Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                   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, Iowa   )               FRN 0015021819  
                                                        
                        )                               


                                FORFEITURE ORDER

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

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

   I. INTRODUCTION

    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"). 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") 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.

    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. S 301;
       outlined the potential penalties for operating an unlicensed station
       in violation of 47 U.S.C. S 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. The response stated that the station "Power Hits 103.3"
       has authority to operate pursuant to 47 C.F.R. S 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.

    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"). 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, Section 1.80 of the Rules, and The
       Commission's Forfeiture Policy Statement and Amendment of Section 1.80
       of the Rules to Incorporate the Forfeiture Guidelines. 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.

   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. 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.

   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.\001 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.

   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. 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, 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.

   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. Payment of the forfeiture must be made
       by check or similar instrument, payable to the order of the Federal
       Communications Commission.\001 The payment must include the NAL/Acct.
       No. and FRN No. referenced above.\001 Payment by\001check or money
       order may be mailed to Federal Communications Commission, P.O.
       Box\001358340,\001Pittsburgh, PA 15251-8340.\001 Payment by overnight
       mail may be sent to\001Mellon Bank\001/LB\001358340,\001500 Ross
       Street, Room 1540670, Pittsburgh, PA 15251.\001\001 Payment by wire
       transfer may be made to ABA Number\001043000261, receiving
       bank\001Mellon Bank, and account number\001911-6106. 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. 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

   47 U.S.C. S 301.

   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 mV/m at three meters. 47 C.F.R. S 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.

   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.

   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.

   Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632560004
   (Enf. Bur., South Central Region, Kansas City Office, released June 9,
   2006).

   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.

   47 U.S.C. S 503(b).

   47 C.F.R. S 1.80.

   12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
   Policy Statement").

   47 U.S.C. S 503(b)(2)(D).

   47 U.S.C. S 301.

   47 C.F.R. S 73.3542(a).

   See 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.311, 1.80.

   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).

   47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).

   47 U.S.C. S 301.

   47 U.S.C. S 504(a).

   See 47 C.F.R. S 1.1914.

   Federal Communications Commission DA 06-1606

   2

   2

   Federal Communications Commission DA 06-1606