******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. 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 WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Edwin Valentin ) NAL/ Acct. No. 815DT0002 d/b/a Musical Radio ) Pontiac, Michigan ) NOTICE OF FORFEITURE Released: March 11, 1998 By the Compliance and Information Bureau: 1. Before the Bureau is a Notice of Apparent Liability (NAL), released on December 10, 1998, and the January 9, 1998 response thereto, filed by Edwin Valentin, d/b/a Musical Radio, requesting that the Bureau dismiss the Notice of Apparent Liability. The NAL proposes imposition of a forfeiture against Edward Valentin in the amount of $5,000 pursuant to Section 503(b) of the Communications Act of 1934, as amended (the Act), 47 U.S.C.  503(b), for violation of Section 301 of the Act, 47 U.S.C.  301 and sections 15.209 and 15.239 of the Commission's rules, 47 C.F.R.   15.209, 15.239. For the reasons noted below, we affirm the monetary forfeiture of $5,000. 2. The Commission's Detroit Office, prompted by a private-sector complaint, monitored and located unauthorized transmissions being made by Edwin Valentin on 106.3 MHz on October 24 and October 28, 1997. Field strength measurements, taken at that time, demonstrated that the transmissions exceeded the limits allowed under Section 15.239 of the Rules, 47 C.F.R.  15.239. On December 5, 1997, an FCC agent inspected the station. At that time, Mr. Valentin was operating the radio transmitter and admitted being the operator of the station, which he identified as "Musical Radio". He further acknowledged that the station had no license to broadcast from the FCC. On December 10, 1997, the Detroit Office issued the NAL to which the Respondent now responds. 3. In his response, Mr. Valentin seeks cancellation of the NAL. He does not deny operating an unauthorized radio transmitting facility, but rather he contends that the Commission's regulatory scheme operates as an impermissible infringement and thereby restricts his First Amendment right to broadcast over the airwaves. This impermissible constitutional encroachment, Mr. Valentin maintains, arises from the Commission's policy which does not allow the licensing of any new stations below 100 watts. Citing to Section 303(g) of the Act, 47 U.S.C.  303(g), Respondent further contends that the Commission's effective ban on very low power broadcasting also violates the FCC's statutory mandate to "study new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more effective use of radio in the public interest." In his response to the Commission's guidance that he seek a waiver or initiate rulemaking proceedings if dissatisfied with the Commission's current licensing scheme, Respondent asserts that it is the Commission's duty, not the responsibility of applicants, to recognize that its present regulatory scheme violates the First Amendment. 4. As presently structured, the Commission's rules do not allow for the licensing of any commercial radio station facilities which would operate below 100 watts (existing non-commercial, educational radio facilities, were allowed to continue to operate as Class D stations pursuant to a Commission proceeding which involved notice and comment). See In the Matter of Changes in the Rules Relating to Non-commercial Educational FM Broadcast Stations, 69 FCC 2d 240, 244. (1978). Moreover, Commission rules, under Part 15, do sanction low power broadcasting, although with accompanying emissions restrictions. 47 C.F.R.  15.209, 15.239. 5. In a somewhat cavalier fashion, Respondent, without seeking a license or other Commission authorization, began his unauthorized broadcasts. This conduct constituted a serious breach and patent violation of Section 301 of the Act. That statute, in relevant part, requires a license or Commission authorization for any U.S. radio broadcast transmissions. The constitutionality of the Communications Act and the FCC's authority to license broadcast stations have been repeatedly sustained by the Supreme Court. In National Broadcasting Co. v. United States, 319 U.S. 190, 227 (1943), the Supreme Court clearly held that "[t]he right of free speech does not include the right to use the facilities of a radio station without a license. See also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 388 (1969). 6. The Commission's investigation has revealed that Respondent was fully aware that his operation of the radio station, known as "Radio Musical" or "Musical Radio", was in violation of the Commission's rules. Nevertheless, he initiated and continued his illegal broadcasts. Because Respondent has not applied for a license, we do not have the benefit of a full record upon which to respond to Mr. Valentin's constitutional argument that the FCC is violating its statutory mandate regarding exploration of experimental uses of the frequencies in the public interest. If Respondent wishes to pursue his challenge to the constitutionality of the FCC's licensing scheme, he must first apply for a license or other form of authorization. See generally, Suncom Mobile & Data Inc. v. FCC, 87 F.3d 1386 (D.C. Cir. 1996). 7. The Commission derives its forfeiture authority from Section 503 of the Act, 47 U.S.C. 503, and Section 1.80 of the Rules, 47 C.F.R. 1.80. In its determination of the appropriate forfeiture amount, the Detroit Field Office followed Section 503 of the Act, Section 1.80 of the rules, and the Commission's Policy Statement, Standards for Assessing Forfeitures, (Policy Statement), 12 FCC Rcd 17087 (1997). In assessing forfeitures, 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, his/her ability to pay, and other such matters as justice may require. 47 U.S.C. 503(b)(2)(D). 8. The circumstances of this case do not indicate any aggravating factors or extenuating factors warranting a reduction or cancellation of the monetary forfeiture initially assessed. Moreover, Respondent has not submitted any relevant financial or other data that would tend to dispute his ability to pay the $5,000 forfeiture. 9. Based upon Mr. Valentin's Response, as well as the factors set forth in the Commission's Policy Statement, we find that a forfeiture in the amount of $5,000 is warranted and supported by the record. 10. ACCORDINGLY, IT IS ORDERED that, pursuant to 47 U.S.C.  503(b), and Section 1.80 of the Commission's Rules, 47 C.F.R.  1.80, Edwin Valentin IS LIABLE FOR A MONETARY FORFEITURE in the amount of five thousand dollars ($5,000) for violation of Section 301 of the Communications Act, 47 U.S.C.  301, and Sections 15.209 and 15.239 of the Commission's Rules, 47 C.F.R.  15.209, 15.239. 11. IT IS FURTHER ORDERED, pursuant to Section 1.80(f) of the Commission's Rules, 47 C.F.R.  1.80(f), that Edwin Valentin shall, within thirty (30) days of the release of this Forfeiture Order pay the full amount of the forfeiture. Forfeitures shall be paid by check, credit card or money order made payable to the Federal Communications Commission. The remittance should be marked "NAL/Acct. No. 815DT0002" and mailed to the following address: Federal Communications Commission Post Office Box 73482 Chicago, IL 60673-7482 Petitions for Reconsideration pursuant to Section 1.106, 47 C.F.R.  1.106 of the Rules, or Applications for Review pursuant to Section 1.115, 47 C.F.R. 1.115, should be sent to: Chief, Compliance Division Compliance and Information Bureau Federal Communications Commission 1919 M Street, N.W. Washington, D.C. 20554 ATTN: Mail Stop 1500E3AJC 12. IT IS FURTHER ORDERED that a copy of this Order shall be sent by certified mail, return-receipt requested, to Edwin Valentin and to his attorney of record. FEDERAL COMMUNICATIONS COMMISSION Lawrence S. Schaffner Acting Director, Legal Services Group Compliance Division Compliance and Information Bureau