*Pages 1--6 from  Microsoft Word - 49315.doc*
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 Glenn  A.  Baxter  RR  1  Box  776 
 Belgrade  Lakes,  ME  04918 
 Licensee  of  Amateur  Radio  Station  K1MAN 


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 File  No.  EB-  04-  BS-  111  NAL/  Acct.  No.  200532260001 
 FRN  0013164975 


 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),  1  we  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  Commissions  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  Rules  3  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 


 1  47  U.  S.  C.  503(  b). 
 2  47  C.  F.  R.  97.  101(  d). 
 3  47  C.  F.  R.    97.  113(  a)(  3),  97.  113(  b). 
 4  47  C.  F.  R.  97.105(  a). 
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 from  Mr.  Baxters  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.  Baxters  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.  Baxters  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.  Baxters  response  to  the  September  15,  2004,  Warning  Notice  was 
 insufficient  and  explained  Mr.  Baxters  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.  Baxters  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.  Baxters  Amateur  station  on  14.275  MHz  between  9:  21  a.  m.  and  2:  12  p.  m.  EST.  During  that  time,  Mr.  Baxters  station  transmitted 
 numerous  on-  the-  air  references  to  his  web  page  at  www.  K1MAN.  com.  On  November  27,  2004,  Mr.  Baxters  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  FCCs  Boston  Office  conducted  an  inspection  of 


 5  Letter  from  W.  Riley  Hollingsworth,  Special  Counsel,  Enforcement  Bureau,  September  15,  2004. 
 6  The  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.  Baxters  station.  The  letter  advised  Mr.  Baxter  about  the  Commissions  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  stations  operation,  indicating  that  he  had  not  corrected  the  problems  outlined  in  the 
 January  29,  2002  letter.  7 
 Letter  from  Glenn  A.  Baxter,  October  14,  2004.  8 
 Letter  from  W.  Riley  Hollingsworth,  Special  Counsel,  Enforcement  Bureau,  October  29,  2004.  9 
 Letter  from  Glenn  A.  Baxter,  November  2,  2004. 
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 Mr.  Baxters  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.  Baxters  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  Baxters  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.  Baxters  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  stations  call  sign.  Mr.  Baxters  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 


 10  Section  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). 
 11  Section  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. 
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 maliciously  interfere  with  or  cause  interference  to  any  radio  communication  or  signal.  12  On  November  27,  2004,  December  8,  2004,  and  March  31,  2005,  Baxters  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  Commissions  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.  Baxters  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  Bureaus  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.  Baxters  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, 


 12  Section  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. 
 13  47  U.  S.  C.    308(  b). 
 14  47  C.  F.  R.  97.3(  a)(  10). 
 15  47  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  Commissions  records  that  Mr.  Baxter  has  designated  another  control 
 operator. 
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 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  Commissions  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  Commissions  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  Commissions  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  Commissions  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  Commissions  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. 


 16  47  C.  F.  R.  97.119. 
 17  12  FCC  Rcd  17087  (1997),  recon.  denied,  15  FCC  Rcd  303  (1999);  47  C.  F.  R.  1.  80. 
 18  Id. 
 19  47  U.  S.  C.    503(  b)(  2)(  D). 
 20  47  U.  S.  C.    503(  b). 
 21  47  C.  F.  R.    1.80. 
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 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  petitioners 
 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 


 22  47  C.  F.  R.    1.1914. 
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