WPC<' 2BVTZ 3|P)?xxxX/Xx6X@DQX@HP LaserJet 4/4MCL) Room 744HPLAS4.WRSSx  @,,Y!zX@2<@RP Z@3|PTimes New Roman (TT)Times New Roman (Bold) (TT)Times New Roman (Italic) (TT)HP LaserJet 4/4MCL) Room 744HPLAS4.WRSSC\  P6Q,,Y!zP"5@^*7DSS77S^*7*.SSSSSSSSSS..^^^Jxooxf]xx7Axfxx]xo]fxxxxf7.7NS7JSJSJ7SS..S.SSSS7A.SSxSSJP!PZ*7777CE7SSxJxJxJxJxJooJfJfJfJfJ7.7.7.7.xSxSxSxSxSxSxSxSxSxSxJxSxSxSxSxS]SxSxJxJoJoJoJfJfJfJxSxSxxSxSxSxSCS7S777SAxSf.fExSxSxSxo7oE]A]AN:*LS7JSSSSS.4}}S2S}277JJS77SS7J72t7[[[[^ee*C`^.wRSSn[Cfx`xWlRx[][ceIfIs`Wx[rriwge*7DSS77S^*7*.SSSSSSSSSS..^^^Jxooxf]xx7Axfxx]xo]fxxxxf7.7NS7JSJSJ7SS..S.SSSS7A.SSxSSJP!PZ7SJSS7]777JJ:S7A7xx*7SSSS!S7.S^7SC[227`L*724S}}}Jxxxxxxoffff7777xxxxxxx^xxxxxx]SJJJJJJoJJJJJ....SSSSSSS[SSSSSSS2n@@H @  I. A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)"5@^*7]SS.77S_*7*.SSSSSSSSSS77___SxoxxofASoxfx]oxxxxo7.7aS7S]J]J7S].7].]S]]JA7]SxSSJB%BW*7777CE7S]xSxSxSxSxSxxJoJoJoJoJA.A.A.A.x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxJxJxJoJoJoJSSSS]]C]A]A7A]S]o.oEx]x]SxxJxJ]A]AN:*ZS7SSSSSS27}}S2}}S}277SSS77SS7S72t7[[[[_ee*C`_.wRSSn[Cfx`xWlRx[][ceIfIs`Wx[rriwge*7]SS.77S_*7*.SSSSSSSSSS77___SxoxxofASoxfx]oxxxxo7.7aS7S]J]J7S].7].]S]]JA7]SxSSJB%BW7SSSS7]777SS:S7A7xx*7SSSS%S7}2S_7}SC[227`Z*727S}}}SxxxxxxxooooAAAAxx_xxxxxf]SSSSSSxJJJJJ....S]SSSSS[S]]]]S]"5@^2CRdd$CCdq2C28dddddddddd88qqqYzoCNzoozzC8C^dCYdYdYCdd88d8ddddCN8ddddY`(`l2CC!CCPRCddYYYYYYzYzYzYzYC8C8C8C8ddddddddddYdddddoddYYYYYzYzYzYddddddPdCdCCCdNdz8zRdddCRoNoNNF2[dCYddddd7>d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd"5@^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CC!CCPRCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYYddddooPoNoNCNodo8RoodȐYYoNoNNF2ldCddddddd<d<CCoodCCddCoCddzzzzzzzzzzCCCCozdddddddYYYYY8888dddddddndddddYd"5@^(1<Standards for Assessing Forfeitures, (Policy Statement), 8 FCC Rcd 6215 (1993), which was  X - x\vacated by the U. S. Court of Appeals for the District of Columbia Circuit, USTA v. FCC, 28  X - xF. 3d 1232 (D.C. Cir. 1994). We disagree. The Policy Statement was a guideline for  xdetermining the amount of the proposed forfeiture, and had no bearing on the Bureau's  X- xdetermination that Ace was liable for a monetary forfeiture. On reconsideration, the Bureau has  xreassessed the amount pursuant to the statutory factors set forth in Section 503 of the  x|Communications Act, 47 U.S.C.  503(b)(2)(D). Section 503(b)(2)(D) requires that, the  xCommission or its designee, in determining the amount of a forfeiture, "take into account the  xLnature, circumstances, extent, and gravity of the violation, and with respect to the violator, the  xzdegree of culpability, any history of prior offenses, ability to pay, and other such matters as  x.justice may require." 47 U.S.C.  503(b)(2)(D). We now apply these factors to the facts in this case, and address petitioner's remaining arguments.   !x6. Ace does not dispute that the two types of scanners, the Yupiteru Model MVT 7100  x=and the Trident Model TR 2400, were required to have equipment authorizations (certification)  xkissued by the Commission, as required by Section 15.101(a) of the Commission's rules. Ace  xcontends, however, that the NAL should be reduced or dismissed because Ace demonstrated a  xgood faith attempt to comply with the Commission's rules. In this regard, Ace argues that its  xefforts at implementing its compliance plan were hampered by its having to stop third parties  xfrom importing its equipment. Ace's arguments do not address the lack of certification. The  x.NAL stated that Ace advertised the Yupiteru Model MVT 7100 scanner in three amateur radio  xypublications in September and October of 1993 and sold a unit to an individual in August 1993.  xFor the Trident Model TR 2400 receiver, Ace sold two units to individuals in March and April  xOof 1994. These scanners, which were examined by Commission staff and found to be  x=noncompliant with the rules, were purchased from or provided by Ace itself and not any other  xentity. Moreover, we note that Ace advertised the scanners in question in nationally distributed  xmagazines catering to persons interested in receiving radio communications. In these  xcircumstances, we disagree that Ace made good faith efforts to comply with the rules. We also  x reject Ace's claim that its efforts at compliance were thwarted by others and hold Ace fully responsible for the violations.   x7. In its response to the NAL, Ace denies that it violated Section 302(b) of the Act and"#',N(N(ZZ%"  xSection 2.803 of the Commission's rules because it claims that those sections do not prohibit  x"marketing." We disagree. Section 2.803 of the rules is one of the Commission's rules under the  xheading "Subpart I Marketing of Radiofrequency Devices," and it describes the type of activities  x=that are prohibited absent the Commission's authorization for the device at issue. Specifically,  x=Section 2.803 prohibits the selling or leasing or offering for sale or lease (including advertising  xfor sale or lease) of a product without an equipment authorization if an equipment authorization  xis required. The Commission's record in this case establishes that Ace sold the equipment in  x<question, that the equipment sold was required to have an equipment authorization issued by the  xCommission, and that the Commission would not have authorized the equipment. Copies of  xZadvertisements in widely distributed magazines confirm that the equipment was displayed for sale  xin print medium with nationwide circulation. Therefore, we reject Ace's contention that its actions were not proscribed by the Commission's rules.   {x8. Ace requests that the forfeiture penalty be reduced because it has been attempting to  x1rectify its past mistakes by obtaining proper authorization for marketing and sales of  xradiofrequency equipment within the United States. Prompt corrective action to come into  xcompliance with Commission rules or policy is expected, however, and does not nullify or  Xy- xmitigate any prior forfeitures or violations.y {O-ԍ See Station KGVL, Inc. 42 FCC 2d 258, 259 (1973); Executive Broadcasting Corp., 3 FCC 2d 699, 700 (1966). Ace also claims that it has already been penalized  xby the Commission in a March 29, 1994 letter for marketing one of the two scanner models.  xkThat letter, however, did not assess any penalty. It simply advised Ace that, because of its  xfailure to bring its equipment into compliance with the Commission's rules, the processing of  xAce's other applications for an equipment authorization was being delayed until such time as the  xCommission could determine whether a grant of authorization would serve the public interest.  X-See 47 C.F.R. 2.915(a)(2).   x9. Ace claims that the Commission erred in sending it an official notice pursuant to  xSection 503(b)(5) of the Act because these provisions do not apply if the "person involved is  xengaging in activities for which a license, permit, certificate, or other authorization is required...".  x=Inasmuch as Section 15.101 of the Commission's rules mandates equipment authorization prior  xto marketing, Ace contends that the provisions of Section 503(b)(5) do not apply, that the  xL"Notice" given by the Commission was in error, and that the Commission should be precluded  x[from using any response given by Ace as a result of the Commission's error. We wholly reject  xAce's contention. Sending a Notice of Violation to Ace does not preclude the Commission from  xassessing a forfeiture based, in part, on information received in response to the Notice.  xMarketing an unauthorized device automatically subjected Ace to a potential monetary forfeiture  xfor violating the Commission's rules. Rather than automatically assessing a forfeiture, the  xCommission, in its discretion, chose to warn Ace of the violation and afford it an opportunity to  xrespond to the warning prior to making any decision regarding possible enforcement action.  xThus, contrary to Ace's suggestion that it was somehow prejudiced by the official notice, the  x-Commission's action gave Ace ample opportunity to demonstrate that further enforcement action was unnecessary. "j$Z,N(N(ZZF#"Ԍ  mԙx10. Ace has failed to provide any justification for the cancellation or reduction of the  xforfeiture. In accordance with Section 503(b)(2)(D), we have considered Ace's culpability. In  xthis connection, we note the reference in the NAL to three different instances in which the  xYupiteru Model MVT 7100 scanner was advertised. We further note Ace's total disregard for  xthe Commission's warning that the marketing activities at issue were prohibited. Indeed, Ace  x[proceeded to sell Trident Model TR D"U   D"U 2400 to a company and to an individual subsequent to the  xCommission's warning. We have also considered the gravity of the violation. In particular, and  xZas stated in the NAL, the Commission's records establish that the Trident Model TR 2400 scanner  xreceiver at issue bore a label with an FCC identifier number. It therefore potentially misled the  xpublic into believing that the FCC had authorized the equipment, although the FCC does not  x0issue equipment authorizations for this type of device. After considering the totality of  xycircumstances in this case, we conclude that a forfeiture in the amount of $20, 000 is warranted.  X -x 0IV. ORDERING CLAUSES ă  X -  x11 D"U0 . Accordingly, IT IS ORDERED , pursuant to Section 503(b) of the Communications  x}Act, 47 U.S.C. 503(b), and Section 1.80(f)(4) of the Commission's Rules, 47 C.F.R.  Xy- x1.80(f)(4), that Ace Communications FORFEIT to the United States the sum of twenty  xthousand dollars ($20,000) for the willful and repeated violation of Section 302(b) of the Act and  XK-Section 2.803 of the Commission's rules. @  X-  @x12 D"U1 . IT IS FURTHER ORDERED , pursuant to Section 503(b) of the Act, 47 U.S.C.  x@503(b), and Section 1.80(h) of the Commission's Rules, 47 C.F.R. 1.80(h), that Ace  xCommunications must pay the monetary forfeiture amount of $20,000 within thirty (30) days  xyof the date of release of this order. Payment may be made by check, credit card or money order  X- xpayable to the Federal Communications Commission.  yO:- xЍ Requests for installment plans should be mailed to: Chief, Billings and Collections, Mail Stop 1110A2, 1919  xM Street, N.W., Washington, D.C. 20554. Payment of the forfeiture installments may be considered as a separate  xmatter in accordance with Section 1.1914 of the Commission's Rules. Also, please contact Chief, Billings and Collections for more information on credit card payments. Please place NAL/Acct. 415HF0010 on the remittance and mail it to: x` `  Federal Communications Commission x` `  P. O. Box 73482 x` `  Chicago, IL 606737482 "7,N(N(ZZ]"  X-  x1 D"U 3 D"U . IT IS FURTHER ORDERED that the Compliance and Information Bureau send by  xcertified mail, return receipt requested, one copy of this Order to Ace Communications, 10707  x{E. 106th Street, Fishers, IN 46038, one copy to Ace Communications, 6975 Hillside Court, Indianapolis, IN 46250, and one copy to its counsel.  Xv-x` `  hh FEDERAL COMMUNICATIONS COMMISSION x` `  hhMagalie R. Salas x` `  hhChief, Compliance Division " ,N(N(ZZm " CC: Ace Communications Attn: Manager, Sales Dept. 10707 E. 106th Street Fishers, IN 46038 Ace Communications Attn: Manager, Sales Dept. 6975 Hillside Court Indianapolis, IN 46250 Brown and Schwaninger Attn: Kathleen A. Kaercher 1835 K Street, N.W. Suite 650 Washington, D.C. 20006 Chief, Authorization and Evaluation, OET Chief, Billings and Collections Branch, FAD Typed: 2/9/95 LRL Edits: 2/14/95 LRL Edits: 2/15/95 LRL Edits: 3/22/96 DCC x