USA v. BAXTER

Filing 38

ORDER granting in part and denying in part 23 Motion for Summary Judgment. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA,
Plaintiff,
v.
GLENN A. BAXTER,
Defendant.

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1:10-cv-00435-JAW

ORDER ON MOTION FOR SUMMARY JUDGMENT
The United States seeks summary judgment against Glenn A. Baxter, a
Federal Communications Commission (FCC) amateur radio licensee, for forfeitures
based on three asserted violations of the Communications Act of 1934 (Act) and its
regulations: 1) failure to respond to an FCC inquiry in violation of 47 U.S.C. § 308;
2) willful or malicious interference with other radio transmissions in violation of 47
C.F.R. § 97.101(d); and 3) engaging in communications in which he has a pecuniary
interest in violation of 47 C.F.R. § 97.113(a)(3). The Court concludes that summary
judgment is appropriate for the Defendant’s failure to respond and malicious
interference but that summary judgment is not appropriate for the last claimed
forfeiture because there are genuine issues of material fact as to whether he
engaged in communications in which he had a pecuniary interest.

I.

STATEMENT OF FACTS
A.

Procedural Background

On October 25, 2010, the United States of America (the Government) filed a
complaint in this Court against Glenn A. Baxter, seeking to reduce to judgment an
unpaid FCC forfeiture order for $21,000 under Section 503(b) of the Act, 47 U.S.C. §
503(b).

Compl. (Docket # 1).

On November 5, 2010, the Government filed an

amended complaint. Am. Compl. (Docket # 4). The same day, Mr. Baxter, acting
pro se, filed an answer, Answer and $50,000,000 Countersuit (Docket # 5), and on
November 18, 2010, an amended answer and counterclaim, Verified Answer to Am.
Compl. and Am. $50,000,000 Countersuit (Am. Ans.) (Docket # 8). The Government
moved to dismiss Mr. Baxter’s counterclaim on a variety of grounds and the Court
granted the Government’s motion. Order on Mot. to Dismiss Am. Countercl. (Docket
# 26).
On May 18, 2011, the Government moved for summary judgment, seeking
judgment for violations of five separate FCC rules and regulations in the full
amount of the FCC’s forfeiture order: $21,000. Mot. for Summ. J. (Docket # 23)
(Gov’t’s Mot.). On June 1, 2010, Mr. Baxter filed his response. Verified Opp’n to
Gov’t Mot. for Summ. J. (Docket # 28) (Def.’s Opp’n).

On June 23, 2010, the

Government replied. Reply Mem. in Support of Mot. for Summ J. (Docket # 32)
(Gov’t’s Reply).

In its reply, the Government amended its motion for summary

judgment, seeking judgment in the amount of $14,000 for three alleged violations:
1) failure to respond to an FCC inquiry, a violation of 18 U.S.C. § 308; 2) willful or

2

malicious interference with other radio transmissions, a violation of 47 C.F.R. §
97.101(d); and 3) communications in which an amateur licensee has a pecuniary
interest, a violation of 47 C.F.R. § 97.113(a)(3). Id. at 1, 7.
On June 28, 2011, Mr. Baxter filed a sur-response, Def.’s Resp. to Pl.’s Reply
Mem. in Support of Mot. for Summ. J. (Docket # 34) (Def.’s Sur-Resp.), and an
amended response to the Government’s motion for summary judgment, Def.’s Am.
Resp. to Mot. for Summ J. (Docket # 36) (Def.’s Am. Opp’n).
With its summary judgment motion, the Government filed a statement of
material facts.
(PSMF).

Gov’t’s Statement of Undisputed Material Facts (Docket # 24)

Mr. Baxter did not respond to the Government’s statement of facts;

instead, on June 1, 2011, he filed a separate statement of facts. Def.’s Material
Facts as to Where a Genuine Issue Needs to be Tried Before a Requested Jury by
Trial De Novo (Docket # 29) (DSMF). On June 23, 2011, the Government filed a
reply to Mr. Baxter’s statement of facts. Reply Statement of Material Facts (Docket
# 33) (PRDSMF).

On June 28, 2011, Mr. Baxter filed a sur-response to the

Government’s reply statement of material facts, Def.’s Resp. to Pl.’s Reply Statement
of Material Facts (Docket # 35) (DRPRDSMF), and a response to the Government’s
original statement of material facts, Def.’s Am. Resp. to Pl.’s Statement of Material
Facts (Docket # 37) (DARPSMF).
B.

Glenn A. Baxter’s Failure to Comply with Local Rule 56

Mr. Baxter has delayed the Court’s work and made its job substantially more
difficult by failing to comply with Local Rule 56. See D. ME. LOC. R. 56; DSMF;

3

DARPSMF; DRPRDSMF. On May 18, 2011, the Government duly filed with its
motion a Statement of Material Facts, consisting of thirty-three asserted
statements, supported by appropriate record citations in conformance with Local
Rule 56(b). PSMF.
Upon the filing of the movant’s statement of material facts, Local Rule 56(c)
requires a party opposing a motion for summary judgment to submit an opposing
statement that “shall admit, deny or qualify the facts by reference to each
numbered paragraph of the moving party’s statement of material facts, and unless a
fact is admitted, shall support each denial or qualification by a record citation as
required by this rule.” D. ME. LOC. R. 56(c). Instead on June 1, 2011, Mr. Baxter
filed a document entitled “Material Facts as to Where a Genuine Issue Needs to be
Tried Before a Requested Jury by Trial De Novo.” DSMF. In this document, Mr.
Baxter cites numerical references; however, the Court could not coordinate his
numbered references with any of the documents in the case. He also makes factual
assertions, which under Local Rule 56(c) should have been placed in his opposing
statement of material facts.

D. ME. LOC. R. 56(c).

On June 23, 2011, the

Government replied to Mr. Baxter’s filing, noting that he had failed to comply with
the Local Rules and asking that in accordance with Local Rule 56(f), the
Government’s statements be deemed admitted. PRDSMF at 1-2.
On June 28, 2011, Mr. Baxter filed two documents: 1) “Defendant’s Amended
Response to Plaintiff’s Statement of Material Facts” (DARPSMF), with an
attachment entitled “Amended Material Facts as to Where a Genuine Issue Needs

4

to be Tried Before a Requested Jury by Trial De Novo” (DASMF); and 2)
“Defendant’s

Response

to

Plaintiff’s

Reply

Statement

of

Material

Facts”

(DRPRDSMF). The Amended Response stated:
Now comes Glenn A. Baxter, P.E., K1MAN, Defendant, and makes this
sworn affidavit of his own personal knowledge regarding the Plaintiff’s
above referenced pleading and claims that there are genuine issues of
material facts to be tried by the requested trial de novo. To comply
with local Rule 56 with minimum confusion for the Court, Defendant
made hand notations on Plaintiff’s original pleadings with reference
numbers designated by #1, #2, #3, etc., to refer to Defendant’s Master
Response Key as follows:
#1 Admit: Defendant admits Plaintiff’s pleading but claims that this
(these) is (are) a genuine issue (issues) of material fact(s) that need(s)
to be tried by a jury.
#2 Deny: Defendant denies Plaintiff’s pleading and claims that this
(these) is (are) a genuine issue (issues) of material facts(s) that need(s)
to be tried by a jury.
...
#9 Qualify: Defendant neither admits nor denies Plaintiff’s pleading
but claims that there are genuine issues of material fact that need to
be tried by a jury.
DARPSMF at 1. Mr. Baxter also attached a copy of the Government’s Statement of
Material Facts with handwritten notations.

DARPSMF Attach. 1 (PSMF with

notations). For example, the notation for paragraphs 1 (in part), 4, 5, and 12 is “#
1,” in which Mr. Baxter admits the statements. The notation for paragraphs 1 (in
part), 6, 13 (in part), and 14-30 is “# 2,” in which he denies the statements. The
notation for paragraphs 1 (in part), 2-3, 7-11, 31-33 is “# 9,” in which he posits a
qualified response. Although unorthodox, the Court accepts Mr. Baxter’s Master

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Response Key approach and uses it to determine whether he has admitted, denied,
or interposed a qualified response to each statement.
The Local Rule requires more. In general, if an opposing party denies or
qualifies his response, the Rule requires that he explain why by reference to the
record:
The opposing statement shall admit, deny or qualify the facts by
reference to each numbered paragraph of the moving party’s statement
of material facts and unless a fact is admitted, shall support each
denial or qualification by a record citation as required by this rule.
D. ME. LOC. R. 56(c) (emphasis supplied). Presumably in an attempt to comply with
this part of the Rule, Mr. Baxter also set forth a total of thirty-six paragraphs with
assertions, beginning with number 4 and continuing through number 36 (without
number 9). DARPSMF at 2-6. For example, number 4 reads:
Mere reference to a licensee’s web site in a non commercial and non
pecuniary context does not violate FCC Rule 97.113(a)(3) which bans
transmissions over amateur radio with a pecuniary interest for the
licensee. This is a genuine issue of material fact as to whether the
licensee had any pecuniary intent or received as much as one dime if
(sic) income on a case by case basis with regard to the web site
reference and should be decided only by a jury.
DARPSMF at 2.

It is extremely difficult to place each of these paragraphs in

context, especially because each contains an assertion but none cites the record in
support.
Regarding his Amended Material Facts as to Where a Genuine Issue Needs
to be Tried Before a Requested Jury by Trial De Novo, Mr. Baxter begins with a
series of statements in an effort to refute the Government’s case. DASMF at 1-3.

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He then presents sixteen numbered items, containing various factual and legal
assertions. Id. at 3-12.
Mr. Baxter’s idiosyncratic responses to the court-sanctioned summary
judgment process have placed the Court in an awkward position. Court rules must
be followed by all litigants in order to maintain a level playing field. Thus, “pro se
litigants are not excused from complying with the Federal Rules of Civil Procedure
or the Local Rules of this district.” Philbrick v. Me. Dep’t of Health and Human
Servs., 616 F. Supp. 2d 123, 126 n.3 (D. Me. 2009); FDIC v. Anchor Props., 13 F.3d
27, 31 (1st Cir. 1994). Furthermore, even though Mr. Baxter is pro se, it is obvious
that he is aware of the Local Rules because he cited them. See Marcello v. Maine,
489 F. Supp. 2d 70, 76-79 (D. Me. 2007). He just has not complied with them.
Moreover, the Court is required to maintain a strict neutrality between
opposing parties and even though a more forgiving reading may be appropriate for a
pro se party in the summary judgment context, it is also true that “[j]udges and
magistrate judges who review these filings must be able to rely on procedural rules
so as to avoid becoming the lawyer for the unrepresented [party] or devoting an
excessive portion of their time to such cases.” Clarke v. Blais, 473 F. Supp. 2d 124,
129 (D. Me. 2007). Unfortunately, Mr. Baxter’s handling of the case has forced the
Court to devote excessive time to this motion, and in attempting to be fair to the pro
se party who has not fully complied with the Rules, the Court cannot be unfair to
the represented party who has.

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Here, the Court’s job is even more difficult because Mr. Baxter is clearly
bristling with irritation with the Government. In his filings, he has accused United
States Attorney Thomas Delahanty of being “devious” and “unethical” and has
demanded his “impeachment.” Am. Ans. at 2-3. In his responses to the pending
motion, among other things, he has outright accused some people of lying, he has
submitted an affidavit from a Mr. George Arsics that accuses the FCC of being a
“cesspool of corruption where only money and egos mattered,” and he has charged
FCC Special Counsel W. Riley Hollingsworth with violating federal criminal law.
Def.’s Am. Opp’n at 4-7. The Court has sought to separate out Mr. Baxter’s factual
and policy disputes with the Government, a distinction clearer in theory than in
fact.
In evaluating this motion, the Court has done its best to apply the law
evenly, to isolate facts in dispute, to determine whether the disputes are genuine,
and to assess whether the genuinely disputed matters are material. At the same
time, the Court cannot allow Mr. Baxter to avoid summary judgment by attempting
to manufacture a factual dispute.

Here, the Government posited some of the

contents of the exchanges between the Agency and Mr. Baxter, and Mr. Baxter
either denied or refused to admit or deny many of those paragraphs:
1)

First FCC Warning Notice dated September 15, 2004, PSMF
¶¶ 2, 3; Mr. Baxter neither admitted nor denied, DSMF at 3;

2)

First Baxter Response dated October 14, 2004, PSMF ¶¶ 4-6;
Mr. Baxter admitted, DSMF at 4;

3)

Second FCC Warning Notice dated October 29, 2004, PSMF
¶¶ 7-10; Mr. Baxter neither admitted nor denied, DSMF at 56;
8

4)

Second Baxter Response dated November 2, 2004, PSMF ¶¶
11-12; Mr. Baxter neither admitted nor denied the FCC’s
assertion that he responded in writing to the Second Warning
Notice, but admitted some of the contents of the letter, DSMF
at 6;

5)

FCC Monitoring from November 25, 2004 through March 31,
2005, PSMF ¶¶ 13-18; Mr. Baxter denied each of the
Government’s statements regarding its monitoring of his
transmissions, DARPSMF at 1-4, 6;

6)

Notice of Apparent Liability dated June 7, 2005, PSMF ¶¶ 1927; Mr. Baxter denied each of the FCC’s assertions regarding
its Notice of Apparent Liability, DARPSMF at 4;

7)

Forfeiture Order dated March 29, 2006, PSMF ¶¶ 28-30; Mr.
Baxter denied each of the FCC’s assertions concerning its
Forfeiture Notice, DARPSMF at 4; and

8)

Demand for Payment dated June 20, 2006, PSMF ¶¶ 31-33;
Mr. Baxter neither admitted nor denied the FCC’s assertions
that it demanded that Mr. Baxter pay the forfeiture amount,
DARPSMF at 1.

The Court will not accept Mr. Baxter’s flat-out denials or failures to admit
documents that are properly part of the summary judgment record.

First, the

Government complied with the Local Rule in placing these documents before the
Court by affidavit. PSMF Attach. 1 (Roth Decl.) at 1-2.

Second, Mr. Baxter’s

responses are occasionally contradictory. Although he refused to admit or deny the
existence and authenticity of the FCC’s first Warning Notice, he admitted that he
responded to it, and although he refused to admit or deny the existence and
authenticity of the FCC’s second Warning Notice, he admitted a portion of his
response. Third, if Mr. Baxter has a good faith basis for refusing to admit the
existence and authenticity of records, he failed to comply with Local Rule 56(c) and
explain what that basis is. Typically, the sanction for failure to comply with the
9

Rules is that the statements are deemed admitted and any objections are waived.
D. ME. LOC. R. 56(f). Finally, many of Mr. Baxter’s own arguments assume the
existence and authenticity of the documents he refused to admit. In sum, the Court
has every reason to conclude that the documents to which the Government made
reference in its statement of material facts are what the Government claims they
are. FED. R. EVID. 901(a), (b)(7). The Court will not allow Mr. Baxter to obtain a
trial by denying the existence of documents he knows truly exist and that he should
have admitted.
Carefully reviewing Mr. Baxter’s responses, it may be that he is skittish
about admitting the authenticity and existence of these documents because he is
afraid that by doing so, he will be held to have admitted the truth of their contents.
This is not an uncommon mistake. See Knowlton v. Shaw, 791 F. Supp. 2d 220, 266
(D. Me. 2011) (“The difference between the accuracy and truth of a statement
sometimes eludes witnesses.”). In considering the documents that the Government
has properly placed before the Court, the Court has not accepted the truth of their
contents.
The verbatim accuracy of the transcripts of the transmissions is another
matter. Here, the Court shares Mr. Baxter’s concerns about the absolute accuracy
of the transcripts that the Government has produced. For example, regarding its
last forfeiture demand (for allegedly referring listeners to a website in which he had
a pecuniary interest), the Government’s statements of material fact referred to
transcripts of his November 25, 2004 and March 30, 2005 transmissions. PSMF ¶¶

10

13, 17. To substantiate the accuracy of the transcripts of these transmissions, the
Government cited the sworn Declaration of Sharon L. Webber, Regional Counsel of
the Northeast Region of the FCC EB.1

PSMF Ex. 2 (Webber Decl.).

In her

declaration, Attorney Webber states that she listened to the tapes of the November
25, 2004 and March 30, 2005 transmissions (among others), and that “[t]o the best
of [her] knowledge and belief, the transcripts accurately set forth the contents of the
tape recordings.” Id. ¶ 10.
In view of Mr. Baxter’s denial that the transcripts were accurate, the Court
carefully reviewed the transcripts attached to Attorney Webber’s affidavit. Webber
Decl. Exs. 2a, 2b, 2c, 2g. The transcripts of the November 25, 2004 transmissions
are confusing at best. Attorney Webber mentions three tapes of the November 25,
2004 transmission and says that Exhibit 2a (Bates pages BAXTER-00288 to 395)
began at 9:21 a.m. EST, Exhibit 2b (Bates pages BAXTER-00396 to 504) began at
2:32 p.m. EST, and Exhibit 2c (Bates pages BAXTER-00556 to 651) began at 10:58
a.m. EST. Webber Decl. ¶ 4. The front page of the transcript in Exhibit 2a says it
contains the contents of Tapes 1a and 1b; the front page of the transcript in Exhibit
2b says it contains the contents of Tapes 3a and 3b, and the front page of the
transcript in Exhibit 2c says it contains the contents of Tapes 2a and 2b. Webber
Decl. Exs. 2a, 2b, 2c. Yet, Tapes 1a and 1b are virtually identical to Tapes 2a and
2b.

The Government also referred to its requests for admissions, but they would not be sufficient to
support the paragraphs because Mr. Baxter filed a response denying the requests. PSMF Attach. 34.
1

11

Moreover, it appears that the same recorded dialogue is reported slightly
differently in the transcripts. Interestingly, at the beginning of both transcripts, a
caller uses memorable phrases in talking to Mr. Baxter. The transcript of Exhibit
2a reads:
I am astonished at the amount of hubris you display when you say
you’re going to remain in the amateur radio mix for the foreseeable
future. That’s very discouraging news to some of us. I believe that you
are inebriated with the exuberance of your own verbosity, and the
oblique, the (inaudible) versions and the deprecatory remarks that you
put on the air about various people who are exceeded only by your
buddy Richard Whitten (phonetic) when he was an amateur.
Webber Decl. Ex. 2a at 3:17-4:7. The transcript of Exhibit 2b reads:
- distressing news to some of us. I believe that you are inebriated with
the exuberance of your own verbosity, and the ubiquity, and
(inaudible) versions and the deprecatory remarks that you put on the
air about various people, are exceeded only by your buddy Richard
Whitten when he was an amateur.
Webber Decl. Ex. 2b at2:3-10.
The Court is confused. First, if Tape 1a began at 9:21 a.m. and Tape 2a
began at 10:58 a.m., why do both tapes contain the same dialogue? It is possible
that the transmissions amounted to a rebroadcast of the same information, but the
Government nowhere says that this was the case. Second, why does attachment 13
begin in the middle of a sentence?

Again, Mr. Baxter may have started the

rebroadcast (if he made one) in the middle, but the Government has not said so.
Most important, why are there differences in the quoted language in these
transcripts? Both versions cannot be accurate.

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Because some of the transcripts present accuracy questions, the Court has
not accepted them at face value. Instead, the Court has reviewed each legal issue to
determine whether verbatim accuracy is essential to the disposition of the motion.
C.

Undisputed Material Facts2

Mr. Baxter holds an amateur radio license from the FCC to operate amateur
radio station K1MAN. PSMF ¶ 1; DARPSMF at 1 (# 1). Mr. Baxter publishes a
schedule of the one-way information bulletins he transmits from his amateur
station K1MAN on the American Amateur Radio Association (AARA) website
located at www.k1man.com, which he maintains, and frequently refers listeners to
his website during his radio transmissions. PSMF ¶¶ 13, 17; DSMF at 6-8, 10-11;
Def.’s Opp’n at 10.
On November 3, 1989, in response to a complaint of station interference due
to K1MAN’s transmission of recorded one-way broadcasts, the FCC sent a letter to
Mr. Kenneth Black, the third party complainant. DSMF Attach. 2 (1989 FCC to
Black Letter); Gov’t’s Reply Ex. 1 Cross Decl. ¶ 4 (Cross Decl.). The letter informed
Mr. Black that the FCC was familiar with the types of broadcasts Mr. Black
described and found them similar to the information bulletins broadcast by W1AW,
an amateur station licensed to the American Radio Relay League’s Headquarters
Operators’ Club. 1989 FCC to Black Letter. The FCC letter also informed Mr.

In accordance with “conventional summary judgment praxis,” the Court recounts the facts in the
light most favorable to Mr. Baxter’s theory of the case, consistent with record support. Gillen v.
Fallon Ambulance Serv., Inc., 283 F.3d 11, 17 (1st Cir. 2002). Because of the number of filings and
the complications caused by Mr. Baxter’s failure to comply with the local rules, the Court lists here
only those facts which pertain to the three counts on which the Government now seeks summary
judgment.
2

13

Black that amateur radio operators are permitted to transmit amateur service
information bulletins pursuant to 47 C.F.R. § 97.111(b)(6). Id.
On January 29, 2002, the FCC sent a letter to Mr. Baxter stating that they
had received numerous complaints against K1MAN of deliberate interference.
Cross Decl., Ex. A (January 2002 FCC Letter) at 3.
appeared

from

previous

correspondence

that

The letter stated that it

Mr.

Baxter

had

several

misunderstandings about the rules and regulations governing the use of amateur
radio frequencies, and explained that any of his transmissions that start on top of
ongoing communications constitute deliberate interference in direct violation of the
Commission’s rules, despite the existence of any “published” bulletin schedule on
the K1MAN website. Id. at 2. The letter also explained that the reference in the
regulations to a published schedule 30 days in advance of information bulletin
transmissions pertains to compensation for control operators of club stations and
that that section does not apply to Mr. Baxter and K1MAN, which is not a club
station. Id. at 2-3.
On April 14, 2004, the FCC sent Mr. Baxter another letter explaining both
the ways in which Mr. Baxter’s amateur station had come into compliance after the
January 2002 letter and two remaining ways in which K1MAN was still violating
FCC rules, namely deliberate interference resulting from beginning transmissions
on top of ongoing communications and the use of his amateur radio station to
transmit communications in which he had a pecuniary interest. Cross Decl. Ex. B
(April 2004 FCC Letter) at 2; DSMF at 5. The letter warned Mr. Baxter that failure

14

to come into compliance would lead to enforcement actions against his license
and/or the designation of his license renewal application for hearing. April 2004
FCC Letter at 2-3.
On September 15, 2004, the FCC’s Enforcement Bureau (EB) issued a
warning notice to Mr. Baxter requesting information regarding his method of
station control and what actions, if any, he was taking in response to several
complaints of broadcasting interference.

PSMF ¶ 2; Cross Decl. Ex. C (First

Warning Notice); DSMF at 3. Mr. Baxter responded by letter dated October 14,
2004, which read:
Thank you for your letter and your interest in K1MAN. The legal
opinions in your letter referenced above are not correct, and the
various allegations are false. 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).
Regarding your request, I hereby certify that:
1.

No corrective actions are necessary at K1MAN.

2.
No changes are needed with regard to station control which is in
full compliance with all FCC rules.
PSMF Ex. 1e (First Baxter Response); DSMF at 4. Mr. Baxter himself characterizes
his response as a “blanket statement” that his station control was in compliance
with FCC rules, and admits that it did not contain any more detailed information
about the methods of station control he used at K1MAN nor the actions he planned
in response to the complaints of station interference that the FCC had received.
DSMF at 4; PSMF ¶¶ 4-6.

15

On October 29, 2004, the FCC issued a second warning notice to Mr. Baxter,
notifying him that his first response was insufficient and offering him an additional
20 days to respond to their request for information. PSMF Ex. 1f (Second Warning
Notice); DSMF at 5-6. Mr. Baxter responded to this second warning notice with a
letter dated November 2, 2004, which stated that his first response letter “provided
all the information required by FCC rules and by federal law.” PSMF ¶ 12; PSMF
Ex. 1(g) (Second Baxter Response); DSMF at 6.
On June 7, 2005, the FCC issued a Notice of Apparent Liability to Mr.
Baxter, asserting that he was liable for a monetary forfeiture in the amount of
$21,000 for the willful and/or repeated violation of several FCC rules and
regulations,

including

1)

willful

and

repeated

interference

with

ongoing

communications of other stations, in violation of 47 C.F.R. § 97.101(d); 2) willful and
repeated transmission of communications in which Mr. Baxter had a pecuniary
interest, in violation of 47 C.F.R. § 97.113(a)(3); 3) willful and repeated failure to file
requested information pursuant to an EB request, in violation of 47 U.S.C. §§
308(b); 503(b)(1)(B); 4) willful engagement in broadcasting, in violation of 47 C.F.R.
§ 97.113(b); and 5) willful failure to exercise control of his amateur station, in
violation of 47 C.F.R. § 105(a).3

PSMF ¶¶ 19-26; Am. Compl. Ex. A (Notice of

Apparent Liability).

The Government failed to place either the FCC’s Notice of Apparent Liability or the Forfeiture
Order before the Court as an attachment to its motion for summary judgment. These documents
are, instead, attached to the amended complaint. Am. Compl. Exs. A, B (Docket # 4). Better practice
is not to rely on an attachment to a complaint, but rather to place the documents before the Court in
accordance with the Local Rules. However, both documents appear to be what they purport to be. In
reviewing Mr. Baxter’s arguments, although convoluted, nowhere does he challenge the existence or
authenticity of the Notice of Apparent Liability or Forfeiture Order and the Court considers them to
3

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The FCC issued a formal Forfeiture Order against Mr. Baxter on March 29,
2006 in the amount of $21,000. Am. Compl. Ex. B (Forfeiture Order); PSMF ¶ 1;
DARPSMF at 1 (# 1). The Order outlines the FCC’s basis for imposing a monetary
forfeiture for the following violations: willful and repeated violation of 47 C.F.R. §
97.101(d), willful and repeated violation of 47 C.F.R. § 97.113(a)(3), willful violation
of 47 C.F.R. § 97.105(a), willful violation of 47 C.F.R. § 97.113(b), and willful and
repeated failure to file required information pursuant to an EB directive. Forfeiture
Order at 1.
In support of its motion for summary judgment on the monetary forfeiture,
the Government presented FCC transcripts of recordings made on November 27,
2004, December 8, 2004, and March 31, 2005 that it alleges show K1MAN
beginning to transmit on top of existing communications by other users. PSMF Ex.
2d (Nov. 27, 2004); PSMF Ex. 2f (Dec. 8, 2004); PSMF Ex. 2g (Mar. 31, 2005). The
Government also provided the declarations of several FCC personnel who monitored
and observed interference between K1MAN and other amateur operators. Webber
Decl.; PSMF Ex. 3 (King Decl.); PSMF Ex. 4 (Larrabee Decl.); PRDSMF Ex. 3 (Am.
Larrabee Decl.); PRDSMF Ex. 2 (Am. Webber Decl.).
Mr. Baxter admitted transmitting on the dates and times alleged by the
Government but objected to the Government’s “characterization” that he was
causing interference to other operators. DARPSMF Attach. 2 (DASMF) at 10-11.
Mr. Baxter also denied that the transcripts are true, correct, accurate, and

be accurate representations of the notices sent to Mr. Baxter by the FCC leading to the current
action.

17

authentic representations of the FCC’s monitoring recordings because he does not
keep a log of radio transmissions from K1MAN. DSMF at 6.
The Government also has provided transcripts of recordings made on
November 25, 2004 and March 30, 2005 in which Mr. Baxter makes numerous
references to his website, www.K1MAN.com. PSMF ¶¶ 13, 17; PSMF Ex. 2c (Nov.
25, 2004); PSMF Ex. 2g (March 30, 2005). In his response to the amended Webber
Declaration, Mr. Baxter neither admitted nor denied the existence of these
transcripts, but he denied Attorney Webber’s statement that she compared the
recordings with the transcripts and believed them to be accurate.

DARPSMF

Attach. 9 (Def.’s Resp. to Am. Webber Decl.) at 1 (## 2, 9); DARPSMF Attach. 10
(Am. Webber Decl. with notations) at 2-3. In his response to the amended Larrabee
Declaration, Mr. Baxter denied that he ever referred to subscriptions to his
newsletter. DARPSMF Attach. 13 (Def.’s Resp. to Am. Larrabee Decl.) at 4 (# 24);
DARPSMF Attach. 14 (Am. Larrabee Decl. with notations) at 2. In his opposition to
the Government’s motion for summary judgment, Mr. Baxter stipulated that he
frequently references his website during amateur radio transmissions but insisted it
is for non-pecuniary purposes. Def.’s Opp’n. at 10; DSMF at 7-8, 10-11; DASMF at
7-9, 11.
II.

STANDARD
Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). A fact is material where “its existence or

18

nonexistence has the potential to change the outcome of the suit.” Tropigas de
Puerto Rico, Inc. v. Certain Underwriters at Lloyd’s of London., 637 F.3d 53, 56 (1st
Cir. 2011) (citing McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)).
An issue is genuine where “a reasonable jury could resolve the point in favor of the
nonmoving party.” Tropigas, 637 F.3d at 56 (quoting McCarthy, 56 F.3d at 315). In
deciding a motion for summary judgment, the Court “views the facts and draws all
reasonable inferences in favor of the nonmoving party,” Ophthalmic Surgeons, Ltd.
v. Paychex, Inc., 632 F.3d 31, 35 (1st Cir. 2011), while “ignoring conclusory
allegations, improbable inferences, and unsupported speculation,” Chiang v. Verizon
New England Inc., 595 F.3d 26, 30 (1st Cir. 2010) (quoting Sutliffe v. Epping Sch.
Dist., 584 F.3d 314, 325 (1st Cir. 2009)).
The initial burden is on the moving party to show that there exists an
absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986). If the moving party meets this initial burden, then the non-moving
party must set forth specific facts showing that there is a genuine issue for trial in
order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986).
In other words, for a party seeking to defeat the motion, “there is a burden of
production: the party opposing the motion ‘must set forth specific facts showing that
there is a genuine issue for trial.’” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896
F.2d 5, 8 (1st Cir. 1990) (quoting FED. R. CIV. P. 56(e)). Furthermore, “the evidence
illustrating the factual controversy cannot be conjectural or problematic; it must

19

have substance in the sense that it limns differing versions of the truth which a
factfinder must resolve.” Id. (citing Mack v. Great Atlantic and Pacific Tea Co., Inc.,
871 F.2d 179, 181 (1st Cir. 1989); Hebert v. Mohawk Rubber Co., 872 F.2d 1104,
1106 (1st Cir.1989)). “If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.”

Anderson, 477 U.S. at 249-50

(internal citation omitted). “Even in cases where elusive concepts such as motive or
intent are at issue, summary judgment may be appropriate if the nonmoving party
rests merely upon conclusory allegations, improbable inferences, and unsupported
speculation.” Medina-Munoz, 896 F.2d at 8; see also Vives v. Fajardo, 472 F.3d 19,
21 (1st Cir. 2007).
III.

DISCUSSION
A.

District Court Review

The FCC is the agency congressionally charged with maintaining control over
all channels of radio transmission with “the authority to promulgate regulations
‘governing the interference potential of devices which in their operation are capable
of emitting radio frequency energy . . . in sufficient degree to cause harmful
interference to radio communications.’” Rocky Mountain Radar, Inc. v. FCC, 158
F.3d 1118, 1123 (10th Cir. 1998) (quoting 47 U.S.C. § 302a(a)).

The FCC is

statutorily authorized to assess a forfeiture against “[a]ny person who is determined
by the Commission . . . to have . . . willfully or repeatedly failed to comply
substantially with the terms and conditions of any license, permit, certificate, or
other instrument or authorization issued by the Commission” or who “willfully or

20

repeatedly failed to comply with any of the provisions of this chapter or any rule,
regulation, or order issued by the Commission under this chapter . . . .” 47 U.S.C. §
503(b)(1). In determining the forfeiture amount, the Act sets forth several factors
that must be considered, including the “nature, circumstances, extent, and gravity
of the violation” and the violator’s “degree of culpability, any history of prior
offenses, ability to pay, and such other matters as justice may require.” 47 U.S.C. §
503(b)(2)(E).
Pursuant to the Act, the Government may bring suit in the district court of
the district where “the person . . . has [his] principal operating office or in any
district through which the line or system of the carrier runs” to recover FCCordered forfeitures. 47 U.S.C. § 504(a). Thus, “[t]he district courts . . . have a ‘sliver
of the jurisdictional pie’ for enforcement of FCC orders imposing a monetary
forfeiture penalty.” Rocky Mountain Radar, 158 F.3d at 1121 (citation omitted).
Here, as Mr. Baxter made transmissions in the District of Maine, this Court has
jurisdiction over the Government’s lawsuit. United States v. Richard, No. 97-3172
Section “K”, 1998 U.S. Dist. LEXIS 18775, at *13 (E.D. La. Nov. 30, 1998).
The Act authorizes a trial de novo before the district court, and the district
courts have exclusive original jurisdiction to hear these enforcement suits. See 47
U.S.C. § 504(a) (“any suit for recovery of a forfeiture imposed pursuant to this
chapter may be a trial de novo”); see also Pleasant Broadcasting Co. v. FCC, 564
F.2d 496, 498 (D.C. Cir. 1977); Dougan v. FCC, 21 F.3d 1488, 1490-91 (9th Cir.

21

1994). The Government must prove the alleged violations by a preponderance of
the evidence. See, e.g., Richard, 1998 LEXIS 18775, at *18.
Mr. Baxter correctly points out that the Act authorizes a “trial de novo.”
Def.’s Opp’n at 1. However, as with other civil matters, a party’s right to a trial
depends upon there being a triable issue and if the proponent of summary
judgment—in this case the Government—demonstrates that it is entitled to
summary judgment, Mr. Baxter would not be entitled to a trial. See, e.g., Radar
Solutions, Ltd. v. FCC, 368 Fed. Appx. 480 (5th Cir. 2010) (affirming district court’s
grant of summary judgment); Action for Children’s Television v. FCC, 59 F.3d 1249
(D.C. Cir. 1995) (affirming district court’s grant of summary judgment); United
States v. Northeast Comm’ns of Wis., Inc., 608 F. Supp. 2d 1049 (E.D. Wis. 2008)
(granting Government’s motion for summary judgment and denying defendant’s
motion for summary judgment); United States v. Peninsula Comm’ns, Inc., 335 F.
Supp. 2d 1013 (D. Alaska 2004) (granting in part and denying in part Government’s
motion and denying defendant’s motion for summary judgment); see also Miller v.
FDIC, 956 F.2d 58, 60 (4th Cir. 1992) (“[d]espite the trial de novo provision” of the
Food Stamp Act, “summary judgment is a proper means of disposing of requests for
review” when no genuine issues of material fact exist); Affum v. United States, 566
F.3d 1150, 1160 (D.C. Cir. 2009) (“the statutory requirement of a trial de novo” in
the Food and Nutrition Act “is compatible with a summary judgment disposition if
there are no material facts in dispute”). As the District of Alaska stated, “[t]he trial
de novo standard means that the court’s review of an FCC forfeiture order is not

22

limited to the administrative record. It does not mean that summary judgment
cannot properly be granted if there are no genuine issues of material facts.”
Peninsula Comm’ns, 335 F. Supp. 2d at 1017.
B.

The Alleged Violations

In its reply, the Government amended its motion to seek only partial
summary judgment in the amount of $14,000 for three specific violations of FCC
regulations: 1) failure to respond to an FCC inquiry in violation of 47 U.S.C. § 308;
2) willful or malicious interference with other radio transmissions in violation of 47
C.F.R. § 97.101(d); and 3) communications in which an amateur licensee has a
pecuniary interest in violation of 47 C.F.R. § 97.113(a)(3). Gov’t’s Reply at 1, 7.
1.

Violation of 47 U.S.C. § 308 – Failure to Respond to an
FCC Inquiry
a.

The Legal Background

The holder of an FCC station license is subject to numerous ongoing
requirements under the Act, including the obligation to provide further written
statements to the FCC on request. See 47 U.S.C. § 308(b) (“The Commission, at any
time after the filing of such original application and during the term of any such
license, may require from an applicant or licensee further written statements of fact
to enable it to determine whether such original application should be granted or
denied or such license revoked”). Under 47 U.S.C. § 503(b)(1)(B), the Act authorizes
the FCC to impose monetary forfeiture penalties for willful or repeated failure to
comply with the provisions of the Act or of any FCC-issued rule, regulation, or
order.

The base forfeiture amount for failure to respond to an FCC inquiry is
23

$3,000. See 47 C.F.R. § 1.80 (Section I. Base Amounts for Section 503 Forfeitures);
In the Matter of the Commission’s Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 F.C.C. Rcd.
17087, 17113 (1997) (Forfeiture Policy Statement). Under the Act, the FCC must
assess several factors in determining the amount of the forfeiture penalties,
including the nature, circumstances, extent, and gravity of the violation, the degree
of culpability, any history of prior offenses, ability to pay, and such other matters as
justice may require. 47 U.S.C. § 503(b)(2)(E); see also 47 C.F.R. § 1.80(b)(5).
As defined by the Act, “willful” means “the conscious and deliberate
commission or omission of [an] act, irrespective of any intent to violate any
provision of this chapter or any rule or regulation of the Commission . . . .” 47
U.S.C. § 312(f)(1); see also In re Application of Star Wireless, LLC, 19 F.C.C. Rcd.
18626, 18632 (2004) (noting that section 312(f) definition of willful also applies to
forfeitures). “Repeated,” under the Act, is defined as “the commission or omission of
[an] act more than once, or, if such commission or omission is continuous, for more
than one day.” 47 U.S.C. § 312(f)(2).
b.

The Record Evidence and Glenn Baxter’s Defenses

Although Mr. Baxter contends that the FCC’s request for information “was
lawfully answered . . . with the blanket statement that all station control was in
compliance with all FCC rules” in his first response letter dated October 14, 2004,
DSMF at 6, the Court readily concludes that he is wrong. The FCC is entitled to
more than a licensee’s conclusory assurance that he is in full compliance with all

24

applicable laws and regulations and a “see you in court” warning.

Despite the

FCC’s explicit and repeated requests for information, Mr. Baxter’s simply stiffarmed the FCC. The EB’s September 15, 2004 warning, Mr. Baxter’s October 14,
2004 response, the EB’s October 29, 2004 second warning, Mr. Baxter’s November
2, 2004 response, and the EB’s June 7, 2005 Notice of Apparent Liability clearly
reflect the FCC’s repeated demands for information and Mr. Baxter’s repeated
failure to properly respond.
Mr. Baxter’s attempted justifications for stonewalling the FCC fall short of
creating a genuine issue of material fact. In his first response to the Government’s
statement of facts, Mr. Baxter claimed that it was “impossible” to answer the FCC’s
inquiry more specifically because of the “numerous ways of controlling an amateur
station.” DSMF at 4. However, Mr. Baxter did not tell the FCC that he could not
adequately respond for this reason. Instead, he merely blankly asserted that he
was in compliance and he “look[ed] forward to seeing [the FCC] in court(s).” First
Baxter Response.

Moreover, if there were, as he claims, numerous methods of

station control, he was required to clarify for the FCC which methods he was using
to operate K1MAN. The record makes clear that he made no attempt to provide the
FCC with any detail; he simply asserted that K1MAN was “in full compliance with
all FCC rules, state laws, and federal laws” and dared the FCC to take legal action.
First Baxter Response.
Mr. Baxter also claims that he was unable to provide detail to the FCC
because he is not required to maintain a log and, accordingly, “could not possibly be

25

expected to remember such detail with any accuracy which would be legally
mandatory for any requested information supplied by K1MAN to the FCC.” DSMF
at 6; Def.’s Opp’n at 17.

Again, however, in his responses, Mr. Baxter did not

attempt to explain this excuse to the FCC. Furthermore, Mr. Baxter’s defense is a
non-sequitur. With or without a log, Mr. Baxter is the amateur license holder for
K1MAN and must have personal knowledge of his own methods of station control.
Regardless of whether the FCC rules mandate a log, Mr. Baxter is still required to
respond to FCC requests for information, and yet Mr. Baxter cites no authority for
the proposition that because he is not required to maintain a log he is also not
required to respond to FCC information requests.
Finally, Mr. Baxter erroneously contends that the burden is entirely on the
FCC to “attempt to determine who the control operator was” when there are
suspected station control violations. DSMF at 6. His argument, however, ignores
the obligations of license holders under the Act. All license holders must, pursuant
to 47 U.S.C. § 308(b), provide “further written statements of fact to enable [the
FCC] to determine whether such license [should be] revoked.” 47 U.S.C. § 308(b).
Willful or repeated failure to comply with these obligations subjects a license holder
to forfeiture penalties. 47 U.S.C. § 503(b)(1)(B).
Here, the FCC asked Mr. Baxter for “written statements of fact” in response
to complaints about the operations of K1MAN. When he failed to respond in any
meaningful fashion to its request and stonewalled the FCC, the FCC repeated its
request and granted him additional time within which to respond. But Mr. Baxter

26

again stonewalled the FCC.

The Court concludes that the undisputed facts

surrounding the FCC’s requests for information and Mr. Baxter’s willful and
repeated failure to provide such facts entitles the Government to a monetary
forfeiture pursuant to 47 U.S.C. § 308(b) and 503(b)(1)(B).
c.

The Forfeiture Amount

The only remaining question is the amount of the forfeiture.

The FCC

assessed a forfeiture in the amount of $3,000 pursuant to 47 U.S.C. § 503(b)(1)(B)
and 47 C.F.R. § 1.80(a). In imposing its $3,000 base penalty to Mr. Baxter, the FCC
considered the statutorily required factors, including “the nature, circumstances,
extent, and gravity of the violation, and with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay, and such other matters as
justice may require.” 47 U.S.C. § 503(b)(2)(E); 47 C.F.R. § 1.80(b)(5); see also
Forfeiture Order at 3. Accordingly, the forfeiture amount is “within the agency’s
guidelines and reasonable on its face.” United States v. Neely, 595 F. Supp. 2d 662,
667 (D.S.C. 2009). Furthermore, although he has vociferously contested his liability
for the violations, Mr. Baxter has never claimed that the amount of the forfeiture is
unreasonable or that he is unable to pay it. See id. The Court concludes that a
$3,000 monetary forfeiture penalty is reasonable for Mr. Baxter’s willful and
repeated violation of 47 U.S.C. § 308(b).
2.

Violation of 47 C.F.R. § 97.101(d) – Willful or
Malicious Interference
a.

The Legal Background

27

Federal regulations promulgated under the Act prohibit amateur radio
operators from “willfully or maliciously interfer[ing] with or caus[ing] interference
to any radio communications or signal.” 47 C.F.R. § 97.101(d); see also 47 U.S.C. §
333. The forfeiture amount for intentional interference with another transmission
is $7,000.

See 47 C.F.R. § 1.80; Forfeiture Policy Statement, 12 F.C.C. Rcd. at

17113. Federal regulations further require amateur radio licensees to cooperate in
selecting transmitting frequencies.

See 47 C.F.R. § 97.101(b).

No frequency is

assigned for the exclusive use of any station. Id.
“Willful,” as defined by the Act, means “the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate any
provision of this chapter or any rule or regulation of the Commission . . . .” 47
U.S.C. § 312(f)(1); see also In re Application of Star Wireless, LLC, 19 F.C.C. Rcd. at
18632. The FCC has imposed monetary forfeitures against licensees when their
actions were “indisputably willful and patently inconsistent with the plain
language” of the applicable regulations, even if they “may not have set out with the
specific intention of violating” an FCC rule. In re Application of Star Wireless, LLC,
19 F.C.C. Rcd. at 18632 (citing Application for Review of So. Cal. Broad. Co., 6
F.C.C. Rcd. 4387, 4388 (1991)).
b.

The Record Evidence and Glenn Baxter’s Defenses

According to the Government, the FCC monitored K1MAN’s transmissions
and heard Mr. Baxter’s amateur station K1MAN starting on top of existing
communications on at least three occasions: November 27, 2004 at 5:54 p.m. EST,

28

December 8, 2004 at 7:10 p.m. EST, and March 31, 2005 at 7:28 p.m. EST. PSMF
¶¶ 14, 16, 18; PSMF Ex. 1b (Pl.’s Reqs. For Admis.) ¶¶ 2, 4, 5, 18, 20, 22.
Furthermore, the Government produced transcripts of the transmissions that it
contends demonstrate Mr. Baxter’s violations. Webber Decl. Exs. 2d, 2f, 2g. During
discovery, Mr. Baxter declined to admit that the FCC transcripts were true, correct,
accurate, and authentic transcripts of K1MAN transmissions on those days on the
grounds that Mr. Baxter was “not required to keep a log of radio transmissions and
can therefore not confirm any alleged transmissions on any particular date.” PSMF
Ex. 1c (Def.’s Resp. to Pl.’s Reqs. For Admis.) at 3-5, 9-11; DSMF at 6; Def.’s Opp’n at
17. However, he did admit that “there can . . . be and sometimes is incidental
interference to ongoing communications which may also be on the published
transmitting channel by chance, or . . . by design.” Def.’s Resp. to Pl.’s Reqs. For
Admis. at 3-5, 9-11; Def.’s Opp’n at 4, 9; Def.’s Sur-Resp. at 5.
At the same time, Mr. Baxter admits that until July 14, 2009, he transmitted
according to the schedule and frequency he published on his website, regardless of
whether there were other operators on those frequencies at the time each broadcast
was scheduled to begin. Def.’s Opp’n at 4. On July 14, 2009, he says he “began a
new practice” of first finding a clear channel on or near his “published frequency.”
Id. Mr. Baxter says that “incidental interference is a natural and necessary result
of published and scheduled information bulletins.”

Def.’s Sur-Resp. at 2; Def.’s

Opp’n at 9 (stating that scheduled “on[e] way transmissions such as K1MAN and
W1AW obviously have the potential of inadvertently coming on top of another radio

29

operator who . . . is unaware of the transmitting schedule”). Mr. Baxter also admits
that interference existed between his station and other amateur radio operators on
numerous occasions, but claims that he was not interfering with the other
operators, rather they were interfering with him. Def.’s Opp’n at 4, 9; Def.’s SurResp. at 5. He asserts that his “new transmitting practice” effective July 14, 2009
“virtually eliminated all incidental interference to other amateur short wave
stations by your Defendant, K1MAN.” Def.’s Opp’n at 4-5.
Furthermore, even though Mr. Baxter refused to admit the accuracy of the
transcripts, he has never denied that K1MAN transmitted on the dates and times
the Government has alleged. Indeed, if—as Mr. Baxter argues—his transmissions
were perfectly legal, it follows that he must have been transmitting. Mr. Baxter’s
argument is two-fold: 1) that he was entitled to do so because he was transmitting
in accordance with a “published and scheduled information bulletin” and therefore
that any interference pursuant to such a bulletin “cannot be illegal interference;”
and 2) that in any event, he did not do so either willfully or maliciously. DARPSMF
at 2 (# 5).
Mr. Baxter is simply incorrect regarding whether his transmission according
to a “published and scheduled information bulletin” violated the law.

Id. FCC

regulations expressly state that “[n]o amateur operator shall willfully or maliciously
interfere with or cause interference to any radio communications or signal.” 47
C.F.R. § 97.101(d). Contrary to Mr. Baxter’s contentions, FCC regulations do not
carve out an exception for amateur operators who publish their intent to transmit

30

in advance. FCC regulations allow club stations to transmit in accordance with a
published schedule and to disseminate information bulletins.
97.111(b)(6), 97.113(b).

47 C.F.R. §§

But Mr. Baxter’s transmissions were not club station

transmissions. Instead, FCC regulations plainly provide that an amateur operator,
such as Mr. Baxter, may not “willfully or maliciously interfere with or cause
interference to any radio communication or signal,” 47 C.F.R. § 97.101(d), and Mr.
Baxter’s construction of these provisions is “patently inconsistent with the plain
language” of the rules and regulations governing amateur radio licensees, In re
Application of Star Wireless, LLC, 19 F.C.C. Rcd. at 18632.
The Court turns to Mr. Baxter’s second point—that even if he interfered, he
did not do so “willfully or maliciously.” DASMF at 11. However, the record reflects
that prior to the observed interfering transmissions in late 2004 and early 2005, Mr.
Baxter received at least four notifications from the FCC, alerting him that his
method of broadcasting was causing interference with other radio signals and
generating numerous complaints. See January 2002 FCC Letter; April 2004 FCC
Letter; First Warning Notice; Second Warning Notice.

Furthermore, Mr. Baxter

admits he continued to operate in the same manner until July of 2009, when he
began “first finding a clear frequency on or near the published frequency before
starting to transmit.”4 Def.’s Opp’n at 4.

Mr. Baxter claims that he changed to this method of transmitting in 2009 “although not legally
required to do so.” Def.’s Opp’n at 4. On the contrary, transmitting without first finding a clear
channel has the potential to create interference with other amateur radio operators, and such
interference could violate the prohibition against willfully interfering or causing interference to any
other radio communication or signal. 47 C.F.R. § 97.101(d). Under the Act and relevant regulations,
an amateur radio licensee is obligated to avoid interference with other radio signals, and “[e]ach
4

31

To fit within the legal definition of “willfully,” the law only requires that the
operator engage in “the conscious and deliberate commission or omission of [an] act,
irrespective of any intent to violate any provision of this chapter or any rule or
regulation of the Commission . . . .” 47 U.S.C. § 312(f)(1). Mr. Baxter insists that he
did not set about to break the law. It makes no difference. What he did set about to
do, deliberately, was to transmit at the dates and times the Government has
alleged. This is enough. Mass. Universalist Convention v. Hildreth & Rogers Co.,
183 F.2d 497, 500 (1st Cir. 1950) (“Certainly the Act does not expressly confer on
anyone any right to broadcast any material at any time . . . .”).
The undisputed facts before this Court plainly establish that Mr. Baxter’s
pre-2009 practice of transmitting according to his published schedule without first
locating a clear channel is “patently inconsistent with the plain language” of 47
C.F.R. § 97.101(b) requiring cooperation among amateur radio licensees and 47
C.F.R. § 97.101(d) prohibiting willful or malicious interference with any other radio
communications or signals. In re Application of Star Wireless, LLC, 19 F.C.C. Rcd.
at 18632. As a matter of law, any conscious and deliberate interference with other
ongoing communications caused by those transmissions constitutes a willful

station licensee and each control operator must cooperate in selecting transmitting channels and in
making the most effective use of the amateur service frequencies. No frequency will be assigned for
the exclusive use of any station.” 47 C.F.R. § 97.101(b). Mr. Baxter was alerted to these regulations
by the FCC multiple times before the imposition of forfeiture penalties. See January 2002 FCC
Letter; April 2004 FCC Letter; First Warning Notice; Second Warning Notice.

32

violation for which he is subject to forfeiture penalties. Id.; see also 47 U.S.C. §
312(f); 47 U.S.C. §503(b); 47 C.F.R. § 1.80(a); 47 C.F.R. § 97.101(d).
c.

The Forfeiture Amount

In its Forfeiture Order, the FCC assessed a forfeiture of $7,000 for these
violations in accordance with 47 C.F.R. § 1.80, Section I, which fixes the base
penalty for interference at $7,000. For the reasons the Court addressed earlier, it
concludes that the amount of the forfeiture penalty is proper.
3.

Violation
of
47
C.F.R.
§
97.113(a)(3)
–
Communications in Which Amateur Licensee Has
Pecuniary Interest
a.

The Legal Background

The Federal Regulations also state that no amateur station may transmit
“[c]ommunications in which the station licensee or control operator has a pecuniary
interest.” 47 C.F.R. § 97.113(a)(3). While the regulations do not provide a base
forfeiture amount for violations of the rules prohibiting amateur radio licensees
from making communications regarding matters in which the operator has a
pecuniary interest, the FCC considers these violations similar to violations
concerning the broadcasting of lotteries and contests, which carry a base forfeiture
amount of $4,000 for each violation.

See Gov’t’s Mot. at 9; 47 C.F.R. § 1.80;

Forfeiture Policy Statement, 12 F.C.C. Rcd. at 17113.
In its statement of material facts, the Government refers to K1MAN
transmissions on November 25, 2004 and March 30, 2005 in which it says that Mr.
Baxter transmitted “information regarding his website, which offers various

33

products for sale.”

Gov’t’s Reply at 4 (quoting Forfeiture Order ¶ 14).

The

Government asserts that in urging listeners to visit his website, Mr. Baxter was
leading them to a website that contained “offers for credit cards, newsletter
subscriptions, and other material of a commercial nature.” Id. The Government
claims that Mr. Baxter conceded that he transmitted his website’s address but that
he asserts there is a factual dispute over whether the transmissions were pecuniary
because he was only looking for volunteers in connection with an award nomination
and in connection with checking the publishing of K1MAN’s transmitting schedule.
Id. at 4-5.
In his opposition, Mr. Baxter “stipulates that he frequently references his
web site for non pecuniary reasons, and that this is a common practice. . . .” Def.’s
Opp’n. at 10; DASMF at 7-9, 11. Mr. Baxter says that “in fact, Defendant’s web site
is referenced in connection with looking for volunteers” and “in connection with
checking the K1MAN transmitting schedule.” DASMF at 8-9. Finally, Mr. Baxter
points out that the Government has not provided any evidence that he has “derived
as much as one thin dime of income” from the transmitted references to his website,
DASMF at 2, and states that he received “no income whatsoever regarding the
credit card” advertised on his website. DARPSMF at 6; DRPRDSMF at 7.
The legal issue here is not what Mr. Baxter thinks it is. Mr. Baxter believes
that if the Government cannot prove he actually made money from his
transmissions, he is not liable, Def.’s Opp’n at 10 (“K1MAN has zero income and has
no employees”), but the FCC regulation prohibits amateur radio licensees from

34

transmitting “[c]ommunications in which the station licensee or control operator
has a pecuniary interest,” 47 C.F.R. § 97.113(a)(3). Thus, the regulation prohibits
the existence of a pecuniary interest, not actual derived revenue.
b.

The Record Evidence

With this backdrop in mind, the Court turns to the record evidence. The
Government’s factual bases for its contention that Mr. Baxter referred listeners to a
website in which he held a pecuniary interest are found in paragraphs 13 and 17 of
its statement of material facts.5 PSMF ¶¶ 13, 17. The Court previously explained
its uneasiness about the accuracy of the transcripts that the Government cited in
support of its paragraphs 13 and 17.6 The question is whether, in view of the
issues, verbatim accuracy is essential to resolving the motion.
In his response to the Government’s paragraphs 13 and 17, using his Master
Response Key, Mr. Baxter referred to numbers 4 and 24 for paragraph 13 and 4 and
36 for paragraph 17. DARPSMF at 2 (# 4), 4 (# 24), 6 (# 36); PSMF with notations.
Number 4 states:
Mere reference to a licensee’s web site in a non commercial and non
pecuniary context does not violate FCC Rule 97.113 (a)(3) which bans
transmissions over amateur radio with a pecuniary interest for the
licensee. This is a genuine issue of material fact as to whether the
licensee had any pecuniary intent or received as much as one dime if
(sic) income on a case by case basis with regard to the web site
reference and should be decided by a jury.

In his response, Mr. Baxter denied the accuracy of the transcript of the alleged December 1, 2004
transmission on the ground that the FCC did not record the transmission. Def.’s Opp’n at 11, 21.
The Government reviewed its records and, in its response, conceded the point and decided not to
pursue forfeiture penalties for the December 1, 2004 transmission. Gov’t’s Reply at 5-6.
6 The Government also cited its requests for admission. PSMF ¶¶ 13, 17 (citing Ex. 1b (Pl.’s Reqs.
For Admis.). However, Mr. Baxter filed a response to those requests for admission and denied them.
PSMF Ex. 1c, (Def.’s Resp. to Pl.’s Reqs. For Admis.).
5

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DARPSMF at 2 (# 4). Number 24 states:
Ms. Mallay and Mr. Larrabbee (sic) are lieing (sic). Defendant has
never made on air references to subscriptions to his newsletter and
both Mallay and Larrabee have thus perpetrated a fraud on this Court.
DARPSMF at 4 (# 24). Number 36 states:
Defendant objects to the characterization “advertising” which implies a
commercial context when the web site reference was made in a non
commercial and therefore non pecuniary context.
DARPSMF at 6 (# 36).
The Court takes from Mr. Baxter’s position that he does not deny having
referred listeners to his website but does deny referring people to a subscription
service. The transcripts reflect that Mr. Baxter repeatedly referred listeners to two
organizations: the International Amateur Radio Network (IARN) and the American
Amateur Radio Association (AARA). He tells listeners that for more details, they
can go to www.K1MAN.com or they can send a self-addressed stamped envelope to
a P.O. Box in Belgrade Lakes, Maine.
c.

Pecuniary Interest

Even if Mr. Baxter was referring listeners to his website, it does not
necessarily follow that he had a “pecuniary interest” in the website.

The

Government’s contentions about Mr. Baxter’s pecuniary interests rest on two
propositions. First, the Government contends that Mr. Baxter referred listeners to
a subscription service at his website. Mr. Baxter denies he did so. The Court
carefully reviewed the transcripts of the November 25, 2004 and March 30, 2005
transmissions and could locate no reference to a subscription service. Therefore, the

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Court has discounted the Government’s claims on that point or at least concludes
that there is a genuine issue of material fact as to whether Mr. Baxter did so.
Second, the Government says that Mr. Baxter had a pecuniary interest in the
website for K1MAN to which he was referring listeners. To support its position, the
Government referred to the contents of the Forfeiture Order and the Notice of
Apparent Liability. Gov’t’s Reply at 4 (citing Forfeiture Order ¶¶ 4, 15 and Notice of
Apparent Liability ¶ 14). It is true that the FCC’s Notice of Apparent Liability says
that Mr. Baxter’s website “offers various products for sale, including a monthly
newsletter published by Glenn Baxter and offered for sale for forty-five dollars per
year.” Notice of Apparent Liability ¶ 14. Furthermore, the Forfeiture Order repeats
the language in the Notice of Apparent Liability and concludes that he had “a direct
pecuniary interest in the products offered for sale on the website about which he
provided information on his amateur radio station.” Forfeiture Order ¶¶ 4, 15.
But to sustain its case, the Government must produce evidence to this Court,
not the findings the FCC made on the evidence before it. 47 U.S.C. § 504(a); Radar
Solutions, 368 Fed. Appx. at 486 (“[t]he [Act] expressly authorizes the district court
to hear factual disputes in de novo forfeiture collection actions”).

The Act’s

reference to a “trial de novo,” 47 U.S.C. § 504(a), must mean that the Government
must do more than put the FCC’s Forfeiture Order before the Court and demand
that the Court accept the agency’s factual findings; the Government must put
forward the evidence itself.

The FCC’s findings suggest there is evidence from

which the Court could make a factual finding that the website for K1MAN was

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selling products but, here, there is simply no evidence on this record from which the
Court could make an independent determination that this was so.

There is no

screenshot of the website, no printout of its contents, no affidavit from someone
with knowledge of its contents, no statement by a member of either the IARN or the
AARA that he or she was led to the website and made a purchase.
In the absence of such evidence, there remains a genuine issue of material
fact as to whether Mr. Baxter had a pecuniary interest in transmitting
communications that directed listeners to www.K1MAN.com. Therefore, the Court
denies the Government’s motion for summary judgment as to Count III.
IV.

CONCLUSION
The Court hereby GRANTS IN PART the Government’s Motion for Summary

Judgment (Docket # 23) as to Count I (willful or repeated failure to respond to FCC
requests for information) and imposes the requested forfeiture amount of $3,000
and as to Count II (willful or malicious interference) and imposes the requested
forfeiture amount of $7,000.

The Court DENIES IN PART the Government’s

motion as to Count III (communications in which an amateur station licensee or
control operator has a pecuniary interest).
SO ORDERED.

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 10th day of January, 2012

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