******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect 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 WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Ross Radio & T.V. ) NAL/Acct. No. 415BM0007 Uniontown, PA ) MEMORANDUM OPINION AND ORDER Adopted: April 28, 1997 Released: April 30, 1997 By the Chief, Compliance and Information Bureau: I. INTRODUCTION 1. Ross Radio and T.V. (Petitioner) filed an Application for Review pursuant to Section 1.115 of the Commission's Rules, 47 C.F.R.  1.115, seeking review of the Notice of Forfeiture Order (NOF) issued by the Compliance and Information Bureau's Baltimore Field Office. Pursuant to Section 503 of the Communications Act of 1934, as amended (Act), 47 U.S.C.  503, the Baltimore Field Office assessed a monetary forfeiture penalty in the amount of $7,000 to petitioner for offering to sell an external radio frequency power amplifier (linear amplifier) in violation of Section 302 of the Act, 47 U.S.C.  302, and Section 2.815 of the Commission's rules, 47 C.F.R.  2.815. Because the Bureau has not had an opportunity to address some of the issues raised in the Application for Review, this request for review is being treated as a petition for reconsideration pursuant to Sections 1.115 (c) and 1.106 of the rules, 47 C.F.R.  1.115 and 1.106. 2. For the reasons noted below, we find that a monetary forfeiture in the amount of $6,000 is warranted based on the facts of this case. II. BACKGROUND 3. On August 27, 1993, two investigators from the Federal Communications Commission's Compliance and Information Bureau's (CIB) Baltimore Field Office visited Petitioner's business and presented themselves as members of the general public. The investigators inquired about the availability of a linear amplifier for use with citizens band (CB) radio. An employee who identified himself as "Joe" showed the investigators a "Silver Bullet 50- 100" linear amplifier. The employee told the investigators that the linear amplifier cost $95.00. Based on this offer for sale, the Baltimore Field Office issued a Notice of Apparent Liability ( NAL) for $7,000 to Ross Radio & T.V. on November 2, 1993. Petitioner responded to the NAL by letter dated November 29, 1993. Petitioner requested cancellation or mitigation of the forfeiture, arguing that there was no offer to sell the device to the investigators because the device was only shown to the investigators as a "sample" of the type of devices that were available. Petitioner also argued that the device had been obtained as a trade, and that its business did not stock external radio frequency amplifiers. The Baltimore Field Office considered these arguments but still issued the NOF assessing a forfeiture in the amount of $7,000. From that order, petitioner now appeals. III. DISCUSSION 4. The petitioner contends that its employee did not offer to sell a linear amplifier. Arguing that the device was taken in trade, the petitioner states that it does not sell this type of unit. Contending that its employee stated that such units were available for "approximately $95.00" based on his professional knowledge, petitioner maintains that its employee would have given an exact figure rather than an approximation if that type of unit was offered for sale at the petitioner's place of business. Moreover, the petitioner maintains that "[w]ere the unit offered for sale to the agents they would certainly have purchased such and had the evidence they were seeking in the Commission's possession." The petitioner also presents advertisements from competitors to show that, if the petitioner sold these types of units, it would advertise as does its competitors. Arguing in the alternative, the petitioner contends that the forfeiture amount is excessive because the violation is de minimis and that it cannot afford to pay because it is a small company. 5. Section 2.815 of the Commission's Rules, 47 C.F.R.  2.815, generally prohibits the sale or offer for sale of radio frequency amplifiers capable of operation on the CB frequencies. The rule clearly states that, notwithstanding very limited exceptions for licensed amateur radio operators, external radio frequency amplifiers may not be manufactured, sold, offered for sale or lease (including advertising for sale or lease), or imported, shipped, or distributed. In the instant case, none of the limited exceptions exist for selling such a device. The investigators entered the place of business posing as members of the general public. Thus, any sale or offer to sell the device in the instant case would clearly violate the Commission's rules. Regardless of how the petitioner came to possess the linear amplifier, showing the device and quoting a price for the device to the investigators constitutes an offer to sell in violation of the Commission's rules. Contrary to the petitioner's contentions, purchase of the device by the agents is not necessary to show that an offer was made. Section 2.815 clearly states that actions such as an offer are sufficient to establish that the rule was violated. Thus, this contention is without merit. We need not address the petitioner's allegation that it would advertise these devices if it sold them. It is uncontroverted that the FCC investigators asked to see a linear amplifier to use with a CB station, that the petitioner's employee showed the device to the FCC investigators, and that the petitioner's employee mentioned a price. The petitioner, as employer, is accountable for the actions of its employees, see Liability of MTD, 6 FCC Rcd 34 (1991). Accordingly, we find that the record establishes that the petitioner violated Section 302 of the Act and Section 2.815 of the Commission's rules. 47 U.S.C.  302; 47 C.F.R.  2.815. 6. We note, however, that the original forfeiture amount was assessed on the basis of Section 503 of the Act and the Commission's Policy Statement, Standards for Assessing Forfeitures, (Policy Statement), 8 FCC Rcd 6215 (1993). On July 12, 1994, the Court of Appeals for the D.C. Circuit vacated the forfeiture guidelines. United States Telephone Assn. v. FCC, 28 F.3d 1232 (D.C. Cir. 1994). On reconsideration, CIB has reassessed the forfeiture amount pursuant to the statutory guidelines set forth in Section 503 of the Act, 47 U.S.C.  503(b)(2)(D). In particular, Section 503(b) of the Act requires that the Commission "take into account 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 other such matters as justice may require." 47 U.S.C.  503(b)(2)(D). 7. We have, therefore, reexamined all of the facts and circumstances surrounding the violation, and applied all applicable mitigating criteria, as required by Section 503(b)(2)(D) of the Act, 47 U.S.C.  503(b)(2)(D). Petitioner submitted no proof of income, so we were unable to consider the Petitioner's contention that it is unable to pay a monetary forfeiture. We do note, however, that we cannot find any record of prior violations of the Commission's rules by the petitioner. We find, therefore, that a forfeiture in the amount of $6,000 is reasonable and warranted in the circumstances of this case. IV. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED that, pursuant to 47 C.F.R.  1.115(c) and 1.106, the petition filed by Ross Radio and T.V. is DENIED in part, and GRANTED in part. 9. IT IS FURTHER ORDERED that, pursuant to Section 503(b) of the Act, 47 U.S.C.  503(b) and Section 1.80 of the Commission's rules, 47 C.F.R.  1.80, Ross Radio and T.V. is liable for a monetary forfeiture in the amount of six thousand dollars ($6,000) for violating Section 302(b) of the Act, 47 U.S.C.  302(b), and Section 2.815 of the Rules, 47 C.F.R.  2.815. The amount specified was determined after consideration of the factors set forth in Section 503(b) of the Act. 10. IT IS FURTHER ORDERED that, pursuant to Section 1.80(h), 47 C.F.R.  1.80(h), Ross Radio & T.V. shall, within thirty (30) days of the release date of this Order, pay the full amount of the forfeiture or file an Application for Review of this decision pursuant to Section 1.115, 47 C.F.R.  1.115. Forfeitures shall be paid by check or money order. Payment may also be made by credit card with the appropriate documentation. The remittance should be marked NAL Acct. No. 415BM0007 and be mailed to the following address: Federal Communications Commission P.O. Box 73482 Chicago, Illinois 60673-7482 Applications for Review should be submitted to: Compliance Division, CIB Mail Stop 1500E3/AJC FCC 1919 M St., N.W. Washington, D.C. 20554 attn: 415BM0007 Forfeiture penalties not paid within 30 days will be referred to the U.S. Attorney for recovery in a civil suit, 47 U.S.C.  504(a). 11. IT IS FURTHER ORDERED that this Order shall be sent by certified mail, return receipt requested, to Ross Radio & T.V. and a copy to its attorney. FEDERAL COMMUNICATIONS COMMISSION Beverly Baker Chief, Compliance and Information Bureau