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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
FRANK C. RICHARDS ) WT Docket No. 07-109
Application for New License in the ) FCC File No. 0002666016
Amateur Radio Service
)
)
HEARING DESIGNATION ORDER
Adopted: May 23, 2007 Released: May 24, 2007
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 Frank C. Richards
("Frank Richards (NY)") for a new Amateur Radio Service license should
be granted. As discussed below, prior to filing the above-captioned
application, Frank Richards (NY) filed an application seeking to
modify the license of Frank C. Richards ("Frank Richards (FL)") for
Amateur Radio Service Advanced Class License KB4VU by, inter alia,
changing the licensee address from Florida to New York. Subsequently,
Frank Richards (FL) informed the Commission that he continued to
reside in Florida, and had never lived in New York or requested that
the address associated with his license be changed. The record before
us suggests that Frank Richards (NY) intentionally submitted a
fraudulent application to obtain the privileges associated with Call
Sign KB4VU. Based on the information before us, we believe that the
actions of Frank Richards (NY) 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
the application of Frank Richards (NY) 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. Frank Richards (FL) renewed his license for Amateur Radio Service
Advanced Class License KB4VU in 1994. The application did not seek to
change any of the licensee information.
3. On November 28, 1995, Frank Richards (NY) submitted an application to
renew the license for Amateur Radio Service Advanced Class License
KB4VU; change the mailing address from Fort Myers, Florida, to
Plattsburgh, New York; and change the call sign to the next
systematically assigned call sign. The application stated that the
prior license had been "misplace[d] in moving." The application was
returned on January 26, 1996 because it was missing a signature and
because the date of birth on the application (February 19, 1948) did
not match the birth date in the Commission's licensing records
associated with Amateur Radio Service Advanced Class License KB4VU
(July 27, 1948). After Frank Richards (NY) resubmitted the application
with a signature and a copy of his birth certificate indicating that
he was born on February 19, 1948, the application was granted on
September 17, 1996 under Call Sign KG2IJ. Frank Richards (NY) later
modified the license to change the address from Plattsburgh, New York
to Mooers, New York.
4. Subsequently, Frank Richards (FL) contacted the Commission's
Enforcement Bureau (EB). He indicated that he had not changed his
Florida address, and had not requested any modification of his license
for Amateur Radio Service Advanced Class License KB4VU.
5. On February 27, 2004, EB sent Frank Richards (NY) a. letter stating
that the facts set forth above raised questions about the apparent
abuse of the licensing system, and directing him to provide
documentation of his former address(es) in Florida and the date he
moved to New York, and to list all Amateur license classes he had
held. His response was due March 20, 2004. When no response was
received, EB sent a second letter on April 21, 2004. On June 23, 2004,
Frank Richards (NY) submitted the license for Amateur Radio Service
Advanced Class License KG2IJ for cancellation. The license was
canceled June 28, 2004. On July 6, 2004, EB notified Frank Richards
(NY) that no further enforcement action was contemplated at that time,
but that the circumstances surrounding the facts set forth above would
have to be resolved if he ever applied for an Amateur license in the
future.
6. On March 11, 2006, Frank Richards (NY) took the Technician Class
examination, and on June 28, 2006 filed the above-captioned
application for a Technician Class license. EB notified him on July
14, 2006 that, after review of the information contained in a letter
he submitted to EB prior to filing the application, EB was unable to
make a determination of whether the application should be granted.
III. discussion
7. 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 can also be inferred when the surrounding circumstances
clearly show the existence of an intent to deceive. The Commission may
disqualify an applicant who deliberately makes misrepresentations or
lacks candor in dealing with the agency.
8. The attempt of Frank Richards (NY) to change the address and other
information for Call Sign KB4VU, and his subsequent cancellation of
the license in lieu of responding to EB's inquiries regarding the
renewal/modification application, raise substantial and material
questions of fact as to whether he made false certifications,
misrepresented facts to the Commission, and/or demonstrated a lack of
candor in order to claim the identity and operating privileges of
Frank Richards (FL). In the application, Frank Richards (NY) certified
that all of the statements therein were true, complete, correct, and
made in good faith, even though his filing appears to have satisfied
none of these standards.
9. 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
Frank Richards (NY) has engaged in false certification,
misrepresentation and lack of candor in order to assume the identity
of Frank Richards (FL) for Commission licensing purposes. The
circumstances presented herein raise substantial and material
questions of fact as to whether Frank Richards (NY) 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
10. 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 Frank C. Richards 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 Frank C. Richards' 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 Frank C. Richards 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 Frank C. Richards
should be granted.
11. 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, Frank C.
Richards, in person or by his attorney, SHALL FILE with the
Commission, within twenty calendar 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.
12. 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 Frank C. Richards 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.
13. IT IS FURTHER ORDERED that the Chief, Enforcement Bureau, shall be
made a party to this proceeding without the need to file a written
appearance.
14. 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 Frank C. Richards.
15. IT IS FURTHER ORDERED that a copy of this Hearing Designation Order or
a summary thereof SHALL BE PUBLISHED in the Federal Register.
16. 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 No. 9609179953 (filed Nov. 28, 1995).
47 U.S.C. S 309(e).
See FCC File No. 9406283119 (filed Apr. 22, 1994).
See FCC File No. 9609179953.
Id.
See FCC File No. 0001325209 (filed May 27, 2003).
See e-mails dated November 24, 2003 from Julie Richards to Riley
Hollingsworth.
See Letter dated February 27, 2004 from W. Riley Hollingsworth, Special
Counsel, Spectrum Enforcement Division, Enforcement Bureau to Frank C.
Richards, 1310 Hemmingford Road, Moers [sic], NY 12958.
Id. at 1.
Letter dated April 21, 2004 from W. Riley Hollingsworth, Special Counsel,
Spectrum Enforcement Division, Enforcement Bureau to Frank C. Richards,
1310 Hemmingford Road, Moers [sic], NY 12958.
See Letter dated June 23, 2004 from Frank C. Richards to W. Riley
Hollingsworth.
See Letter dated July 6, 2004 from W. Riley Hollingsworth, Special
Counsel, Enforcement Bureau to Frank C. Richards, 1310 Hemmingford Road,
Moers [sic], NY 12958.
See FCC File No. 0002666016 (filed June 28, 2006).
See Letter dated May 15, 2006 from Frank C. Richards to Riley
Hollingsworth, Special Counsel. The letter stated that Frank Richards (NY)
had lived in motels in Florida for approximately six months during the
1970s; had held Technician and General Class licenses; and moved from
Maryland to New York in May 1994.
See Letter dated July 14, 2006 from W. Riley Hollingsworth, Special
Counsel, Enforcement Bureau to Frank C. Richards, 1310 Hemmingford Road,
Mooers, NY 12958.
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 F.C.C.
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, regardless of whether that information
was elicited. See Fox River Order, 93 F.C.C. 2d at 129 P 6.
CRS Order, 21 FCC Rcd 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).
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Federal Communications Commission DA 07-2184
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Federal Communications Commission DA 07-2184