Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
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
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
JOSEPH W. HARTMANN, JR. ) WT Docket No. 06-220
Application for New License in the ) FCC File No. 0002462228
Amateur Radio Service
)
)
HEARING DESIGNATION ORDER
Adopted: December 11, 2006 Released: December 11, 2006
By Deputy Chief, Mobility Division, Wireless Telecommunications Bureau:
I. introduction
1. By this Hearing Designation Order, we commence a hearing proceeding
before a Commission Administrative Law Judge (ALJ) to determine
whether the above-captioned application filed by Joseph W. Hartmann,
Jr. (Hartmann, Jr.) for a new Amateur Radio Service license should be
granted. As discussed below, prior to filing the above-captioned
application, Hartmann, Jr. filed numerous administrative update
applications seeking to change the name and address associated with
Amateur Radio Service General Class License K3GUX from Joseph V.
Hartman, Sr. (Hartman, Sr.) of Delaware to Joseph W. Hartmann, Jr. of
Ohio. The record before us suggests that Hartmann, Jr. intentionally
submitted fraudulent administrative updates to obtain the privileges
associated with Call Sign K3GUX. Based on the information before us,
we believe that Hartmann, Jr.'s actions raise a substantial and
material question of fact as to whether he possesses the requisite
character qualifications to be a Commission licensee. Because we are
unable to make a determination on the record currently before us that
grant of Hartmann, Jr.'s application for a new amateur license would
serve the public interest, convenience, and necessity, we hereby
designate the application for hearing, as required by Section 309(e)
of the Communications Act of 1934, as amended (the Act).
II. Background
2. The license for Call Sign K3GUX was initially granted to Hartman, Sr.
in 1964. The license was most recently renewed in 1997. According to
the Commission's licensing records, Hartman, Sr., was born on
September 9, 1919, and resides in Ocean View, Delaware. On February
11, 2005, Hartmann, Jr. associated his Federal Communications
Commission Registration Number (FRN) with Call Sign K3GUX. On February
11, 2005, Hartmann, Jr. filed two administrative update applications
for Call Sign K3GUX, both seeking to change Hartman, Sr.'s name and
address to Hartman, Jr.'s name and address. The Universal Licensing
System (ULS) automatically granted the administrative updates on
February 12, 2005, but the Wireless Telecommunications Bureau (WTB)
set aside that action on March 9, 2005. On March 10, 2005, Hartmann,
Jr. filed another administrative update application for Call Sign
K3GUX, seeking to change Hartman, Sr.'s name and address to Hartman,
Jr.'s name and address. ULS automatically granted the administrative
update on March 11, 2005, but WTB set aside that action on April 1,
2005. On April 4, 2005, Hartmann, Jr. filed another administrative
update application for Call Sign K3GUX, seeking to change Hartman,
Sr.'s name and address to Hartman, Jr.'s name and address. ULS
automatically granted the administrative update on April 5, 2005, but
WTB set aside that action on April 25, 2005. On June 30, 2005,
Hartmann, Jr. filed another administrative update application for Call
Sign K3GUX, seeking to change Hartman, Sr.'s name and address to
Hartman, Jr.'s name and address. While it was pending, on July 12,
2005, Hartmann, Jr. filed two more administrative update applications
for Call Sign K3GUX, both seeking to change Hartman, Sr.'s name and
address to Hartman, Jr.'s name and address.
3. WTB set aside the grant of the February, March, and April
administrative update applications, and held the June and July
administrative update applications in abeyance, at the request of the
Commission's Enforcement Bureau (EB), based upon apparent
discrepancies regarding the identity of the licensee for Call Sign
K3GUX. EB staff contacted Hartmann, Jr. by telephone in spring 2005,
but did not obtain a satisfactory explanation of the matter.
Consequently, pursuant to Section 308(b) of the Communications Act of
1934, as amended, EB on June 21, 2005 sent a certified letter to
Hartmann, Jr. at the address listed on the administrative update
applications. The letter directed Hartmann, Jr. to explain his
justification for associating his FRN with Call Sign K3GUX, and
seeking to change the licensee information from Hartman, Sr.'s name
and address to Hartman Jr.'s name and address. On July 20, 2005, the
letter was returned to the Commission unclaimed.
4. On January 17, 2006, WTB dismissed Hartmann, Jr.'s administrative
update applications for failure to prosecute, in light of Hartmann,
Jr.'s failure to respond to the EB letter, as required by Section
1.951 of the Commission's Rules. On January 27, 2006, Hartmann, Jr.
filed the above-captioned application for a new amateur radio service
license.
III. discussion
5. The Commission and the courts have recognized that "[t]he FCC relies
heavily on the honesty and probity of its licensees in a regulatory
system that is largely self-policing." As the Commission recently
stated, "Misrepresentation and lack of candor raise immediate concerns
as to whether a licensee will be truthful in future dealings with the
Commission." Misrepresentation is "a false statement of fact made with
intent to deceive." Lack of candor is "concealment, evasion, or other
failure to be fully informative, accompanied by intent to deceive."
Intent to deceive is established if a licensee knowingly makes a false
statement, and also can also be inferred when the surrounding
circumstances clearly show the existence of intent to deceive. The
Commission may disqualify an applicant who deliberately makes
misrepresentations or lacks candor in dealing with the agency.
6. Hartmann, Jr.'s repeated attempts to change the licensee information
for Call Sign K3GUX from Hartman, Sr.'s name and address to Hartman
Jr.'s name and address raise substantial and material question of fact
as to whether Hartmann, Jr. made false certifications, misrepresented
facts to the Commission, and/or demonstrated a lack of candor in order
to claim the identity and higher class license of Hartman, Sr.
Hartmann, Jr. continued to file administrative update applications
even after having spoken with EB staff investigating the discrepancies
regarding the identity of the licensee for Call Sign K3GUX. In each
application, Hartmann also certified that all of the statements
therein were true, complete, correct, and made in good faith, even
though his filings appear to have satisfied none of these standards.
7. Pursuant to Section 309(e) of the Communications Act of 1934, as
amended, the Commission is required to designate an application for
evidentiary hearing if a substantial and material question of fact is
presented regarding whether grant of the application would serve the
public interest, convenience, and necessity. The record suggests that
Hartmann, Jr. has engaged in false certification, misrepresentation
and lack of candor in order to assumed the identity and higher class
licensee of Hartman, Sr. for Commission licensing purposes. The
circumstances presented herein raise substantial and material
questions of fact as to whether Hartmann, Jr. will "deal truthfully
with the Commission and ... comply with [the Commission's] rules and
policies," and thus whether he is qualified to be a Commission
licensee.
IV. ordering clauses
8. ACCORDINGLY, IT IS ORDERED that, pursuant to Sections 4(i) and 309(e)
of the Communications Act of 1934, as amended, 47 U.S.C. SS 154(i),
309(e), the captioned application IS DESIGNATED FOR HEARING in a
proceeding before an FCC Administrative Law Judge, at a time and place
to be specified in a subsequent Order, upon the following issues:
a. To determine whether Joseph W. Hartmann, Jr. made false
certifications, misrepresentations to, and or lacked candor before,
the Commission in applications and or responses to Commission
inquires.
b. To determine the effect of Joseph W. Hartmann, Jr.'s representations
of fact to, and candor before, the Commission on his qualifications to
be licensed by the Commission.
c. In light of the evidence adduced pursuant to the foregoing issues, to
determine whether Joseph W. Hartmann, Jr. is qualified to be a
Commission licensee.
d. In light of the evidence adduced pursuant to the foregoing issues, to
determine whether the captioned application filed by Joseph W.
Hartmann, Jr. should be granted.
9. IT IS FURTHER ORDERED that, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, 47 U.S.C. S 154(i), and
Section 1.221(c) of the Commission's Rules, 47 C.F.R. S 1.221(c), in
order to avail himself of the opportunity to be heard, Hartmann, Jr.,
in person or by his attorney, SHALL FILE with the Commission, within
twenty days of the mailing of this Hearing Designation Order to him, a
written appearance stating that he will appear on the date fixed for
hearing and present evidence on the issues specified herein.
10. IT IS FURTHER ORDERED that, pursuant to Section 1.221(c) of the
Commission's Rules, 47 C.F.R. S 1.221(c), if Hartmann, Jr. fails to
file a written appearance within the twenty-day period, or has not
filed prior to the expiration of the twenty-day period, a petition to
dismiss without prejudice, or a petition to accept, for good cause
shown, a written appearance beyond the expiration of the twenty-day
period, the Presiding Administrative Law Judge SHALL DISMISS the
captioned application with prejudice for failure to prosecute.
11. IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 309(e) of
the Communications Act of 1934, as amended, 47 U.S.C. SS 154(i),
309(e), the burden of proceeding with the introduction of evidence and
the burden of proof with respect to all of the issues specified above
SHALL BE on Hartmann, Jr.
12. IT IS FURTHER ORDERED, that this hearing will be governed by the rules
of practice and procedure pertaining to the Commission's Hearing
Proceedings, 47 C.F.R. SS 1.201-1.364, subject to the ALJ's discretion
to regulate the hearing.
13. IT IS FURTHER ORDERED, that all Discovery shall be conducted in
accordance with 47 C.F.R. SS 1.311-1.325, subject to the ALJ's
discretion.
14. IT IS FURTHER ORDERED that the Secretary of the Commission SHALL CAUSE
to have this Hearing Designation Order or a summary thereof published
in the Federal Register.
15. This action is taken under delegated authority pursuant to Sections
0.131 and 0.331 of the Commission's Rules, 47 C.F.R. SS 0.131, 0.331.
FEDERAL COMMUNICATIONS COMMISSION
Scot Stone
Deputy Chief, Mobility Division
Wireless Telecommunications Bureau
See FCC File Nos. 0002044953 (Feb. 11, 2005), 0002044980 (Feb. 11, 2005),
0002045576 (Feb. 14, 2005), 0002074626 (Mar. 10, 2005), 0002085053 (Mar.
14, 2005), 0002112456 (Apr. 4, 2005), 0002222784 (Jun. 30, 2005),
0002236752 (July 12, 2005), 0002236757 (July 12, 2005).
47 U.S.C. S 309(e).
An FRN is a 10-digit number that is assigned to a business or individual
that has registered with the FCC. It is used to uniquely identify an
individual or business in all transactions with the FCC. Only the entity
whose FRN is associated with a particular license may file applications
relating to that license in the Commission's Universal Licensing System.
FCC File Nos. 0002044953, 0002044980 (Feb. 11, 2005) (changing the name
from Joseph V. Hartman, Sr. to Joseph W. Hartmann, Jr.; changing the
address from 3 Balsa, Oceanview, Delaware 19970 to P.O. Box 2869,
Youngstown, Ohio 44511).
See 47 C.F.R. S 1.113(a).
FCC File No. 0002074626 (Mar. 10, 2005) (changing the name from Joseph V.
Hartman, Sr. to Joseph W. Hartmann, Jr.; changing the address from 3
Balsa, Oceanview, Delaware 19970 to P.O. Box 2869, Youngstown, Ohio
44511).
FCC File No. 0002112456 (Apr. 4, 2005) (changing the name from Joseph V.
Hartman, Sr. to Joseph W. Hartmann, Jr.; changing the address from 3
Balsa, Oceanview, Delaware 19970 to P.O. Box 2869, Youngstown, Ohio
44511).
FCC File No. 0002222784 (June 30, 2005) (changing the name from Joseph V.
Hartman, Sr. to Joseph W. Hartmann, Jr.; changing the address from 3
Balsa, Oceanview, Delaware 19970 to 3320 - 1B Trappers Cove Trail,
Trappers Cove Trail, Michigan 48910).
FCC File No. 0002236752, 0002236757 (July 12, 2005) (changing the name
from Joseph V. Hartman, Sr. to Joseph W. Hartmann, Jr.; changing the
address from 3 Balsa, Oceanview, Delaware 19970 to 3320 1B Trappers Cove
Trail, Lansing, Michigan 48910).
47 U.S.C. S 308(b).
See Letter dated June 21, 2005 from W. Riley Hollingsworth, Special
Counsel, Spectrum Enforcement Division, Enforcement Bureau to Joseph W.
Hartmann, Jr.
See FCC Dismissal Letter 3887786 (dismissing FCC File No. 0002044980); FCC
Dismissal Letter 3887787 (Jan. 18, 2006) (dismissing FCC File No.
0002045576); FCC Dismissal Letter. 3887788 (Jan. 18, 2006) (dismissing FCC
File No. 0002074626); FCC Dismissal Letter 3887789 (dismissing FCC File
No. 0002085053); FCC Dismissal Letter 3887790 (dismissing FCC File No.
0002112456); FCC Dismissal Letter 3887791 (dismissing FCC File No.
0002222784); FCC Dismissal Letter 3887785 (dismissing FCC File No.
0002236752); FCC Dismissal Letter 3887792 (dismissing FCC File No.
0002236757).
See 47 C.F.R. S 1.951.
See Commercial Radio Service, Inc, Order to Show Cause, 21 FCC Rcd 9983,
9986 P 12 (2006) (CRS Order) (citing, e.g., Contemporary Media, Inc., v.
FCC, 214 F.3d 187, 193 (D.C. Cir. 2000) (Contemporary Media)).
CRS Order, 21 FCC Rcd at 9986 P 12 (citing Policy Regarding Character
Qualifications in Broadcast Licensing Amendment of Rules of Broadcast
Practice and Procedure, Relating to Written Responses to Commission
Inquiries and the Making of Misrepresentation to the Commission by
Applicants, Permittees, and Licensees, and the Reporting of Information
Regarding Character Qualifications, Report, Order, and Policy Statement,
102 F.C.C. 2d 1179, 1210-11 P 60 (1986) (1986 Character Policy
Statement)).
Id. at 9986 P 12 (citing Fox River Broadcasting, Inc., Order, 93 FCC 2d
127, 129 (1983) (Fox River Order)). A false certification may also
constitute a misrepresentation. Id. at 9986 n.15 (citing San Francisco
Unified School District, Hearing Designation Order and Notice of Apparent
Liability for Forfeiture, 19 FCC Rcd 13326, 13334 P 19 nn.40-41 (2004)).
Id. at 9986 P 12. An applicant has a duty to be candid with all facts and
information before the Commission, irregardless of whether that
information was elicited. See Fox River Order, 93 FCC2d at 129.
Id. at 9986 P 12 (citing Leflore Broadcasting, Co., Inc. v. FCC, 636 F.2d
454, 462 (D.C. Cir. 1980)).
Id. at 9986 P 12 (citing American International Development, Inc.,
Memorandum Opinion and Order, 86 F.C.C. 2d 808, 816 n.39 (1981), aff'd sub
nom. KXIV, Inc. v. FCC, 704 F.2d 1294 (D.C. Cir. 1983)).
Contemporary Media, 214 F.3d at 196.
47 U.S.C. S 309(e).
Policy Regarding Character Qualifications in Broadcast Licensing, Policy
Statement and Order, 5 FCC Rcd. 3252, 3252 P 3 (1990) (citing 1986
Character Policy Statement, 102 F.C.C. 2d at 1190-1191), recon. granted in
part, 6 FCC Rcd 3448 (1991).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 06-2487
2
Federal Communications Commission DA 06-2487