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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
DAVID O. CASTLE ) WT Docket No. 07-110
Application to Renew License for Amateur ) FCC File No. 0002687468
Radio Service Station WA9KJI
)
)
HEARING DESIGNATION ORDER
Adopted: May 23, 2007 Released: May 24, 2007
By the 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 David O. Castle for
renewal of his license for Amateur Radio Station WA9KJI should be
granted. As discussed below, the record before us indicates that
Castle has apparently willfully and repeatedly engaged in unlawful
Commission-related activities, including intentionally causing
interference, broadcasting without communicating with any particular
station, and using slanderous, harassing, and indecent language on
amateur frequencies. Based on the information before us, we believe
that Castle's apparent continuing course of misconduct raises a
substantial and material question of fact as to whether he possesses
the requisite character qualifications to be and remain a Commission
licensee. Accordingly, we hereby designate his application for
hearing.
II. Background
2. Castle is the licensee of Amateur Radio Service Station WA9KJI. He
filed the above-captioned application to renew the license on July 19,
2006.
3. On September 9, 1998, the Commission's Compliance and Information
Bureau (CIB) issued a Notice of Violation ("NOV") to Castle based on a
determination that he had willfully and maliciously interfered with
radio communications on August 23, 1998, in violation of Sections
97.101(d) and 97.113 of the Commission's Rules. The NOV restricted the
hours that Castle could operate. On January 7, 1999, CIB sent Castle a
Warning Notice, based on additional evidence that Castle had engaged
in harassment, malicious interference, and jamming, in violation of
Section 97.101(d). The Warning Notice informed Castle that additional
violations could result in enforcement action against his license. On
May 19, 1999, CIB concluded that Castle had, on May 1, 1999,
maliciously interfered with radio communications by broadcasting
without communicating with any particular station in order to prevent
others from using the frequency, in violation of Sections 97.101(d)
and 97.113. As a result, CIB modified Castle's license to prohibit
operation below 30 MHz for two years, but rescinded the modification
on July 8, 1999 after Castle provided an adequate explanation of the
underlying circumstances. CIB cautioned Castle, however, to refrain
from intentionally interfering with other communications, and it
warned him that CIB would review the matter if there were any future
allegations of interference.
4. On April 26, 2000, the Commission's Enforcement Bureau (EB) sent
Castle a letter seeking information regarding a complaint that Castle
had, on March 18, 2000, deliberately interfered with ongoing
communications, in alleged violation of Section 97.101(d). Castle
responded on May 7, 2000, generally defending his actions, but also
apologizing for any possible misconduct. The number of complaints
against Castle then subsided, albeit temporarily.
5. The Commission received additional complaints regarding Castle's
intentional interference with other transmissions; broadcasting
without communicating with any particular station; and using
slanderous, harassing, and indecent language on the air, between 2004
and 2006. In addition, Castle was arrested by the Evansville, Indiana
Police Department on July 20, 2006, and charged with harassment of
another licensee by radio communications over an amateur repeater, a
misdemeanor. The police report states that after an amateur repeater
owner instructed Castle on May 29, 2006 to cease using his repeater,
Castle used the repeater to broadcast threats against the repeater
owner. Castle pled guilty on August 2, 2006 and was fined, assessed
court costs, and sentenced to 180 days incarceration, which was
suspended. On October 11, 2006, EB informed Castle that his renewal
application would be designated for hearing in light of his persistent
pattern of FCC-related misconduct.
6. On February 8, 2007, the trustee of the Tri-State Amateur Radio
Society (TARS) sent Castle a written request that he not use the
club's repeaters as a result of Castle's failure to follow the club's
operational rules. Castle apparently ignored that request. On March 8,
2007, EB sent Castle a Warning Notice directing him to abide by the
request to stay off the TARS repeaters or face enforcement action, and
stating that the matter of interference to TARS would be an issue with
respect to his pending renewal application.
III. discussion
7. Pursuant to Section 309(e) of the Communications Act of 1934, as
amended (the Act), 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 character of an applicant is among those factors that
the Commission considers in determining whether the applicant has the
requisite qualifications to be a Commission licensee. Violations of
the Communications Act or the Commission's rules are predictive of
licensee behavior and directly relevant to the Commission's regulatory
activities. The Character Policy Statement is applicable to amateur
and other wireless radio licensees.
8. Section 333 of the Communications Act of 1934, as amended, provides
that no person shall willfully or maliciously interfere with or cause
interference to any radio communications of licensed stations.
Similarly, Section 97.113(b) of the Commission's Rules generally
prohibits broadcasting one-way communications on amateur frequencies.
In addition Section 1464 of the Criminal Code prohibits transmission
of obscene, indecent, or profane language.
9. Since 1998, Castle has been warned repeatedly to refrain from
intentionally interfering with radio communications; broadcasting
without communicating with any particular station; causing
interference on amateur repeaters; using amateur repeaters without
authorization; and using indecent, slanderous, or harassing language.
He has had his operating hours restricted and his operating privileges
modified, and has been convicted of violating local law in the use of
his Amateur license. Notwithstanding these warnings, sanctions, and
the conviction, the evidence before us indicates that Castle continues
to engage in such activities, in flagrant and intentional disregard of
the Act and the Commission's Rules.
10. We find that Castle's continuing course of conduct raises questions as
to whether he possesses the requisite character qualifications to
remain a Commission licensee. Castle's history of FCC-related
transgressions and apparent contempt for the Commission's regulatory
authority are patently inconsistent with his responsibilities as a
licensee and belie any suggestion that he can be relied upon to comply
with the Commission's rules and policies in the future. Consequently,
we will commence a hearing proceeding before an administrative law
judge to provide Castle with an opportunity to demonstrate whether his
above-captioned application should be granted.
IV. ordering clauses
11. 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 David O. Castle willfully and/or repeatedly
violated Section 333 of the Communications Act of 1934, as amended,
and Section 97.101(d) of the Commission's Rules, by intentionally
interfering with radio communications;
b. To determine whether David O. Castle willfully and/or repeatedly
violated Section 97.113(b) of the Commission's Rules by broadcasting
one-way communications on amateur frequencies;
c. To determine whether David O. Castle willfully and/or repeatedly
violated Section 97.113(a)(4) of the Commission's Rules by
transmitting indecent language;
d. To determine the effect, if any, of the use by David O. Castle of his
amateur license to engage in criminal behavior on his qualifications
to be and remain a Commission licensee;
e. To determine, in light of the evidence adduced pursuant to the
foregoing issues, whether David O. Castle is qualified to be and
remain a Commission licensee;
f. To determine, in light of the evidence adduced pursuant to the
foregoing issues, whether the captioned application filed by David O.
Castle should be granted.
12. 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, David O.
Castle, 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.
13. 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 David O. Castle 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.
14. 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.
15. 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 David O. Castle.
16. IT IS FURTHER ORDERED that a copy of this Hearing Designation Order or
a summary thereof SHALL BE PUBLISHED in the Federal Register.
17. 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
FCC File No. 0002687468 (filed July 19, 2006). A subsequent renewal
application was dismissed as duplicative of the pending application. See
FCC File No. 0002750313 (filed Sept. 13, 2006); Dismissal Letter Ref. No.
4239960 (Sept. 14, 2006).
Official Notice of Violation, File 98CG404 (Sept. 9, 1998) (NOV).
47 C.F.R. SS 97.101(d), 97.113.
NOV at 2. Castle indicated that he would operate in compliance with the
rules and proper practice, so the restriction on his hours of operation
was rescinded on December 2, 1998 after no further complaints were
received. See Letter dated Dec. 2, 1998 from Larry Hickman, Agent,
Compliance and Information Bureau to David Castle.
See Letter dated Jan. 7, 1999 from W. Riley Hollingsworth, Legal Advisor,
Compliance and Information Bureau to David O. Castle (Warning Notice).
"Jamming" is willful interference with other communications. See, e.g.,
Donald E. Gilbeau, Decision, 91 F.C.C. 2d 98, 99 P 5 (Rev. Bd. 1982).
Jamming a repeater consists of transmitting frequent or continuous
messages in order to prevent the repeater from receiving other operators'
transmissions. See, e.g., Gary W. Kerr, Decision, 91 F.C.C. 2d 107, 107 P
2 (Rev. Bd. 1982).
See Warning Notice at 2.
See Letter dated May 19, 1999 from W. Riley Hollingsworth, Legal Advisor,
Compliance and Information Bureau to David O. Castle.
Id.
See Letter dated July 8, 1999 from W. Riley Hollingsworth, Legal Advisor,
Compliance and Information Bureau to David O. Castle.
Id.
In 1999, the Commission eliminated CIB, and consolidated its enforcement
functions into EB. See Establishment of the Enforcement Bureau and the
Consumer Information Bureau, Order, 14 FCC Rcd 17924 (1999).
See Letter dated Apr. 26, 2000 from W. Riley Hollingsworth, Special
Counsel, Enforcement Bureau to David O. Castle.
See Memorandum dated May 7, 2000.
While "[c]onvictions for misconduct constituting felonies are most
relevant to our evaluation of an applicant's character, . . . we retain
the discretion to consider serious misdemeanor convictions where
appropriate." Secret Communications II, LLC, Memorandum Opinion and Order,
18 FCC Rcd 9139, 9150 P 28 (2003) (citing Policy Regarding Character
Qualifications in Broadcast Licensing, Amendment of Part 1, the Rules of
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, Policy Statement and Order, 5 FCC Rcd
3252, 3252 (1990) (Character Policy Statement), recon. on other grounds, 6
FCC Rcd 3448 (1991), modified on other grounds, 7 FCC Rcd 6564 (1992)).
Which misdemeanors are serious, and the effect of any such convictions, is
determined on a case-by-case basis. Policy Regarding Character
Qualifications in Broadcast Licensing, Amendment of Part 1, the Rules of
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, Memorandum Opinion and Order, 6 FCC
Rcd 3448, 3450 P 8 (1991), modified on other grounds, 7 FCC Rcd 6564
(1992).
See Letter dated Oct. 11, 2006 from W. Riley Hollingsworth, Special
Counsel, Enforcement Bureau to David O. Castle.
See Letter dated Feb. 8, 2007 from Robert Pointer, President, Tri-State
Amateur Radio Society to David Castle.
See Letter dated Mar. 8, 2007 from W. Riley Hollingsworth, Special
Counsel, Spectrum Enforcement Division, Enforcement Bureau to David O.
Castle. On March 26, 2007, EB received a letter from Castle's daughter
denying that Castle had used the TARS repeaters. See Letter dated Mar. 16,
2007 from Donna Jean Gill to Federal Communications Commission,
Enforcement Bureau, Spectrum Enforcement Division.
47 U.S.C. S 309(e).
See 47 U.S.C. S 308(b); see also Policy Regarding Character Qualifications
in Broadcast Licensing, Amendment of Part 1, the Rules of 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, Policy Statement and Order, 5 FCC Rcd 3252, 3252 (1990)
(Character Policy Statement), recon. on other grounds, 6 FCC Rcd 3448
(1991), modified on other grounds, 7 FCC Rcd 6564 (1992).
Leslie D. Brewer, Order To Show Cause, Notice of Order of Suspension,
Notice of Opportunity for Hearing, and Notice of Apparent Liability for a
Forfeiture, 16 FCC Rcd 5671, 5674 P 12 (2001).
Id.
47 U.S.C. S 333; see also 47 C.F.R. S 97.101(d).
47 C.F.R. S 97.113(b).
18 U.S.C. S 1464; see also 47 C.F.R. S 97.113(a)(4).
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Federal Communications Commission DA 07-2185
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Federal Communications Commission DA 07-2185