******************************************************** 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 ) ) J & J Asphalt Paving and ) Maintenance Company ) NAL/Acct. No. 415DV0042 Rapid City, South Dakota ) ORDER Adopted: February 6, 1997 Released: February 12, 1997 By the Chief, Compliance and Information Bureau: I. INTRODUCTION 1. J&J Asphalt Paving and Maintenance Company (Petitioner/J&J) filed a Petition for Reconsideration of the monetary forfeiture of $6,400 issued pursuant to Section 503(b) of the Communications Act of 1934, as amended, (the Act), 47 U.S.C. 503(b), for willful violation of Section 301 of the Act, 47 U.S.C. 301. Upon review of the Petition for Reconsideration, the Bureau reassesses the monetary forfeiture to be $1,000. II. BACKGROUND 2. The Denver Field Office, Compliance and Information Bureau, received information from Timberline Electronics of Cody, Wyoming, that Petitioner was operating an unlicensed radio system without an instrument of authorization from the FCC on 153.350 MHz near Lovell, Wyoming, on September 29 through October 4, 1993. Staff from the Denver office advised a Mrs. Wagner of J&J Asphalt, on September 29, 1993, that the radios in use did not have an FCC license for those frequencies. On October 1, 1993, the Denver office again contacted the Petitioner and advised that they in fact did not have an FCC license for the use of the radios on the frequency that they were using at or near Lovell, Wyoming. The radios continued to be used through October 2, 1993, without regard to the field office's conversations with J&J. Therefore, the Denver office issued an official letter of inquiry to the Petitioner on October 6, 1993, advising that unlicensed operation must be discontinued immediately. On October 19, 1993, the Petitioner responded that the radio communications near Lovell were done inadvertently because of a programming error by Western Communications, Inc., the company from which the Petitioner obtained equipment and services. 3. Based on the Petitioner's response and the continued use of these radios after a warning to cease operation, the Denver office issued a Notice of Apparent Liability (NAL) on November 1, 1993, in the amount of $8,000. Petitioner responded on December 1, 1993, requesting dismissal or reduction of the forfeiture based in part, on the petitioner's history of compliance, the contention of no willful violation, and the programming errors of the service vendor. The Denver office, considering the Petitioner's history of compliance, reduced the forfeiture amount to $6,400 in its Notice of Forfeiture (NOF) issued December 7, 1993. Petitioner then filed the Petition for Reconsideration now before us and asks for dismissal of the forfeiture, arguing that J&J never willfully violated 47 U.S.C. 301. As an alternative, the Petitioner requests a reduction of the forfeiture. III. DISCUSSION 4. Initially, we note that the forfeiture amount was originally assessed by the Denver Field Office pursuant to the Commission's Policy Statement which was subsequently vacated by the Court, United States Telephone Assoc. v. FCC, 28 F.3d 1232 (D.C. Cir. 1994). In light of the Court's decision, we are assessing the forfeiture amount pursuant to the guidelines of Section 503 of the Act, 47 U.S.C. 503. In assessing forfeitures, Section 503 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 such other matters as justice may require. 47 U.S.C. 503(b)(2)(D). 5. We accept the Petitioner's contention that the programming error was caused by Western Communications, Inc., and we will give this factor additional weight in reducing the forfeiture. However, the end user, in this case the Petitioner, is the licensee ultimately accountable for proper use of the radios. Thus, use of the radios was a willful act within the meaning of the Act. Based upon the unique facts of this case, and in accordance with the statutory guidelines, we have determined the appropriate amount for this forfeiture is $1,000. IV. ORDERING CLAUSES 6. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the Communications Act, 47 U.S.C. 503(b), and Section 1.106 of the Commission's Rules, 47 C.F.R. 1.106, the petition for reconsideration is GRANTED in part and the monetary forfeiture is REDUCED. 7. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules, 47 C.F.R. 1.80, J&J Asphalt Paving and Maintenance Company, must, within thirty (30) days of the date of release of this Order, pay the forfeiture amount of one thousand dollars ($1,000) or file an Application for Review pursuant to Section 1.115, 47 C.F.R.  1.115, of the Commission's Rules. Payment may be made by check or money order payable to the Federal Communications Commission. Please place NAL/Acct. No. 415DV0042 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 will be referred to the U.S. Attorney for recovery in a civil suit. 8. IT IS FURTHER ORDERED that this Order shall be sent by certified mail, return receipt requested to J&J Asphalt Paving and Maintenance Company, and a copy to its attorney. FEDERAL COMMUNICATIONS COMMISSION Beverly G. Baker Chief, Compliance and Information Bureau cc: Courtney R. Clayborne Esq. Law Offices of Johnson & Huffman 3202 West Main Street P.O. Box 6100 Rapid City, South Dakota 57709-6100 Billings & Collections Section Denver Field Office DHannah