******************************************************** 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 ) ) Bear Communications, Inc. ) Radio Station WPBM685 ) NAL Acct. No. 415DV0038 Costa Mesa, CA ) ORDER Adopted: February 6, 1997 Released: February 12, 1997 By the Chief, Compliance and Information Bureau: I. INTRODUCTION 1. In this Order we address the Petition for Reconsideration filed by Bear Communications, Inc. (Petitioner), pursuant to Section 1.106 of the Commission's rules, 47 C.F.R.  1.106. The petitioner requests review of a monetary forfeiture of $7,500 issued by the Denver Field Office, Compliance and Information Bureau, under Section 503(b) of the Communications Act of 1934, as amended (Act), 47 U.S.C.  503(b), for violating Sections 90.113 and 90.425(a) of the Commission's rules, 47 C.F.R.  90.113, 90.425(a). For the reasons noted below, we deny the petition and assess a $7,500 forfeiture. II. BACKGROUND 2. On September 26, 1993, an agent from the Commission's Denver Field Office inspected the petitioner's radio operations at the Denver Air Show. The inspection revealed that the petitioner was operating on frequencies which were licensed for the petitioner's use only in Ft. Lauderdale, FL, and Orange County, FL. This operation violated Section 90.113 of the Commission's rules. In addition, the petitioner failed to transmit the station identification, WPBM685, of the licensed frequencies in violation of Section 90.425(a) of the Commission's rules. 3. On October 7, 1993, the Denver Field Office issued the petitioner a Notice of Violation (NOV) citing the violations noted above. The petitioner responded on October 15, 1993, and admitted to the violations. The Denver Field Office then issued a Notice of Apparent Liability (NAL) and fined the petitioner $10,500. The petitioner responded on November 23, 1993, and again admitted to the violations, but asked for a reduction in the forfeiture amount for its prior record of good conduct, its voluntary disclosure, its promise to comply in the future, and its inability to pay. In response, the Denver Field Office issued a Notice of Forfeiture (NOF) for $7,500 and based the reduction on the petitioner's good faith disclosure and history of overall compliance. The Denver Field Office was not persuaded by the petitioner's inability to pay claim. The petitioner now files the petition before us and seeks further reduction based on inability to pay. III. DISCUSSION 4. On review, the only issue before us is the petitioner's claim of inability to pay the forfeiture. The petitioner states that the $7,500 forfeiture will be a financial burden and that we should reconsider the issue. In determining a licensee's ability to pay, we have held that a licensee's gross revenues are the best indicator of its ability to pay and a reasonable and useful yardstick in determining a company's financial condition. The petitioner has provided tax returns for three years (1992, 1993 and 1994) which show gross receipts of $8,323,643; $14,469,696; and $20,908,157 respectively. Consequently, we find that a $7,500 forfeiture is not excessive when compared to the petitioner's gross revenues over these years. 5. With respect to the $7,500 forfeiture, we also note that the Denver Field Office followed the forfeiture guidelines established in 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, we have 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). In determining the proper forfeiture amount under the statutory standard, we note that, on December 12, 1993, the Denver office issued a Notice of Violation to Petitioner for violating Section 90.425(a) of the Commission's rules on November 16, 1993; this is the same section of the rules the petitioner violated in the instant case only two months before. Due to the petitioner's disregard for the Commission's rules and the seriousness of operating without an instrument of authorization, we find that a $7,500 forfeiture is still warranted. IV. ORDERING CLAUSES 6. IT IS ORDERED THAT, pursuant to Section 503(b) of the Act, 47 U.S.C.  503(b), and Section 1.106 of the Rules, 47 C.F.R.  1.106, that the Petition for Reconsideration is DENIED. 7. IT IS FURTHER ORDERED that, Bear Communications, Inc., must pay the forfeiture amount of seven thousand five hundred dollars ($7,500) within thirty (30) days of the release date of this Order, or file an Application for Review of this Order pursuant to 47 C.F.R.  1.115 within 30 days of the release date of this Order. Payment may be made by check or money order payable to the Federal Communications Commission. Payment may also be made by credit card with the appropriate documentation. Please place NAL/Acct. No. 415DV0038 on the remittance and mail it to: Federal Communications Commission Post Office Box 73482 Chicago, Illinois 60673-7482 Forfeiture penalties not paid within 30 days may be referred to the U. S. Attorney for recovery in a civil suit. 47 U.S.C.  504(a). 8. IT IS FURTHER ORDERED that a copy of this Order shall be sent certified mail, return receipt requested to Bear Communications, Inc. FEDERAL COMMUNICATIONS COMMISSION Beverly G. Baker Chief, Compliance and Information Bureau