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Old August 4th 16, 03:56 AM posted to rec.radio.amateur.moderated,rec.radio.amateur.policy,rec.radio.info
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Default FCC Daily Digest 08/03/2016


(Moderator's Note: Only FCC Part 97 Amateur Radio related actions are shown below.)
Daily Digest

Vol. 35 No. 147 August 03,
2016



[...]

WILLIAM F. CROWELL, LICENSEE OF AMATEUR RADIO STATION W6WBJ, DIAMOND SPRIN
GS, CALIFORNIA. Imposed a penalty of a$25k against an amateur radio opera
tor for willful and malicious interference. Action by: Director, Office of
the Field Director, Enforcement Bureau. Adopted: 08/01/2016 by Forfeiture
Order. (DA No. 16-877). EB https://apps.fcc.gov/edocs_public/attachmatch
/DA-16-877A1.docx
https://apps.fcc.gov/edocs_public/at...A-16-877A1.pdf

(Moderator's Note:

Amateur or Part 97 match found in contents linked at URL:

) NAL/Acct. No.: 201632960001
Licensee of Amateur Radio Station W6WBJ ) FRN: 0014454912
Diamond Springs, California )

[...]

I. INTRODUCTION
1. We impose a penalty of $25,000 against William F. Crowell for operating an amateur
station in violation of Section 333 of the Communications Act1 and Sections 97.101(d) and 97.113(a)(4)
of the Commission's rules,2 by intentionally causing interference to other amateur radio operators and
transmitting prohibited communications, including music. The penalty represents the full amount proposed

[...]

warned that his actions violated the Communications Act and the Commission's rules.3
2. Deliberate interference undermines the utility of the Amateur Radio Service by preventing
communications among licensed users who comply with the Commission's Rules. Mr. Crowell's deliberate
interference to other users, using voice, noises and music, directly contravenes the Amateur Radio Service's
fundamental purpose as a voluntary noncommercial communications service to contribute to the
advancement of radio art, expand the existing reservoir of trained operators, technicians, and electronic
experts, and continue the amateur's unique ability to enhance international goodwill. Mr. Crowell does not
deny that he made the transmissions that prompted the NAL in this proceeding, but argues, in large part, that

[...]

types of noisemaking devices to interfere with the communications or radio signals of other stations."6
Section 97.101(d) of the Rules states that "[n]o amateur operator shall willfully or maliciously interfere
with or cause interference to any radio communication or signal."7 Section 97.113(a)(4) of the Rules states
that "[n]o amateur station shall transmit . . . [m]usic using a phone emission except as specifically provided
elsewhere in this section."8
4. On August 25 and 27, 2015, in response to multiple complaints of interference, primarily
from members of the Western Amateur Radio Friendship Association (WARFA),9 Field Agents from the
Enforcement Bureau's (Bureau's) Western Region and the Commission's High Frequency Direction

[...]

source of the interference.10 During these investigations, the Agents and the HFDF Center observed Mr.
Crowell's amateur radio station intentionally interfering with other amateur licensees by transmitting on
top of other amateurs, and repeatedly interrupting amateurs using noises on the WARFA net, recordings

[...]

investigations, the Bureau found that Mr. Crowell had apparently willfully and repeatedly violated the Act
and the rules, by intentionally causing interference to other amateur radio operators, transmitting on top of
other operators, and transmitting prohibited communications and emissions, including music, at 3908 kHz.13

[...]

7
47 C.F.R. 97.101(d). See 47 C.F.R. 97.101(a) (stating that "each amateur radio station must be operated in
accordance with good engineering and good amateur practice").
8

[...]

NAL, 30 FCC Rcd at 14267-68, para. 3. WARFA operates a "net" that meets three times a week at 3908 kHz. See
NAL, 30 FCC at 14267 n.3. In the context of the amateur service, a net or a network is a group of amateur radio
stations that share some common interest and exchange messages among themselves. Uses and Capabilities of
Amateur Radio Service Communications in Emergencies and Disaster Relief: Report to Congress Pursuant to
Section 6414 of The Middle Class Tax Relief and Job Creation Act of 2012, Report, 27 FCC Rcd 10039, 10041 n.21

[...]

authorized by or under the Act or operated by the United States Government."17 Similarly, Section
97.101(d) of the Rules states that "[n]o amateur operator shall willfully or maliciously interfere with or
cause interference to any radio communication or signal."18 Mr. Crowell has not raised any argument that

[...]

was clear that these violations resulted from the manner in which he made his transmissions.30
Specifically, our Field Agents observed Mr. Crowell intentionally interfering with other amateur licensees,
by transmitting on top of other amateurs attempting to transmit, and repeatedly interrupting other amateurs

[...]


applies to the amateur service as well.34 Accordingly, Mr. Crowell misplaces his reliance on the Freedom
of Speech clause of the First Amendment. Moreover, to the extent that Mr. Crowell believes that his

[...]

Each 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.

[...]

Constitution. Crowell NAL Response at 22, Crowell June 29 e-mail. During that inspection, the Field Agents
advised Mr. Crowell that causing harmful interference and playing music were violations of the Part 97 rules,
without mentioning the Constitution specifically. However, even if the Field Agents had asserted that the

[...]

opinion in Rust that could be interpreted as providing any support for Mr. Crowell's assertion that prohibiting
amateur licensees from causing willful or malicious interference might violate the First Amendment. (Mr. Crowell
cites a dissenting opinion in Rust in support of his assertion.)

[...]

Crowell maintains that he was exercising "self-policing," in order to prevent WARFA net from further
violating Section 97.101(b).40 As another legal theory, Mr. Crowell likens an amateur license to a form of
contract between the licensee and the U.S. Government,41 and argues that WARFA net breached its

[...]

97.101(b) gives him a right to check in to any net, or that it places an obligation on operators of nets to let
anyone check in. Section 97.101(b) gives all amateur licensees the right to operate on any amateur
frequency, provided that there are no other licensees that are already using the frequency. At least one
federal court has found that transmitting without first finding a clear channel is "patently inconsistent with
the plain language of 47 C.F.R. 97.101(b) requiring cooperation among amateur radio licensees."43
That court explained further that, "[a]s a matter of law, any conscious and deliberate interference with

[...]

[the licensee] is subject to forfeiture penalties."44 Thus, Section 97.101(b) does not give Mr. Crowell or
any other amateur operator authority to interrupt ongoing transmissions, for purposes of checking in to a
net or for any other reason. On the contrary, Section 97.101(b) prohibits such transmissions.
16. In addition, by trying to check in when another operator was transmitting, Mr. Crowell
caused harmful interference to other amateur operators in violation of Section 97.101(d). Mr. Crowell's
contention that his transmissions were justified because he was trying to check in to a net was considered

[...]

even if WARFA net had violated a Commission rule, that would not by itself justify the interference that
Mr. Crowell caused. Section 97.101(d) prohibits all amateur licensees from causing harmful interference,
and does not provide any exception for interference caused to other amateurs whom the interferer believes

[...]

contention that a licensee's rule violation could cause an immediate modification of its operating
authority is unfounded. The Commission can modify an amateur license, but only pursuant to the


[...]

45
Vernon A. Paroli Amateur Radio Station KA5OWW, Order, 10 FCC Rcd 7596 (Compliance and Information Bur.,
1995) (Paroli Order), aff'd Vernon A. Paroli Amateur Radio Station KA5OWW, Memorandum Opinion and Order,
11 FCC Rcd 3055 (1996) (Paroli Review Order).

[...]

First, as explained above, WARFA net has not violated Section 97.101(b). Second, Mr. Crowell is
incorrect that his harmful interference can be justified as "self-policing." While use of amateur volunteers
for the purpose of monitoring violations in the amateur service is permitted by the Communications Act,48
the Act prohibits such volunteers from doing anything other than monitoring and reporting to the

[...]

48
In fact, the amateur radio community has distinguished itself for its self-policing operations. See H.R.Rep. No.
765, 97th Cong., 2d Sess. 19 (1982) (Commission reporting to Congress the success of amateur self-monitoring
efforts); cited in Paroli Order, 10 FCC Rcd at 7596, para. 7.

[...]

26. Background. Mr. Crowell claims that adopting the NAL was tantamount to giving
WARFA net a frequency assignment, contrary to Part 97, and that the alleged award of this assignment
was racially motivated.59 Mr. Crowell claims further that such a racially motivated frequency assignment

[...]

27. Discussion. As noted above, in Baxter, and in the Paroli Order, Section 97.101(d)
prohibits amateur licensees from causing harmful interference to other licensees' ongoing transmissions.61
The Bureau issued the NAL to Mr. Crowell in part because he appears to have violated this rule.62

[...]

Thus, contrary to Mr. Crowell's claim, the NAL does not constitute a frequency assignment for any
member of WARFA net, or for any other amateur licensee. Because the NAL does not constitute a
frequency assignment, we need not reach Mr. Crowell's allegations of racial motivation, or his equal

[...]

deference is even more clearly in order.65 As discussed above, we interpret Section 97.101(b) as
prohibiting any amateur operator from transmitting on top of another operator, and this interpretation was
affirmed by the Court in Baxter.66 Mr. Crowell offers only an unsupported assertion that this

[...]

NAL was prompted by his broadcasts of racial epithets. While he denies broadcasting any such epithets,
he also asserts that the Bureau considers some racial epithets as violative of Part 97 but others as not.70
Under a third theory, Mr. Crowell claims that the NAL was a retaliatory measure, in response to his claim
that amateurs are permitted to broadcast music under Part 97.71 He also claims that other amateurs
broadcast recordings, and that he has been singled out unfairly for his broadcasts.72 Mr. Crowell

[...]

Crowell NAL Response at 17. In this order above, we considered and rejected Mr. Crowell's contention that
WARFA net's refusal to allow him to check in violated Part 97.
69

[...]

71
Crowell NAL Response at 24-25. We address Mr. Crowell's arguments regarding amateur broadcasts of music
below.

[...]

constitute jamming. He observes that, in a 1982 license renewal proceeding, the Kerr Initial Decision, the
licensee seeking renewal was found to have played recordings in the amateur service for an extended
period of time.78 Mr. Crowell distinguishes his transmissions from those discussed in the Kerr Initial

[...]

a break for period ranging from 29 minutes to three hours,80 there is nothing in either the Kerr Initial
Decision or the Kerr Review Order to suggest that causing harmful interference to other amateur
operators for periods of time shorter than 29 minutes might be permissible. Moreover, if there were any

[...]

78
Crowell NAL Response at 25-26, citing Application of Gary W. Kerr for Renewal of Amateur License WA6JIY, PR
Docket No. 81-66; 91 FCC 2d 110 (1982) (Kerr Initial Decision). See also Application of Gary W. Kerr for
Renewal of Amateur License WA6JIY, PR Docket No. 81-66; 91 FCC 2d 107 (1982) (Kerr Review Order). Mr.
Crowell mistakenly asserts that the transmissions at issue in the Kerr proceeding lasted for three days. In fact, those

[...]

37. Background. As noted above, on August 25 and 27, 2015, Field Agents from the
Bureau's Western Region and the HFDF Center observed Mr. Crowell's amateur radio station
intentionally interfering with other amateur licensees by transmitting on top of other amateurs, and
repeatedly interrupting amateurs using noises on the WARFA net, recordings and music, so as to not

[...]

allegations that noises were made on the frequency in question, Mr. Crowell asserts that they were made
by amateur operators participating in WARFA net, and took the form of insults at his expense, or efforts
to block him and others from checking into the Net.84 Mr. Crowell also asserts that "pile-ups"85 are a

[...]

net "had nothing to communicate in the first instance."87 Mr. Crowell also asserts that WARFA net has
no right to be protected from interference, because Part 97 does not provide for such nets.88
39. Discussion. As an initial matter, Mr. Crowell's transmissions were not "short and to the

[...]

result of pile-ups, but were caused by Mr. Crowell intentionally transmitting on top of and interrupting
other amateur transmissions.90 While Mr. Crowell describes at length the transmissions he claims were
made by members of WARFA net, his claims are not supported by or consistent with the observations of

[...]

finding operations were supplemented by observations by the HFDF Center. As a result, Commission
staff was able to monitor Mr. Crowell's transmissions, as well as the transmissions of other amateur
operators on 3908 kHz. Subsequently, after staff had compared and synthesized all the observations of

[...]

station was the source of the transmissions at issue, but also that Mr. Crowell had consistently caused
interference to other amateur operators, by transmitting on top of and interrupting those other operators.
The questions Mr. Crowell raises regarding direction-finding techniques do not take into account the

[...]

1. Background
44. Section 97.113(a)(4) of the Commission's Rules states that "[n]o amateur station shall
transmit . . . [m]usic using a phone emission except as specifically provided elsewhere in this section."97 On

[...]

46. Discussion. The U.S. Court of Appeals for the District of Columbia Circuit has
considered and rejected claims that Commission prohibitions on certain types of transmissions by amateur
licensees violate the First Amendment. The court found that, because the electromagnet spectrum is a

[...]

rendered by each class of licensed stations and each station within any class."104 Accordingly, on several
occasions, the Commission has prohibited amateur radio operators from broadcasting music.105


[...]

105
Michael Guernsey, Licensee of Amateur Radio Station KZ8O Parchment, Michigan, Forfeiture Order, 30 FCC
Rcd 7354 (Enf. Bur. 2015) (Enf. Bur., Northeast Region, 2015) (Guernsey Forfeiture Order); Jack Gerritsen Bell,
California, Forfeiture Order, 20 FCC Rcd 19256 (Enf. Bur., Western Region, 2005) (Bell Forfeiture Order); Ronald
E. Sauer, Licensee of Amateur Radio Station WE8E, Bedford Heights, Ohio, Forfeiture Order, 19 FCC Rcd 14884
(Enf. Bur. 2004) (Sauer Forfeiture Order); Scott E. Kamm, Licensee of Amateur Station NOUGN, Sioux City, Iowa,
Forfeiture Order, 18 FCC Rcd 9379 (Enf. Bur. 2003) (Kamm Forfeiture Order); James C. Thompson, Suspension of
License Amateur Radio Operator License Call Sign KA2YYBP, Order, 15 FCC Rcd 25362 (WTB 2000) (Thompson
(continued....)

[...]

amateurs to transmit music, concluding that doing so "would be inconsistent with the definition and
purpose of the amateur service."106 Mr. Crowell does not address this precedent, let alone provide an
adequate reason to depart from it.

[...]

47. Background. Mr. Crowell maintains that the purpose of the restriction on broadcasting is
to prevent amateur licensees from competing unfairly with broadcast radio stations. According to Mr.
Crowell, it follows that, under the Radio Act of 1927, music was understood to be "commercially viable"
music, and he asserts that that understanding was incorporated into the Communications Act of 1934 and
Part 97 of the Commission's rules. He argues further that "non-commercially viable" music is therefore
not subject to any Part 97 restriction on music.107 Finally, Mr. Crowell contends that, if the Commission
does not distinguish between "commercially viable" and "non-commercially viable" music, the definition

[...]

of the Radio Act of 1927 or the Communications Act of 1934, or any Commission Order, to support his
theory that Part 97 has historically been interpreted as distinguishing between "commercially viable" and
"non-commercially viable" music, or that amateurs have historically been allowed to broadcast "non-
commercially viable" music. On the contrary, as discussed above, the Commission has a long history of
prohibiting amateur licensees from broadcasting music, without distingusiing certain types of music from
others for purposes of the prohibition.109

[...]

"commercially viable" and "non-commercially viable" music. While the Commission adopted the
restriction on broadcasting in part to ensure that amateur service frequencies were not used as a substitute
for other communication services, as Mr. Crowell suggests,110 he overlooks another important function

[...]

frequency where the alternative would be to deny any access to the frequency to many intended users.111
Allowing some amateurs to broadcast music on amateur frequency bands would deny to many other
amateurs any access to those bands, regardless of whether the music at issue is "commercially viable" or

[...]

102 FCC 2d 262 (1985) (Smith Revocation Order), aff'd 1 FCC Rcd 594 (1986); Andres Calandria, New Orleans,
La., Suspension of Amateur Radio Operator License (K5MVP), Initial Decision, Docket No. 14548, 33 FCC 739
(1962) (Calandria Suspension Order); Louis Raymond Choiniere, Holyoke, Mass., Suspension of Amateur Radio
Operator License, Findings of Fact and Conclusions of the Commission, Docket No. 5777, 8 FCC 201 (1940)

[...]

106
Amendment of Part 97 of the Commission's Rules Governing the Amateur Radio Services, Notice of Proposed
Rulemaking and Order, WT Docket No. 04-140, 19 FCC Rcd 7293, 7313-14, para. 41 (2004) (2004 Part 97 Order).
107

[...]

110
2004 Part 97 Order, 19 FCC Rcd at 7212, para. 39.
111

[...]

Mr. Crowell considers rap music to be "non-commercially viable" music, and so argues that it is speech protected
by the First Amendment. Crowell NAL Response at 13. Because we find here that amateur licensees are prohibited
(continued....)

[...]

standardless that it leaves the public uncertain as to the conduct it prohibits . . . ."113 Section 97.113(a)(4)
does not leave the public uncertain as to the conduct it prohibits. It clearly prohibits amateur licensees
from transmitting in a fashion that monopolizes the frequency at issue and causes interference to other
amateur operators.114
4. Force and Effect of Section 97.113(a)(4)
51. Background. Alternatively, Mr. Crowell asserts that the Part 97 restriction against
playing music has no force or effect, because a summary of the rule was not published in the Federal

[...]

5. Manufacture of Recording Equipment
53. Background. Mr. Crowell maintains that amateur equipment manufacturers have
included digital audio recorders "for years," for purposes of permitting the playing of music. He argues
further that prohibiting amateur licensees from broadcasting recordings would necessitate issuing an
advisory to such manufacturers to cease manufacture of such equipment.118

[...]

rules.121 With respect to the digital audio recorders cited by Mr. Crowell, if the only purpose they served
was to enable the unlawful broadcast of music by amateur licensees, the Commission would not have


[...]

117
Relaxing Restrictions on the Scope of Permissible Communications in the Amateur Service, Final Rule, 58 FR
43071 (Aug. 13, 1993).

[...]

we find that it is not necessary to recommend to equipment manufacturers that they cease manufacture of
transmitters designed for amateur use with digital audio recorders.
6. Denial of Transmission of Music

[...]

whether he violated the Commission's rules as discussed in the NAL. For example, Mr. Crowell contends
that indecent language should not be prohibited from the amateur service, notwithstanding Section
97.113(a)(4).124 Mr. Crowell argues further his transmissions were not "anywhere near as rude, insulting

[...]

need not reach the arguments he offers for revisiting prior Commission statements regarding indecent
speech in the amateur service.127


[...]

127
See, e.g., New Indecency Enforcement Standards to be Applied to All Broadcast and Amateur Radio Licensees,
Public Notice, 2 FCC Rcd 2726, 2728 (1987) (concluding that the Commission's indecency standards apply to
amateur licensees). Nor do we need to reach the issue of whether any of Mr. Crowell's transmissions, including but
not limited to the racial, ethnic, and sexual slurs and epithets mentioned in the NAL, are more or less "rude,

[...]

NAL or this forfeiture order, we do not need to reach this issue.
59. Mr. Crowell further alleges that he received a threat from another amateur operator in
January 2016, and that the threat violated Sections 97.103(a) and 97.113(a)(4) of the Commission's

[...]

implicitly advocating a downward adjustment of the proposed forfeiture amount.
63. First, Mr. Crowell asserts that he is "in full compliance with Part 97."141 In particular,
Mr. Crowell maintains that he has complied with the operating parameters of his license, and with
applicable Part 97 power and emissions limits.142 Mr. Crowell also states that he identifies his station, as
required by Part 97.143 Further, Mr. Crowell asserts that WARFA net has accused him of operating at
excessive power levels, and denies doing so.144

[...]

Crowell NAL Response at 1. Mr. Crowell contends that failure to identify a station is one of the primary indicia
of intentional interference in the amateur service. Crowell NAL Response at 22.
144

[...]

operating at excessive power. Crowell NAL Response at 24. We need not address any of these contentions, because
there is nothing in the NAL to suggest that Mr. Crowell may be apparently liable for violating the applicable Part 97
power limits.

[...]

65. Discussion. As an initial matter, we disagree with Mr. Crowell's general assertion that he
is in full compliance with Part 97, given his violation of Sections 97.101(d) and 97.113(a)(4) discussed
above. Regarding his assertions that he has complied with his license, with Part 97 power and emission
limits, and with Part 97 station identification requirements, we note that the NAL never suggested
otherwise. However, determining whether he has or has not complied with those other requirements is

[...]

E. License Renewal Proceeding
67. A proceeding to determine whether to revoke Mr. Crowell's amateur license is currently
pending.151 Mr. Crowell asserts that his license renewal proceeding cannot proceed while this

[...]


Commission's rules,156 by intentionally causing interference to other amateur radio operators and
transmitting prohibited communications, including music. We further find that Mr. Crowell has not

[...]

`Vagina power is a mother****ing revolution!' Please remember that I did not play these recordings;
however Ms. Tyler's sentiments are certainly appropriate under Section 97.111(a)(1) of Part 97 as
transmissions necessary to exchange messages with other stations in the amateur service (i.e., highly-
commendable, core political free speech of significant socially-redeeming value)." Crowell NAL

)

[...]


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