NOTICE ********************************************************* NOTICE ********************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file how2ftp. File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** $//Applications for Review, Stephen Paul Dunifer, FCC 95-333//$ $/ 1.115 Application for review/$ $/ 0.311 Authority Delegated $/ 0.314 Additional Authority delegated/$ $/ 500.503 Forfeitures in cases of rebates and offsets/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Application for Review of ) Stephen Paul Dunifer ) Berkeley, California ) NAL/Acct. No. 315SF0050 ) MEMORANDUM OPINION AND ORDER Adopted: August 1, 1995 Released: August 2, 1995 By the Commission: I. INTRODUCTION 1. In this Memorandum Opinion and Order we address an Application for Review filed by Mr. Stephen Paul Dunifer pursuant to Section 1.115 of the Commission's Rules, 47 C.F.R.  1.115. Mr. Dunifer seeks review of a Notice of Forfeiture in the amount of $20,000 assessed against him under delegated authority by the Compliance and Information Bureau (CIB) of the Federal Communications Commission (FCC), pursuant to Section 503 of the Communications Act of 1934, as amended (the Act), 47 U.S.C. 503(b) and Sections 0.311 and 0.314 of the Commission's rules, 47 C.F.R.  0.311, 0.314. This forfeiture was imposed on Mr. Dunifer for broadcasting without a license in violation of Section 301 of the Act, 47 U.S.C.  301. Stephen P. Dunifer, NAL/Acct. No. 315SF0050 (FOB Nov. 8, 1993) (Forfeiture Order). We grant the application for review in part, deny it in part, and assess a forfeiture of $10,000. II. BACKGROUND 2. On April 25, 1993, from 9:00 p.m. to 10:10 p.m., Pacific Daylight Time (PDT), an agent from the CIB's San Francisco field office monitored transmissions on frequency 88.1 megahertz that emanated from a radio station identifying itself as "Free Radio Berkeley." The signals were isolated by the agent to the vicinity of 6th Street and Allston Way in Berkeley, California. On May 2, 1993, agents from the San Francisco office again monitored transmissions on frequency 88.1 megahertz by "Free Radio Berkeley" station from 9:00 p.m. to 10:00 p.m. (PDT). Using close-in direction finding techniques, the agents located the source of the transmission as a dipole antenna at an apartment at 809B Allston Way, Berkeley, California. See Forfeiture Order, at 1, 4. 3. The agents remained outside the apartment and measured the strength of the transmission signals. The measured field strength, 630 uV/m at 700 meters, exceeded the maximum authorized field strength for non-licensed transmitters, which is 250 uV/m at 3 meters. See 47 C.F.R.  15.239(b), Forfeiture Order, at 2. In addition, transmission of the signals measured in the instant case comported with the technical characteristics of signals on the FM frequency band. Any operator transmitting on this band must be licensed. See 47 U.S.C.  301, 309. 4. Under Section 303(n) of the Communications Act, 47 U.S.C.  303(n), radio installations associated with a radio station must be made available for inspection by a Commission representative upon reasonable request. At 9:55 p.m. (PDT) on May 2, 1993, one of the agents approached the residence from which the transmissions were originating and attempted to inspect the radio station that was in operation. A man who Commission investigators stopped as he left his residence, and who the investigators later identified as Stephen Paul Dunifer, refused to allow inspection and claimed ignorance of any radio station. 5. A subsequent search of Commission records indicated that Mr. Dunifer has no license to operate an FM radio station. Forfeiture Order, at 2. On June 1, 1993, the CIB San Francisco field office issued a Notice of Apparent Liability (NAL) to Mr. Dunifer. After evaluating Mr. Dunifer's response, the CIB San Francisco field office issued him a Notice of Forfeiture (NOF). Mr. Dunifer then filed the instant Application for Review. III. DISCUSSION 6. In his Application for Review, Mr. Dunifer contends that the Commission's broadcast rules violate his constitutional right of free speech under the First Amendment, U.S. Const. amend. I, violate the Due Process and Equal Protection Clauses of the Constitution, U.S. Const. amend. XIV,  1, and violate international treaties such as the United Nations Declaration of Human Rights. With respect to the instant case, he contends that the Commission's forfeiture action violates the Commerce Clause of the United States Constitution, U.S. Const. art. I,  8, cl. 3, and that the Commission's action assessing the forfeiture failed to meet established procedural requirements, and violated his Fifth and Sixth Amendment rights, U.S. Const. amends. V, VI; in addition, Mr. Dunifer contends that the $20,000 forfeiture is excessive. At the outset, we turn our attention to Mr. Dunifer's argument that the Commission's broadcast rules violate the United States Constitution and international treaties. 7. Mr. Dunifer challenges the licensing system established in Section 301 of the Communications Act. He argues that the Commission's rules, which do not provide for the licensing of stand-alone audio broadcast stations under 100 watts, operate as an unduly restrictive, total ban against low-power broadcasting, and thus contravene the First Amendment right of free speech. In support of his argument, Mr. Dunifer defines low power broadcasting as a transmitter operating with a power of 10 watts or less. Application for Review, at 4. Mr. Dunifer then argues that the Commission has failed to establish that the regulations at issue are the least restrictive means to further a substantial state interest. Application for Review, at 7. To illustrate his argument, Mr. Dunifer points to Canada's regulatory scheme which, he claims, establishes procedures for low power broadcasting. 8. For the reasons that follow, we reject Mr. Dunifer's argument that the Commission's rules abridge an asserted First Amendment right of free speech. Mr. Dunifer's constitutional arguments directly challenge the 60-plus-year statutory approach to the licensing of broadcast transmissions. By statute, Congress designed a licensing system which requires anyone who wishes to broadcast to submit a "written application" to the Commission with the information required by Section 308 of the Communications Act, 47 U.S.C.  308, and the Commission's implementing regulations, and which prohibits operation of a radio station without a license granted by the Commission. 47 U.S.C.  301. One of the principal reasons for requiring an FCC license to broadcast is to prevent interference with broadcast signals so that such signals can be received by the public. In the absence of a system requiring a license before broadcasting can commence, it is not clear how interference conflicts would be resolved. At the very least, however, these conflicts would have to be resolved in almost all, if not all, cases after the interference has occurred. This approach would be costly, disruptive, inefficient, and directly contrary to the express will of Congress. Moreover, the United States Supreme Court has held repeatedly that there is no constitutional right to use radio facilities without a license and that the FCC has authority to regulate the radio spectrum. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 388 (1969) ("Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write or publish"); National Broadcasting Co. v. United States, 319 U.S. 190, 227 (1943) ("The right of free speech does not include . . . the right to use the facilities of radio without a license"). See also Turner Broadcasting System, Inc. v. FCC, 114 S. Ct. 2445, 2456-57 (1994) ("The scarcity of broadcast frequencies . . . required the establishment of some regulatory mechanism to divide the electromagnetic spectrum and assign specific frequencies to particular broadcasters"). 9. Given that the requirement for a license is thus clearly constitutional, if Mr. Dunifer believes it would be unconstitutional for the FCC to deny him a license, he should have, consistent with the Communications Act, asked for a license, along with a request for a waiver of the relevant rules limiting low power FM service. If such a request were denied, he could appeal to the U.S. Court of Appeals for the D.C. Circuit pursuant to 47 U.S.C.  402(b)(1). See WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969) (FCC must consider waiver request of applicant who makes a nonfrivolous First Amendment claim); Turro v. FCC, 859 F.2d 1498 (D.C. Cir. 1988) (Court reviews and rejects a First Amendment challenge to an FCC decision refusing to waive its rules prohibiting low power FM translator stations from originating local programming). Alternatively, if Mr. Dunifer believes the FCC's existing low power FM rules are unconstitutional, he could have filed a petition for rulemaking pursuant to 47 C.F.R.  1.401. If this request were denied, he could have filed a petition for review in a court of appeals pursuant to 47 U.S.C.  402(a). See Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434 (D.C. Cir. 1985), cert. denied, 476 U.S. 1169 (1986) (FCC denied a petition for rulemaking to repeal certain rules and court of appeals, in reviewing FCC's order, held rules unconstitutional). 10. In any event, Mr. Dunifer's argument that the Commission's rules limiting licenses for low power FM services violate the First Amendment is unavailing. Indeed, the D.C. Circuit has already upheld these rules under the First Amendment. See Turro v. FCC, 859 F.2d at 1500 n. 2. The Commission's technical rules and regulations which, inter alia, impose requirements on the power levels of stand-alone radio stations, are not content-based. As such, they need only be a reasonable means of promoting the statute's public interest standard in order to survive a First Amendment challenge. FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 802 (1978). Even if this case did involve content-based rules, it is well established that strict scrutiny would not apply. At most, intermediate scrutiny would apply. See FCC v. League of Women Voters of California, 468 U.S. 364, 380-381 (1984); Red Lion Broadcasting Co. v. FCC, 395 U.S. at 387-388. For the reasons stated below, the Commission's Rules are reasonable and would be sustained under the intermediate scrutiny test. 11. At issue in this case is the Commission's statutory objective of ensuring a "fair, efficient, and equitable distribution of radio service" in the United States. See 47 U.S.C.  307(b), and related sections of the Act. The Commission's rules pertaining to low power broadcast services are reasonably related to this permissible statutory objective and are designed to allow the most efficient use of the spectrum. Contrary to Mr. Dunifer's argument, the Commission's rules do not prohibit all low power services. For example, the Commission's rules provide for FM translator stations and booster stations which transmit at powers well below the 100 watt minimum established for primary broadcast stations. 47 C.F.R. Part 74, Subpart L. These rules establish technical operating requirements and licensing procedures for these low power facilities. 12. Moreover, the Commission's rulemaking proceedings reflect the Commission's efforts to examine the issue of low power broadcasting in light of the public interest. In particular, in the proceeding that increased the minimum operating power of non-commercial educational broadcast stations to 100 watts, the Commission discussed and weighed several competing public interest claims. In this notice and comment rule making proceeding, the Commission considered the public's interest in greater access to broadcast service and the more efficient use of the spectrum, and also considered the particular interest of rural or distant communities in obtaining access to noncommercial, educational programming. The Commission balanced these considerations against the potential increased interference to other services, and specifically to TV Channel 6. The Commission's public interest determination to provide for increased power for these facilities was based on its goal of providing, on a nation-wide basis, a stable, efficient, and diverse radio communications service. The Commission arrived at its decision only after considering issues pertaining to a proposed assignment table for noncommercial stations, varying hours of service, the nature of educational FM stations, co-location of FM stations, revised TV receiver standards, use of TV receiver interference filters, use of vertical antenna polarization, and alternate programs for interference prediction. 13. More recently, the Commission considered at length the issue of local program origination authority for FM translators, which, if approved, would have effectively established a low power FM broadcast service. Amendment of Part 74 of the Commission's Rules Concerning FM Translator Stations, (Report and Order) 5 FCC Rcd 7212 (1990), recon. denied, 8 FCC Rcd 5093 (1993). After considering the arguments raised by the proponents of program origination, we concluded that "we should not authorize program origination for FM translators." The Commission explained: In view of our commitment to provide FM radio . . . service in a manner that promotes program diversity while enhancing the incentives for efficient broadcast station development, we believe it is desirable to hold constant the existing relationship between FM broadcast stations and translator service. Report and Order, 5 FCC Rcd at 7219  48. On reconsideration, the Commission again explained why it prohibits program origination by FM translators. We reiterated that "the proper role of FM translators is to provide secondary service to areas where direct reception of signals from FM broadcast stations is unsatisfactory due to distance or intervening terrain obstructions." 8 FCC Rcd at 5097  27. The Commission stressed that it "remain[s] committed to providing FM radio broadcast service in a manner that promotes program diversity while enhancing the incentives for efficient full-service broadcast station development." Id. And, we said that, "it is necessary to distinguish between the services provided by low cost translators and FM radio broadcast stations due to our preference to provide service through more efficient radio broadcast stations." Id. at  28. Thus, it is clear that the Commission has examined the issue of providing a low power FM service and has afforded an opportunity for public comment in this matter. Our decision not to establish this service was based on the record developed in that proceeding and Mr. Dunifer has not presented any evidence to challenge the reasonableness of our determination. 14. In this regard, a low power station could not co-exist with a nearby high power station; the interference received would be too destructive. However, at the edge of the high power station's protected service contour, where its signal is weakened by distance, a low power station could operate because the interference received by the low power station would be tolerable for a secondary operation. But this is unacceptable from a public interest standpoint because the low power station would cause objectionable interference to the reception by the audience of the primary station's signal. Such interference to the primary station could be difficult to identify and correct, and would serve to lower the quality of the FM broadcasting service. Moreover, all broadcast stations must maintain their signals on their assigned center frequency within their assigned frequency bands. Unauthorized low power transmitters which are typically used by unlicensed radio operators do not meet minimum operating standards for stability and signal purity. Inevitably some of them will generate spurious emissions that will cause interference but will be difficult to locate. 15. The Commission, through rule making proceedings, has developed a licensing system that serves a wide range of conditions and a licensing system that is adaptable to changing circumstances, but avoids the extremes in permissible power. The Commission, therefore, does not allow low power FM radio broadcasting because it is an inefficient use of the spectrum nor do we permit the highest power that the technology could achieve because that would reduce the number of stations and, consequently, the diversity of voices. Absent appropriate technical rules and licensing requirements, broadcast speech would be unintelligible to listeners, and the Commission's goal of promoting diversity of voices would be undermined. In particular, we do not authorize low power FM radio broadcast stations because they cannot adequately serve communities and mobile audiences, and because they would preclude the establishment of more efficient, stable, full powered stations. Conversely, we have put maximum limits on the size of stations so as to promote a diversity of voices. Mr. Dunifer has presented no petition or argument to persuade us that our rules should be changed, let alone that they are unconstitutional. 16. FM broadcasting is a service based on protected service contours. A proposed new station or one which seeks to modify its current facilities must ensure both that it will not cause interference to the service of other stations, and that it will not receive interference within its defined service area. In FM broadcasting, the biggest constraint on the numbers and types of stations that can be authorized is interference from stations operating on the same channel. Interference to and from stations operating on first, second, and third adjacent channels is also a constraint but has greater impact on the location of a station than on the total number that can operate in a region. 17. Thus, if within a given region, we seek to authorize as many co-channel stations as possible, only a portion of a region will receive service of a satisfactory quality, and the remainder of the region will be covered by multiple interfering signals. The ratio of service area to interference area is not a constant. Because of the way radio signals propagate, and the way service and interference are determined, the proportion of the region receiving service would be greater if higher powered stations were established. Permitting low power facilities, as Mr. Dunifer recommends, would lead to a larger number of stations but less overall service. Simply put, full power broadcast facilities are more spectrally efficient. 18. In addition to general concerns about spectrum efficiency, there is the matter of preclusion. Under this principle, the presence of one station at a particular site prohibits the establishment of other stations on the same or adjacent channels in that general area in order to avoid destructive interference. A simple example shows how preclusion and service are related. A 10 watt station with a 100 meter antenna has a service radius of 5.9 kilometers and a service area of 109 square kilometers. To protect this hypothetical low power station from interference by a co-channel Class A FM station operating at 6 kilowatts, we would need to preclude the establishment of that Class A station within a distance of 92.6 kilometers from the transmitter for the low power station. In contrast, one Class A station would preclude another co-channel Class A station within a distance of 115 kilometers. A Class A station, however, operating at 6 kilowatts with a 100 meter antenna has a service radius of 28.3 kilometers and a service area of 2,516 square kilometers. Therefore, while the preclusive effect of a Class A station is 24 percent greater than the 10 watt station (115 kilometers divided by 92.6 kilometers), the service radius of a Class A station is almost 500% greater than the smaller station (28.3 kilometers divided by 5.9 kilometers). Although the preclusive effect of a station increases with power, as we would expect, the service radius (and area) increases at a much faster rate. If we treat preclusion as a cost and service as a benefit, the cost/benefit ratio improves with power; but the ratio is very poor for low powered stations. 19. As noted before, Mr. Dunifer contends that Canada's scheme for the provision of low power services demonstrates that it is possible to design rules that are less restrictive than the Commission's current rules. In his pleadings, Mr. Dunifer contends that low power broadcasting should be permitted absent transmissions that cause interference to licensed or navigational broadcasts. See Application for Review, at iv. At the outset, we note that the Canadian scheme provides no support for a claim that low power broadcast services should generally be permissible without first obtaining a license. Like the United States, Canada does license most broadcast facilities, including its low power broadcast services. Our examination of the Canadian regulatory scheme reveals that most low power FM stations are licensed and closely regulated by the Department of Communications and Canadian Radio- Television and Telecommunications Commission (CRTC). See Public Notice CRTC 1993- 95. Violations of the licensing rules can result in sanctions and penalties, including contempt charges. Id. Moreover, the Canadian low power services (which include rebroadcasting; community radio in rural or remote areas; travel services; and temporary broadcast facilities for work camps, student services, and special events) are similar to those provided for in the United States under Parts 15, 73 and 74 of the Commission's rules and under other sections of the Commission's rules and of the Communications Act (e.g., FM translators, low power traveler's advisory stations, Class A FM broadcast stations, and FM noncommercial educational stations). 20. To the extent that the Canadian licensing rules allow some low power services that are not permitted under our rules, there are vast and critical differences between the two countries that justify our decision to have a more restrictive policy. Specifically, the United States has over 6900 conventional FM stations whereas Canada has only 334 conventional FM broadcast stations. The most heavily used frequency in Canada -- 92.1 megahertz -- supports eight stations; the United States has 139 stations on the same frequency. Broadcasting Yearbook, Vol. I, pp. B-556, B-577 (1995 ed.). Thus, while Canada can allow low power stations even in urban areas, spectrum efficiency considerations create different obstacles for low power services in the United States. 21. In arguing that the Commission's rules are constitutionally invalid, Mr. Dunifer further asserts that the Commission has exceeded any authority to regulate interstate communications under the Commerce Clause of the Constitution. He argues that, although Section 301(d) of the Act authorizes the Commission to regulate radio communications within one state as well as between states, the statute must be interpreted and applied in a manner consistent with constitutional limitations. In particular Mr. Dunifer claims that, because there has been no showing that his transmissions caused or may cause harmful interference, the Commission cannot prohibit his unlicensed transmissions. 22. This is a fundamentally erroneous view of the regulatory system for broadcasting as established in the Communications Act and interpreted by the Supreme Court. Section 301 of the Act specifically prohibits the transmission of radio communications without a license from one place in a state either to "another place in the same State," (emphasis added), or to "any other State," Section 301(b). These provisions make no reference to any requirement for a showing with regard to harmful interference before they can be enforced. Section 301(d) similarly makes clear the applicability of the radio licensing requirement without the necessity for a showing of interference as a result of the radio transmission at issue. The requirement for a license in order to broadcast has been upheld by the Supreme Court as a proper exercise of the constitutional power of Congress over commerce. National Broadcasting Co. v. United States, 319 U.S. at 209-217 ("Regulation of radio was as vital to its development as traffic control was to the development of the automobile. * * * The facilities of radio are not large enough to accommodate all who wish to use them"); FCC v. League of Women Voters of California, 468 U.S. at 377 ("The fundamental distinguishing characteristic of the new medium of broadcasting . . . is that [b]roadcast frequencies are a scarce resource [that] must be portioned out among applicants"). There is no support whatever in these or any other Supreme Court decisions for Mr. Dunifer's view that the licensing requirement in Section 301 of the Communications Act cannot be enforced unless there is a specific showing that the unlicensed radio transmissions caused or may cause harmful interference. The present licensing scheme is intended to facilitate broadcasting by protecting the service areas of those licensed by the Commission to broadcast. Otherwise the potential for chaos on the airwaves would severely undermine the ability of others to use the radio spectrum. See National Broadcasting Co. v. United States, 319 U.S. at 209-217. 23. We also note Mr. Dunifer's argument that the Commission's prohibition against low power broadcasting denies minorities and the poor the opportunity to be licensed because they are financially unable to operate a full-power 100 watt station. Therefore, Mr. Dunifer contends that the Commission's rules in this area violate the Equal Protection clause of the Constitution. As the Supreme Court has recognized, however, the standard provided in the Communications Act for the licensing of radio stations is "the public interest, convenience, or necessity." National Broadcasting Co. v. United States, 319 U.S. at 227. There is no constitutional right to be granted a license when it would not be in the public interest for the license to be granted. Id. The Communications Act does not define the term "public interest, convenience and necessity" but instead leaves it to the Commission "as the expert body which Congress has charged to carry out its legislative policy," FCC v. Pottsville Broadcasting Co, 309 U.S. 134, 138 (1940), to exercise its discretion in determining where the public interest lies. As previously discussed, the Commission in exercising its discretion has concluded that the public interest would not be served by licensing a low power FM broadcast service. 24. Mr. Dunifer also claims that the Commission's rules with respect to low power broadcasts violate certain international treaties. In particular, Mr. Dunifer argues that the Commission's rules violate the rights of low power radio broadcasters and their listeners under the U.N. Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights. None of the treaties or agreements listed by Mr. Dunifer, however, gives him a right to operate without a license or authorization from the Commission. Nor do any of these treaties or agreements compel the Commission to revise its rules to permit the licensing of low power FM stations that would broadcast their own originated programming. 25. We now turn to Mr. Dunifer's arguments that the forfeiture action in the instant case is procedurally flawed. Mr. Dunifer contends that the Commission failed to adhere to its own procedures when it did not first send him a citation or a warning giving notice of the violations and an opportunity for a personal interview as required by Section 503(b)(5) of the Act, 47 U.S.C.  503(b)(5), and Section 1.80(d) of the Commission's rules, 47 C.F.R.  1.80(d). In particular, Mr. Dunifer argues that because the FCC does not issue any licenses to operate low power radio broadcast facilities, he was not "engaging in activities for which a license, permit, certificate, or other authorization is required" and thus, as a non-licensee, he was entitled to a warning. 26. Mr. Dunifer is mistaken. Although Section 503(b) of the Act does require issuance of citations prior to forfeitures in certain circumstances, it specifically excludes individuals that are "engaging in activities for which a license, permit, certificate or other form of authorization is required." 47 U.S.C.  503(b). By transmitting on a frequency reserved for licensed broadcast services, Mr. Dunifer engaged in broadcasting, an activity for which a license is required. 47 U.S.C.  301. Therefore, he was not entitled to receive a warning prior to the issuance of the forfeiture. 27. Mr. Dunifer's constitutional claims include an argument that the FCC's exercise of its forfeiture authority violates his due process rights because he was not given an opportunity for a hearing. Further, Mr. Dunifer argues that his Fifth and Sixth Amendment rights are adversely affected because the violation subjects him to a civil penalty and possible criminal sanctions and he cannot afford to retain counsel. Specifically, Mr. Dunifer states: "[i]n the extremely specialized area of telecommunications law, even if competent counsel could be found, their fees place their services well beyond the reach of the average person." Response to Notice of Apparent Liability, at 11. 28. We disagree with Mr. Dunifer that his due process or Fifth or Sixth Amendment rights were violated. Contrary to Mr. Dunifer's arguments, Sections 503 and 504 of the Communications Act, 47 U.S.C.  503, 504, provide safeguards which satisfy due process requirements. Specifically, the Notice of Apparent Liability (NAL) must specify the rules that are alleged to be violated, the facts upon which the charge against the named violator is based, and the date upon which the alleged violation occurred. Additionally, the party is given an opportunity to respond to the NAL and to have a trial de novo. 47 U.S.C.  503(b)(5), 504(a),(b). See Pleasant Broadcasting Co. v. FCC, 564 F.2d 496 (D.C. Cir. 1977). As to Mr. Dunifer's argument that his right to effective assistance of counsel has been abridged, we note that the forfeiture proceeding in the instant case is not a criminal proceeding, and thus, the right to appointed counsel is inapplicable. In any event, the record in this case clearly shows that Mr. Dunifer has been able to secure legal representation before the Commission and in related court proceedings. 29. Finally, Mr. Dunifer argues that the Bureau erred when it used the Commission's Forfeiture Policy Statement to calculate the forfeiture in this case. Mr. Dunifer asserts that the Forfeiture Policy Statement does not address unlicensed operations. Thus, he argues, the Bureau instead should have relied on a 1990 Public Notice regarding unlicensed operations that sets the forfeiture amount for these types of violations at no more than $1,000. Assuming arguendo, that the Commission's Forfeiture Policy Statement applies in the instant case, Mr. Dunifer contends that he is neither a broadcast licensee nor a permittee or applicant, and that the only category he fits is "other." He further contends that the $20,000 fine for two one-hour low power broadcasts by someone with no prior FCC rule violations is too severe, because such a high forfeiture is intended for commercial broadcasters. 30. The Commission's Forfeiture Policy Statement, used to assess the forfeiture amount, was vacated by the U.S. Court of Appeals for the D.C. Circuit in USTA v. FCC, 28 F.3d 1232 (D.C. Cir. 1994). Therefore, it is not necessary to address the merits of Mr. Dunifer's argument regarding the use of the Forfeiture Policy Statement. Moreover, we are not persuaded that the forfeiture at issue in this case should be assessed under the 1990 Public Notice. The Public Notice issued by the Commission's staff clearly stated that it applied to "routine" cases of unauthorized broadcast operations. Unlicensed Radio Operations, 67 RR 2d 619. As discussed below, see para. 32, infra, this is not a routine case. Accordingly, we will assess the forfeiture amount against Mr. Dunifer under the statutory forfeiture guidelines set forth in Section 503(b)(2) of the Act, 47 U.S.C.  503(b)(2). 31. Section 503 (b)(2)(C) imposes a forfeiture maximum of $10,000 a day per violation for violations by parties other than common carriers and broadcast station licensees, permittees, applicants, and others seeking similar Commission authorization, as well as cable operators. 47 U.S.C.  503 (b)(2)(C). In determining a forfeiture penalty, the Commission must consider "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 such other matters as justice may require." 47 U.S.C.  503 (b)(2)(D). 32. The violation at issue in this case is serious and intentional. As stated in the Forfeiture Order, Mr. Dunifer is "a recalcitrant individual who decide[d] to willfully operate a radio transmitter without the required [FCC] authorization, as a protest against the regulatory power of the Commission, refuse[d] the opportunity to allow Commission investigators to inspect the equipment found in use, refuse[d] to discuss the matter with investigators, . . . [and] g[a]ve a false statement to them . . . . [concerning his identity]." Id. at 5. Moreover, Mr. Dunifer has not made any good faith efforts to come into compliance with the Communications Act or the Commission's rules even after being warned that his unlicensed radio transmissions are illegal. Id. After evaluating the facts and circumstances in this case under the statutory forfeiture guidelines, see para. 30, supra, we find that the statutory maximum of $10,000 is an appropriate forfeiture amount. Because the NAL only cited Mr. Dunifer for one violation of Section 301, the forfeiture is assessed at $10,000, rather than the $20,000 in the NAL. 33. Finally, Mr. Dunifer claims that he is unable to pay the forfeiture initially assessed. Because he has submitted no documentation, such as financial records, to support this request for further mitigation, we are unable to evaluate the merits of his request. See 47 U.S.C.  503(b)(2)(D); 47 C.F.R.  1.80(f)(3). See also Group Six Communications, Inc., 8 FCC Rcd 3111  4 (1993); Metro Media Broadcasting, Inc., 8 FCC Rcd 323  4-5 (1992). 34. In summary, upon review of the arguments raised in the Application for Review, and our independent review of the Notice of Apparent Liability and Forfeiture Order, we grant the Application for Review with respect to the request for a reduction of the forfeiture amount, and deny review in all other respects. IV. ORDERING CLAUSES 35. Accordingly, IT IS ORDERED that, pursuant to Section 1.115 of the Commission's Rules, 47 C.F.R.  1.115, the Application for Review of Stephen Paul Dunifer is GRANTED in part and DENIED in all other respects. 36. IT IS FURTHER ORDERED that, pursuant to Section 503(b) of the Act, 47 U.S.C.  503(b), and Section 1.80 of the Commission's Rules, 47 C.F.R.  1.80, Stephen Paul Dunifer IS LIABLE FOR A MONETARY FORFEITURE in the amount of $10,000 for operating an unauthorized broadcast station in violation of Section 301 of the Communications Act. The amount specified was determined after consideration of the factors set forth in Section 503(b) of the Communications Act. 37. IT IS FURTHER ORDERED that, pursuant to Section 1.80(f)(3) of the Commission's rules, 47 C.F.R.  1.80(f)(3), Stephen Paul Dunifer shall, within thirty (30) days of the release of this ORDER, pay the full amount of the forfeiture. Forfeitures shall be paid by check or money order payable to the Federal Communications Commission. The remittance should be marked "NAL/Acct. No. 315SF0050" and mailed to the following address: Federal Communications Commission Post Office Box 73482 Chicago, IL 60673-7482 38. IT IS FURTHER ORDERED that a copy of this Order shall be sent to Stephen Paul Dunifer and his counsel by Certified Mail, Return Receipt Requested. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary