k3eko
06-14-2005, 08:06 PM
Quote[/b] (k3eko @ June 10 2005,14:36)]Quote[/b] (w0pee @ June 10 2005,12:17)]The ARRL never intentionally jammed a QSO or tried to advertise their goods over amateur bands.
K1MAN can just lose his license and find a different group of folks to bother.
Why does the ARRL even continue with their CW broadcasts? #Ham radio is on the way out. #Not enough new hams to replace the ones that are dying. #Sad, but true...
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************************************************** ***************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-04-BS-111
Glenn A. Baxter ) NAL/Acct. No. 200532260001
RR 1 Box 776 ) FRN 0013164975
Belgrade Lakes, ME 04918 )
)
Licensee of Amateur Radio )
Station K1MAN
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 7, 2005
By the District Director, Boston Office, Northeastern Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), pursuant to Section 503(b) of the Communications Act
of 1934, as amended (the ``Act''),1we find Glenn A. Baxter,
licensee of Amateur Radio Station K1MAN, apparently liable for a
monetary forfeiture in the amount of twenty-one thousand dollars
($21,000). We conclude that Mr. Baxter apparently willfully and
repeatedly interfered with ongoing communications of other
stations in violation of Section 97.101(d) of the Commission's
Rules (the ``Rules'')2. We further conclude that Mr. Baxter
apparently 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 Mr. Baxter apparently
willfully and repeatedly failed to file requested information
pursuant to an Enforcement Bureau (``Bureau'') directive. We
further find that Mr. Baxter apparently willfully engaged in
broadcasting in violation of 97.113(b) of the Rules3 and
apparently willfully failed to exercise control of his station in
violation of Section 97.105(a) of the Rules.4
II. BACKGROUND
2. Mr. Baxter has a license to operate an amateur radio
station, call sign K1MAN. Mr. Baxter also is executive
director of the American Amateur Radio Association
(``AARA''), which has a website at www.K1MAN.com. Mr.
Baxter uses his amateur station to advertise his website,
which offers items for sale, including an annual newsletter
published by ``Glenn Baxter, K1MAN'' for forty-five (45)
dollars per year. The website also provides a schedule of
K1MAN radio transmissions.
3. In response to numerous complaints of deliberate
interference caused by transmissions from Mr. Baxter's
Amateur station K1MAN to ongoing radio communications of
other stations, including stations participating in the
Salvation Army Team Emergency Radio Net, the Bureau issued a
Warning Notice to Mr. Baxter on September 15, 2004. The
Bureau requested information from Mr. Baxter with regard to
the method of station control and what action, if any, was
being taken in response to the complaints of interference.5
The Warning Notice also reminded Mr. 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.6
The April 14, 2004 letter also cautioned Mr. Baxter that if
he continued to use the station for pecuniary interest by
advertising his website he could be subject to further
enforcement action.
4. By letter dated October 14, 2004, Mr. Baxter responded
to the September 15, 2004 Warning Notice stating ``[n]o
corrective actions are necessary at K1MAN'' and ``[n]o
changes are needed with regard to station control which is
in full compliance with all FCC rules.'' Mr. Baxter's
letter further stated that ``K1MAN is in full compliance
with all FCC rules, state laws, and federal laws. I
encourage you to take `enforcement actions' and look forward
to seeing you in court (s).''7 Mr. Baxter's response did
not provide the required information requested regarding
station control.
5. The Bureau issued a second Warning Notice to Mr. Baxter
on October 29, 2004.8 The Warning Notice explained that Mr.
Baxter's response to the September 15, 2004, Warning Notice
was insufficient and explained Mr. Baxter's obligations as a
licensee to furnish the information requested by the Bureau.
The Bureau provided Mr. Baxter an additional twenty days to
provide the specific information requested. The Warning
Notice also indicated that the Bureau had received two
additional complaints of deliberate interference caused by
Mr. Baxter's station. The Bureau requested information from
Mr. Baxter regarding the identity of the control operator
and method of station control for station K1MAN on the dates
and times specified in the recently-received interference
complaints.
6. Mr. Baxter responded by letter dated November 2, 2004,
stating that ``[m]y letter to you dated 14 October 2004 in
response to your letter to me dated 15 September 2004
provided all the information required by FCC rules and by
federal law.''9 Mr. Baxter did not provide any information
regarding the identity of the control operator or the method
of station control.
7. On November 25, 2004, Commission personnel monitored
Mr. Baxter's Amateur station on 14.275 MHz between 9:21 a.m.
and 2:12 p.m. EST. During that time, Mr. Baxter's station
transmitted numerous on-the-air references to his web page
at www.K1MAN.com. On November 27, 2004, Mr. Baxter's
Amateur station K1MAN began transmitting on top of ongoing
communications at 5:54 p.m. EST on 3.890 MHz, disrupting the
communications by the other licensees.
8. On November 30, 2004, agents from the FCC's Boston
Office conducted an inspection of Mr. Baxter's Amateur
station K1MAN. The method of station control appeared to be
a telephone line connected to an interface board, which was
connected to the transmitter. Mr. Baxter claimed that he
monitored the station from a mobile receiver when not at the
transmitter and that he could control the transmitter
through a land-line or cellular phone. During the
inspection, Mr. Baxter demonstrated that he could control
the transmitter.
9. On December 1, 2004, on the frequencies 3.975 MHz and
14.275 MHz, Mr. Baxter's station K1MAN transmitted a pre-
recorded program lasting nearly seventy minutes, which
consisted of an interview by Mr. Baxter with Mr. Jeff Owens.
During the broadcast, Mr. Baxter explained that Baxter
Associates was a firm that engaged in ``management
consulting, executive search and executive career
management.'' The program consisted of a lengthy broadcast
of the telephone interview with Mr. Owens. Mr. Baxter
explained the fees involved, how Mr. Owens could invest in
franchises of Baxter Associates, and how Mr. Baxter planned
to market the franchises of Baxter Associates. Nothing in
the program related to Amateur radio and no station call
sign was given until the conclusion of the seventy-minute
program.
10. On December 8, 2004, FCC agents found that Baxter's
station K1MAN commenced transmitting at 7:10 p.m. EST on top
of existing radio communications on 3.890 MHz. On December
19, 2004, from 5:44 p.m. to 6:30 p.m. EST, on frequency
3.975 MHz, Mr. Baxter's Amateur station K1MAN broadcast
transmissions of an apparently defective pre-recorded audio
tape, which resulted in the repeated transmission of a nine-
word phrase, and segments thereof, without any intervention
of a control operator and without the identification of the
station's call sign. Mr. Baxter's Amateur station went off
the air abruptly at 6:30 p.m. EST in mid-sentence.
11. On March 30, 2005, monitoring personnel observed
station K1MAN advertising the www.K1MAN.com web site at
approximately 7:19, 7:28, 7:33 and 8:05 P.M. EST on 3.890
MHz. On March 31, 2005, at 7:28 P.M. EST, monitoring
personnel observed transmissions from station K1MAN begin on
top of existing communications on 3.890 MHz.
III. DISCUSSION
12. Section 503(b) of the Act provides that any person who
willfully or repeatedly fails to comply substantially with
the terms and conditions of any license, or willfully or
repeatedly fails to comply with any of the provisions of the
Act or of any rule, regulation or order issued by the
Commission there under, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) of
the Act has been interpreted to mean simply that the acts or
omissions are committed knowingly.10 The term ``repeated''
means the commission or omission of such act more than once
or for more than one day.11
13. Section 97.101(d) of the Rules states that ``[n]o
amateur operator shall willfully or maliciously interfere
with or cause interference to any radio communication or
signal.''12 On November 27, 2004, December 8, 2004, and
March 31, 2005, Baxter's Amateur station K1MAN commenced
transmitting on top of existing communications on 3.890 MHz
in apparent willful and repeated violation of 97.101(d) of
the Commission's rules.
14. 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. On November 25, 2004 and March 30, 2005, Mr.
Baxter's station repeatedly transmitted references to his
website, which offers various products for sale, including a
monthly newsletter published by Glenn Baxter and offered for
sale for forty-five dollars per year. In addition, on
December 1, 2004, Station K1MAN transmitted a seventy-minute
interview with a person who was considering whether to
retain Baxter Associates, an employment-search firm owned by
Mr. Baxter. During the transmission, Mr. Baxter discussed
fees, investments, and franchising opportunities. We find
that Mr. Baxter apparently willfully and repeatedly violated
Section 97.113(a)(3) of the Rules on each of these occasions
by transmitting communications regarding matters in which he
has a pecuniary interest.
15. Section 308(b) of the Act provides that the Commission
``during the term of any (such) 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 . . . .''13
Although Mr. Baxter replied in part to the Bureau's demand
for information in the Warning Notices dated September 15,
2004 and October 29, 2004, Mr. Baxter failed to provide
information regarding how the station is controlled and the
identity of the control operator. Mr. Baxter's statements
that ``[n]o corrective actions are necessary'' and ``[n]o
changes are needed with regard to station control'' are
insufficient. We therefore conclude that Glenn A. Baxter
apparently willfully and repeatedly failed to comply with a
Bureau directive to file information regarding control of
Station K1MAN.
16. Section 97.113(b) of the Rules prohibits, with limited
exceptions not applicable here, an Amateur station from
engaging in any form of broadcasting or transmitting one-way
transmissions. Section 97.3(a)(10) of the Rules defines
broadcasting as ``transmissions intended for reception by
the general public.'' 14 We find that the pre-recorded
seventy-minute interview with a person interested in
retaining Baxter Associates, during which there was no
station identification, constitutes a ``broadcast'' and an
impermissible one-way transmission. Therefore, Mr. Baxter
apparently willfully violated Section 97.113(b) of the
Rules.
17. Section 97.105(a) of the Rules provides that the
control operator must ensure the proper operation of the
station.15 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 Section 97.119(a) of the Rules.16 The
continuous transmissions of the same pre-recorded phrase and
segments thereof, and the abrupt ending of those
transmissions in mid-sentence without identification,
suggests that Mr. Baxter did not exercise control of his
station. We conclude that Mr. Baxter apparently willfully
violated Section 97.105(a) of the Rules.
18. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines ("Forfeiture Policy
Statement"), and Section 1.80 of the Rules, the base
forfeiture amount is $7,000 for willful or malicious
interference, $3,000 for failure to file required
information, and $3,000 for violation of transmitter
control. 17 There are no base forfeiture amounts for
violations of the rules prohibiting broadcasting or
pecuniary interest in Part 97 of the Commission's rules. We
conclude, however, that violations of the Part 97 rules
prohibiting broadcasting and the transmission of any
communication in which the operator has a pecuniary interest
are similar to violations of the Commission's requirements
pertaining to broadcasting of lotteries and contests, which
carry a base forfeiture amount of $4,000 for each such
violation.18 In assessing the monetary forfeiture amount,
we must also take into account the statutory factors set
forth in Section 503(b)(2)(D) of the Act, which include the
nature, circumstances, extent, and gravity of the
violations, and with respect to the violator, the degree of
culpability, and history of prior offenses, ability to pay,
and other such matters as justice may require.19 Applying
the Forfeiture Policy Statement, Section 1.80, and the
statutory factors, a $21,000 forfeiture is warranted.
IV. ORDERING CLAUSES
19. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Communications Act of 1934, as amended,20 and
Section 1.80 of the Commission's Rules,21 Glenn A. Baxter,
is hereby NOTIFIED of this APPARENT LIABILITY FOR 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
Section 97.101(d) of the Rules, willful violation of Section
97.105(a) of the Rules, willful and repeated violation of
Section 97.113(a)(3) of the Rules, and willful violation of
Section 97.113(b) of the Rules.
20. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of
the Commission's Rules, within thirty (30) days of the
release of this NOTICE OF APPARENT LIABILITY, Mr. Baxter
SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
21. 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.
22. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Northeast
Region, Boston Office, 1 Batterymarch Park, Quincy, MA
02169-7448 within thirty (30) days from the release date of
this Notice of Apparent Liability for Forfeiture and must
include the NAL/Acct. No. referenced in the caption.
23. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay
unless the petitioner submits: (1) federal tax returns for
the most recent three-year period; (2) financial statements
prepared according to generally accepted accounting
practices ("GAAP"); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay
must specifically identify the basis for the claim by
reference to the financial documentation submitted.
24. Requests for payment of the full amount of this Notice
of Apparent Liability for Forfeiture under an installment
plan should be sent to: Chief, Revenue and Receivables
Operations Group, 445 12th Street, S.W., Washington, D.C.
20554.22
25. IT IS FURTHER ORDERED that a copy of this NAL shall be
sent by Certified Mail, Return Receipt Requested, and
regular mail, to Glenn A. Baxter, at his address of record.
FEDERAL COMMUNICATIONS
COMMISSION
Dennis V. Loria
District Director
Boston Office
Northeastern Region
Enforcement Bureau
147 U.S.C. §503(b).
247 C.F.R.§ 97.101(d).
347 C.F.R. §§ 97.113(a)(3), §97.113(b).
447 C.F.R. §97.105(a).
5Letter from W. Riley Hollingsworth, Special Counsel, Enforcement
Bureau, September 15, 2004.
6The April 14, 2004 letter was a follow-up to letters dated
January 29, 2002 and March 4, 2003. In the January 29, 2002
letter, the Bureau detailed numerous complaints that were
received alleging rule violations by Mr. Baxter's station. The
letter advised Mr. Baxter about the Commission's rules regarding
interference, station control, broadcasting, and pecuniary
interest. The March 4, 2003 letter advised Mr. Baxter that the
Bureau continued to receive complaints about his station's
operation, indicating that he had not corrected the problems
outlined in the January 29, 2002 letter.
7Letter from Glenn A. Baxter, October 14, 2004.
8Letter from W. Riley Hollingsworth, Special Counsel, Enforcement
Bureau, October 29, 2004.
9Letter from Glenn A. Baxter, November 2, 2004.
10Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that "[t]he term 'willful',
when used with reference to the commission or omission of any
act, means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act or any rule or regulation of the Commission authorized
by this Act...." See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
11Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that "[t]he term 'repeated',
when used with reference to the commission or omission of any
act, means the commission or omission of such act more than once
or, if such commission or omission is continuous, for more than
one day.''
12Section 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. § 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.
1347 U.S.C. § 308(b).
1447 C.F.R. §97.3(a)(10).
1547 C.F.R. § 97.105. Section 97.7 of the Rules requires each
Amateur station to have a control operator when transmitting. 47
C.F.R. § 97.7. Pursuant to Sections 97.103(a) and 97.103(b), the
station licensee is responsible for the proper operation of the
station in accordance with the FCC 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.
Mr. Baxter is the licensee of Station K1MAN and there is no
evidence in the Commission's records that Mr. Baxter has
designated another control operator.
1647 C.F.R. §97.119.
1712 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
18Id.
1947 U.S.C. § 503(b)(2)(D).
2047 U.S.C. § 503(b).
2147 C.F.R. § 1.80.
2247 C.F.R. § 1.1914.