******************************************************** 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 ) ) Jan Lane, Inc. ) NAL Acct. No. 315BE0014 Fairhaven, MA 02719 ) ) ORDER Adopted: February 6, 1997 Released: February 12, 1997 By the Chief, Compliance and Information Bureau: I. INTRODUCTION 1. Jan Lane, Inc. (Jan Lane) filed a Petition for Reconsideration, requesting reconsideration of the monetary forfeiture of $2,000 issued by the Field Operations Bureau pursuant to Section 503(b), 47 U.S.C. 503(b), for willful violation of Section 301 of the Communications Act of 1934, as amended, (the Act), 47 U.S.C. 301. On August 26, 1994, the Field Operations Bureau, on its own motion, issued an Order setting aside its previous Order in this case, 9 FCC Rcd 4447 (1994), and returning to pending status Jan Lane, Inc.'s Petition for Reconsideration. Upon further review of the Petition for Reconsideration in this matter, the monetary forfeiture has been reassessed by the Bureau to $2,000. II. BACKGROUND 2. On April 13, 1993, the Commission's Belfast Office issued a Notice of Apparent Liability (NAL) for $10,000 to Jan Lane. The penalty was imposed for operating on a frequency for which it had no authorization from the Commission. Mr. Robert Pendergast, an employee of Jan Lane, operated its marine radio in the Aeronautical Radio Service (frequency 5696.5 kHz) and caused interference to safety of flight communications of various units of the U.S. Coast Guard. Based on the arguments raised in the response from Jan Lane's counsel, the Belfast Office issued a Notice of Forfeiture (NOF) for $2,000 on October 29, 1993. Jan Lane now appeals, contending that the FCC did not provide evidence that it willfully violated the Act. Jan Lane argues that the FCC's identification of Mr. Pendergast is suspect at best and seeks all information relating to the identification. Jan Lane also contends that the FCC failed to prove that Mr. Pendergast's action constituted a willful violation of the Act because the Commission failed to present evidence that Mr. Pendergast knowingly operated on an unauthorized frequency. Finally, Jan Lane argues that the Commission failed to show how any intentional and "willful" violation by an agent imposes liability on behalf of an "unknowing" principal corporation. III. DISCUSSION 3. The forfeiture amount was originally assessed 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). 4. Turning now to Jan Lane's arguments, regarding the identification of Mr. Pendergast, the Notice of Apparent Liability specifically points out that the station and person operating were identified by intercept and voice identification by governmental agents from the National Marine Fisheries. Both techniques are accepted investigative techniques. As for Jan Lane's request for all tapes and transcripts, by letter dated November 2, 1995, the Belfast Office provided a duplicate tape to Jan Lane's attorney to satisfy this request. We received no response from Jan Lane to further dispute the identification of Mr. Pendergast. 5. Unlicensed operation is an egregious violation because of the potential interference threat or, as in the instant case, actual interference to public safety frequencies. As the Notice of Apparent Liability indicated, Jan Lane Inc., as owner of the F/V Alpha Omega II, was not licensed to transmit on 5696.5 kHz. This unauthorized transmission caused interference to safety of flight communications transmitted by the Coast Guard. Contrary to the petitioner's claims, the violation is considered willful because the employee operated the radio outside of its authorized frequency, (i.e. maritime frequency band). An intent to deliberately violate the Act is not a prerequisite to establishing a willful violation. See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). As owner and employer, Jan Lane is responsible for the actions of its employees. See Triad Broadcasting, Inc., 96 FCC 2d 1235 (1984). Accordingly, upon consideration of all factors in this case, and in light of Section 503 of the Act, we find that the forfeiture amount originally assessed is still warranted. 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 DENIED. 7. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules, 47 C.F.R. 1.80, Jan Lane, Inc., must, within thirty (30) days of the date of release of this Order, pay the forfeiture amount of two thousand dollars ($2,000) or file an Application for Review pursuant to Section 1.115 of the Commission's Rules, 47 C.F.R.  1.115. Payment may be made by check or money order payable to the Federal Communications Commission. Please place NAL/Acct. No. 315BE0014 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. 47 U.S.C.  504(a). 8. IT IS FURTHER ORDERED that this Order shall be sent by certified mail, return receipt requested to Jan Lane Inc., and a copy to its attorney. FEDERAL COMMUNICATIONS COMMISSION Beverly G. Baker Chief, Compliance and Information Bureau cc: Anthony C. Savastano, Esq. Law Offices of Halloran, Lukoff & Smith, P.C. 300 Union Street New Bedford, MA 02740 Billings & Collections Section Belfast Field Office DHannah