******************************************************** 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 ) ) Cellular Systems Northwest, Inc. ) NAL/Acct. No. 815ST0001 Enumclaw, Washington ) ) FORFEITURE ORDER Adopted: March 9, 1999 Released: March 15, 1999 By the Director, Legal Services Group, Compliance and Information Bureau: 1. Before the Compliance and Information Bureau ("the Bureau") is a Notice of Apparent Liability ("NAL") for monetary forfeiture issued on June 19, 1998 to Cellular Systems Northwest, Inc. ("CSNW"), and the July 3, 1998 response thereto filed by CSNW. The NAL proposed imposition of a forfeiture in the amount of $7,000 pursuant to Section 503(b) of the Communications Act of 1934, as amended ("the Act"), 47 U.S.C.  503(b), and Section 1.80 of the Commission's Rules ("the Rules"), 47 C.F.R.  1.80, for willful and repeated violations of Section 302 of the Act, 47 U.S.C.  302, and Sections 2.803 and 2.815 of the Rules, 47 C.F.R.  2.803 and 2.815. For the reasons stated below, we affirm the $7,000 forfeiture amount. BACKGROUND 2. CSNW is a consumer electronics retailer located in Enumclaw, Washington. On July 9, 1997 and March 19, 1998, CSNW offered to sell and sold linear amplifiers for use with a Citizen's Band ("CB") radio to two different FCC agents from the Bureau's Seattle, Washington Field Office who were posing as members of the general public. The agents specifically asked about devices for use with a CB radio, i.e., within the CB frequency band, which ranges from 26.965 MHz to 27.405 MHz. The offer for sale and the sale by CSNW violated Section 302 of the Act and Sections 2.803 and 2.815 of the Rules. As a result of these violations, the District Director of the Bureau's Seattle Field Office issued the subject NAL for $7,000 on June 19, 1998 to CSNW. DISCUSSION 3. The Bureau's Seattle Office issued the forfeiture pursuant to Section 503 of the Act and Section 1.80 of the Rules. The base forfeiture amount for this type of violation is $7,000. In assessing the forfeiture amount, the Seattle Office, following the forfeiture standards established in Section 503 of the Act and The Commission's Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate Guidelines, 12 FCC Rcd 17087 (1997) ("Policy Statement"), recon. pending concluded that a monetary forfeiture in the amount of $7,000 would be warranted. In reviewing the response to the NAL, Section 503(b) of the Act requires that we 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. See 47 U.S.C.  503(b)(2)(D). 4. CSNW's response to the NAL, dated July 3, 1998, was received by the Bureau on July 7, 1998. The response requested that the forfeiture be waived, claiming that CSNW never intended to offer or recommend amplifiers for CB use and that it was explained to the FCC agents that use of amplifiers on CB radios was illegal. CSNW contends that if the transactions at issue were in violation of the Act, such violation was not intentional. 5. As a company that sells CB radio equipment and accessories, CSNW must comply with the sections of the Act and the Rules that relate to the marketing of radio frequency devices. 47 U.S.C.  302; 47 C.F.R.  2.1 et seq. Section 2.815 of the Rules prohibits the sale or offer for sale of any external radio frequency power amplifier or amplifier kit capable of operation on any frequency or frequencies between 24 MHz and 35 MHz, which includes the CB frequency band (26.965 MHz to 27.405 MHz). Upon specific requests from two different FCC agents on two separate occasions, CSNW employees offered to sell (and on one occasion sold) amplifiers which could be used with CB radios, in violation of Section 2.815 of the Rules. Section 302 of the Act and Section 2.803 of the Rules prohibit the marketing, including the sale and offer for sale, of radio frequency devices that do not comport with the Act or Rules. These violations were therefore willful under the Act because they were not caused by accident or mistake. Thus, pursuant to Section 312(f)(1) of the Act, whether CSNW intended to violate the rules is irrelevant to this matter. 6. Finally, in its response, CSNW states that it is a "small town retailer," and that it has ceased selling amplification devices for any communications since receiving the NAL. Remedial action to correct a violation, while commendable, will not nullify a forfeiture penalty. See generally KGVL, Inc., 42 FCC 2d 258, 259 (1973) (subsequent corrective action will not excuse past violations). Furthermore, to the extent the reference to its status as a "small town retailer" was meant to demonstrate that the fine assessed will impose a financial hardship on CSNW, we note that CSNW had ample opportunity to submit financial statements prepared under generally acceptable accounting procedures for the most recent three year period in support of any claim of inability to pay, as outlined in footnote two of the NAL. See Ellwood Beach Broadcasting, Ltd., 8 FCC Rcd 453, 454 (1993) (respondent's failure to submit any financial documents or other evidence deemed insufficient showing of inability to pay); Liability of Macau Traders, Inc., 13 FCC Rcd 228, 233 (MMB 1998) (no reduction of forfeiture warranted due to undue financial hardship where violator provided no documentary evidence upon which to evaluate its financial condition or ability to pay). In the absence of any such evidence, and of any other mitigating evidence, we decline to reduce the amount of the forfeiture. We therefore find that $7,000 is the appropriate amount for the noted violations. ORDERING CLAUSES 7. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the Act, 47 U.S.C.  503(b), and Section 1.80 of the Rules, 47 C.F.R.  1.80, Cellular Systems Northwest, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of $7000 for violation of Section 302 of the Act, 47 U.S.C.  302, and Sections 2.803 and 2.815 of the Rules, 47 C.F.R.  2.803 and 2.815. 8. IT IS FURTHER ORDERED that, pursuant to Section 1.80(f) of the Rules, 47 C.F.R.  1.80(f), Cellular Systems Northwest, Inc. shall, within thirty (30) days of the release of this Forfeiture Order, pay the full amount of the forfeiture. Payment of the forfeiture shall be made in U.S. dollars by check, credit card or money order drawn on a U.S. financial institution, with the appropriate documentation, made payable to the Federal Communications Commission. The remittance should be marked "NAL/Acct. No. 815ST0001" and mailed to the following address: Federal Communications Commission Post Office Box 73482 Chicago, IL 60673-7482 Petitions for reconsideration pursuant to Section 1.106 of the Rules, 47 C.F.R.  1.106, or applications for review pursuant to Section 1.115 of the Rules, 47 C.F.R.  1.115, should be sent to: Office of the Secretary Federal Communications Commission 445 12th Street, S.W. Washington, D.C. 20554 ATTN: Mail Stop 1500E3-DLH Compliance and Information Bureau 9. IT IS FURTHER ORDERED that a copy of this Order shall be sent certified mail, return- receipt requested, to Cellular Systems Northwest, Inc. and its President, Gregory A. Thomson, at 1502 Cole Street, Enumclaw, WA 98022. FEDERAL COMMUNICATIONS COMMISSION Ricardo M. Durham Director, Legal Services Group Compliance and Information Bureau