Subject: [NEXTEL-1] Former "Hammy" & GMRS "Bootlegger" Richard A. Burton Tries To Go "Legit"......

From: [email-masked]
Date: Wed, 21 Apr 2004 21:28:14 -0400

Former "Hammy" & GMRS "Bootlegger" Richard A. Burton Tries To Go
"Legit"......
====================================================================================

Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of Application of

RICHARD A. BURTON

For General Mobile Radio Service License
 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).   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.   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  for unlicensed radio
operations.   Based on the information before us, we believe that
Burton’s history of repeated violations of the Act and the Commission’s
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.

II. BACKGROUND

2. 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.   Specifically,
Mr. Burton had repeatedly violated the operating procedures prescribed
in Part 97 of the Commission’s Rules.

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.   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.

4. On October 1, 1990, Burton was again convicted of unlicensed
operation in violation of Section 318 of the Act.   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.   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.   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.”   The ALJ also noted that Mr.
Burton had failed to prosecute his application.   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.

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

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.   Based on the matters described above, as well as additional
credible information forwarded to us by the Commission’s 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.   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.   Less than five months later, on
February 4, 2004, Burton filed the subject application for a new GMRS
license.

III. DISCUSSION

9. 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,”  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, including during the period following the
dismissal without prejudice of his prior GMRS 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 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.   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.

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 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.

13. 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.

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 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:
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 Commission’s Rules, 47 C.F.R. §§ 0.131, 0.331.
FEDERAL COMMUNICATIONS COMMISSION

D’wana R. Terry
Chief, Public Safety and Critical Infrastructure Division
Wireless Telecommunications Bureau

 http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-04-1045A1.doc
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