**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | WT Docket No. 07-109         |
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| FRANK C. RICHARDS                | ** | FCC File No. 0002666016      |
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| Application for New License in   | *  |                              |
| the Amateur Radio Service        | *) |                              |
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**HEARING DESIGNATION ORDER**

**Adopted: May 23, 2007 Released: May 24, 2007**

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 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.[^1] 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).[^2]

# Background

2.  Frank Richards (FL) renewed his license for Amateur Radio Service
    Advanced Class License KB4VU in 1994.[^3] 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.[^4] The application stated that
    the prior license had been "misplace\[d\] in moving."[^5] 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.[^6]

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.[^7]

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.[^8] His response was due March 20, 2004.[^9] When no response
    was received, EB sent a second letter on April 21, 2004.[^10] On
    June 23, 2004, Frank Richards (NY) submitted the license for Amateur
    Radio Service Advanced Class License KG2IJ for cancellation.[^11]
    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.[^12]

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.[^13] 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,[^14] EB
    was unable to make a determination of whether the application should
    be granted.[^15]

# 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."[^16] 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."[^17] Misrepresentation is
    "a false statement of fact made with intent to deceive."[^18] Lack
    of candor is "concealment, evasion, or other failure to be fully
    informative, accompanied by intent to deceive."[^19] Intent to
    deceive is established if a licensee knowingly makes a false
    statement,[^20] and can also be inferred when the surrounding
    circumstances clearly show the existence of an intent to
    deceive.[^21] The Commission may disqualify an applicant who
    deliberately makes misrepresentations or lacks candor in dealing
    with the agency.[^22]

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.[^23] 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,"[^24] and thus whether he is
    qualified to be a Commission licensee.

# 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. §§
    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 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.

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11. 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, 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. § 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. §§ 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. §§ 0.131,
    0.331.

FEDERAL COMMUNICATIONS COMMISSION

Scot Stone

Deputy Chief, Mobility Division

Wireless Telecommunications Bureau

[^1]: *See* FCC File No. 9609179953 (filed Nov. 28, 1995).

[^2]: 47 U.S.C. § 309(e).

[^3]: *See* FCC File No. 9406283119 (filed Apr. 22, 1994).

[^4]: *See* FCC File No. 9609179953.

[^5]: *Id*.

[^6]: *See* FCC File No. 0001325209 (filed May 27, 2003).

[^7]: *See* e-mails dated November 24, 2003 from Julie Richards to Riley
    Hollingsworth.

[^8]: *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.

[^9]: *Id*. at 1.

[^10]: 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.

[^11]: *See* Letter dated June 23, 2004 from Frank C. Richards to W.
    Riley Hollingsworth.

[^12]: *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.

[^13]: *See* FCC File No. 0002666016 (filed June 28, 2006).

[^14]: *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.

[^15]: *See* Letter dated July 14, 2006 from W. Riley Hollingsworth,
    Special Counsel, Enforcement Bureau to Frank C. Richards, 1310
    Hemmingford Road, Mooers, NY 12958.

[^16]: *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*)).

[^17]: *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*)).

[^18]: *Id.* at 9986 ¶ 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 ¶ 19 nn.40-41 (2004)).

[^19]: *Id.* at 9986 ¶ 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 ¶ 6.

[^20]: *CRS Order*, 21 FCC Rcd at 9986 ¶ 12 (citing Leflore
    Broadcasting, Co., Inc. v. FCC, 636 F.2d 454, 462 (D.C. Cir. 1980)).

[^21]: *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)).

[^22]: *Contemporary Media*, 214 F.3d at 196.

[^23]: 47 U.S.C. § 309(e).

[^24]: 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).