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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                           )                               
                                                           
     In the Matter of      )     File Number EB-06-KC-067  
                                                           
     Matthew H. Britcher   )   NAL/Acct. No. 200632560003  
                                                           
     Bettendorf, Iowa      )               FRN 0015021801  
                                                           
                           )                               


                                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 seventeen thousand dollars ($17,000) to Matthew H.
       Britcher ("Mr. Britcher"), for willful and repeated violation of
       Sections 301 and 303(n) of the Communications Act of 1934, as amended
       ("Act"). The noted violations involve operating an unlicensed radio
       transmitter and refusing to allow inspection of the station.

   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
       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.

    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. The Kansas City Office received a response dated May 10, 2006, to the
       Notice issued on April 18, 2006 to Mr. Britcher. 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 for Mr. Britcher to operate under that section.

    5. On June 9, 2006, the Kansas City Office issued to Mr. Britcher a
       Notice of Apparent Liability for Forfeiture ("NAL") in the amount of
       $17,000 that found Mr. Britcher had willfully and repeatedly violated
       Sections 301 and 303(n) of the Act by operating an unlicensed radio
       transmitter and failing to allow inspection.

    6. On June 19, 2006, the Commission's mailroom in Washington, D.C.
       received a letter dated June 13, 2006, from Mr. Britcher'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" showing Mr. Britcher as the applicant. The
       contents of this document appear identical to the "application"
       submitted by Mr. Britcher'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."

    7. On July 10, 2006, the Kansas City Office received via electronic mail
       a response to the NAL from Mr. Britcher's legal counsel ("Response").
       In his Response, Mr. Britcher 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

    8. 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. Britcher'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.

    9. 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. Britcher 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. 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. Mr. Britcher's response does not deny
       his refusal to allow inspection and does not address this violation.

   10. Mr. Britcher first argues that the he and the station's other operator
       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. Britcher 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. Britcher 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. Britcher's response included an
   undated and unsigned document titled "Informal Application for Emergency
   Authorization to Operate a Radio Station." Mr. Britcher 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. Britcher'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. Britcher or that
   authorized the operation of the station operated by Mr. Britcher in
   Bettendorf, Iowa. Likewise, Mr. Britcher's Response to the NAL provides no
   evidence of any proper application or authorization. Therefore, we find
   that Mr. Britcher 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. Britcher 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. Britcher 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.

   11. Mr. Britcher next argues that any action by the Enforcement Bureau is
       "preemptive and unauthorized" and "therefore unconstitutional." Mr.
       Britcher 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.
       Britcher.

   12. Finally, Mr. Britcher 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.
       Britcher'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. Britcher operated radio transmitting equipment without the
       required authorization.

   13. We have examined Mr. Britcher's response to the NAL pursuant to the
       statutory factors above, and in conjunction with the Forfeiture Policy
       Statement. We conclude that Mr. Britcher 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. Also, we conclude that Mr. Britcher willfully and
       repeatedly violated Section 303(n) of the Act on April 18, 2006, by
       refusing to allow inspection of his radio station after the agent
       advised him of the statutory requirement for him to do so and in
       response to two official requests by a Commission representative. We
       find no basis for cancellation or reduction of the proposed $17,000
       forfeiture.

   IV. ORDERING CLAUSES

   14. 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, Matthew H. Britcher IS LIABLE
       FOR A MONETARY FORFEITURE in the amount of $17,000 for willful and
       repeated violation of Sections 301 and 303(n) of the Act.

   15. 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.

   16. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
       Class Mail and Certified Mail Return Receipt Requested to Matthew H.
       Britcher, Bettendorf, Iowa; and an additional copy to Mr. Britcher'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. SS 301, 303(n).

   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 Jason
   Duncan, another operator of the unlicensed radio station. The response
   stated it served as a formal response to both the Notice issued to Mr.
   Britcher and a Notice of Unlicensed Operation mailed to Jason Duncan.

   Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632560003
   (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 Jason 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 U.S.C. S 303(n).

   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. SS 301, 303(n).

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

   See 47 C.F.R. S 1.1914.

   Federal Communications Commission DA 06-1605

   2

   2

   Federal Communications Commission DA 06-1605