Louis N. Hiken Attorney at Law One Sansome Street, Suite 900 San Francisco, California 94104 Tel: (415) 705-6460 Fax: (415) 705-6444 December 2, 1993 The Secretary Federal Communications Commission Washington, DC 20554 Ref: In the Matter of Stephen P. Dunifer; NAL/Acct. No. 315SF0050; SF-93-1355. Dear Madam or Sir, We enclose our response to the Forfeiture Order issued to our client, Stephen P. Dunifer, released by the F.C.C. on November 8, 1993. There appears to be a conflict in the regulations which govern review of a Forfeiture Order. The only option for obtaining review mentioned by the Order itself is a Petition for Reconsideration. Yet the Order goes on to cite both Section 1.106 of the Commission’s Rules and 47 C.F.R. §1.115. Section 1.106 of the Commission’s rules parallels 47 C.F.R. § 1.106, which governs the submission of Petitions for Reconsideration. 47 C.F.R. §1.115, however, governs the submission of Applications for Review of actions taken pursuant to delegated authority. These options represent substantively different courses of action. The most significant distinction regards which government agency shall consider the appeal: An Application for Review must be acted upon by the Commission. A Petition for Reconsideration, however, may be acted upon by either the Commission, or by the designated authority. The plain language of 47 C.F.R. §1.80(i) states that. "After issuance of a forfeiture order, any request [that the Commission or its designee remit or reduce the forfeiture] shall be submitted as a petition for reconsideration pursuant to §1.106." However, the equally plain language of 47 C.F.R. §1.115(a) states that "Any person aggrieved by any action taken pursuant to delegated authority may file an application requesting review of that action by the Commission." Consistent with the latter is 47 C.F.R. §1.104(b), which provides that "Any person desiring Commission consideration of a final action taken pursuant to delegated authority shall file either a petition for reconsideration or an application for review (but not both). . ." The issuance of the Forfeiture Order in this case was clearly pursuant to delegated authority. In light of the foregoing, this response is hereby submitted as an Application for Review of action taken pursuant to delegated authority, as provided by 47 C.F.R. §1.115. In compliance with the Forfeiture Order, a copy of this Application for Review has been sent to the Field Operations Bureau. We note, however, that 47 C.F.R. §0.311(a)(2) specifically requires the Chief, Field Operations Bureau, to refer this matter to the Commission en banc for disposition. Please contact us at the above address, phone or fax if we can provide further information or if you have any questions regarding this submission. Sincerely, Louis N. Hiken, Attorney for Stephen P. Dunifer LOUIS N. HIKEN, SBN 45337 Attorney at Law One Sansome Street, Suite 900 San Francisco, California 94104 Telephone: (415)705-6460 Fax: (415) 705-6444 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 IN THE MATTER OF ) ) STEPHEN PAUL DUNIFER ) NAL/ACCT. NO.: 315SF0050 BERKELEY, CALIFORNIA ) SF-93-1355 ) APPLICATION FOR REVIEW OF ACTION TAKEN PURSUANT TO DELEGATED AUTHORIT TABLE OF CONTENTS Summary of the Filing iii Questions Presented 1 1. Whether the Commission’s rules, as presently formulated and applied, constitute a complete and absolute prohibition of micro radio. 1 2. Whether the Commission’s complete and absolute prohibition of micro radio violates the First Amendment. 1 3. Whether the Commission intended for its "Policy Statement" to be applied to micro radio broadcasters. 1 4. Whether, if the Commission did intend that its "Policy Statement" be applied to micro radio broadcasters, the "Policy Statement" was properly applied in this case. 1 a) Is the dramatic increase in the proportion of the "upward adjustment" in the NAL to that in the Forfeiture Order permissible? 2 b) Is the Forfeiture Order’s complete deletion of the "downward adjustment" contained in the NAL permissible? 2 5. Whether a sufficient factual basis exists for the Forfeiture Order issued to Applicant Dunifer. 2 6. Whether the exception in 47 U.S.C. §503(b)(5) for persons "engaging in activities for which a license, permit certificate, or other authorization is required" applies to micro radio broadcasts. 2 7. Whether the Commission’s complete prohibition of micro radio exceeds the Federal Government’s authority under the Commerce Clause. 2 8. Whether the Commission’s complete prohibition of micro radio violates international law. 2 9. Whether the Forfeiture Order in this case violates Due Process and Equal Protection. 3 Respects in Which the Action Taken by the Designated Authority Should be Changed 3 Form of Relief Sought 4 Argument 4 I. The Commission’s rules, as presently formulated and applied, constitute a complete and absolute prohibition of micro radio. 4 II. The Commission’s Complete And Absolute Prohibition Of Micro Radio Violates The First Amendment. 7 III. The F.C.C.'s "Policy Statement, Standards For Assessing Forfeitures" Does Not Apply To Unlicensed Micro Radio Broadcasts. 9 IV. Even If The Policy Statement Standards Are Applicable to Micro Radio, The F.C.C. Has Improperly Calculated The Forfeiture Amount. 12 V. The Forfeiture Is Based Upon Unsubstantiated Accusations With Insufficient Evidentiary Support. 16 VI. The Exception In 47 U.S.C. §503(B)(5) For Persons "Engaging In Activities For Which A License, Permit Certificate, Or Other Authorization Is Required" Does Not Apply To Micro Radio Broadcasts. 17 VII. (a) The Commission’s Complete Prohibition Of Micro Radio Exceeds The Federal Government’s Authority Under The Commerce Clause 17 (b) The Commission’s complete prohibition of micro radio Violates Micro Radio Broadcasters' And Their Listeners' Right To Communicate Under The U.N. Declaration Of Human Rights, The International Covenant On Civil And Political Rights, And The American Convention On Human Rights 17 (c) The Forfeiture Order In This Case Violates Due Process And Equal Protection 17 CONCLUSION 1 SUMMARY OF THE FILING This is an application for review of action taken pursuant to delegated authority, filed in accordance with 47 C.F.R. §1.115. Applicant Stephen P. Dunifer seeks Commission review of the Forfeiture Order dated November 8, 1993, issued by the Field Operations Bureau, assessing forfeiture liability in the amount of $20,000. Applicant Dunifer is accused of transmitting two low power (less than 10 watts) FM broadcasts without an F.C.C. license. The alleged broadcasts caused no interference with licensed, navigational or any other signal. The outrageously excessive forfeiture amount was determined by improper application of the F.C.C.’s Policy Statement, Standards for Assessing Forfeitures, 6 FCC Rcd. 4695 (1991) and the 1993 Policy Statement, Standards for Assessing Forfeitures, 8 FCC Rcd. 6215 (1993). At issue in this case are several critically important constitutional, legal and policy issues that must be resolved by the Commission. Current F.C.C. regulations and policies enforcing those regulations have resulted in a complete and absolute prohibition of micro radio broadcasting. While Applicant Dunifer stands accused of failing to obtain an F.C.C. license prior to engaging in such broadcasts, in fact no such license is available under the current regulatory framework as enforced by the Commission. The problem is not that micro radio broadcasters are refusing to comply with F.C.C. licensing procedures. Rather, the fundamental problem is that the F.C.C. has not provided procedures by which micro radio broadcasters can become licensed or authorized. Instead, the F.C.C. is applying severe administrative and criminal sanctions, intended for application to large-scale, commercial operators, to micro radio broadcasters with the goal of completely precluding all such broadcasts. The very notion of assessing a $20,000 forfeiture against Applicant Dunifer, an individual with no prior F.C.C. violations, accused of transmitting two low-power, non-commercial broadcasts of approximately 1 hour duration, is ludicrous. The current ban of all micro radio broadcasting violates the First Amendment. In addition, the Forfeiture Order in this case is procedurally flawed and calls for a forfeiture amount that is grossly disproportionate to the alleged violations and which exceeds the maximum limits set by 47 U.S.C. 503(b)(2)(C). Applicant Dunifer seeks rescission of the Forfeiture Order and F.C.C. authorization to engage in unlicensed 10 watt or lower FM micro radio broadcasts that create no interference with licensed or navigational broadcasts APPLICATION FOR REVIEW OF ACTION TAKEN PURSUANT TO DELEGATED AUTHORITY In accordance with 47 C.F.R. §1.115, Stephen P. Dunifer hereby requests review by the Commission of the following action taken pursuant to delegated authority: the issuance of the Forfeiture Order assessing liability for a monetary forfeiture in the amount of $20,000, released November 8, 1993 by the Field Operations Bureau, and signed by Philip M. Kane, Engineer in Charge. QUESTIONS PRESENTED In accordance with 47 C.F.R. §1.115(b)(1), the following questions are presented for review: 1. Whether the Commission’s rules, as presently formulated and applied, constitute a complete and absolute prohibition of micro radio. The Forfeiture Order asserts that there is no such prohibition. 2. Whether the Commission’s complete and absolute prohibition of micro radio violates the First Amendment. As noted above, The Forfeiture Order asserts that there is no complete prohibition of micro radio. Beyond this denial, the Order refused to consider or address Applicant Dunifer’s First Amendment arguments. 3. Whether the Commission intended for its "Policy Statement" to be applied to micro radio broadcasters. The Forfeiture Order found that the "Policy Statement" was intended for application to micro radio broadcasters. 4. Whether, if the Commission did intend that its "Policy Statement" be applied to micro radio broadcasters, the "Policy Statement" was properly applied in this case. The Forfeiture Order applied the "Policy Statement" to this case differently than the manner in which it was applied by the NAL. The determined forfeiture amount, however, was the same. a) Is the dramatic increase in the proportion of the "upward adjustment" in the NAL to that in the Forfeiture Order permissible? b) Is the Forfeiture Order’s complete deletion of the "downward adjustment" contained in the NAL permissible? 5. Whether a sufficient factual basis exists for the Forfeiture Order issued to Applicant Dunifer. The Forfeiture Order found sufficient factual bases. 6. Whether the exception in 47 U.S.C. §503(b)(5) for persons "engaging in activities for which a license, permit certificate, or other authorization is required" applies to micro radio broadcasts. The Forfeiture Order found that the exception does apply to micro radio broadcasts. 7. Whether the Commission’s complete prohibition of micro radio exceeds the Federal Government’s authority under the Commerce Clause. As noted above, The Forfeiture Order asserts that there is no complete prohibition of micro radio. The Order further found that the Commission’s regulations as applied to micro radio broadcasts do not exceed the Federal Government’s authority under the Commerce Clause. 8. Whether the Commission’s complete prohibition of micro radio violates international law. As noted above, The Forfeiture Order asserts that there is no complete prohibition of micro radio. Beyond this denial, the Order refused to consider or address Applicant Dunifer’s international law arguments. 9. Whether the Forfeiture Order in this case violates Due Process and Equal Protection. The Forfeiture Order found no violations of either Equal Protection or Due Process. FACTORS WARRANTING COMMISSION CONSIDERATION OF THE QUESTIONS PRESENTED Each of the following factors, enunciated in 47 C.F.R. § 1.115(2), warrant Commission consideration of the questions presented: The action taken pursuant to delegated authority is in conflict with the Commission’s own rules, the regulations codifying those rules, established Commission policy, and the United States Constitution; the action involves several questions of law or policy that have not previously been resolved by the Commission; the action involves application of a precedent or policy which should be overturned or reversed; the delegated authority made an erroneous finding as to an important fact, and; there have been several prejudicial procedural errors. RESPECTS IN WHICH THE ACTION TAKEN BY THE DESIGNATED AUTHORITY SHOULD BE CHANGED The action taken by the designated authority should be changed in the following respects: The Forfeiture Order should be rescinded by the Commission, or, in the alternative, the amount should be reduced to an amount consistent with a correct application of F.C.C. procedures and commensurate with the fact that Applicant Dunifer is an indigent individual with no prior F.C.C. violations accused of responsibility for two non-commercial low-power broadcasts that created no actual interference. FORM OF RELIEF SOUGHT Applicant Dunifer seeks the following relief from the Commission: The Forfeiture Order should be rescinded, and Applicant Dunifer should be granted authorization to conduct, with no F.C.C. license, 10 watt or lower FM micro radio broadcasts that create no interference with licensed or navigational broadcasts. ARGUMENT I. The Commission’s rules, as presently formulated and applied, constitute a complete and absolute prohibition of micro radio. The F.C.C.'s current regulatory scheme completely prohibits micro radio broadcasters and their listeners from accessing the public airwaves. The Forfeiture Order goes to great lengths to argue that its regulations do not in fact completely prohibit micro radio. A careful analysis of the Forfeiture Order’s listed plethora of opportunities for micro radio broadcasting within the F.C.C.’s current regulatory framework reveals that there is, in fact, a complete prohibition of micro radio broadcasting. The suggestions offered by the Commission break down to the following: 1) Petition the Commission to change the current regulatory framework; 2) Apply for a license to operate a 10 watt station above 92 MHz; 3) Broadcast as permitted under 47 C.F.R. 15.239(b); 4) Apply for a license to operate a Non-Commercial Educational FM Broadcast station under 47 C.F.R. §§ 73.501 et. seq. Number 2 above is, in effect, the same as petitioning for a rule change, since the minimum power requirements for acquiring a license to operate above 92 MHz are 100 watts or a six kilometer reference distance. Number 3 above is meaningless, since the field strength permitted by §15.239(b) is so low as to preclude any micro radio broadcast capable of being received beyond 1 or 2 blocks away from the transmitter. The Commission’s suggestion that a 10 watt broadcast could comply with the field strength limitations imposed by §15.239(b) is misleading, at best. Number 4 above is similarly misleading. 47 C.F.R. §73.511(a) explicitly provides that "No new Non-Commercial Educational station will be authorized with less power than minimum power requirements for commercial Class A facilities," that is, less than 100 watts. While it may be true that no one is precluded under the current regulatory framework from applying for a license as the Commission suggests in number 4 above, it is also true that no such application can possibly be approved by the Commission under its current regulations. The deceptively long list provided by the Commission, then, boils down to "ask us to change our rules." Given that there are absolutely no standards or limitations governing the Commission’s discretion in considering an application for a rule change or waiver, this "option" is meaningless. It is well established in First Amendment jurisprudence that regulations which vest absolute or near absolute discretion in an agency to approve or deny exceptions to a generally applicable rule are unconstitutional. The Forfeiture Order seems to suggest that Applicant Dunifer has somehow failed to exhaust his administrative remedies because he did not petition for a rule change under the A.P.A. If the FCC’s rules, as currently formulated and applied, completely prohibit micro radio, then the rules violate the First Amendment. Citizens have no responsibility whatsoever to petition the F.C.C. to change unconstitutional regulations--rather, the F.C.C. is required to structure its regulatory framework so as to comply with the First Amendment. Despite the Forfeiture Order’s protestations to the contrary, the F.C.C. is indeed obligated to modify its rules when the rules violate the Constitution; not to "accommodate Mr. Dunifer’s agenda," but rather to accommodate the First Amendment rights of Applicant Dunifer and all others similarly situated. The F.C.C. must construct and enforce its regulatory framework in such a way as to safeguard the First Amendment right of free speech for all persons, regardless of their economic power. By totally prohibiting low-power micro radio, the Commission has failed to comply with its congressional mandate to regulate the airwaves in the public interest, has exceeded the limits of the power conferred upon it by Congress, and is violating the constitutional rights of micro radio broadcasters and their listeners. II. The Commission’s Complete And Absolute Prohibition Of Micro Radio Violates The First Amendment. It is well established that when First Amendment free speech rights in a traditional or designated public forum are impacted by government regulation, the government must establish that the contested regulations are the least restrictive means available to further a compelling state interest. The absolute and complete ban of all micro radio broadcasting effected by the current regulatory scheme is obviously not the least restrictive means available to the government to satisfy the state interest in regulating the airwaves. The government need look no further than to our immediate neighbors to the North for examples of much less restrictive means of addressing micro radio. Since 1978, Canada has licensed low power FM radio broadcasters in remote communities with a simple three-page application form. The Canadian Radio-Television and Telecommunications Commission (CRTC) has recently modified its rules to permit such broadcasts even in urban areas, where frequency space is much more scarce. Indeed, in a report on low power television, the F.C.C. itself attached as an appendix a copy of Canadian recommendations regarding the regulation of low power FM broadcasting. These recommendations included the suggestion that application forms and required information be simple enough to allow for easy application by potential low power licensees. Review of this F.C.C report and the attachments thereto reveals that the licensing and administrative requirements necessary to oversee operation of micro radio stations is not overly burdensome. Indeed, these licensing forms reveal that micro radio can be easily regulated so as to prevent any risk of signal interference. Further evidence of the less restrictive alternatives available to the Commission in this regard is available in the F.C.C.’s own history. Until relatively recently, Non- Commercial Educational FM broadcast stations could be licensed by the F.C.C. to broadcast with up to 10 watts of power. The absolute ban on micro radio is a creation of the Commission that can be easily eliminated without detrimentally impacting the government’s interest in regulating the airwaves. The ban therefore violates the First Amendment and must be rescinded. III. The F.C.C.'s "Policy Statement, Standards For Assessing Forfeitures" Does Not Apply To Unlicensed Micro Radio Broadcasts.III. The F.C.C.s "Policy Statement, Standards For Assessing Forfeitures" Does Not Apply To Unlicensed Micro Radio Broadcasts.2 ; Applicant Dunifer presented argument in this regard in his Reply to the N.A.L., which is already before the Commission. In response to this argument, the Forfeiture Order states: "The reply goes on at great length about the Commission not being specific about "micro radio broadcasters" and how the pre-1991 Public Notice had set the penalty for unlicensed operation at $1000 and that any change was not valid because the Commission had not given notice to the public about the change in forfeiture penalty level. There is no category of operation as "micro power broadcasting." Unauthorized operation -- operation without blanket or specific authorization -- remains unauthorized operation in spite of its advocates’ and practitioners’ attempts to give it a cachet of respectability. It is clear from the proceedings concerning the 1991 and 1993 Policy Statements that it is within the Commission’s discretion to raise the "announced" level of penalty assessable for unlicensed operation from $1000 to $10,000, as long as this change is within the statutory maximum. The "notice" was by issuance of the Policy Statements. The 1991 Policy Statement did in fact supersede the 1990 Public Notice 2049 with regard to penalties for unlicensed operation." The Forfeiture Order’s response misses the point. The argument set out in the Reply is that the "Policy Statement" was not intended by the Commission to be applied to micro radio broadcasts, such that a single infraction would result in a forfeiture of $20,000 , rather than the $1000 amount set by the 1990 Public Notice. Even setting aside for the moment the disingenuous manner in which the Forfeiture Order seeks to gloss over the obvious and significant mistake made in the N.A.L.’s determination of the "base forfeiture amount," the problem the Commission must address here remains: Even if the "revised" method of determining the base forfeiture amount is used, to hold that the "Policy Statement" was meant by the Commission to supersede its policy announced in Public Notice 2049 requires the conclusion that the intention was to level an 800% increase in the fine for this offense. This is vastly disproportionate to the other increases wrought by the "Policy Statement." The fact that the Commission has the discretion to levy forfeitures up to the statutory maximum is irrelevant in this regard. The very existence of the "Policy Statement" evinces the Commission’s intent to assess forfeitures below the statutory maximum. The argument presented in the Reply is that the intent of the Commission was not to increase the forfeiture amount for these offenses by 800% or more, regardless of the Commission’s power to do so. If the intent of the Commission was not to enact such a disproportionate increase, then the "Policy Statement" is not properly applied to these offenses. The power of the Commission to charge up to the statutory maximum is irrelevant to ascertaining the Commission’s intent in enacting the "Policy Statement." Similarly off-mark are the Forfeiture Order’s comments regarding the fact that "there is no category of operation as ‘micro power broadcasting.’" In the Reply to the N.A.L., Applicant Dunifer pointed out that there was no mention whatsoever of unlicensed broadcasts in the "Policy Statement" itself or in subsequent F.C.C. Orders in which the "Policy Statement" is discussed. The point is that this lack of specific reference, given the repeated references to licensed broadcasts and licensees in these documents, and the specific reference in Public Notice 2049 to unlicensed radio operation, supports the conclusion that the Commission did not intend the "Policy Statement" to apply to micro radio broadcasts, nor to supersede Public Notice 2049 in this regard. Finally, if the Commission were to hold that the "Policy Statement" was intended to apply to micro radio broadcasts as asserted by the Forfeiture Order, the substantial difference between the degree of specificity of the language in Public Notice 2049 and that in the "Policy Statement" renders the latter insufficient to notify the public of this significant change. Without reasonably sufficient notice, imposition of the $20,000 forfeiture in this case violates Due Process. IV. Even If The Policy Statement Standards Are Applicable to Micro Radio, The F.C.C. Has Improperly Calculated The Forfeiture Amount. Applicant Dunifer presented argument in this regard in his Reply to the N.A.L., which is already before the Commission. In the Reply, Applicant Dunifer explained that even if the "Policy Statement" was intended for application to micro radio, the F.C.C. had improperly calculated the base forfeiture amount. The Reply pointed out that it is clear from reading the N.A.L. that the manner in which the Commission determined the $20,000 forfeiture amount was by reference to the category labeled "BC/CABLE." The Reply pointed out that this was clearly erroneous, as Applicant Dunifer can not conceivably fall within the ambit of 47 U.S.C. §503(b)(2)(A). The Reply also pointed out that the base forfeiture amount assessed by the N.A.L. violated 47 U.S.C. §503(b)(2) and 47 C.F.R. §1.80, since the statutory limit set by those sections for violators in the "Other" category is $10,000. Finally, the Reply predicted that in response to this argument, the Commission would attempt to belatedly assert that the $20,000 forfeiture amount was based upon two violations rather than one. As the Reply pointed out, "While the N.A.L. does discuss two separate incidents, it is clear from reading the section of the N.A.L. (paragraph 12) which discusses the forfeiture amount that Mr. Dunifer's base forfeiture amount was determined by consulting the Policy Statement table entry for a single violation for "operation without authorization in broadcast services." (N.A.L., paragraph 12, at p. 2) Had the F.C.C. correctly consulted the "OTHER" violator category, even for two offenses, the base forfeiture amount would have only been $16,000. The only reasonable interpretation of paragraph 12 of the N.A.L. is that the F.C.C. based Mr. Dunifer's forfeiture amount on a single violation for the "BC/Cable" category, and then adjusted the amount upward because there were multiple incidents alleged and these were considered ‘willful.’" In perhaps the most egregious manipulation of F.C.C. procedure by the Commission staff to date in this case, the Forfeiture Order attempts to evade the N.A.L.’s obvious error in precisely the fashion predicted by Applicant Dunifer’s Reply. At page four, the Forfeiture Order tacitly admits that the N.A.L. improperly calculated the base forfeiture amount, stating that, "The base amount for operation without authorization in services other than Broadcast, Cable or Common Carrier is $8,000." The Forfeiture Order’s less-than candid mea culpa continues: "No matter how a "base amount" is determined, the Commission staff has the discretion to adjust it upwards and downwards within [the] statutory maximum upon articulable reason." The Forfeiture Order, then, admits, without really so stating, that the N.A.L. erred in calculating the base forfeiture amount, but then argues that the error really doesn’t matter, since the Commission has the authority to set the forfeiture at whatever limit it chooses, within the statutory limit. Any fair reading of the N.A.L. cannot avoid the conclusion that the Commission staff based the forfeiture amount on one offense, and determined the amount by reference to the BC/CABLE category. The staff then clearly adjusted the amount upward 100% due to the operation being "intentional," and then downward 100% "because Stephen P. Dunifer is an individual and has no history of past violation." The Forfeiture Order, in a blatantly result- oriented attempt to gloss over the error in the N.A.L. and arrive at the same $20,000 figure, after admitting that the base amount determined in the N.A.L. is fully $12,000 too high, completely discards the N.A.L.’s upward and downward mitigation analysis , and implicitly attempts to change the basis of the forfeiture from one offense to two. Even if the "Policy Statement" is to be applied in this case, the Commission should not permit this manipulation of the procedure by which the forfeiture amount is determined. The Commission staff already determined that the appropriate forfeiture amount in this case, after consideration of the upward and downward adjustment criteria, was equal to the Policy Statement’s "base amount." Now, after being forced to acknowledge the N.A.L.’s calculation error, the Commission staff claims that the forfeiture amount should be 150% above the base amount. Nothing about the offense or the mitigation criteria has changed in the interim between issuance of the N.A.L. and the Forfeiture Order. There is absolutely no basis for this increase, other than the Commission staff’s desire to hit Applicant Dunifer with the most severe fine within their power. The amount assessed by the Forfeiture Order, however, goes beyond even this limitation. Since the forfeiture here was clearly based upon only one offense , the forfeiture amount assessed violates even 47 U.S.C. §503(b)(2)(C). The obvious difficulties encountered by the Commission staff in attempting to apply the "Policy Statement" to the activities alleged in this case underscore the fundamental problem here: the forfeiture amounts and analysis detailed in the "Policy Statement" were simply never intended for application to micro radio. If any forfeiture at all is to be levied in this case, it cannot exceed the $1000 amount set out in Public Notice 2049. V. The Forfeiture Is Based Upon Unsubstantiated Accusations With Insufficient Evidentiary Support. Applicant Dunifer presented argument in this regard in his Reply to the N.A.L., which is already before the Commission. While the Forfeiture Order purports to respond to this argument, it fails to address the fact that even assuming, arguendo, that the voice recorded by the agents on one or both occasions is Applicant Dunifer's, this is insufficient to prove that Applicant Dunifer was the person broadcasting. Broadcasters often employ pre-recorded tapes of programming, prepared off-the-air at some earlier date. The F.C.C. has not brought forth any evidence which demonstrates that the transmissions received by the agent/investigators were "live" broadcasts. The violation alleged in the N.A.L. is the transmission of radio signals without proper authority. Establishing the identity of the individual who actually transmitted the signals is therefore essential to sustaining the forfeiture order against Applicant Dunifer, regardless of whether it was Applicant Dunifer's voice being heard over the air. VI. The Exception In 47 U.S.C. §503(B)(5) For Persons "Engaging In Activities For Which A License, Permit Certificate, Or Other Authorization Is Required" Does Not Apply To Micro Radio Broadcasts. The F.C.C.’s failure to comply with the citation, notice, and opportunity for meeting provisions of 47 U.S.C. §503(b)(5) and 47 C.F.R. §1.80(d) renders the N.A.L. and subsequent Forfeiture Order in this case invalid. Applicant Dunifer presented argument in this regard in his Reply to the N.A.L., which is already before the Commission. VII. (a) The Commission’s Complete Prohibition Of Micro Radio Exceeds The Federal Government’s Authority Under The Commerce Clause (b) The Commission’s complete prohibition of micro radio Violates Micro Radio Broadcasters' And Their Listeners' Right To Communicate Under The U.N. Declaration Of Human Rights, The International Covenant On Civil And Political Rights, And The American Convention On Human Rights (c) The Forfeiture Order In This Case Violates Due Process And Equal Protection. Applicant Dunifer presented argument on each of these points in his Reply to the N.A.L., which is already before the Commission. Counsel believes that these issues have been adequately briefed by Applicant Dunifer in these arguments which are already part of the record. However, these arguments were largely ignored by the Commission’s staff in the Forfeiture Order. Counsel would ask that the Commission provide a meaningful analysis and response to the significant questions raised by these arguments. CONCLUSION The Forfeiture Order issued to Applicant Dunifer is defective in numerous regards. The F.C.C. has failed to comply with its own procedures. The forfeiture imposed is grossly disproportionate, given Applicant Dunifer's income and assets and the nature of the alleged offenses. The forfeiture is based upon unsubstantiated accusations with insufficient evidentiary support. More importantly, the F.C.C. policies upon which the forfeiture is based constitute prior restraint prohibited by the First Amendment, and violate Due Process and Equal Protection in that they discriminate against the poor and minorities, and do not provide for adequate representation of counsel or opportunity for a hearing or administrative review. The policies also exceed the F.C.C.'s constitutional authority, and are inconsistent with the F.C.C.'s established guidelines and function. The Forfeiture Order should be rescinded, and Applicant Dunifer should be granted Commission authorization to engage in unlicensed 10 watt or lower FM micro radio broadcasts that create no interference with licensed or navigational broadcasts. Respectfully Submitted, Louis N. Hiken, Attorney for Stephen P. Dunifer Forfeiture Order at p. 10. Perhaps the Forfeiture Order’s citation of both of these sections constitutes notification that either of these options is available to Respondent Dunifer. If so, we would respectfully suggest that future notifications to Respondents regarding their rights of appeal be made in a less obtuse fashion. 47 C.F.R. §1.115. The section also provides that an Application for Review is a prerequisite to judicial review of any action taken pursuant to delegated authority. 47 C.F.R. §1.115(k) 47 C.F.R. 1.106(a)(1). It is unclear from the regulation’s language who decides, and by what criteria the decision is made, which of these government agents is to act upon a Petition for Reconsideration. 47 C.F.R. §1.115(a) (emphasis added). 47 C.F.R. 0.311(d)(1). Forfeiture Order at p.10. This summary is provided in accordance with 47 C.F.R. 1.49(c) Hereinafter referred to as "Policy Statement." While the 1993 "Policy Statement" amends the 1991 version, none of the changes are relevant to this case. Forfeiture Order at pp. 3,6. Forfeiture Order at p. 6. The Forfeiture Order states that, "The issue of First Amendment protections connected with the content of radio transmissions is not germane to this proceeding. . . .indeed this stage of the proceedings is not the forum to make such arguments." Forfeiture Order pp. 4-6. Compare N.A.L. at p. 2, paragraph 12, to Forfeiture Order, pp. 4-6. Forfeiture Order, p.4. Forfeiture Order, p.3. Forfeiture Order at p.8. Forfeiture Order at p.9. The Forfeiture Order stated that, "This stage of the instant proceedings is not the proper forum for arguing alleged conflicts amongst provisions of international treaty obligations and national regulatory statutes and regulations." Forfeiture Order at pp.7-8. See Forfeiture Order, pp. 3, 6. 47 C.F.R. §§ 73.211 et. seq., 73.511. To the extent that any standards or procedures do exist pertaining to the Commission’s suggestion that we request a rule change or waiver, or that persons should apply for a license despite the fact that they know they do not meet the regulatory requirements, we would request at this time that the Commission provide such standards or procedures to us, to guide us in attempting to comply with the Commission’s suggestions. According to the Forfeiture Order’s argument, no court could ever hold a law unconstitutional because one can always petition Congress to change it. Forfeiture Order, p. 3. Sample form attached hereto and marked as Exhibit A. Public Notice CRTC 1993-95, CRTC (1993), attached hereto and marked as Exhibit B. Report and Recommendations in the Low Power Television Inquiry, Appendix 1 (BC Docket No. 78-253). Reply, pp. 4-7, paragraph number 3(a) Forfeiture Order, p.5. See the N.A.L. at p. 2, paragraph 12. See argument at pp. 14-17, below. Reply at pp. 5-6. As to the Forfeiture Order’s accusation that Counsel is guilty of "attempting to give micro power broadcasts a cachet of respectability" by so characterizing the activity, we would refer the Commission to the recent Order filed by the Ninth Circuit Court of Appeals in Dougan v. F.C.C. (93-55433, DC No. CV-91-06431-RG, Order filed November 23, 1993), in which the Court itself refers to "micro power broadcasts." Rather than being a cachet, micro radio constitutes a legitimate vehicle for democratic communication in this country; one which the F.C.C. should be eager to embrace. Reply, pp. 7-10, paragraph number 3(b). Reply, pp. 7-8. Ibid. Ibid. Id., at note 4. Ibid. Forfeiture Order at p. 4. Compare to the N.A.L. at p. 2, paragraph 12. Forfeiture Order at p. 4. N.A.L., at p. 2, paragraph 12. The Forfeiture Order, after determining a base amount of $8000, adjusts this amount upward by $12,000 (150%), and maintains that no downward adjustment whatsoever is warranted. The Forfeiture Order’s upward and downward mitigation analysis, in addition to being clearly result-oriented, raises new factual allegations never before presented to Counsel for Applicant, and for which absolutely no factual basis exists in the record before the Commission. (See Forfeiture Order at p. 5, third full paragraph.) Furthermore, the Forfeiture Order’s mitigation analysis improperly weighs what it terms a "major confrontation to the regulatory authority of the Commission." The Forfeiture Order’s assertion that confronting the regulatory authority of the Commission is enough alone to render an offense "egregious" and incapable of being considered "minor" has absolutely no support whatsoever in either the "Policy Statement" nor its legislative history. The obviously affronted tone of this argument suggests that the Commission staff who authored the Forfeiture Order have taken personal offense at Applicant Dunifer’s activities, and are manipulating these forfeiture procedures to wage an improper vendetta against him. See the N.A.L. at p. 2, paragraph 12. Reply, pp. 3-4. Reply, pp. 1-2, note 2. Those arguments appear, respectively, at Reply, p.12, paragraph number 6; pp.12-13, paragraph number 7; pp. 11-12, paragraph number 5 1 1 1 1