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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Glenn A. Baxter ) File No. EB-04-BS-111
Belgrade Lakes, ME ) NAL/Acct. No. 200532260001
Licensee of Amateur Radio Station ) FRN 0013164975
K1MAN
)
)
FORFEITURE ORDER
Adopted: March 27, 2006 Released: March 29, 2006
By the Regional Director, Northeast Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of twenty-one thousand dollars ($21,000) to Glenn A. Baxter
("Baxter"), licensee of Amateur Radio Station K1MAN, for willful and
repeated violation of Sections 97.101(d) and 97.113(a)(3) of the
Commission's Rules ("Rules"), for willful violation of Section
97.105(a) and 97.113(b) of the Rules, and for willful and repeated
failure to file required information pursuant to an Enforcement Bureau
("Bureau") directive. The noted violations of the Rules involve
interference with the ongoing communications of other Amateur radio
stations, failure to exercise station control, transmission of
communications in which Baxter had a pecuniary interest, and
transmission of communications that constituted impermissible
broadcasting.
II. BACKGROUND
2. In response to numerous complaints of deliberate interference caused
by transmissions from Baxter's Amateur Radio Station K1MAN to ongoing
radio communications of other amateur stations, the Bureau issued
Warning Notices to Baxter on September 15, 2004 and October 29, 2004.
Agents in the Commission's Boston Field Office ("Boston Office")
subsequently conducted an investigation, including monitoring and
inspecting Baxter's station and, as a result of the investigation, the
Boston Office issued a Notice of Apparent Liability to Baxter on June
7, 2005, in the amount of twenty-one thousand dollars ($21,000).
3. In the NAL, the Boston Office found that Baxter apparently willfully
and repeatedly violated Section 97.101(d) of the Rules, which states
that "[n]o amateur operator shall willfully or maliciously interfere
with or cause interference to any radio communication or signal." FCC
agents observed Baxter's Amateur Radio Station K1MAN commence
transmissions on top of existing communications on 3.890 MHz on
November 27, 2004, December 8, 2004, and March 31, 2005.
4. The Boston Office further observed that Baxter apparently willfully
and repeatedly violated Section 97.113(a)(3) of the Rules by
transmitting, on November 25, 2004, and March 30, 2005, information
regarding his website, which offers various products for sale,
including a monthly newsletter published by Baxter and offered for
sale for forty-five dollars per year. In addition, on December 1,
2004, Baxter transmitted a seventy-minute interview with a person who
was considering whether to retain Baxter Associates, an
employment-search firm owned by Baxter. During the transmission,
Baxter discussed fees for his franchises, investments, and franchising
opportunities. Section 97.113(a)(3) of the Rules prohibits an Amateur
station from transmitting any communications in which the station
licensee or control operator has a pecuniary interest.
5. The Boston Office also concluded that Baxter apparently willfully and
repeatedly violated Section 308(b) of the Communications Act of 1934,
as amended, which provides that the Commission "during the term of
any. . .licenses, may require from...a licensee further written
statements of fact to enable it to determine whether such original
application should be granted or denied or such license revoked . . .
." Baxter was directed in Warning Notices dated September 15 and
October 29, 2004, to provide information regarding how station K1MAN
was controlled and the identity of the control operator. The Boston
Office found that Mr. Baxter's statements that "[n]o corrective
actions are necessary" and "[n]o changes are needed with regard to
station control" failed to comply with the Bureau's demand for station
information.
6. Baxter also was found to have apparently willfully violated Section
97.113(b) of the Rules, which prohibits, with limited exceptions not
applicable in this case, an Amateur station from engaging in any form
of broadcasting or transmission of one-way communications. The Boston
Office concluded that the pre-recorded seventy-minute interview with a
person interested in retaining Baxter Associates, during which there
was no station identification, constituted a "broadcast" and an
impermissible one-way transmission.
7. The Boston Office further concluded that Baxter apparently willfully
failed to exercise control over his station, as required under Section
97.105(a) of the Rules. On December 19, 2004, station K1MAN repeated
the same pre-recorded phrase, and segments thereof, for 45 minutes on
3.975 MHz after which the transmissions ended abruptly in mid-sentence
without the station identification required by the Rules.
8. Baxter submitted a reply on June 16, 2005 denying any liability for
the forfeiture amount. Citing the Fifth and Sixth amendments to the
United States Constitution, Baxter requests "all documentation
regarding the alleged apparent liability and. . .a trial like hearing
before the full Commission." Baxter notes that, although he previously
has received three Notices of Apparent Liability, he has not been able
to appeal those to the full Commission and therefore repeatedly has
been denied access to "the Washington D.C. Court of Appeals in the
pursuit of due process of law as guaranteed by the United States
Constitution." Baxter does not submit any substantive responses to the
apparent violations set forth in the NAL.
9. On July 18, 2005, REC Networks ("REC"), through its principal Rich
Eyre, filed a Petition for Leave to File Amicus Pleading and an
associated Motion for Partial Reconsideration or Declaratory Ruling.
REC is concerned that the findings in the NAL regarding Baxter's
apparent liability for violating Section 97.113(a)(3) of the Rules by
transmitting references to his website could subject many amateur
radio licensees to similar enforcement action merely for uttering a
website address on their stations.
III. DISCUSSION
10. The forfeiture amount proposed in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
("Act"), Section 1.80 of the Rules, and the Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines. In assessing forfeitures,
Section 503(b)(2)(D) of the Act requires that we take into account the
nature, circumstances, extent and gravity of the violation and, with
respect to the violator, the degree of culpability, any history of
prior offenses, ability to pay, and such other matters as justice may
require.
11. We decline to grant Baxter's request for a hearing. Section
503(b)(3)(A) of the Act states that "[a]t the discretion of the
Commission, a forfeiture penalty may be determined against a person ..
after notice and an opportunity for a hearing before the Commission or
an administrative law judge...." Section 1.80(g) of the Rules states
that procedures for hearings "will ordinarily be followed only when a
hearing is being held for some reason other than the assessment of a
forfeiture...." Accordingly, the "reference to a notice of
opportunity for hearing mentioned in Section 1.80(g) of the
Commission's Rules is a discretionary provision available to the
Commission that is not normally utilized when only monetary forfeiture
matters are involved." The Rule also states, however, that "these
[hearing] procedures may be followed whenever the Commission, in its
discretion, determines that they will better serve the ends of
justice."
12. Baxter has not shown that there is any reason for us to follow
anything but our ordinary procedures for monetary forfeitures or that
a hearing "will better serve the ends of justice." Baxter received
notice regarding the legal and factual bases for the apparent
violations and proposed forfeiture and has been afforded an
opportunity to respond "why no such forfeiture penalty should be
imposed." Although Baxter categorically claims no liability for the
forfeiture, he has chosen not to present any specific exculpatory
arguments or evidence in response to the violations set forth in the
NAL. A licensee's decision to forego the opportunity to present
exculpatory arguments and evidence in response to a NAL does not
create a right to a hearing and, accordingly, we conclude that an
evidentiary hearing is not required in this case.
13. We have examined Baxter's response to the NAL pursuant to the
statutory factors above and in conjunction with the Policy Statement.
As a result of our review, and based on the record before us, we
conclude that Baxter willfully and repeatedly interfered with ongoing
communications of other stations in violation of Section 97.101(d) of
the Rules. We further conclude that Baxter willfully and repeatedly
transmitted communications in which he had a pecuniary interest in
violation of Section 97.113(a)(3) of the Rules. We find that Baxter
willfully and repeatedly failed to file requested information pursuant
to a Bureau directive. We further find that Baxter willfully engaged
in broadcasting in violation of 97.113(b) of the Rules and
willfully failed to exercise control of his station in violation of
Section 97.105(a) of the Rules. Considering the entire record and the
factors listed above, we find that neither reduction nor cancellation
of the proposed $21,000 forfeiture is warranted.
14. Finally, we deny REC's Petition for Leave to File Amicus Pleading
because we find no basis for consideration of the associated petition,
either as a petition for reconsideration or as a petition for
declaratory ruling. Although REC recognizes that it does not have
standing to file pleadings in this proceeding, REC requests that we
accept its Petition because it believes the findings in the NAL
regarding references to websites on amateur radio stations may impact
other amateur licensees. As a petition for reconsideration, REC's
pleading is premature. A Notice of Apparent Liability is not a "final
Commission action," which is a predicate for filing a petition for
reconsideration under Section 1.106 of the Rules. Therefore, as a
petition for reconsideration, REC's pleading will be dismissed with
prejudice. In the alternative, REC requests that we treat the pleading
as a petition for declaratory ruling. Because the petition seeks an
interpretation of the Commission's Amateur Radio Service rules as they
relate to website references on amateur radio stations, it is more
appropriately addressed by the Wireless Telecommunications Bureau,
which is the Bureau responsible for implementing rules and policies
with regard to the Amateur Radio Service. Accordingly, the petition
for declaratory ruling will be dismissed without prejudice and may be
re-filed with the Office of the Secretary in accordance with the
procedures set forth in Part 1 of the Rules.
15. We take this opportunity to note, however, that the violation for
which Baxter is being assessed a forfeiture is not the mere mention of
a website. Baxter violated Section 97.113(a)(3) of the Rules because
he has a direct pecuniary interest in the products offered for sale on
the website about which he provided information on his amateur radio
station.
IV. ORDERING CLAUSES
16. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80(f)4) of the Rules, Glenn A. Baxter IS LIABLE FOR A MONETARY
FORFEITURE in the amount of twenty-one thousand dollars ($21,000) for
willfully and repeatedly failing to furnish information requested by
the Bureau, willful and repeated violation of Sections 97.101(d)and
97.113(a)(3) of the Rules, and willful violation of Sections 97.105(a)
and 97.113(b) of the Rules.
17. IT IS FURTHER ORDERED that REC Network's Petition for Leave to File
Amicus Pleading IS DENIED and REC Network's Petition for Partial
Reconsideration or Declaratory Ruling is in part DISMISSED WITH
PREJUDICE and in part DISMISSED WITHOUT PREJUDICE as set forth herein.
18. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) days of the release of
this Order. If the forfeiture is not paid within the period specified,
that case may be referred to the Department of Justice for collection
pursuant to Section 504(a) of the Act. Payment of the forfeiture must
be made by check or similar instrument, payable to the order of the
Federal Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check or money
order may be mailed to Federal Communications Commission, P.O. Box
358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may be
sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account number
911-6106. Requests for full payment under an installment plan should
be sent to: Associate Managing Director, Financial Operations, 445
12th Street, S.W., Room 1A625, Washington, D.C. 20554.
19. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by Certified Mail, Return Receipt Requested, and regular mail, to
Glenn A. Baxter at his address of record and to REC Networks at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Russell Monie, Jr.
Regional Director, Northeast Region
Enforcement Bureau
47 C.F.R. SS 97.101(d), 97.113(a)(3), 97.105(a), and 97.113(b).
See Letter from W. Riley Hollingsworth, Special Counsel, Spectrum
Enforcement Division, Enforcement Bureau, September 15, 2004; Letter from
W. Riley Hollingsworth, Special Counsel, Enforcement Bureau, October 29,
2004. In the letter dated September 15, 2004, Mr. Hollingsworth reminded
Baxter that the Bureau previously warned him in a letter dated April 14,
2004 that enforcement action would be taken if he failed to correct the
deliberate interference being caused by his station. The April 14, 2004
letter had cautioned Baxter that he could be subject to further
enforcement action if he continued to transmit communications in which he
had a pecuniary interest. The April 14, 2004 letter was a follow-up to
letters dated January 29, 2002 and March 4, 2003, issued as a result of
several dozen complaints alleging rule violations by K1MAN.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200532260001
(Enf. Bur., Boston Office, June 7, 2005)("NAL").
Section 97.101(b) provides that each station licensee must cooperate in
selecting transmitting channels and in making the most effective use of
the amateur service frequencies. The rule further provides that no
frequency will be assigned for the exclusive use of any station. See 47
C.F.R. S 97.101(b). Because amateur radio station licensees share
frequencies, the prohibition against willful or malicious interference is
essential to the viability of amateur radio.
47 U.S.C. S 308(b).
Section 97.3(a)(10) of the Rules defines broadcasting as "transmissions
intended for reception by the general public." 47 C.F.R. S97.3(a)(10).
Section 97.105(a) of the Rules provides that the control operator must
ensure the proper operation of the station. 47 C.F.R. S 97.105. Section
97.7 of the Rules requires each Amateur station to have a control operator
when transmitting. 47 C.F.R. S 97.7. Pursuant to Sections 97.103(a) and
(b) of the Rules, the station licensee is responsible for the proper
operation of the station in accordance with the Rules, and the FCC will
presume that the station licensee is also the control operator, unless
documentation to the contrary is in the station records. Baxter is the
licensee of Station K1MAN and there is no evidence in the Commission's
records that Baxter has designated another control operator.
See 47 C.F.R. S97.119.
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
Policy Statement").
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b)(3)(A). We note that the Fifth and Sixth Amendments to
the United States Constitution address the rights of defendants in
criminal cases and therefore Baxter's reliance on those amendments in
support of his request for a hearing before the Commission is misplaced.
47 C.F.R. S 1.80(g).
Arcom Communications, Forfeiture Order, NAL/Acct. No. 200532680005 (rel.
December 21, 2005), quoting Computer Data, Inc., Order, 9 FCC Rcd 263
(Field Operations Bureau 1994).
Id.
47 U.S.C. S 503(b)(4)(C).
To the extent Baxter seeks Commission documents regarding the instant
matter, he is required to submit a Freedom of Information Act request
pursuant to 47 C.F.R. S 0.461. Information regarding the process for
submitting such a request is available on the FCC's website at
[1]http://www.fcc.gov/foia/.
We note that these procedures do not deprive Baxter of his right to due
process because any forfeiture issued in accordance with these procedures
is ultimately subject to a trial de novo in federal district court
pursuant to Section 504(a) of the Act should Baxter not pay prior to such
time. See 47 U.S.C. S 504(a). We also note that the three previous NALs
to which Baxter refers in his response are not relevant to the instant
proceeding because they were issued in 1990 and 1991 during Baxter's prior
license term. Baxter's license subsequently was renewed and therefore we
have no reason to believe that Baxter was harmed when he did not
previously receive a hearing.
The forfeiture amount was calculated as follows: $7,000 for willful or
malicious interference, $3,000 for failure to file required information,
$3,000 for violation of transmitter control, $4,000 for each of the two
violations of the pecuniary interest rule. See NAL at para. 18.
We agree with REC that it does not have standing as a "party" to this
proceeding. We also note that Section 1.106 of the Rules provides that
"any other person whose interests are adversely affected" may file a
petition for reconsideration." Even if REC's petition for reconsideration
were ripe for review, REC would not have standing under the "adversely
affected" standard either. The Commission has found that "the mere
precedential effect of the agency's rationale in later adjudications does
not give rise to a legally cognizable injury and it does not create
standing. . . ." See Texas Cable and Telecommunications Association, 17
FCC Rcd 6261 (2002) para. 10 (citations omitted). We also note that REC's
Petition was filed after the 30-day period for filing petitions for
reconsideration. See 47 C.F.R. S 1.106(f).
See 47 C.F.R. S 1.106; See also Peninsula Communications, Inc., 17 FCC
Rcd 2832 (2002) n.3 (citations omitted).
See 47 C.F.R. SS 1.1 et seq.
47 U.S.C. S 503(b).
47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
47 U. S. C. S 504(a).
See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 06-663
6
Federal Communications Commission DA 06-663
References
Visible links
1. http://www.fcc.gov/foia/