WPC* 2BJZ Courier3|opx6X@KX@HP LaserJet 4 PostScript Room 744HPLA4POS.PRSx  @hhhh5MyX@2p6 ZF03|oHP LaserJet 4 PostScript Room 744HPLA4POS.PRSXP\  P6Qhhhh5MyXPTimes RomanTimes Roman BoldTimes Roman Italic X4 I. A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#C\  P6QP#X01Í ÍX01Í Í#XP\  P6QXP#2 LLL:L "S^2CRddCCCdq2C28dddddddddd88qqqYzoCNzoozzC8C^dCYdYdYCdd88d8ddddCN8ddddY`(`lC2CC!CCCCCCCCCCd8YYYYYYzYzYzYzYC8C8C8C8ddddddddddYdddddodYYYYYYdzYzYzYzYdddddddCdCdCCCdNCdz8zCzCzCz8dddddCCCoNoNoNoNzCzCzCdddddzYzYNF2[dCYddddd7>d<d<$YYdCCddooCYԍ An external radio frequency power amplifier (linear amplifier) is any device which (1) when used in  x<conjunction with a radio transmitter as a signal source is capable of amplification of that signal and (2) is not an  xintegral part of a radio transmitter as manufactured. 47 C.F.R.  2.815. Generally, linear amplifiers capable of"(,)))"  x-operation on any frequency or frequencies between 24 and 35 MHz (or nontype accepted linear kits capable of  xoperating on frequency or frequencies below 144 MHz) may not be manufactured, sold, offered for sell or lease  xZ(including advertising for sale or lease), or imported shipped or distributed unless sold from one licensed amateur  {O-to another licensed amateur for personal use under very limited circumstances.  Id.  for use with citizens band (CB)"",))ZZ!"  xradio. An employee who identified himself as "Joe" showed the investigators a "Silver Bullet  x50100" linear amplifier. The employee told the investigators that the linear amplifier cost  x$95.00. Based on this offer for sale, the Baltimore Field Office issued a Notice of Apparent  xLiability ( NAL) for $7,000 to Ross Radio & T.V. on November 2, 1993. Petitioner responded  xto the NAL by letter dated November 29, 1993. Petitioner requested cancellation or mitigation  xyof the forfeiture, arguing that there was no offer to sell the device to the investigators because  x=the device was only shown to the investigators as a "sample" of the type of devices that were  xavailable. Petitioner also argued that the device had been obtained as a trade, and that its  xbusiness did not stock external radio frequency amplifiers. The Baltimore Field Office  xconsidered these arguments but still issued the NOF assessing a forfeiture in the amount of  X -$7,000. From that order, petitioner now appeals. :  yO}- xԍ We note that the NOF at paragraph seven indicates that persons at Ross Radio & TV were advised by  xBaltimore field staff by telephone that "the primary concern of this matter was to gain the cooperation of Ross Radio  x&TV in identifying and obtaining evidence against, Ross' supplier of such amplifiers. As of this date, Ross has not  xagreed to such cooperation." We expressly disavow any reliance on this statement in our review of the instant proceeding.:  X - III. DISCUSSION ă  X - ` ~x4.` ` The petitioner contends that its employee did not offer to sell a linear amplifier.  xArguing that the device was taken in trade, the petitioner states that it does not sell this type of  xkunit. Contending that its employee stated that such units were available for "approximately  x$95.00" based on his professional knowledge, petitioner maintains that its employee would have  xgiven an exact figure rather than an approximation if that type of unit was offered for sale at the  xjpetitioner's place of business. Moreover, the petitioner maintains that "[w]ere the unit offered  xfor sale to the agents they would certainly have purchased such and had the evidence they were  xseeking in the Commission's possession." The petitioner also presents advertisements from  x<competitors to show that, if the petitioner sold these types of units, it would advertise as does its  xcompetitors. Arguing in the alternative, the petitioner contends that the forfeiture amount is  X- xexcessive because the violation is de minimis and that it cannot afford to pay because it is a  X-small company.   X- ` $x5.` ` Section 2.815 of the Commission's Rules, 47 C.F.R.  2.815, generally prohibits  x@the sale or offer for sale of radio frequency amplifiers capable of operation on the CB  Xe- x.frequencies.eb  yOx%- xԍ Section 95.411 of the Commission's rules prohibits attaching an external radio frequency power linear to a CB station. Attachment of a linear to a CB station voids the authority to use the station. 47 C.F.R.  95.41.  The rule clearly states that, notwithstanding very limited exceptions for licensed  x\amateur radio operators, external radio frequency amplifiers may not be manufactured, sold,"N ,-(-(ZZ"  x]offered for sale or lease (including advertising for sale or lease), or imported, shipped, or  x<distributed. In the instant case, none of the limited exceptions exist for selling such a device. The  xinvestigators entered the place of business posing as members of the general public. Thus, any  xsale or offer to sell the device in the instant case would clearly violate the Commission's rules.  xRegardless of how the petitioner came to possess the linear amplifier, showing the device and  X- xquoting a pricegX yO- xJԍ We note that the NAL and NOF both indicate that the petitioner's employee stated that the unit cost $95 and  xnot "approximately $95" as contested by the petitioner. In any event, quoting a sale price, whether exact or approximate, constituted a violation of the Commission's rules. g for the device to the investigators constitutes an offer to sell in violation of the  xCommission's rules. Contrary to the petitioner's contentions, purchase of the device by the  x<agents is not necessary to show that an offer was made. Section 2.815 clearly states that actions  xsuch as an offer are sufficient to establish that the rule was violated. Thus, this contention is  x\without merit. We need not address the petitioner's allegation that it would advertise these  xdevices if it sold them. It is uncontroverted that the FCC investigators asked to see a linear  x[amplifier to use with a CB station, that the petitioner's employee showed the device to the FCC  xinvestigators, and that the petitioner's employee mentioned a price. The petitioner, as employer,  X - xis accountable for the actions of its employees, see Liability of MTD, 6 FCC Rcd 34 (1991).  X - x[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.  Xy- ` x6.` ` We note, however, that the original forfeiture amount was assessed on the basis  Xb- x/of Section 503 of the Act and the Commission's Policy Statement, Standards for Assessing  XK- x.Forfeitures, (Policy Statement), 8 FCC Rcd 6215 (1993). On July 12, 1994, the Court of Appeals  X4- xfor the D.C. Circuit vacated the forfeiture guidelines. United States Telephone Assn. v. FCC,  xM28 F.3d 1232 (D.C. Cir. 1994). On reconsideration, CIB has reassessed the forfeiture amount  xpursuant to the statutory guidelines set forth in Section 503 of the Act, 47 U.S.C.   x503(b)(2)(D). In particular, Section 503(b) of the Act requires that the Commission "take into  xaccount the nature, circumstances, extent and gravity of the violation, and with respect to the  xviolator, 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).  X|- ` x7.` ` We have, therefore, reexamined all of the facts and circumstances surrounding the  xviolation, and applied all applicable mitigating criteria, as required by Section 503(b)(2)(D) of  x.the Act, 47 U.S.C.  503(b)(2)(D). Petitioner submitted no proof of income, so we were unable  xto consider the Petitioner's contention that it is unable to pay a monetary forfeiture. We do note,  xhowever, that we cannot find any record of prior violations of the Commission's rules by the  x0petitioner. We find, therefore, that a forfeiture in the amount of $6,000 is reasonable and warranted in the circumstances of this case.  X - IV. ORDERING CLAUSES ă  X"- ` x8.` ` Accordingly, IT IS ORDERED that, pursuant to 47 C.F.R.  1.115(c) and 1.106,"",-(-(ZZ!"  X-the petition filed by Ross Radio and T.V. is DENIED in part, and GRANTED in part.  X- ` x9.` ` IT IS FURTHER ORDERED that , pursuant to Section 503(b) of the Act, 47  xkU.S.C.  503(b) and Section 1.80 of the Commission's rules, 47 C.F.R.  1.80, Ross Radio and  xT.V. is liable for a monetary forfeiture in the amount of six thousand dollars ($6,000) for  x]violating Section 302(b) of the Act, 47 U.S.C.  302(b), and Section 2.815 of the Rules, 47  xC.F.R.  2.815. The amount specified was determined after consideration of the factors set forth in Section 503(b) of the Act.  X1- ` Bx10.` ` IT IS FURTHER ORDERED that, pursuant to Section 1.80(h), 47 C.F.R.   x1.80(h), Ross Radio & T.V. shall, within thirty (30) days of the release date of this Order, pay  xthe full amount of the forfeiture or file an Application for Review of this decision pursuant to  X - xSection 1.115, 47 C.F.R.  1.115. Forfeitures shall be paid by check or money order.  yOe - xZԍ Requests for installment plans should be mailed to: Chief, Billings and Collections, Mail Stop 110A2, 1919 M Street, N.W., Washington, D.C. 20554. Payment  X - xmay also be made by credit card with the appropriate documentation.  yO-ԍ Please contact Chief, Billings and Collection, for information regarding payments by credit card. The remittance should be marked NAL Acct. No. 415BM0007 and be mailed to the following address: x` `  Federal Communications Commission x` `  P.O. Box 73482 x` `  Chicago, Illinois 60673-7482 Applications for Review should be submitted to: x` `  Compliance Division, CIB x` `  Mail Stop 1500E3/AJC x` `  FCC x` `  1919 M St., N.W. x` `  Washington, D.C. 20554  X-x` `  attn: 415BM0007@hpp  xx 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). "7,-(-(ZZ{"  X-x11.` ` 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.  X- FEDERAL COMMUNICATIONS COMMISSION Beverly Baker Chief, Compliance and Information Bureau