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                         Before the
              Federal Communications Commission
                   Washington, D.C. 20554


In the Matter of                  )
                                 )   File No. EB-03-TP-185
Ward F. Dean                      )
8799 Burning Tree Rd.             )   NAL/Acct. No. 200332700027
Pensacola, Florida                )
                                 )   FRN 0009232976
                                 )


                      FORFEITURE ORDER

Adopted:             October             26,            2004                                                                                   
Released:  October 28, 2004

By the Assistant Chief, Enforcement Bureau:

I.   INTRODUCTION

     1.   In this Forfeiture Order (``Order''), we issue a 
monetary forfeiture in the amount of seventeen thousand 
dollars ($17,000) to Ward F. Dean for willful violation of 
Sections 301 and 303(n) of the Communications Act of 1934, 
as amended (``Act'').1  The noted violations involve Mr. 
Dean's operation of a radio station without Commission 
authorization and refusal to allow an inspection of his 
radio station by Commission agents.

II.   BACKGROUND 

     2.   On April 6, 2003, agents from the FCC Enforcement 
Bureau's Tampa Field Office (``Tampa Office''), while 
working in Pensacola, Florida, monitored a radio station on 
103.7 MHz.  The Commission's database contained no record of 
a licensed station in the Pensacola area authorized to 
operate on 103.7 MHz.  Using direction-finding techniques, 
the agents determined that the radio station broadcasting on 
the frequency 103.7 MHz was operated from a single-family 
residence at 8799 Burning Tree Rd., Pensacola, Florida.  
County property records showed the owner of the property at 
8799 Burning Tree Rd., Pensacola Florida as Ward and Kumja 
C. Dean.  An FM broadcast-type antenna was mounted on a 
tower attached to the side of the residence.  The agents 
determined, based on field strength measurements taken on 
April 6, 2003, that a Commission authorization was required 
to operate the station.2  Immediately thereafter, the agents 
knocked on the front door of the residence, and an adult 
male responded.  The man identified himself with a State of 
Florida picture identification as Ward F. Dean of the same 
address.  Mr. Dean neither acknowledged nor denied operating 
the radio station and twice refused the agents' request to 
inspect the radio station at the residence.  The agents 
warned Mr. Dean of the unlicensed operation.  Shortly after 
departing, the agents observed the unlicensed radio station 
at Mr. Dean's residence ceased operating.

     3.   On July 16, 2003, the Tampa Office issued a Notice 
of Apparent Liability for Forfeiture to Mr. Dean in the 
amount of seventeen thousand dollars ($17,000) for the 
apparent willful violation of Sections 301 and 303(n) of the 
Act.3  In his response, Mr. Dean argues that he was not 
provided an opportunity or hearing to defend himself against 
the charges, and thus was not afforded due process of law.  
He further argues that issuing a fine to a citizen for 
``refusing to waive a constitutional right could be 
construed as unlawful punitive retaliation.''  He asserts 
the Commission exceeded its jurisdiction because its actions 
amounted to regulation of a purely intrastate activity.  He 
states that the agents trespassed on his private property 
without a warrant and refused to leave his property when 
requested.  Finally, he argues that there is no evidence 
that he operated the radio equipment in alleged violation of 
the Act.    

III.        DISCUSSION

     4.   The proposed forfeiture amount in this case was 
assessed in accordance with Section 503(b) of the Act,4 
Section 1.80 of the Commission's Rules (``Rules''),5 and The 
Commission's Forfeiture Policy Statement and Amendment of 
Section 1.80 of the Rules to Incorporate the Forfeiture 
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC 
Rcd 303 (1999) (``Forfeiture Policy Statement'').6  In 
examining Mr. Dean'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.7

     5.   Section 301 of the Act states 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. Dean's unsubstantiated response denying 
operation of the radio station is entitled to no credibility 
whatsoever.  Agents determined that a radio station 
broadcasting on 103.7 MHz operated from 8799 Burning Tree 
Road on April 6, 2003 without a license.  Although the 
unlicensed radio station operated from a residence owned by 
Ward and Kumja Dean, Mr. Dean demonstrated that he was in 
control of the residence at the time the agents observed the 
station operating, by refusing to allow an inspection of the 
station and directing the agents to leave his property.  
Even if Mr. Dean was not in direct control of the 
transmitter at that time,heknew or should have known 
ofsuch operation on his premises.  The unlicensed radio 
station stopped transmitting soon after the agents warned 
Mr. Dean of the unlicensed operations, thus confirming that 
Mr. Dean had control of the transmitter and the residence.  
Mr. Dean later stated in his response that he was not alone 
in his residence at the time of the agents' attempted 
inspection and that this other person could have operated 
the station, but he did not provide any evidence of this 
claim or even any identifying information for this purported 
other individual.  Thus, based on the evidence, we find that 
Mr. Dean willfully8 violated Section 301 of the Act by 
operating radio transmitting equipment without the required 
authorization from the Commission on April 6, 2004.

     6.   Section 303(n) of the Act states that the 
Commission has the authority to inspect all radio 
installations associated with stations required to be 
licensed to ascertain whether in operation they conform to 
the requirements of the rules and regulations of the 
Commission.  On April 6, 2003, Mr. Dean twice denied agents' 
request to inspect the radio station located at 8799 Burning 
Tree Road.  We find that Mr. Dean willfully refused to allow 
Commission agents to conduct an inspection of the radio 
station upon official requests.  

     7.   We note that Mr. Dean alleged in his response that 
the agents trespassed on his property without a warrant and 
refused to leave the premises when requested. We disagree.  
Commission agents located the source of radio transmissions 
to Mr. Dean's home and, pursuant to Section 303(n) of the 
Act, knocked on Mr. Dean's front door and requested 
permission to inspect his radio station.  Mr. Dean answered 
the door, asked if the agents had a warrant, and denied the 
agents' request.  The agents explained the requirements of 
Sections 301 and 303(n) and warned of the consequences of 
violating the Act.  When it became clear that Mr. Dean would 
not agree to an inspection, the agents left the premises.  
The agents never searched his residence.  Such action does 
not constitute illegal trespass and does not require a 
search warrant.

     8.   We now address several other issues unrelated to 
the relevant facts of this case, raised in Mr. Dean's 
response.  First, we disagree with Mr. Dean's assertion that 
he was denied due process of law, in violation of the 
Administrative Procedure Act (``APA'').9  Mr. Dean was 
provided notice of the proposed forfeiture and was afforded 
an opportunity to show why the forfeiture should not be 
imposed, consistent with Section 1.80 of the Rules and 
Section 503 of the Act.  Thus, Mr. Dean was not denied ``due 
process of law,'' in violation of the APA.  Second, we 
disagree with Mr. Dean's allegation that the Commission 
exceeded its jurisdiction by regulating an intrastate 
activity.  Section 301 of the Act explicitly provides the 
Commission jurisdiction to require individuals to obtain 
licenses to operate radio stations.  In addition, Section 
301 explicitly sets forth the Commission's jurisdiction over 
all radio transmissions, both interstate and intrastate.10  
Finally, we disagree with Mr. Dean that issuing forfeitures 
for operating radio stations without licenses represents 
``punitive retaliation'' for failing to waive a 
constitutional right.  The U.S. Supreme Court has repeatedly 
held that there is no constitutional right to use radio 
facilities without a license.11  Issuing a forfeiture for 
operating a radio station without a license simply 
represents the enforcement of the Act.  

     9.   We have examined Mr. Dean's response to the NAL 
pursuant to the statutory factors above, and in conjunction 
with the Forfeiture Policy Statement.  As a result of our 
review, we conclude that Mr. Dean willfully violated 
Sections 301 and 303(n) of the Act.  We find no basis for 
cancellation or reduction of the $17,000 forfeiture proposed 
for these violations.

IV.   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(f)(4) of the 
Commission's Rules,12 Ward F. Dean IS LIABLE FOR A MONETARY 
FORFEITURE in the amount of seventeen thousand dollars 
($17,000) for willfully violating Sections 301 and 303(n) of 
the Act. 

     11.  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.13  Payment by check or money 
order may be mailed to Forfeiture Collection Section, 
Finance Branch, Federal Communications Commission, P.O. Box 
73482, Chicago, Illinois 60673-7482.  Payment by overnight 
mail may be sent to Bank One/LB 73482, 525 West Monroe, 8th 
Floor Mailroom, Chicago, IL 60661.  Payment by wire transfer 
may be made to ABA Number 071000013, receiving bank Bank 
One, and account number 1165259.  The payment should note 
NAL/Acct. No. 200332700027, and FRN 0009232976.  Requests 
for full payment under an installment plan should be sent 
to: Chief, Revenue and Receivables Group, 445 12th Street, 
S.W., Washington, D.C. 20554.14 

     12.  IT IS FURTHER ORDERED that a copy of this Order 
shall be sent by First Class and Certified Mail Return 
Receipt Requested to Ward Dean, 8799 Burning Tree Road, 
Pensacola, Florida 32514.  



                              FEDERAL COMMUNICATIONS 
                              COMMISSION



                              George R. Dillon
                              Assistant Chief, Enforcement 
                         Bureau
               
_________________________

147 U.S.C.  301, 303(n).

2See 47 C.F.R.  15.239(b).

3Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200332700027  (Enf.  Bur.,  Tampa Office,  July  16,  2003) 
(``NAL'').

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

547 C.F.R.  1.80.

6This Forfeiture Policy Statement  replaced a prior version 
that, at Mr. Dean notes, was reversed in United States Tel. 
Ass'n v. FCC, 28 F.3d 1232 (D.C. Cir. 1994). 

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

8Section 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,'   ...  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).   

9See 5 U.S.C.  551-559. 

10See Joseph  Frank Ptak, 14  FCC Rcd 9317, 9320,  para. 13 
(1999).  

11See Red Lion  Broadcasting Co. v. FCC, 395  U.S. 367, 388 
(1969);  National Broadcasting  Co. v.  United States,  319 
U.S. 190,  227 (1943); see  also United States  v. Dunifer, 
997  F.Supp.  1235  (N.D.  Calif.  1998),  aff'd  on  other 
grounds, 219 F.3d 1004 (9th Cir. 2000).

1247 C.F.R.  0.111, 0.311, 1.80(f)(4).

1347 U.S.C.  504(a).

14See 47 C.F.R.  1.1914.