Click here for Adobe Acrobat version
Click here for Microsoft Word version
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.
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
Adopted: August 8, 2006 Released: August 10, 2006
By the Regional Director, South Central Region, Enforcement Bureau:
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.
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
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.
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
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.
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
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,
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
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
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,
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
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
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
Federal Communications Commission DA 06-1606