**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | WT Docket No. 06-220         |
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| JOSEPH W. HARTMANN, JR.          | ** | FCC File No. 0002462228      |
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| Application for New License in   | *  |                              |
| the Amateur Radio Service        | *) |                              |
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**HEARING DESIGNATION ORDER**

**Adopted: December 11, 2006 Released: December 11, 2006**

By Deputy Chief, Mobility Division, Wireless Telecommunications Bureau:

# 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[^1] 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).[^2]

# 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)[^3] 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.[^4] 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.[^5] 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.[^6] 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.[^7] 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.[^8] 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.[^9]

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,[^10] EB on June 21, 2005 sent a certified
    letter to Hartmann, Jr. at the address listed on the administrative
    update applications.[^11] 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,[^12] as required by
    Section 1.951 of the Commission's Rules.[^13] On January 27, 2006,
    Hartmann, Jr. filed the above-captioned application for a new
    amateur radio service license.

# 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."[^14] 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."[^15] Misrepresentation is
    "a false statement of fact made with intent to deceive."[^16] Lack
    of candor is "concealment, evasion, or other failure to be fully
    informative, accompanied by intent to deceive."[^17] Intent to
    deceive is established if a licensee knowingly makes a false
    statement,[^18] and also can also be inferred when the surrounding
    circumstances clearly show the existence of intent to deceive.[^19]
    The Commission may disqualify an applicant who deliberately makes
    misrepresentations or lacks candor in dealing with the agency.[^20]

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. [^21] 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,"[^22] and thus whether he
    is qualified to be a Commission licensee.

# 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. §§
    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:

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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.

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9.  IT IS FURTHER ORDERED that, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Section 1.221(c) of the Commission's Rules, 47 C.F.R. § 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. § 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. §§ 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. §§ 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. §§ 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. §§ 0.131,
    0.331.

FEDERAL COMMUNICATIONS COMMISSION

Scot Stone

Deputy Chief, Mobility Division

Wireless Telecommunications Bureau

[^1]: *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).

[^2]: 47 U.S.C. § 309(e).

[^3]: 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.

[^4]: 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).

[^5]: *See* 47 C.F.R. § 1.113(a).

[^6]: 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).

[^7]: 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).

[^8]: 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).

[^9]: 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).

[^10]: 47 U.S.C. § 308(b).

[^11]: *See* Letter dated June 21, 2005 from W. Riley Hollingsworth,
    Special Counsel, Spectrum Enforcement Division, Enforcement Bureau
    to Joseph W. Hartmann, Jr.

[^12]: *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).

[^13]: *See* 47 C.F.R. § 1.951.

[^14]: *See* Commercial Radio Service, Inc, *Order to Show Cause*, 21
    FCC Rcd 9983, 9986 ¶ 12 (2006) (*CRS Order*) (citing, *e.g.*,
    Contemporary Media, Inc., v. FCC, 214 F.3d 187, 193 (D.C. Cir. 2000)
    (*Contemporary Media*)).

[^15]: *CRS Order*, 21 FCC Rcd at 9986 ¶ 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 ¶
    60 (1986) (*1986 Character Policy Statement*)).

[^16]: *Id.* at 9986 ¶ 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 ¶ 19 nn.40-41 (2004)).

[^17]: *Id.* at 9986 ¶ 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.

[^18]: *Id.* at 9986 ¶ 12 (citing Leflore Broadcasting, Co., Inc. v.
    FCC, 636 F.2d 454, 462 (D.C. Cir. 1980)).

[^19]: *Id.* at 9986 ¶ 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)).

[^20]: *Contemporary Media*, 214 F.3d at 196.

[^21]: 47 U.S.C. § 309(e).

[^22]: Policy Regarding Character Qualifications in Broadcast Licensing,
    *Policy Statement and Order*, 5 FCC Rcd. 3252, 3252 ¶ 3 (1990)
    (citing *1986 Character Policy Statement*, 102 F.C.C. 2d at
    1190-1191), *recon. granted in part*, 6 FCC Rcd 3448 (1991).