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U.S. v. Glenn A. Baxter, CA No. 12-1196 (1st Cir.)

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Released: May 21, 2012
Case: 12-1196 Document: 00116380943 Page: 1 Date Filed: 05/21/2012 Entry ID: 5642768

CA No. 12-1196




UNITED STATES COURT OF APPEALS



FOR THE FIRST CIRCUIT





UNITED STATES OF AMERICA,


Appellee,


v.

GLENN A. BAXTER,


Appellant.






ON APPEAL FROM THE UNITED STATES DISTRICT COURT

DISTRICT OF MAINE





BRIEF OF APPELLEE UNITED STATES OF AMERICA











Richard Murphy

Attorney
for
the

United

States, under Authority
Conferred by 28 U.S.C. § 515



Joel

Marcus

Evan

J.

Roth

Counsel

Assistant

U.S.

Attorney

Federal Communications Commission 100 Middle Street
445 12th Street, SW



East Tower, Sixth Floor

Washington, DC 20554



Portland, ME 04101

(202)
418-1740
(207)
780-3257




Case: 12-1196 Document: 00116380943 Page: 2 Date Filed: 05/21/2012 Entry ID: 5642768

TABLE OF CONTENTS


Table of Authorities...........................................ii

Jurisdictional Statement.......................................iv

Statement of Issues Presented...................................v

Statement of the Case..........................................vi

Statement of Facts..............................................1

FCC Response to Public Complaints.............................1
FCC Monitoring................................................3
Notice of Apparent Liability and Forfeiture Order.............4
District Court Litigation.....................................5
District Court Decision.......................................7
1. Baxter’s Failure to Respond .............................8
2. Baxter’s Interference ...................................9
3. Baxter’s Pecuniary Transmissions .......................10
Voluntary Dismissal of the Disputed Matters..................10

Summary of the Arguments.......................................12

Argument.......................................................14

I.
THIS COURT SHOULD AFFIRM THE DISTRICT COURT’S SUMMARY
JUDMENT DECISION REGARDING BAXTER’S UNDISPUTED FAILURE
TO PROVIDE INFORMATION THE FCC REQUESTED ...............14

A. Standard of Review...................................14
B. Statutory and Regulatory Overview....................15
C. Baxter’s Undisputed Failure to Provide Information...18

II.
THIS COURT SHOULD ALSO AFFIRM THE DISTRICT COURT’S
DECISION TO GRANT SUMMARY JUDGMENT TO THE GOVERNMENT
REGARDING BAXTER’S CONCEDED INTERFERENCE WITH OTHER
AMATEUR RADIO COMMUNICATIONS ...........................20

Conclusion.....................................................25


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TABLE OF AUTHORITIES



FEDERAL CASES



Aguilar v. U.S. Immigration & Customs Enforcement Division
of Department of Homeland Sec., 510 F.3d 1 (1st Cir.
2007) ..................................................18

Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1 (1st
Cir. 2010) .............................................24

Maymi v. P.R. Ports Authority, 515 F.3d 20 (1st Cir. 2008).....14

McCoy v. Mass. Institute of Technology, 950 F.2d 13 (1st
Cir. 1991) .............................................18

Prescott v. Higgins, 538 F.3d 32 (1st Cir. 2008).......13, 14, 23

Rajah v. Mukasey
, 544 F.3d 427 (2nd Cir. 2008).............18, 19

Vineberg v. Bissonnette, 548 F.3d 50 (1st Cir. 2008)...........14


FEDERAL STATUTES



47 C.F.R. § 97.3(a)(26)........................................21

47 C.F.R. § 97.3(b)(2) & (5)...................................21

47 C.F.R. § 97.101(d).................vi, 2, 4, 6, 12, 16, 20, 22



47 C.F.R. § 97.105(a).......................................4, 16

47 C.F.R. § 97.111(b)(6)...............................20, 21, 22

47 C.F.R. § 97.113(a)(3)..........................2, 4, 6, 16, 22

47 C.F.R. § 97.113(b)................................4, 6, 16, 21

47 C.F.R. § 97.113(d)......................................21, 22

28 U.S.C. §§ 1291, 1294........................................iv

28 U.S.C. § 1345...............................................iv

28 U.S.C. § 1355...............................................iv
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47 U.S.C. § 151................................................14

47 U.S.C. § 301................................................14

47 U.S.C. § 303(a)-(r).........................................15

47 U.S.C. § 307(a).............................................14

47 U.S.C. § 308 .............................................7, 8

47 U.S.C. § 308(b).......................vi, 4, 6, 11, 15, 17, 18

47 U.S.C. § 333................................................15

47 U.S.C. § 503(b)(1)..........................................17

47 U.S.C. § 503(b)(4)...........................................4

47 U.S.C. § 504(a).............................................iv


FEDERAL RULES



Fed. R. Civ. P. 56(c)..........................................14

Fed. R. App. P. 4(a)(1)(B).....................................iv


OTHER

AUTHORITIES



Local Rule 27.0................................................11




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JURISDICTIONAL STATEMENT

Original Jurisdiction. United States District Courts have
original jurisdiction over civil actions in which the United
States is the plaintiff, 28 U.S.C. § 1345, and over actions for
the enforcement of forfeitures assessed by statute, 28 U.S.C. §
1355. The United States may seek recovery in District Courts of
forfeitures assessed by the Federal Communications Commission
pursuant to 47 U.S.C. § 504(a).
Appellate Jurisdiction. This Court has jurisdiction over
timely appeals of final judgments entered by a United States
District Court. 28 U.S.C. §§ 1291, 1294. In cases where the
United States is a party, an appeal is timely if it is filed
within 60 days after entry of final judgment. Fed.R.App.P.
4(a)(1)(B). Here, the District Court entered final judgment on
February 1, 2012 (Docket #47)1 and the notice of appeal was
timely filed on February 8, 2012 (Docket #48).


1 Docket #_ refers to the District Court record on appeal.
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STATEMENT OF ISSUES PRESENTED


I.

Whether this Court Should Affirm the District Court’s

Summary Judgment Decision Regarding Baxter’s Undisputed

Failure to Provide Information the FCC Requested?


II.

Whether this Court Should also Affirm the District

Court's Decision to Grant Summary Judgment to the

Government Regarding Baxter's Conceded Interference with

Other Amateur Radio Communications?



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STATEMENT OF THE CASE

This is an appeal from a final judgment entered by the
United States District Court for the District of Maine (Hon.
John A. Woodcock, Jr.), which granted summary judgment to the
United States on two counts of its complaint seeking enforcement
of a forfeiture assessed by the Federal Communications
Commission (“FCC” or “Commission”) against Baxter for violations
of Section 308 of the Communications Act, 47 U.S.C. § 308(b),
and Section 97.101(d) of the FCC’s rules, 47 C.F.R. § 97.101(d)
(Docket ##38, 46, 47).

In March 2006, the FCC issued an order assessing a
forfeiture of $21,000 against Baxter for five separate
violations of the Communications Act and FCC rules (Docket #4-
2). Baxter did not pay the forfeiture, and on October 25, 2010,
the United States filed this case against him to enforce the
FCC’s order (Docket #1). Due to the death of an essential
witness, the United States filed an amended complaint on
November 5, 2010, which sought enforcement of the forfeiture
order based on of four of the original five violations, totaling
$18,000 (Docket #4).

The United States moved for summary judgment on three of
the four remaining counts (Docket #23), and the District Court
granted summary judgment on two of those counts, ordering
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enforcement of forfeitures totaling $10,000 (Docket #38). The
District Court ordered the remaining two counts to go to trial
(Docket #39), and the United States moved to dismiss those
remaining counts voluntarily (Docket #40). The District Court
granted the request (Docket #46) and entered final judgment for
$10,000 in favor of the United States (Docket #47). Baxter now
appeals.2


2 Baxter also filed a counterclaim against the United States,
Docket #5, which the district court dismissed on the
government’s motion, Docket ##12, 26. Baxter has not appealed
that order.
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STATEMENT OF FACTS

This is an FCC enforcement case against an amateur radio
licensee who repeatedly violated FCC rules and failed to provide
substantive responses to FCC inquiries (Docket ##1, 4). The FCC
repeatedly warned Baxter (Docket ##32-3, 24-9, 24-7), but Baxter
failed to provide a substantive response, and monitoring of his
broadcasts revealed that he had failed to correct his actions
(Docket ##24-6, 24-8, 24-22, 24-21). The FCC issued Baxter a
Notice of Apparent Liability (Docket #4-1), but Baxter again
failed to provide a substantive response (Docket #24-20). The
FCC then issued a Forfeiture Order (Docket #4-2) and commenced
District Court litigation for enforcement (Docket ## 1, 4).
Baxter now appeals the District Court’s decision to grant
summary judgment regarding two of Baxter’s violations: (1) his
failure to respond to FCC queries; and (2) his interference with
other broadcasters (Docket #23).

FCC Response to Public Complaints


Baxter is the licensee of amateur station K1MAN (Forfeiture
Order; Docket #4-1). Beginning in the early 2000s, the FCC
received numerous complaints that K1MAN was interfering with
other amateur licensees’ radio transmissions. Id. ¶3. By
letter dated April 14, 2004, the Commission warned Baxter that
his interference was a violation of the FCC’s rules and that he
was not allowed to use his station for pecuniary purposes
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(Docket #32-3) (citing 47 C.F.R. §§ 97.101(d) & 113(a)(3)). The
agency also warned Baxter that a failure to ameliorate the
ongoing violations would lead to an enforcement action. Id. at
page 3.

By letter dated September 15, 2004, the FCC’s Enforcement
Bureau sent Baxter a follow-up letter noting that both
violations had continued (Docket #24-9). The letter explained
that Baxter had interfered with radio transmissions by the
Salvation Army in disaster relief efforts. Id. at page 1. The
Enforcement Bureau requested that Baxter provide information
indicating the steps he planned to take to correct the
violations and to specify “what methods of station control you
have implemented” for K1MAN. Id.

By letter dated October 14, 2004, Baxter responded to the
Bureau’s letter (Docket #24-6). Baxter ignored the Bureau’s
request for information and dismissed its concerns, asserting
that “[n]o corrective actions are necessary” and that “[n]o
changes are needed with regard to station control.” Id. Baxter
added 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).” Id.
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By letter dated October 29, 2004, the FCC (1) informed
Baxter of several additional allegations of interference; (2)
gave Baxter an additional 20 days to provide the information
requested in the September 15 warning letter; and (3) requested
additional information regarding the new instances of
interference (Docket #24-7). In response, Baxter simply
incorporated his earlier submission and provided no further
information (Docket #24-8).

FCC Monitoring


After Baxter failed to provide the requested information,
FCC personnel began to monitor his station broadcasts (Larrabee
Declaration ¶¶6, 9, 10, 17, 20; Docket #24-22)(King Declaration
¶9; Docket #24-21). Despite the multiple earlier warnings
against interference, the monitoring revealed that Baxter
transmitted from his station on top of other ongoing
transmissions, thereby interfering with those ongoing
transmissions, on November 27, 2004 (Larrabee Declaration ¶17;
Docket #24-21), December 8, 2004, Id. ¶10, and March 31, 2005
(King Declaration ¶9; Docket #24-21). FCC monitoring personnel
also heard Baxter transmit information regarding his website,
which advertises various products for sale, subscriptions to a
newsletter published by Baxter, and commercial services offered
by Baxter, on November 25, 2004 (Larrabee Declaration ¶6),
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December 1, 2004. Id. ¶21, and March 30, 2005 (King Declaration,
Docket #24-21 ¶8).

Notice of Apparent Liability and Forfeiture Order


Before the FCC may levy a forfeiture penalty, the agency is
required to issue a “notice of apparent liability” (“NAL”),
pursuant to 47 U.S.C. § 503(b)(4). On June 7, 2005, the FCC’s
Enforcement Bureau issued Baxter a NAL for a $21,000 monetary
forfeiture based on five violations of FCC rules (NAL; Docket
#4-1). The Bureau determined: (1) that on November 27, 2004,
December 8, 2004, and March 31, 2005, Baxter “commenced
transmitting on top of existing communications” – i.e.,
interfered with other transmitters – in violation of the
prohibition on interference contained in 47 C.F.R. § 97.101(d)
(NAL ¶13; Docket #4-1); (2) that on November 25, 2004, December
1, 2004, and March 30, 2005, Baxter transmitted communications
in which he had a pecuniary interest, in violation of 47 C.F.R.
§ 97.113(a)(3), Id. ¶14; (3) that Baxter “failed to provide
information” requested by the Bureau in violation of Section
308(b) of the Act, Id. ¶15; (4) that Baxter had engaged in
impermissible “one-way” transmissions, in violation of 47 C.F.R.
§ 97.113(b), Id. ¶16; and (5) that Baxter had failed to maintain
proper operation and control of his station, in violation of 47
C.F.R. § 97.105(a), Id. ¶17.
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By letter dated June 12, 2005, Baxter responded to the NAL
that he “welcomes these court actions” since he has been trying
to “face off” with the FCC for 15 years, and that “[m]any heads
are finally going to roll” (Docket #24-20). On March 29, 2006,
the Enforcement Bureau issued its Forfeiture Order (Forfeiture
Order; Docket #4-2), which concluded that, in the absence of
“any substantive responses to the apparent violations,” id. ¶8,
the Bureau determined that Baxter had committed the violations
set forth in the NAL, id. ¶13, and imposed a forfeiture of
$21,000. Id. ¶16.

District Court Litigation


On October 27, 2010, the United States filed a Complaint
(Docket #1) regarding Baxter’s five FCC violations: (1)
willfully and repeatedly failing to respond to a Bureau
directive; (2) willfully and repeatedly causing interference
with ongoing communications; (3) willfully and repeatedly
broadcasting communications in which Baxter had a pecuniary
interest; (4) willfully broadcasting impermissible one-way
communications; and (5) willfully failing to exercise station
control (Docket #1 at pages 2-3). The United States requested
imposition of a total forfeiture amount of $21,000 (Docket #1 at
page 5).
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On November 5, 2010, the United States filed a First
Amended Complaint (Docket #4) that was limited only to the first
four FCC violations: (1) willfully and repeatedly failing to
respond to a Bureau directive; (2) willfully and repeatedly
causing interference with ongoing communications; (3) willfully
and repeatedly broadcasting communications in which Baxter had a
pecuniary interest; and (4) willfully broadcasting impermissible
one-way communications (Docket #4 at 8). For those four
violations, the United States requested a total recovery of
$18,000 (Docket #4 at 10). With respect to the previously
alleged fifth violation, the United States voluntarily declined
to pursue the additional $3,000 monetary forfeiture due to the
death of the only FCC agent to observe Baxter fail to exercise
station control (Docket #23 at 10).

On May 18, 2011, the United States moved for summary
judgment regarding the first four FCC violations: (1) willfully
and repeatedly failing to respond to a Bureau directive pursuant
to 47 U.S.C. § 308(b); (2) willfully and repeatedly causing
interference with ongoing communications pursuant to 47 C.F.R. §
97.101(d); (3) willfully and repeatedly broadcasting
communications in which Baxter had a pecuniary interest pursuant
to 47 C.F.R. § 97.113(a)(3); and (4) willfully broadcasting
impermissible one-way communications, in violation of 47 C.F.R.
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§ 97.113(b) (Docket #23 at 6-8). On June 1, 2011, Baxter
responded (Docket ##28-29). On June 23, 2011, the United States
filed its summary judgment reply, which conceded that there were
disputed issues of fact regarding the fourth violation
(impermissible one-way communications), which was subject to a
$4,000 forfeiture amount (Docket #32 at page 6). Accordingly,
the United States’ reply confirmed that for the purpose of
summary judgment, it was requesting a total of $14,000 ($18,000
minus $4,000) as follows: $3,000 for the failure to respond;
$7,000 for the interference; and $4,000 for the pecuniary
interest (Docket #32 at pages 6-7).

District Court Decision


On January 10, 2012, the District Court granted summary
judgment in favor of the United States regarding the first two
violations and imposed forfeiture amounts, respectively, of
$3,000 and $7,000, for a total of $10,000 (Docket #23 at 38).
With respect to the third violation, regarding Baxter’s
pecuniary interest, the Court denied summary judgment due to the
disputed issues of material fact (Docket #38 at 1). The three
violations are discussed in turn.
1. Baxter’s Failure to Respond

With respect to the charge of failure to respond to an
FCC request for information, in violation of Section 308 of
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the Act, the District Court found as a matter of undisputed
fact that the FCC Enforcement Bureau’s September 15, 2004
letter to Baxter “request[ed] information regarding his
method of station control and what actions, if any, he was
taking in response to several complaints of broadcasting
interference” (Dist. Ct. Op. at 15). Also undisputed was
that Baxter’s response “did not contain any … detailed
information about the methods of station control … nor the
actions he planned in response to the complaints of station
interference” beyond a “blanket statement” that the station
was “in compliance with FCC rules.” Id. Despite the FCC’s
requests for information, the District Court held, “Mr.
Baxter simply stiff-armed the FCC.” Id. at 25. No genuine
issue of fact existed on the question of Baxter’s
“stonewalling,” the District Court found; rather, “[t]he
record makes clear that [Baxter] made no attempt to provide
the FCC with any detail” about the requested information,
in violation of 47 U.S.C. § 308. Id. The District Court
determined that $3,000 was a reasonable forfeiture for the
violation. Id. at 27.
2. Baxter’s Interference

With respect to interference, the District Court noted the
government’s evidence that FCC monitoring personnel observed
interference on the three dates charged (Dist. Ct. Op. at 28-
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29). That evidence was not contradicted, id. at 30, and indeed
was supported by Baxter’s admissions that his transmissions
could cause “incidental interference to ongoing communications.”
Id. at 29-30. Indeed, Baxter admitted that until 2009 he
transmitted at set times and frequencies whether or not other
amateur operators were using those frequencies at the same time.
Id. The interference was “willful and malicious,” the District
Court held, in light of the multiple warnings issued to him by
the FCC. Id. at 31.

The District Court rejected Baxter’s legal defense that he
was entitled to interfere with other users’ communications
because his transmissions constituted published and scheduled
“information bulletins” allowed under FCC regulations. Id. at
30. “Contrary to Mr. Baxter’s contentions,” the District Court
held, “FCC regulations do not carve out an exception for amateur
operators who publish their intent to transmit in advance.” Id.
at 30-31. “Club stations” may transmit information bulletins,
but “Mr. Baxter’s transmissions were not club station
transmissions.” Id. at 31. Moreover, the District Court held,
the Commission’s rule is clear that no amateur operator may
interfere with a radio communication. Id. The District Court
also determined that $7,000 was a reasonable forfeiture for the
violation. Id. at 33.
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3. Baxter’s Pecuniary Transmissions

The District Court denied summary judgment on the charge
that Baxter had engaged in pecuniary transmissions by
advertising his website, which contained various commercial
inducements. Id. at 36. The District Court held that the
government had failed to produce evidence, such as a screenshot,
from which the District Court could make an independent
determination that Baxter’s website was selling products. Id.
at 37-38. Thus, the District Court determined, “there remains a
genuine issue of material fact as to whether Mr. Baxter had a
pecuniary interest in transmitting communications that directed
listeners” to his website. Id. at 38.

Voluntary Dismissal of the Disputed Matters



On January 19, 2012, the United States requested that the
Court enter final Judgment in favor of the United States for
$10,000 with respect to the two claims resolved on summary
judgment (Docket #40). As for the remaining disputed claims,
the United States requested that they be voluntarily dismissed,
with prejudice, and without costs or fees to any party, in order
to avoid the need for further litigation on matters for which
the time and expense exceeded the potential added recovery. Id.
The District Court granted the motion (Docket #46) and entered
Judgment in favor of the United States for $10,000 (Docket #47).
Baxter now appeals.

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SUMMARY OF THE ARGUMENTS

The District Court’s judgment is so clearly correct that
this Court should summarily affirm pursuant to Local Rule
27.0(c) (“At any time. . .the court may. . .enforce the judgment
or order below. . .if it shall clearly appear that no
substantial question is presented”). Based on the undisputed
record, and the absence of legal error, this Court should affirm
the District Court’s decision to enter judgment in favor the
United States, for $10,000, regarding Baxter’s two FCC
violations.
First, with respect to Baxter’s violation of Section 308(b)
of the Communications Act, the undisputed evidence showed that
the FCC asked Baxter multiple times to provide information
regarding his method of station control and that Baxter failed
entirely to provide that information. That failure was a direct
violation of Section 308(b), which requires radio licensees to
furnish information requested by the FCC. Baxter does not
dispute the facts. Instead, he claims a Fifth Amendment
privilege to withhold the requested information. Baxter failed
to raise that argument before the District Court, and it is now
waived. It is wrong in any event because this case involves a
civil forfeiture proceeding against an FCC licensee who holds a
government privilege that comes with the regulatory
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responsibility to provide relevant information upon request.
The District Court properly entered summary judgment for the
government.

Second, with respect to Baxter’s interference with the
transmissions of other amateur radio operators, the undisputed
evidence demonstrated that Baxter began operating his station
while other users were on the air, thus interfering with the
ongoing communications. Baxter submitted no evidence to dispute
the declarations of FCC employees who witnessed the
interference; to the contrary, he directly admitted that he
caused interference. On that record, the District Court
properly granted summary judgment to the government.

There is no merit to Baxter’s claim that he was entitled to
interfere by virtue of FCC regulations that authorize club
stations to pay compensation to a station operator when the club
station transmits “information bulletins” on a pre-scheduled
basis. Those regulations have nothing to do with interference,
which is specifically barred by FCC Rule 97.101(d), which
provides that “no amateur operator shall willfully or
maliciously interfere with or cause interference to any radio
communication or signal.” Accordingly, on that issue as well,
the District Court correctly entered summary judgment in favor
of the government.

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ARGUMENT

This Court should affirm the District Court’s decision to
enter Judgment in favor the United States, for $10,000,
regarding Baxter’s two FCC violations. The first violation was
Baxter’s undisputed failure, contrary to FCC regulations, to
provide the agency with requested information. As the District
Court succinctly put it, Baxter simply “stiff-armed” the agency.
On appeal, Baxter argues that he had a Fifth Amendment right not
to respond to the FCC’s inquiries, but that argument is
meritless for an FCC licensee like Baxter, and it was not raised
in the District Court in any event. The second violation was
Baxter’s conceded interference with the transmissions of other
amateur radio operators. On appeal, Baxter contends that he was
entitled to interfere, but Baxter’s conduct was specifically
prohibited by FCC regulations. Accordingly, the District Court
correctly entered summary judgment in favor of the government.

I.

THIS COURT SHOULD AFFIRM THE DISTRICT COURT’S SUMMARY
JUDGMENT DECISION REGARDING BAXTER’S UNDISPUTED FAILURE
TO PROVIDE INFORMATION THE FCC REQUESTED

A. Standard of Review

This Court reviews a District Court’s grant of summary
judgment de novo, “construing the record in the light most
favorable to the non-movant and resolving all reasonable
inferences in that party’s favor.” Prescott v. Higgins, 538
F.3d 32, 39 (1st Cir. 2008). Nonetheless, the Court “may
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ignore conclusory allegations, improbable inferences, and
unsupported speculation.” Id. (internal quotation marks and
citations omitted). Summary judgment is appropriate where the
record reveals “no genuine issue as to any material fact” and
“the movant [in the District Court] is entitled to judgment as a
matter of law.” Vineberg v. Bissonnette, 548 F.3d 50, 55 (1st
Cir. 2008) (quoting Fed. R. Civ. P. 56(c)). Reversal of the
District Court’s grant of summary judgment is warranted only if
“the evidence on record is ‘sufficiently open-ended to permit a
rational factfinder to resolve the issue in favor of either
side.’” Prescott, 538 F.3d at 39 (quoting Maymí v. P.R. Ports
Auth., 515 F.3d 20, 25 (1st Cir. 2008).

B. Statutory and Regulatory Overview

Congress enacted the Communications Act (“the Act”), 47
U.S.C. § 151, et seq., in order to “maintain the control of the
United States over all the channels of radio transmission,” 47
U.S.C. § 301. To carry out that function, Congress created the
FCC, 47 U.S.C. § 151, and empowered the agency to grant licenses
for use of the electromagnetic spectrum, 47 U.S.C. § 307(a).
Congress specified that “[n]o person shall use or operate any
apparatus for the transmission of energy or communications or
signals by radio … except under and in accordance with [the Act]
and with a license” granted by the FCC. 47 U.S.C. § 301. To
protect the integrity of radio communications, Congress also
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declared that “[n]o person shall willfully or maliciously
interfere with or cause interference to any radio communications
of any station licensed or authorized by or under this Act.” 47
U.S.C. § 333.
Congress granted the FCC substantial regulatory authority
to fulfill its mission. Among other things, the Commission may
assign frequency bands to different services, prescribe the
nature of the service to be rendered by various classes of
stations, regulate the equipment used for radio transmissions,
establish the geographic area and times during which stations
may operate, prescribe qualifications for licensees, suspend the
license of any operator who is found to have violated the
Communications Act or any FCC regulation or who has interfered
with another station’s signals, inspect any radio installation,
and enact any rules and regulations necessary to carry out the
provisions of the Act. 47 U.S.C. § 303(a)-(r). To obtain
information necessary to carry out its functions, the Commission
may “require from a[]. . .licensee. . .written statements of
fact to enable it to determine whether. . .such license [should
be] revoked.” 47 U.S.C. § 308(b).
Pursuant to its statutory authority, the Commission has
established the Amateur Radio Service, known colloquially as
“ham radio.” See 47 C.F.R. Part 97. The Commission’s Part 97
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rules set forth in detail the technical and legal parameters of
amateur service. Four of those rules are pertinent:

Rule 97.101(d) forbids an amateur licensee to “willfully or
maliciously interfere with or cause interference to any radio
communication or signal,” 47 C.F.R. § 97.101(d);

Rule 97.113(a)(3) prohibits “[c]ommunications in which the
station licensee … has a pecuniary interest,” 47 C.F.R. §
97.113(a)(3);

Rule 97.113(b) prohibits (with certain exceptions)
“broadcasting” and “one-way communications” (i.e., radio
transmissions that are not part of a mutual exchange of messages
with other amateur operators), 47 C.F.R. § 97.113(b);

Rule 97.105(a) requires that a licensee “must ensure the
immediate proper operation of the station,” 47 C.F.R. §
97.105(a).
Congress has provided for the enforcement of the FCC’s
rules and the Communications Act in forfeiture proceedings.
Specifically, Congress directed that “[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] willfully or
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repeatedly failed to comply with any of the provisions of this
Act or of any rule, regulation, or order issued by the
Commission under this Act … shall be liable to the United States
for a forfeiture penalty.” 47 U.S.C. § 503(b)(1).

C. Baxter’s Undisputed Failure to Provide Information


The District Court correctly determined that Baxter
violated 47 U.S.C. § 308(b) by failing to provide information
requested by the FCC. The undisputed evidence showed that on
September 15, 2004, Commission personnel asked Baxter to provide
the agency with specific information regarding “what method of
station control you have implemented for your amateur radio
transmissions” (Docket #24-5). Baxter did not provide the
requested information; instead he “stonewall[ed] the FCC” (Dist.
Ct. Op. at 25), by stating only that “[n]o corrective actions
are necessary at K1MAN” and that “[n]o changes are needed with
regard to station control” (Docket #24-6). Upon being given a
second chance to provide the requested information (Docket #24-
10), Baxter again “simply stiff-armed the FCC” by repeating his
initial answer (Dist. Ct. Op. at 25). “The record makes clear
that [Baxter] made no attempt to provide the FCC with any
detail.” Id. Accordingly, the District Court correctly
concluded that Baxter failed to comply with the FCC’s request
for information, and that Baxter’s failure was willful due to
the FCC’s repeated requests for the information.
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On appeal, Baxter does not challenge the District Court’s
conclusion that the undisputed evidence showed that Baxter
failed to respond adequately to FCC inquiries in violation of
Section 308(b). Baxter claims instead that he failed to respond
to the FCC’s inquiries because his answers “could and would be
used as evidence in possible federal criminal charges” against
him (Baxter Brief at 6 ¶15), and thus he claims to have had a
Fifth Amendment privilege not to respond. Baxter raised no such
claim either before the FCC or before the District Court, and he
may not do so now.3 “It is hornbook law that theories not
raised squarely in the district court cannot be surfaced for the
first time on appeal.” McCoy v. Mass. Inst. of Tech., 950 F.2d
13, 22 (1st Cir. 1991); accord Aguilar v. U.S. Immigration &
Customs Enforcement Div. of Dep't of Homeland Sec., 510 F.3d 1,
12 (1st Cir. 2007).

The argument is wrong in any event. “The Fifth Amendment
is not an impediment to the enforcement of a valid civil
regulatory regime.” Rajah v. Mukasey, 544 F.3d 427, 442 (2nd
Cir. 2008). Baxter accepted the benefits of a government-issued
radio license and thus must comply with the conditions placed on

3Before the District Court, Baxter claimed that it was
“impossible” for him to answer the FCC’s inquiries about his
methods of station control because there are “numerous ways of
controlling an amateur station” (Dist. Ct. Op. at 25). Baxter
does not pursue that claim in this Court.
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that license – one of which is to provide information reasonably
requested for valid regulatory purposes. “[S]tatements required
as a condition of receiving a government benefit are not
protected by the Fifth Amendment because they are not
compelled,” but are merely “a condition on the continued receipt
of the government benefit.” Id. at 442-443. That is
particularly the case in the context of an investigation
conducted by an administrative agency pursuant to its civil
enforcement jurisdiction. Id.

There is no dispute as to the evidence supporting the
District Court’s finding that Baxter failed to provide
information requested by the FCC, and the law is clear.
Accordingly, the Court should affirm the District Court’s grant
of summary judgment on that claim.

II.

THIS COURT SHOULD ALSO AFFIRM THE DISTRICT COURT’S
DECISION TO GRANT SUMMARY JUDGMENT TO THE GOVERNMENT
REGARDING BAXTER’S CONCEDED INTERFERENCE WITH OTHER
AMATEUR RADIO COMMUNICATIONS.

The evidence before the District Court demonstrated
conclusively that FCC personnel monitoring Baxter’s station on
three occasions observed transmissions from his station that
interfered with ongoing communications by other radio operators
(Larrabee Declaration ¶17; Docket #24-22); id. ¶10; (King
Declaration ¶9; Docket #24-21). Baxter did not dispute that
evidence; to the contrary, in his discovery responses, Baxter
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admitted to interference (See Dist. Ct. Op. 29-30) (Baxter
admitted in discovery that there is “interference to ongoing
communications”). Baxter’s legal argument to the District Court
rested on the premise that he was entitled to transmit without
regard to whether another station was using the same spectrum at
the time (Dist. Ct. Op. 30) (“if – as Mr. Baxter argues – his
transmissions were perfectly legal, it follows that he must have
been transmitting” on the dates in question without regard to
whether others were using the airwaves at the time).
On appeal, Baxter again fails to dispute the evidence of
his interference. In light of “at least four notifications from
the FCC alerting him that his method of broadcasting was causing
interference” (Dist. Ct. Op. at 31), the District Court
correctly held that Baxter’s interference was “willful” and
“malicious.” On that record, the District Court correctly
concluded that Baxter caused interference, in violation of 47
C.F.R. § 97.101(d).

Instead of challenging the District Court’s factual
findings, Baxter claims that he was entitled to interfere with
other transmitters under the FCC’s regulations. The claim is
that 47 C.F.R. § 97.111(b)(6) authorizes the transmission of
“information bulletins” without regard to whether another
operator is on the air as long as the interfering transmission
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is made according to a schedule that is published more than 30
days in advance pursuant to 47 C.F.R. § 97.113(d).

That contention fails. The Amateur Radio rules prohibit
“one-way” transmissions – i.e., transmissions that are not part
of an exchange between two amateur operators – “except as
specifically provided” in another rule. 47 C.F.R. § 97.113(b).
Section 97.111(b)(6), one of the two rules relied on by Baxter,
authorizes the transmission of one-way “information bulletins”
as an exception to the general rule.4 Section 97.113(d), the
other provision relied on by Baxter, provides as follows:
The control operator of a club station may
accept compensation for the periods of time
when the station is transmitting telegraphy
practice or information bulletins, provided
that the station transmits such telegraphy
practice and bulletins for at least 40 hours
per week; schedules operations on at least
six amateur service MF and HF bands5 using
reasonable measures to maximize coverage;
where the schedule of normal operating times
and frequencies is published at least 30
days in advance of the actual transmission;
and where the control operator does not
accept any direct or indirect compensation
for any other service as a control operator.

4 “Information bulletin” is defined in 47 C.F.R. § 97.3(a)(26) to
mean a message “directed only to amateur operators consisting
solely of subject matter of direct interest to the amateur
service.”

5 “MF” and “HF” refer to frequency ranges defined in 47 C.F.R. §
97.3(b)(2) & (5).
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47 C.F.R. § 97.113(d) (2007) (that provision is currently
codified at 47 C.F.R. § 113(a)(3)(iv), but for ease of reference
the original codification is cited).
Based on the plain language, neither of the sections relied
on by Baxter authorizes (or has anything at all to do with)
intentional interference. Section 97.111(b)(6) authorizes the
transmission of information bulletins as a permissible one-way
communication. Section 97.113(d) lists the circumstance under
which when a station operator may accept compensation (Cross
Declaration ¶5; Docket # 32-1).6 Neither rule concerns or even
mentions interference, which is barred entirely by Rule
97.101(d) (“no amateur operator shall willfully or maliciously
interfere with or cause interference to any radio communication
or signal”). 47 C.F.R. § 97.101(d) (emphasis added).
Furthermore, the evidence below showed that the FCC warned
Baxter in both 2002 and 2004 that publishing a schedule does not
give an amateur operator the right to interfere (Cross
Declaration ¶¶5-6; Docket #32-1). The District Court thus
correctly concluded that Baxter is “simply incorrect” that the
FCC rules “carve out an exception [to the prohibition on

6 As the District Court pointed out, Rule 97.113(d) applies only
to club stations, a category that does not apply to Baxter
(Dist. Ct. Op. at 31).
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interference] for amateur operators who publish their intent to
transmit in advance” (Dist. Ct. Op. 30-31).
Baxter nevertheless contends that, pursuant to those rules,
the American Radio Relay League (ARRL) has routinely caused
interference by transmitting information bulletins pursuant to a
published schedule (Baxter Br. 2-3). That contention, however,
is not supported by the record. The only record evidence
pertaining to interference caused by ARRL (Cross Declaration ¶3;
Docket #32-1), demonstrates that “no interference complaint …
has been filed against” ARRL and that “ARRL has never been cited
by the FCC for causing interference.” Id. Defendant’s apparent
contention to the contrary is nothing more than “conclusory
allegations” and “unsupported speculation” that “the Court may
ignore.” Prescott, 538 F.3d at 39.7 There is thus no merit to
Baxter’s claim that the FCC has discriminated against him by
allowing ARRL to cause interference while penalizing him for
doing so (Baxter Br. 4).

Finally, Baxter contends that the District Court’s grant of
summary judgment contravenes the Seventh Amendment right to a

7 Baxter also appears to claim that a 1989 letter from a member
of the FCC’s staff authorized interference (Baxter Br. 2). He is
wrong. As the Cross Declaration explains, the staff letter did
not address interference “and could not pre-approve or determine
the nature of future … transmissions” made by Baxter (Docket 32-
1 ¶4).
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trial by jury (Baxter Br. 6). Baxter waived that claim by
failing to raise it before the District Court, but it is wrong
in any event, having been firmly rejected by this Court. Borges
ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 10 (1st Cir. 2010)
(citing favorably a decision describing the claim as
“frivolous”).8

CONCLUSION


For the foregoing reasons, the Court should affirm the
judgment of the District Court.

Dated: May 21, 2012
Respectfully
submitted,
RICHARD
MURPHY
Attorney for the United
States, under Authority
Conferred by 28 U.S.C. § 515
/s/ Evan J. Roth
Joel
Marcus
Evan
J.
Roth
Counsel
Assistant
U.S.
Attorney
Federal Communications Commission 100 Middle Street
445 12th Street, SW


East Tower, Sixth Floor
Washington, DC 20554


Portland, ME 04101
(202)
418-1740
(207)
780-3257

8 Baxter also complains that the FCC’s staff suggested that a
pending license renewal application that Baxter filed with the
agency might not be processed unless Baxter paid the amount due
under the forfeiture order (Baxter Br. 6-7). That issue has
nothing to do with the question of whether the District Court
properly granted summary judgment. In any event, the Government
has been informed by the FCC that it will not dismiss Baxter’s
license renewal application pending the outcome of this
proceeding, so the matter is moot.
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United States Court of Appeals

FOR THE FIRST CIRCUIT

CERTIFICATE OF COMPLIANCE WITH

TYPEFACE AND LENGTH LIMITATIONS

No. 12-1196


UNITED STATES OF AMERICA

v.
GLENN A. BAXTER
TO BE INCLUDED IMMEDIATELY BEFORE THE
CERTIFICATE OF SERVICE FOR ALL BRIEFS FILED IN THIS COURT
1.
This brief has been prepared using (SELECT AND COMPLETE ONLY ONE):
14 point, proportionally spaced, serif typeface (such as CG Times or Times New Roman).
Specify software name and version, typeface name, and point size below (for example,
Wordperfect 8, CG Times, 14 point):

10 1/2 characters per inch, monospaced typeface (such as Courier or Courier New). Specify
software name and version, typeface name, and characters per inch below (for example,
Wordperfect 8, Courier, 10 1/2 CPI):
Courier New , 12 CPI
2.
EXCLUSIVE of the corporate disclosure statement; table of contents; table of citations; addendum; and
the certificate of service, the brief contains (SELECT AND COMPLETE ONLY ONE):

___________ Pages (give specific number of pages; may not exceed 30 pages for opening or
answering brief or 15 pages for reply brief); OR
:
5,448 words (give specific number of words; may not exceed 14,000 words for opening or
answering brief or 7,000 for reply brief); OR

____________ Lines of Mono spaced Type (give specific number of lines; may not exceed
1,300 lines for opening or answering brief or 650 for reply brief; may be used ONLY for briefs
prepared in monospaced type such as Courier or Courier New).

I understand that a material misrepresentation can result in the Court striking the brief or imposing sanctions. If
the Court so directs, I will provide a copy of the word or line print-out.
/s/ Evan J. Roth
Signature of Fi1ing Party

Case: 12-1196 Document: 00116380943 Page: 34 Date Filed: 05/21/2012 Entry ID: 5642768

CERTIFICATE OF SERVICE




I hereby certify that on May 21, 2012, I electronically
filed Government’s Brief, with the Clerk of Court using the
CM/ECF system, and will send notification of such filing, via
U.S. Mail, to the following:





Glenn A. Baxter
310 Woodland Camp Road
Belgrade, Maine 04917

Glenn A. Baxter
310 Woodland Camp Road – Box 440
Belgrade Lakes, Maine 04918-0440

Glenn A. Baxter
440 Woodland Camp Road
Belgrade Lakes, Maine 04918-0440








/s/
Melody
A.
Richardson

Paralegal
Specialist
25


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