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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, he knew or should have known
of such 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.