**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of Application of  | *  | WT Docket No. 03-188         |
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| RICHARD A. BURTON                | ** | FCC File No. 0000920745      |
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| For General Mobile Radio Service | *  |                              |
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**ERRATUM**

**Released: August 14, 2002**

By the Deputy Chief, Public Safety and Private Wireless Division,
Wireless Telecommunications Bureau:

1.  On August 7, 2003, we issued a Hearing Designation Order in the
    captioned proceeding. Richard A. Burton, *Hearing Designation
    Order*, DA 03-2607 (WTB PSPWD rel. Aug. 7, 2003). The docket number
    of the proceeding, WT Docket No. 03-188, was omitted. The corrected
    copy of the Hearing Designation Order is attached and will be
    published in the Federal Register.

2.  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

    Ramona E. Melson

    Deputy Chief, Public Safety and Private Wireless Division

    Wireless Telecommunications Bureau

    **Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of Application of  | *  | WT Docket No. 03-188         |
|                                  | *) |                              |
| RICHARD A. BURTON                | ** | FCC File No. 0000920745      |
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| For General Mobile Radio Service | *  |                              |
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**HEARING DESIGNATION ORDER**

**Adopted: August 6, 2003 Released: August 7, 2003**

By the Chief, Public Safety and Private Wireless Division, Wireless
Telecommunications Bureau:

# INTRODUCTION

3.  By this *Hearing Designation Order*, we commence a hearing before an
    FCC Administrative Law Judge (ALJ) to determine whether the
    captioned application by Richard A. Burton (Burton) for a new
    General Mobile Radio Service (GMRS) license should be granted. As
    discussed below, Burton has been convicted on four separate
    occasions for the unlicensed operation of a radio transmission
    apparatus in violation of Sections 301 or 318 of the Communications
    Act of 1934, as amended (Act).[^1] In addition, Burton had his
    amateur radio license revoked in 1981 for willful and repeated
    violation of the Commission's regulations governing the Amateur
    Radio Service.[^2] In 1992, his application for new amateur radio
    station and operator licenses was designated for hearing based on
    character qualifications issues arising from the 1981 license
    revocation and the first two of his four felony convictions[^3] for
    unlicensed radio operations.[^4] Based on the information before us,
    we believe that Burton's history of repeated violations of the Act
    and our Rules raises 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 Burton's application
    for a new GMRS license would serve the public interest, convenience,
    and necessity, we hereby designate the application for hearing, as
    required by Section 309(e) of the Act.[^5]

# BACKGROUND

4.  Burton's record of adjudicated transgressions began in 1981, when
    the Commission revoked his Amateur Radio Service license for Call
    Sign WB6JAC and affirmed the suspension of his General Class amateur
    operator license. These sanctions were imposed on the basis of a
    finding that Burton had committed "willful and repeated violations"
    of the Commission's Rules governing the Amateur Radio Service.[^6]
    Specifically, Mr. Burton had repeatedly violated the operating
    procedures prescribed in Part 97 of the Commission's Rules.[^7]

5.  On June 28, 1982, Burton was convicted of four counts of
    transmitting radio signals without a license in violation of Section
    318 of the Act.[^8] Burton was ultimately sentenced to four
    concurrent one-year terms of imprisonment, all but six months of
    which was suspended, and was placed on probation for five years. On
    December 31, 1984, Burton violated the terms of his probation by
    operating a radio apparatus without a license. As a consequence, his
    sentence was modified on May 1, 1985, to mandate therapy during the
    period of his probation.[^9]

6.  On October 1, 1990, Burton was again convicted of unlicensed
    operation in violation of Section 318 of the Act.[^10] He was
    sentenced to one year of probation and fined \$2,000.

7.  Following his second conviction for unlicensed operation, Burton
    applied for a new Amateur Radio Service license. The Commission
    issued a *Hearing Designation Order* in 1992 to determine whether
    Burton had the requisite character qualifications to hold the new
    amateur radio station and operator licenses for which he had
    applied.[^11] The presiding ALJ directed the parties -- Burton and
    the Commission's former Private Radio Bureau (PRB) -- to file an
    outline of evidence to be submitted at the hearing and a list of
    witnesses by July 29, 1992.[^12] Burton did not comply with this
    Order. On July 31, 1992, the PRB moved for summary decision. Burton
    did not oppose the motion. On August 18, 1992, the ALJ issued a
    summary decision against Burton. The ALJ found that denial of
    Burton's application was warranted on the basis of Burton's "ten
    year history of violating the Communications Act," and concluded
    that Burton is "unqualified to become a licensee."[^13] The ALJ also
    noted that Mr. Burton had failed to prosecute his application.[^14]
    The Commission's Review Board later affirmed the ALJ's findings and
    conclusions in all respects, and accordingly denied Burton's
    exceptions to the summary decision.[^15]

8.  In 1993, Burton was convicted of four counts of transmitting radio
    signals without a license in violation of Section 301 of the
    Act.[^16] This conviction was based on unlicensed operations
    occurring in 1992, the same year as Burton was in hearing on his
    basic character qualifications.[^17] Burton was sentenced to seven
    months in prison and one year of probation.[^18]

9.  In October 2000, Burton was once again convicted for unlicensed
    operation of a radio apparatus, based on activities that occurred in
    1999, and was sentenced to three months in prison and one year of
    probation, and ordered to undergo psychological counseling. On June
    11, 2002, Burton filed the subject application for a new GMRS
    license.[^19]

# DISCUSSION

10. Burton has a demonstrated history of willfully and repeatedly
    violating the most basic of the statutory requirements within the
    Commission's purview -- the requirement to obtain a license from the
    Commission before operating a radio transmitter. His repeated
    violations of the Act and the Commission's Rules, as reflected in
    four felony convictions and in two administrative adjudications
    finding him unqualified to hold a license at previous points in
    time, raise substantial and material questions of fact as to whether
    he will "deal truthfully with the Commission and ... comply with
    \[the Commission's\] rules and policies,"[^20] and thus whether he
    is qualified to be a Commission licensee. In addition, the
    Commission's Enforcement Bureau has forwarded to us credible
    information indicating that Burton may have engaged in further
    unlicensed operations in the period following his most recent
    conviction, and may be continuing to engage in such unauthorized
    operations at present.[^21]

11. Under the *1990* *Character* *Policy Statement*, as before, the
    Commission takes into consideration factors that may mitigate a
    licensee's misconduct. The Commission reviews, for example, the
    willfulness of the misconduct, the frequency of the misconduct, how
    recently the misconduct occurred, the seriousness of the misconduct,
    efforts made to remedy the wrong, overall record of compliance with
    FCC rules and policies, and rehabilitation.[^22] At hearing, Burton
    may introduce evidence pertinent to these or other mitigating
    factors. However, Burton will not be permitted to relitigate the
    question of his guilt with respect to the matters for which he has
    been convicted, as those matters have already been resolved in the
    proper forum and are *res judicata*.[^23]

# ORDERING CLAUSES

12. 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:

> \(a\) To determine the effect of the criminal convictions of Richard
> A. Burton, and the prior administrative adjudications disqualifying
> Richard A. Burton to hold a license, on his qualifications to be a
> Commission licensee.
>
> \(b\) To determine whether Richard A. Burton has engaged in unlicensed
> operation of a radio transmission apparatus following his October 2000
> conviction, and, if so, the effect of such conduct on his
> qualifications to be a Commission licensee.
>
> \(c\) In light of the evidence adduced pursuant to the foregoing
> issues, to determine whether Richard A. Burton 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
> Richard A. Burton should be granted.

13. 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, Burton, 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.

14. IT IS FURTHER ORDERED that, pursuant to Section 1.221(c) of the
    Commission's Rules, 47 C.F.R. § 1.221(c), if Burton 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.

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. §§ 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 Burton.

16. IT IS FURTHER ORDERED that the Commission's Reference Operations
    Division of the Consumer Information Bureau SHALL SEND a copy of
    this Order, via Certified Mail -- Return Receipt Requested, to
    Richard A. Burton at the address specified by him in his captioned
    application: 1614 W. 257^th^ Street, Unit 10, Harbor City, CA 90710.

17. 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.

18. 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

    D'wana R. Terry

Chief, Public Safety and Private Wireless Division

Wireless Telecommunications Bureau

[^1]: 47 U.S.C. §§ 301, 318.

[^2]: In the Matter of the Application of Richard A. Burton, Harbor
    City, California, for Amateur Station and Operator Licenses,
    *Decision*, PR Docket No. 92-144, 7 FCC Rcd 7272, 7272 n.1 (Rev. Bd.
    1992) (*1992 Rev. Bd. Decision*) (citing *Order of Revocation and
    Affirmation*, PR Docket No. 81-444 (Sept. 11, 1981)).

[^3]: Burton's two most recent felony convictions occurred after the
    completion of the 1992 administrative proceedings.

[^4]: In the Matter of the Application of Richard A. Burton, Harbor
    City, California, for Amateur Station and Operator Licenses,
    *Hearing Designation Order*, PR Docket No. 92-144, 7 FCC Rcd 4329
    (PRB 1992) (*1992 HDO*). The applications were ultimately denied by
    Summary Decision both on the merits and because of Burton's failure
    to prosecute. In the Matter of the Application of Richard A. Burton,
    Harbor City, California, for Amateur Station and Operator Licenses,
    *Summary Decision of Administrative Law Judge Edward J. Kuhlmann*,
    PR Docket No. 92-144, 7 FCC Rcd 5481 (ALJ 1992) (*1992 Summary
    Decision*). That decision was later affirmed by the Commission's
    Review Board. *1992 Rev. Bd. Decision*, 7 FCC Rcd at 7273.

[^5]: 47 U.S.C. § 309(e).

[^6]: *1992 HDO*, 7 FCC Rcd at 4329 ¶ 2. *See also 1992 Summary
    Decision*, 7 FCC Rcd at 5481 ¶ 3.

[^7]: *1992 Summary Decision*, 7 FCC Rcd at 5481 ¶ 3.

[^8]: *U.S. v. Burton*, No. CR 82-378-R (C.D. Cal. June 28, 1982).
    Burton was also convicted of two counts of transmitting obscene,
    indecent, or profane words, language, or meaning, in violation of 18
    U.S.C. § 1464. In 1983, however, the U.S. Court of Appeals for the
    Ninth Circuit reversed Burton's conviction for violating 18 U.S.C.\
    § 1464, while affirming the conviction for violating Section 318 of
    the Act. *U.S. v. Burton*, No. 82-1391 (9^th^ Cir. Oct. 25, 1983).

[^9]: *U.S. v. Burton,* No. 82-00378 (C.D. Cal. May 1, 1985).

[^10]: *U.S. v. Burton*, No. CR-90-357-RMT (C.D. Cal. Oct. 1, 1990).

[^11]: *1992 HDO,* 7 FCC Rcd at 4329 ¶ 1.

[^12]: *Order*, FCC 92M-791 (ALJ rel. July 16, 1992).

[^13]: *1992 Summary Decision,* 7 FCC Rcd at 5481 ¶ 4.

[^14]: *Id*.

[^15]: *1992 Rev. Bd. Decision*, 7 FCC Rcd at 7273 ¶¶ 6-7.

[^16]: *U.S. v. Burton*, No. CR-92-00801-RSWL (C.D. Cal. 1992).

[^17]: *Id.*

[^18]: Burton's conviction was later affirmed by the U.S. Court of
    Appeals for the Ninth Circuit. *See United States v. Burton*, 19
    F.3d 30, 1994 WL 46323 (9^th^ Cir. 1994) (Table), *cert. denied*,
    511 U.S. 1149, 114 S. Ct. 2182, 128 L. Ed. 2d 900 (1994).

[^19]: FCC File No. 0000920745 (filed June 11, 2002).

[^20]: Policy Regarding Character Qualifications in Broadcast Licensing,
    *Policy Statement and Order*, 5 FCC Rcd. 3252, 3252 ¶ 3 (1990),
    *recon. granted in part*, 6 FCC Rcd 3448 (1991) (*1990 Character
    Policy Statement*) (citing Policy Regarding Character Qualifications
    in Broadcast Licensing, *Policy Statement and Order*, 102 FCC 2d
    1179, 1190-1191 (1986) (*1986 Character Policy Statement*)).

[^21]: *See* Letter, dated July 3, 2003, from W. Riley Hollingsworth,
    Special Counsel, Enforcement Bureau, to Richard A. Burton (stating
    that monitoring information indicates that Burton had engaged in
    unauthorized operation of transmission equipment, in violation of
    Section 301 of the Act, on numerous occasions since January 2003,
    and warning Burton to cease such unlicensed operations).

[^22]: *1990 Character* *Policy Statement*, 5 FCC Rcd at 3252 ¶ 5.

[^23]: *See* *1986 Character Policy Statement*, 102 FCC 2d at 1194 ¶ 32
    ("Through the years, the Commission has generally declined 'to
    explore matters currently being litigated before the courts or to
    duplicate the ongoing investigative efforts of other government
    agencies charged with the responsibility of interpreting and
    enforcing the law in question'") (citing Revision of FCC Form 303,
    Application for Renewal of Broadcast Station License, and Certain
    Rules Relating Thereto, *Report and Order*, 59 FCC 2d 750, 763
    (1976)); *see* *also* Kevin David Mitnick, *Hearing Designation
    Order*, 16 FCC Rcd 22740, 22743 ¶ 9 (2001).