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 Federal  Communications  Commission  DA  04-  1045 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of  Application  of 
 RICHARD  A.  BURTON 
 For  General  Mobile  Radio  Service  License 


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 WT  Docket  No.  04-  153 
 FCC  File  No.  0001606053 


 HEARING  DESIGNATION  ORDER 
 Adopted:  April  8,  2004  Released:  April  19,  2004 
 By  the  Chief,  Public  Safety  and  Critical  Infrastructure  Division,  Wireless  Telecommunications  Bureau: 
 I.  INTRODUCTION 
 1.  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  Commissions  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 
 Burtons  history  of  repeated  violations  of  the  Act  and  the  Commissions  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  Burtons  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 


 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  Burtons  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  Burtons  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  Commissions  Review  Board.  1992  Rev.  Bd.  Decision,  7  FCC  Rcd  at  7273. 
 5  47  U.  S.  C.    309(  e). 
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 II.  BACKGROUND 
 2.  Burtons  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  Commissions  Rules  governing  the 
 Amateur  Radio  Service.  6  Specifically,  Mr.  Burton  had  repeatedly  violated  the  operating  procedures  prescribed  in  Part  97  of  the  Commissions  Rules.  7 


 3.  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 


 4.  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. 
 5.  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 
 Commissions  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  Burtons  application 
 was  warranted  on  the  basis  of  Burtons  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  Commissions  Review  Board  later  affirmed  the  ALJs  findings  and  conclusions  in  all  respects,  and  accordingly  denied  Burtons  exceptions  to  the  summary  decision.  15 


 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  Burtons  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. 
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 6.  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 


 7.  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. 
 8.  On  June  11,  2002,  Burton  filed  an  application  for  a  new  GMRS  license.  19  Based  on  the  matters  described  above,  as  well  as  additional  credible  information  forwarded  to  us  by  the  Commissions 


 Enforcement  Bureau  indicating  that  Burton  may  have  engaged  in  further  unlicensed  operations  in  the  period  following  his  most  recent  conviction,  we  designated  the  application  for  hearing  to  determine  if 
 Burton  had  the  requisite  character  qualifications  to  hold  a  Commission  license.  20  On  September  30,  2003,  the  Presiding  Administrative  Law  Judge  dismissed  the  application  without  prejudice,  upon  the  joint 
 motion  of  Burton  and  counsel  for  the  Enforcement  Bureau.  21  Less  than  five  months  later,  on  February  4,  2004,  Burton  filed  the  subject  application  for  a  new  GMRS  license.  22 


 III.  DISCUSSION 
 9.  Burton  has  a  demonstrated  history  of  willfully  and  repeatedly  violating  the  most  basic  of  the  statutory  requirements  within  the  Commissions  purview    the  requirement  to  obtain  a  license  from 


 the  Commission  before  operating  a  radio  transmitter.  His  repeated  violations  of  the  Act  and  the  Commissions  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 
 Commissions]  rules  and  policies,  23  and  thus  whether  he  is  qualified  to  be  a  Commission  licensee.  In  addition,  the  Commissions  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,  including  during  the  period  following  the  dismissal  without  prejudice  of  his  prior  GMRS 


 16  U.  S.  v.  Burton,  No.  CR-  92-  00801-  RSWL  (C.  D.  Cal.  1992). 
 17  Id. 
 18  Burtons  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  Richard  A.  Burton,  Hearing  Designation  Order,  WT  Docket  No.  03-  188,  18  FCC  Rcd  16301  (2003). 
 21  Richard  A.  Burton,  Memorandum  Opinion  and  Order,  WT  Docket  No.  03-  188,  FCC  03M-  41  (ALJ  rel.  Sept.  30, 
 2003).  The  Presiding  Judge  noted  that  Burton  had  indicated  that  he  would  be  unable  to  attend,  for  reasons  of  health,  a  prehearing  conference  scheduled  for  September  24,  2003,  that  Burton  stated  in  a  conference  call  on  September  10, 


 2003,  that  he  no  longer  wanted  to  prosecute  his  application,  and  that  Burton  further  stated  in  that  conference  call  that  he  had  no  intention  of  ever  again  applying  for  a  GMRS  authorization.  Id.  at  1. 
 22  FCC  File  No.  0001606053  (filed  Feb.  4,  2004). 
 23  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)). 
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 application,  and  may  be  continuing  to  engage  in  such  unauthorized  operations  at  present. 
 10.  Under  the  1990  Character  Policy  Statement,  as  before,  the  Commission  takes  into  consideration  factors  that  may  mitigate  a  licensees  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.  24  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.  25 


 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.    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. 
 12.  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  Commissions  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. 


 13.  IT  IS  FURTHER  ORDERED  that,  pursuant  to  Section  1.221(  c)  of  the  Commissions  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 
 24  1990  Character  Policy  Statement,  5  FCC  Rcd  at  3252    5. 
 25  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). 
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 prejudice  for  failure  to  prosecute. 
 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  Burton. 


 15.  IT  IS  FURTHER  ORDERED  that  the  Commissions  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:  247  Greybull  Ave.,  Greybull,  WY  82426. 


 16.  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. 
 17.  This  action  is  taken  under  delegated  authority  pursuant  to  Sections  0.131  and  0.331  of  the  Commissions  Rules,  47  C.  F.  R.    0.131,  0.331. 
 FEDERAL  COMMUNICATIONS  COMMISSION 


 Dwana  R.  Terry  Chief,  Public  Safety  and  Critical  Infrastructure  Division 
 Wireless  Telecommunications  Bureau 
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