ―remov[e] uncertainty.‖ 47 C.F.R. § 1.2. Section 1.401
of the FCC‘s rules grants ―any interested person‖ the right to ―petition [the Commission]
for the issuance, amendment or repeal of a rule or regulation.‖ 47 C.F.R. § 1.401. Section
1.3 of the FCC‘s rules provides that ―[a]ny provision of the rules may be waived by the
Commission on its own motion or on petition if good cause therefor is shown.‖ 47 C.F.R.
§ 1.3.

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challenged the denials or decisions in the appropriate circuit court under
section 402(a). Instead, he chose to operate without a license. See Grid
Radio v. FCC, 278 F.3d 1314, 1321 (D.C. Cir. 2002) (noting that operating
without a license was an ―inappropriate‖ method by which to challenge the
FCC‘s licensing rules); United States v. Dunifer, 219 F.3d 1004, 1008-09 (9th
Cir. 2000) (noting that it was not the case that Dunifer ―had no means to
obtain judicial review of the regulations,‖ and identifying various alternative
methods by which a party in such circumstances might have obtained relief).
The Communications Act does not, however, empower persons who
object to the FCC‘s broadcast rules to commence broadcasting while they
litigate their arguments in court. Instead, the Act makes clear that no person
may broadcast unless and until he or she obtains a license from the
Commission. See 47 U.S.C. § 301. The constitutionality of the Act‘s
broadcast licensing requirement has long been settled. See, e.g., Red Lion
Broad. Co., Inc. v. FCC, 395 U.S. 367, 386-95 (1969); Nat’l Broad. Co., Inc.
v. United States, 319 U.S. 190, 225-27 (1943); see also June 23 Order at 6
(RE Tab 3, R.286). Permitting Mr. Frank or anyone else to operate without a
license as a means of challenging the Communications Act‘s licensing
requirement or implementing regulations ―could produce the very ‗chaos‘
that, according to the Supreme Court, the broadcast licensing regime was

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designed to prevent.‖ Grid Radio, 278 F.3d at 1321 (quoting Red Lion, 395
U.S. at 375-76).
On the same reasoning, a number of courts have prohibited challenges
to FCC regulations as defenses to suits to enforce the Communications Act‘s
radio licensing requirement. See, e.g., United States v. Neset, 235 F.3d 415
(8th Cir. 2000) (holding that, in adjudicating the government‘s request for
injunctive relief under 47 U.S.C. § 401(a), a district court lacks jurisdiction to
consider the validity of the FCC‘s low power rules); Laurel Avenue, 207 F.3d
458 (holding that the district court had jurisdiction to adjudicate in rem
forfeiture action, but not to hear claimant‘s constitutional challenges to
microbroadcasting regulations); Dunifer, 219 F.3d 1004 (affirming the
district court‘s grant of an injunction against a low power radio station from
operating without a license, and holding that the district court lacked
jurisdiction to adjudicate operator‘s affirmative defenses challenging validity
12
of the applicable regulation).
Mr. Frank‘s interpretation of the de novo provision of section 504(a),
to require ―independent determination‖ of all issues (Br. at 38), including the

12 Although the Sixth Circuit in United States v. Any and All Radio Station
Transmission Equip. (Bent Oak), 204 F.3d 658, 667 (6th Cir. 2000), Br. 37-38, held that a
district court may, in ruling on a forfeiture action against radio equipment used for
unlicensed broadcasting, consider whether the low power regulations are unconstitutional,
it has since limited its ruling to in rem forfeitures, where, unlike here, no FCC order is at
issue. See La Voz Radio de la Communidad v. FCC, 223 F.3d 313, 320 (6th Cir. 2000).

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validity and construction of the FCC‘s statutes and rules, would upset the
traditional framework of judicial review of agency action. If Mr. Frank‘s
reading were correct, not only would the district court be authorized to
determine the validity of FCC regulations and interpretations of the
Communications Act, but also the court would do so without the ordinary
deference that courts of appeals apply in Hobbs Act review proceedings.
There is no reason to think that Congress would have intended to strip the
FCC of all deference to which it is normally entitled in a forfeiture
enforcement proceeding. See Chevron U.S.A., Inc. v. Natural Res. Def.
Council, 467 U.S. 837, 843 (1984); see also City of Arlington v. FCC, No.
10-60039, slip. op. at 26-27 (5th Cir. Jan. 23, 2012). This highly unlikely
outcome is sensibly avoided by concluding that the de novo review provision
of section 504(a) authorizes the district court to examine the factual
determinations that underlie the imposition of an FCC forfeiture order. The
section thereby provides an additional layer of process by assuring that the
evidence underlying the Commission‘s forfeiture order is evaluated by a
13
neutral arbiter and is not determined solely by the FCC. This interpretation

13 Accord U.S. Nuclear Regulatory Comm’n v. Radiation Tech., Inc., 519 F. Supp. 1266,
1286 (D.N.J. 1981) (finding that ―a trial de novo is quite appropriate in [NRC collection
proceedings] inasmuch as the NRC was acting as ‗both prosecutor and judge‘ in the
penalty proceedings‖) (quoting Summa, 447 F. Supp. at 925).

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also avoids the problem of giving forfeiture subjects the proverbial ―two bites
at the apple,‖ where they would ―be able to challenge the forfeiture order in a
court of appeals on the basis of the administrative record and, if unsuccessful,
. . . litigate all issues de novo in the district court with a right of appeal to the
court of appeals.‖ Pleasant Broad. Co. v. FCC, 564 F.2d 496, 501 (D.C. Cir.
1977). As the district court found, this review structure ―creates a logical and
consistent division of labor‖ between district and appellate courts. Apr. 15
Order at 15 (RE Tab 3, R.185).

III. THE DISTRICT COURT CORRECTLY HELD MR.

FRANK LIABLE FOR BROADCASTING WITHOUT A
LICENSE.

A. The undisputed evidence shows that Mr. Frank was

broadcasting without a license or other authorization
from the FCC.

Mr. Frank admits making FM radio broadcasts at all relevant times,
and adamantly states that he ―never applied for any ‗license‘ of any type,
kind, or nature.‖ Br. at 3 (emphasis in the original); see also June 23 Order
at 4-5 (RE Tab 3, R.284-85); Oct. Response (RE Tab 4; Pl. Exh. 16). Nor
does Mr. Frank dispute the government‘s showing that his radio
transmissions were far more powerful than those permitted by the
Commission‘s Part 15 regulations. See June 23 Order at 4 & n.2 (RE Tab 3;
R.174); see also July 22 Field Measurements (SRE Tab 5; Pl. Exh. 9); Aug. 3

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Field Measurements (SRE Tab 6; Pl. Exh. 11). Mr. Frank has also never
challenged the reasonableness of the forfeiture amount assessed against him.
The district court thus had an ample basis on which to hold that Mr. Frank
violated section 301 of the Communications Act and was therefore liable for
a monetary forfeiture for broadcasting without a license. See June 23 Order
at 4-7 (RE Tab 3, R.174-77).

B. Mr. Frank’s legal objections are without merit.

On appeal, Mr. Frank continues to raise procedural, legal, and
constitutional challenges to the validity of the FCC‘s regulations and the
Forfeiture Order. See, e.g., Br. 5-6; June 23 Order at 2-3 (RE Tab 3, R.172-
73). As we have shown in Part II supra, the district court correctly
determined that it lacked jurisdiction to consider such arguments. See Apr.
15 Order (RE Tab 3, R.171). Even if Mr. Frank‘s objections to the FCC‘s
regulation of his broadcasts are considered, however, they are entirely
without merit and afford him no relief from liability.
1. Mr. Frank did not have to consent to regulation or
otherwise apply for a license for the FCC’s rules to
apply.

Mr. Frank contends that because he ―never applied for a ‗license,‘
never initiated any administrative proceeding . . . and to this day has not paid
one penny of the alleged ‗damages,‘‖ he never ―consented to being regulated

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by the FCC‖ (Br. at 8), and never ―animated the FEDERAL CAPACITY‖
(Br. at 7). But there is no requirement in federal law or FCC regulations that
a person engaging in broadcasting consent to regulation. Instead, Section 301
provides that ―[n]o person‖ shall operate equipment to transmit radio signals
from, among other things, ―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 Act and with a license in that behalf granted under the provisions of
this Act.‖ 47 U.S.C. § 301. Under the Communications Act, the licensing
requirement is triggered by the act of broadcasting, not consent.
Mr. Frank contends that he was never a ―party to any commercial
nexus involving the FCC.‖ Br. at 7-8. To the extent he means to argue that
his actions do not fall within Congress‘s power under the Commerce Clause,
his argument is foreclosed by Supreme Court precedent, which has
―unequivocally‖ held that the Communications Act‘s broadcast licensing
requirement is ―‗a proper exercise of [Congress‘s] power over commerce.‘‖
June 23 Order at 6 (RE Tab 3, R.286) (quoting Nat’l Broad. Co., Inc. v.
United States, 319 U.S. 190, 227 (1943)). To the extent he means to suggest
he is immune from regulation because he does not operate on a commercial
basis, his argument finds no basis in the statute, which does not limit its reach

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to commercial broadcasting. See, e.g., Coal. for Noncommercial Media v.
FCC, 249 F.3d 1005, 1006-07 (D.C. Cir. 2001) (discussing FCC rules
14
governing noncommercial broadcast stations).
2. Mr. Frank’s broadcasts fall within Section 301’s
licensing requirement.
Mr. Frank‘s primary argument (Br. 9-35) is that Section 301(a)‘s
licensing requirement does not apply to his broadcasts because he was
engaged in a form of ―one-way messaging technology‖ that is ―different and
distinct‖ from the ―point to point‖ technology – ―e.g., cell phones, garage
door openers, radio-controlled airplanes,‖ – with which 301(a) is concerned.
Br. at 10. Mr. Frank contends that ―[w]here there‘s no specific and intended
destination or recipient, § 301(a) is facially inapplicable.‖ Br. at 12. The
argument is frivolous.
Section 301(a) provides, in no uncertain terms, that ―[n]o person‖ shall
operate any equipment for the transmission of radio signals ―(a) from one
place in any State, Territory, or possession of the United States or in the

14 Nor is it relevant to Mr. Frank‘s Commerce Clause objection that a broadcaster might
intend to transmit only ―intrastate‖ communications. ―By its very nature broadcasting
transcends state lines and is national in its scope and importance—characteristics which
bring it within the purpose and protection, and subject it to the control, of the commerce
clause.‖ Fisher’s Blend Station, Inc. v. Tax Comm’n, 297 U.S. 650, 655 (1936); see also
United States v. Brown
, 661 F.2d 855, 855-56 (10th Cir. 1981) (per curiam) (prosecution
does not have to prove that defendant‘s signals crossed stated borders); United States v.
Butterfield
, 91 F. Supp. 2d 704, 705 (D. Vt. 2000) (―[R]adio broadcasts have impact upon
interstate commerce, regardless of whether those broadcasts are interstate or intrastate in
scope.‖).

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District of Columbia to another place in the same State, Territory, possession,
15
or District.‖ 47 U.S.C. § 301(a). The statute does not speak of intended
recipients or destinations; it is enough that the radio signals are transmitted
from a place in one state to another place in the same state. In this case, Mr.
Frank well knew that his signals would be received by many recipients and in
many destinations within the state of Texas – i.e., to be received by all within
range of reception. Br. at 30. As the district court properly found, ―[t]he
undisputed facts at trial demonstrated Frank transmitted radio signals from
his residence in Texas to other places in Texas, specifically to FCC Resident
Agent Steven Lee‘s signal detection vehicle in Austin.‖ Aug. 8 Order at 2
(RE Tab 3, R.363). Such actions place Mr. Frank squarely within the plain
meaning of section 301(a), transmitting ―from one place in any State . . . to
another place in the same State,‖ and as such were prohibited from operating
without a license. Thus, Mr. Frank‘s assertions that the Government ―never

15 This subsection was amended in 1982 to clarify the authority of the FCC to enforce
the licensing requirement on intrastate transmissions, without the need to affirmatively
show that the transmissions were causing interference or crossed state or international
boundaries. Communications Amendments Act of 1982, § 107, Pub. L. No. 97-259, 96
Stat. 1087, 1091. Because ―persons who intend to broadcast by radio must have an FCC
license, whether or not such broadcasts are intended to be interstate or intrastate,‖ it is
irrelevant to a finding of liability that Mr. Frank‘s broadcasts may not have extended
beyond the borders of Texas. Butterfield, 91 F. Supp. 2d at 705; see also United States v.
Ganley
, 300 F. Supp. 2d 200, 202-03 (D. Me. 2004).

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alleged, much less proved,‖ the applicability and violation of section 301 (Br.
at 33) are meritless.
Finally, Mr. Frank‘s construction of section 301(a) would produce an
absurd result, according to which the FCC would have authority to require the
comprehensive licensing of ―garage door openers‖ and ―radio-controlled
planes‖ but not AM or FM broadcasters (Br. at 9), who would only be
subject to regulation if their signals could be shown to cross state lines, 47
U.S.C. § 301(b), or to interfere with transmissions in other states, 47 U.S.C. §
301(d). There is no basis for thinking that Congress intended such a result,
for it would directly undermine the Act‘s purpose of establishing ―a unified
and comprehensive regulatory system‖ for regulating broadcasting. FCC v.
Pottsville Broad. Co., 309 U.S. 134, 137 (1940); see also KVUE, Inc., 709
F.2d at 932.
3. Section 15.239(b) of the FCC’s Rules does not provide
a defense to Mr. Frank’s unlicensed broadcasting.
Mr. Frank also contends that section 15.239(b) of the FCC‘s rules is
unconstitutional. 47 C.F.R. § 15.239(b); Br. at 46-50. As we have explained,
the district court correctly concluded that it lacked jurisdiction to entertain
Mr. Frank‘s challenges to the validity of FCC regulations because such
review was confined to the court of appeals under section 402(a). Apr. 15
Order (R.171); see supra Part II. Even if the district court would have had

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Case: 11-50848 Document: 00511744157 Page: 39 Date Filed: 02/01/2012
jurisdiction to consider such a challenge, Mr. Frank nowhere explains why
section 15.239(b) violates his constitutional rights.
Mr. Frank appears to argue that the rule is invalid because it exceeds
the FCC‘s statutory authority under his view of section 301(a), which he
contends only requires a license for ―point-to-point‖ communications. Br. at
48-49. As we have explained, that view of the statute is unsustainable. See
supra pp. 27-29.
In any event, even if section 15.239(b)‘s exception to the individual
licensing requirement were invalid, it would provide Mr. Frank with no relief
from his violation of the broadcast licensing provisions of the
Communications Act.
As applicable to this case, Part 15 of the Commission‘s rules ―sets out
regulations under which an intentional . . . radiator may be operated without
an individual license.‖ 47 C.F.R. § 15.1. The Part 15 regulations make clear
that the operation of a radio transmitter that is not in accordance with the

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Case: 11-50848 Document: 00511744157 Page: 40 Date Filed: 02/01/2012
regulations ―must be licensed‖ pursuant to 47 U.S.C. § 301, unless otherwise
16
specifically exempted. 47 C.F.R. § 15.1(b).
As we have explained, see supra pp. 5-6, section 15.239(b) provides
that operations within the FM band (88-108 MHz) are permitted without an
individual license, otherwise required by section 301, provided that ―[t]he
field strength of any emissions . . . shall not exceed 250 microvolts/meter at 3
meters.‖ 47 C.F.R. § 15.239(b). This section is only applicable to this case
to the extent it provides permission to transmit radio signals on the FM band
within the prescribed power limits. Because Mr. Frank‘s radio transmissions
―averaged over thirteen thousand times stronger than [the Part 15] limit‖
(June 23 Order at 4 & n.2 (RE Tab 3, R.284)), he cannot rely on section
15.239(b) as a defense to his unlicensed broadcasting.
Accordingly, even if Mr. Frank was correct that section 15.239(b) is
invalid, the statutory licensing requirement would remain in effect. At most,
instead of allowing low-power emitters to transmit without an individual
license, it would require persons employing such equipment to apply for a

16 The rules in Part 15 ―are designed to provide a balance of [the FCC‘s] competing
goals of eliminating unnecessary regulatory barriers and burdens on the development of
new low power [radio frequency] equipment and maintaining adequate interference
protections for authorized radio services and recognized passive users of low level [radio
frequency] signals.‖ Revision of Part 15 of the Rules Regarding the Operation of Radio
Frequency Devices Without an Individual License
, 4 FCC Rcd 3493, ¶¶ 2, 13 (1989),
recon. denied, 5 FCC Rcd 1110 (1990).

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Case: 11-50848 Document: 00511744157 Page: 41 Date Filed: 02/01/2012
broadcast license in accordance with section 301, regardless of operational
power.
* * * * *
In sum, because Raymond Frank engaged in unlicensed broadcasting in
plain violation of federal law, the district court‘s decision enforcing the
FCC‘s imposition of a $10,000 monetary forfeiture was entirely correct and
should be upheld.

CONCLUSION

The judgment of the district court should be affirmed.




Respectfully submitted,




ROBERT PITMAN




United States Attorney


/s/ Gary W. Wright
Gary W. Wright

Assistant United States Attorney

United States Attorney‘s Office
Western District of Texas
601 N.W. Loop 410, Suite 600
San Antonio, Texas 78216-5597
(210) 384-7340
(210) 384-7358 (Fax)

Attorneys for Plaintiff-Appellee
United States of America
February 1, 2012

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Case: 11-50848 Document: 00511744157 Page: 42 Date Filed: 02/01/2012

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT



UNITED STATES OF AMERICA,
PLAINTIFF - APPELLEE,
v.
NO. 11-50848

RAYMOND FRANK,
DEFENDANT - APPELLANT.



CERTIFICATE OF SERVICE

I HEREBY CERTIFY THAT copies of the foregoing Brief for the
United States were served in paper form this 1st day of February, 2012, by
certified mail, upon following defendants-appellants:
Raymond Frank
2402 Camino Alto
Austin, Texas 78746

/s/ Gary W. Wright
Gary W. Wright

Assistant United States Attorney
United States Attorney‘s Office
601 N.W. Loop 410, Suite 600
San Antonio, Texas 78216-5597
(210) 384-7340
(210) 384-7358 (Fax)
February 1, 2012



42 of 45

Case: 11-50848 Document: 00511744157 Page: 43 Date Filed: 02/01/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT



UNITED STATES OF AMERICA,
PLAINTIFF - APPELLEE,
v.
NO. 11-50848

RAYMOND FRANK,
DEFENDANT - APPELLANT.


CERTIFICATE OF COMPLIANCE

Pursuant to the requirements of Fed. R. App. P. 32(a), I hereby certify
that the accompanying ―Brief for Appellee‖ in the captioned case complies
with the type-volume and typeface limitations because:
1. Pursuant to Fed. R. App. P. 32(a)(7), this brief contains 8,859
words, excluding the parts of the brief exempted by Fed. R. App. P.
32(a)(7)(B)(iii); and

2. Pursuant to Fed. R. App. P. 32(a)(5), (6), this brief has been
prepared in a proportionally spaced typeface using Microsoft Word in
Times New Roman typeface with 14-point font.

/s/ Gary W. Wright
Gary W. Wright

Assistant United States Attorney
United States Attorney‘s Office
601 N.W. Loop 410, Suite
San Antonio, Texas 600 78216-5597

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Case: 11-50848 Document: 00511744157 Page: 44 Date Filed: 02/01/2012
(210) 384-7340
(210) 384-7358 (Fax)
February 1, 2012

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Case: 11-50848 Document: 00511744830 Page: 1 Date Filed: 02/01/2012

United States Court of Appeals


FIFTH CIRCUIT

OFFICE OF THE CLERK

LYLE W. CAYCE

TEL. 504-310-7700

CLERK

600 S. MAESTRI PLACE

NEW ORLEANS, LA 70130



February 01, 2012
Mr. Gary Wayne Wright
U.S. Attorney's Office
Western District of Texas
601 N.W. Loop 410, Suite 600
San Antonio, TX 78216-5512
No. 11-50848, USA v. Raymond Frank
USDC No. 1:10-CV-957
The following pertains to your brief electronically filed on
2/1/12.
You must submit the seven paper copies of your brief required by
5T
H
CIR. R. 31.1 within 5 days of the date of this notice pursuant
to 5th Cir. ECF Filing Standard E.1.
Sincerely,
LYLE W. CAYCE, Clerk
By:_________________________
Steve A. Totora, Deputy Clerk
504-310-7667
cc:
Mr. Raymond Frank
P.S. To All: If the record on appeal is still in your
possession, please return it to the 5th Circuit within ten (10)
days from the date of this notice.
45 of 45

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