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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, IA ) FRN 0015021819
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 9, 2006
By the District Director, Kansas City District Office, South Central
Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Jason L. Duncan ("Duncan"), apparently willfully and repeatedly
violated Section 301 of the Communications Act of 1934, as amended
("Act"), by operating an unlicensed radio transmitter. We conclude,
pursuant to Section 503(b) of the Communications Act of 1934, as
amended ("Act"), that Duncan is apparently liable for forfeiture in
the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On April 10, 2006, the Enforcement Bureau's Kansas City Office
received information concerning an unauthorized broadcast station
operating on 103.3 MHz in Bettendorf, Iowa. A search of the
Commission's databases revealed no authorization for a broadcast
station to operate on 103.3 MHz in Bettendorf, Iowa.
3. On April 18, 2006, a Kansas City agent 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 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. The agent
hand-delivered a Notice of Unlicensed Radio Operation and a copy of
Section 301 of the Act to another operator of the radio station.
4. On April 19, 2006, an agent from the Commission's Kansas City Office
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.
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.
5. On May 2, 2006, the Kansas City Office mailed to Duncan at the radio
station address a Notice of Unlicensed Operation ("Notice").
6. On May 11, 2006, the Kansas City office received a written response
("Response") to the 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.
III. DISCUSSION
7. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
8. 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. In particular, Section 301
states 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,
Territory, possession, or District; . . . except under and in
accordance with this chapter and with a license in that behalf granted
under the provisions of this chapter." On April 18, 2006, and April
19, 2006, Duncan operated radio transmitting equipment at 2550 Middle
Road, Bettendorf, Iowa, on 103.3 MHz without the required Commission
authorization. Duncan claimed authority to operate the radio station
under 47 C.F.R. S 73.3542. Duncan provided no evidence of any
authority granted by the Commission to operate this station. Based on
the evidence before us, we find Duncan apparently willfully and
repeatedly violated Section 301 of the Act by operating radio
transmission apparatus without a license on 103.3 MHz in Bettendorf,
Iowa, on April 18 and 19, 2006.
9. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement") and Section 1.80 of the Rules, the
base forfeiture amount for operation without an instrument of
authorization is $10,000. In assessing the monetary forfeiture amount,
we must also take into account the statutory factors set forth in
Section 503(b)(2)(D) of the Act, which include 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. Applying the Forfeiture Policy Statement, Section 1.80, and
the statutory factors to the instant case, we conclude that Mr. Duncan
is apparently liable for a $10,000 forfeiture
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 of the Commission's Rules, Jason L. Duncan is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of ten thousand
dollars ($10,000) for violations of Section 301 of the Act.
11. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Jason L. Duncan SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
12. 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\001Payment by wire transfer may be made to ABA
Number\001043000261, receiving bank\001Mellon Bank, and account
number\001911-6106.
13. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Kansas City
District Office, 520 NE Colbern Road, Lee's Summit, MO 64086-4711, and
must include the NAL/Acct. No. referenced in the caption.
14. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
15. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director - Financial Operations, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Jason L. Duncan, with an additional
copy to Duncan's legal counsel, Arshia Javaherian, The Law Center, 329
18^th Street, Suite 600, Rock Island, Illinois 61201.
FEDERAL COMMUNICATIONS COMMISSION
Robert C. McKinney
District Director
Kansas City District Office
South Central Region
Enforcement Bureau
47 U.S.C. S 301.
47 U.S.C. S 503(b).
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. Devices compliant with Part 15 typically have a range of
less than one mile.
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 Response was by legal counsel stating he represented both Duncan and
Matthew Britcher, another operator of the unlicensed radio station. The
Response stated it served as a formal response to both the Notice issued
to Duncan and the Notice of Unlicensed Operation hand-delivered to Matthew
Britcher.
Section 312(f)(1) of the Act, 47 U.S.C. S 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', 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...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, 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. S 301.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.311, 1.80; 47 U.S.C. S 301.
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission