******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect or Word to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the Word or WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** CONSENT DECREE 1. The Enforcement Bureau of the Federal Communications Commission and Michael E. Gallagher hereby enter into this Consent Decree for the purpose of terminating a forfeiture proceeding arising from an investigation related to Gallagher's operation of an Amateur Radio station. BACKGROUND 2. Prompted by complaints of interference to the Phil-Mont Amateur Radio Club repeater, which operates on 147.63 MHz/147.03MHz, the Commission's Philadelphia District Office monitored and identified radio transmissions on February 14, 1999, emanating from a vehicle in which a person later identified as Gallagher was in the driver's seat. The transmissions were on the output frequency of the Phil-Mont Club repeater station. Again on February 21, 1999, agents from the Philadelphia District Office monitored transmissions interfering with the Phil-Mont Amateur Radio Club repeater. Radio direction finding led to the same vehicle and Gallagher was observed sitting in the driver's seat. On February 25, 1999, Gallagher confirmed to one of the agents that he was transmitting with a disguised voice on the Phil-Mont repeater on February 14 and 21, 1999, and confirmed that he had not identified by call sign.1 3. On March 10, 1999 the Commission's Philadelphia District Office issued Gallagher a Notice of Apparent Liability for Forfeiture (``NAL''), finding Gallagher apparently liable for a forfeiture in the amount of $7,500.2 The NAL found that Gallagher had apparently operated his Amateur Radio station so as to cause willful and malicious interference, in violation of Section 97.101(d) of the Commission's Rules (``Rules''), 47 C.F.R. Section 97.101(d), and transmitted unidentified communications in apparent willful violation of Section 97.119(a) of the Rules, 47 C.F.R. Section 97.119(a). The NAL further stated that Gallagher had apparently failed to operate his Amateur station in accordance with good Amateur practice, in violation of Section 97.101(a) of the Rules, 47 C.F.R. Section 97.101(a), and operated in apparent violation of Section 97.113(a)(4) of the Rules (prohibited transmissions), 47 C.F.R. Section 97.113(a)(4). 4. On April 6, 1999, Gallagher submitted a response to the NAL and admitted to making transmissions that interfered with the Phil-Mont Amateur Radio Club repeater communications and stated that he had cooperated with Commission agents in their investigation of the interference. Gallagher submitted copies of tax returns and stated that the forfeiture would cause an extreme financial hardship upon him. As part of his response to the NAL, Gallagher submitted his Amateur Radio license for cancellation. DEFINITIONS 5. For the purposes of this Consent Decree, the following definitions shall apply: (a) The ``Commission'' means the Federal Communications Commission. (b) The ``Bureau'' means the Enforcement Bureau of the Commission. (c) The ``Order'' means the Bureau's order adopting this Consent Decree. (d) ``Enforcement Proceeding'' means the investigation of Gallagher. (e) ``Gallagher'' means Michael E. Gallagher, licensee of Amateur Radio station KB1DTA, West Concord, Massachusetts. (f) ``NAL'' means Notice of Apparent Liability, NAL/Acct. No. 915PA0007, Compliance and Information Bureau, Philadelphia Office, released March 10, 1999. AGREEMENT 6. Gallagher acknowledges and agrees that the Commission has jurisdiction over the matters referenced in this Consent Decree and that the Bureau has the authority to enter into and adopt this Consent Decree. 7. Gallagher agrees not to contest the findings in the NAL that Gallagher violated Sections 97.101(a), 97.101(d), 97.113(a)(4) and 97.119(a) of the Commission's Rules with respect to the radio transmissions on February 14 and 21, 1999, provided that these findings shall not be used by the Bureau against Gallagher in any other current or future proceedings before the Bureau, except as set forth in paragraphs 13 and 16 of this Consent Decree. 8. Gallagher and the Bureau agree that this Consent Decree does not constitute an adjudication of the merits, or any finding on the facts or law regarding any violations committed by Gallagher arising out of the Enforcement Proceeding, and that it is not to be construed as an admission of the violations by Gallagher. 9. Gallagher has submitted his Amateur Radio license for cancellation. He agrees not to apply for an Amateur Radio license for a period of five years after the date of the order adopting this Consent Decree. 10. Gallagher and the Bureau acknowledge and agree that this Consent Decree shall constitute a final settlement between them. 11. In express reliance upon the covenants and representations contained herein, the Bureau agrees to terminate the Enforcement Proceeding at such time as the Bureau adopts this Consent Decree. 12. Gallagher waives any and all rights he may have to seek administrative or judicial reconsideration, review, appeal or stay, or to otherwise challenge or contest the validity of this Consent Decree and the Order adopting this Consent Decree, provided the Order adopts the Consent Decree without modification. 13. In the event that Gallagher is found by the Commission or its delegated authority to have engaged in conduct the same or similar to that described in paragraphs 2 and 3 of this Consent Decree, Gallagher and the Bureau agree that the apparent misconduct described in paragraph 2 may be used by the Bureau only to fashion an appropriate sanction, provided that Gallagher shall not be precluded or estopped from litigating de novo any and all of the issues arising from the facts and allegations presented in the NAL as necessary to defend, in any forum, his interest from challenge by any person or entity not a party to this Consent Decree. 14. Gallagher and the Bureau agree that the effectiveness of this Consent Decree is expressly contingent upon issuance of the Order, provided the Order adopts the Consent Decree without modification. 15. Gallagher and the Bureau agree that, in the event any court of competent jurisdiction renders this Consent Decree invalid, the Consent Decree shall become null and void and may not be used in any manner in any legal proceeding. 16. Gallagher and the Bureau agree that, if the Commission, or the United States on behalf of the Commission, brings a judicial action to enforce the terms of the Order adopting this Consent Decree, neither Gallagher nor the Commission will contest the validity of the Consent Decree or Order, and shall consent to a judgment incorporating the terms of this Consent Decree. 17. Gallagher agrees to waive any claims he may otherwise have under the Equal Access to Justice Act, 5 U.S.C. § 504 and 47 C.F.R. §§ 1.1501 et seq. 18. Gallagher agrees that any violation of the Consent Decree or the Order adopting the Consent Decree will constitute a separate violation of a Commission order, entitling the Commission to exercise any rights and remedies attendant to the enforcement of a Commission order. 19. Any provision of this Consent Decree affected by or inconsistent with any subsequent rule or order adopted by the Commission will be superseded by such Commission rule or order. 20. This Consent Decree may be signed in counterparts. FEDERAL COMMUNICATIONS COMMISSION MICHAEL E. GALLAGHER ENFORCEMENT BUREAU By: _____________________ By:_________________________ David H. Solomon Michael E. Gallagher Chief, Enforcement Bureau Date: Date: _________________________ 1 At the time of the alleged violations, Gallagher's call sign was KB3DHX. 2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 915PA0007, Compliance and Information Bureau, Philadelphia Office, released March 10, 1999.