******************************************************** 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 ) ) Barry A. Stevenson ) NAL Acct. No. 315ST0004 Edmonds, Washington ) ) 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 Mr. Barry A. Stevenson (Petitioner) pursuant to Section 1.106 of the Commission's Rules, 47 C.F.R.  1.106. Petitioner requests review of a monetary forfeiture of $2,000 issued under Section 503(b) of the Communications Act of 1934, as amended (Act), 47 U.S.C.  503(b), for violating Section 15.29 of the Commission's Rules, 47 C.F.R.  15.29, by failing to allow inspection of a radio frequency device. For the reasons noted below, the monetary forfeiture has been reassessed by the Bureau to $2,000. II. BACKGROUND 2. On January 13, 1993, the Seattle Field Office conducted an investigation of Petitioner's citizens band (CB) radio operations in response to neighborhood-wide complaints of interference to home electronic entertainment equipment (HEEE) and complaints made against Petitioner by other radio operators in the local community. Agents from the Seattle Field Office monitored Petitioner operating a station on 27.155 MHz (CB Channel 16) from 8:15pm to 9:00pm PST on January 13, 1993, and found the monitored signal atypical for an FCC type accepted CB transmitter. The Commission's agents located Petitioner's radio operation using close-in direction-finding techniques. The Commission's agents then attempted to conduct an inspection of Petitioner's station. Petitioner refused to allow inspection. 3. As a result of Petitioner's failure to allow inspection, the Seattle Field Office issued a Notice of Apparent Liability on January 27, 1993, in the amount of $2,000 for violating Section 15.29 of the Commission's Rules. On June 21, 1993, after several extensions, the Seattle Field Office received Petitioner's response to the NAL. Petitioner claimed inability to pay the forfeiture amount and included a copy of his 1990 tax return. Unpersuaded by Petitioner's contention, the Seattle Field Office issued a Forfeiture Order to Petitioner for $2,000. Petitioner now appeals that decision. III. DISCUSSION 4. As an initial matter, we note that, in assessing the $2,000 forfeiture, the Seattle 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, the Bureau has 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). 5. Petitioner raises no new arguments in his appeal. Rather, he resubmits his claim of inability to pay the forfeiture amount and offers to pay a total of $200 in $25 monthly installments. As was the case with Petitioner's response to the NAL, he failed to document his inability to pay in his petition and supplied only his 1990 tax return. This tax return covers a period of time that predates the violation by three years. The Commission requires petitioners claiming inability to pay a forfeiture to provide financial statements prepared in accordance with generally accepted accounting principles for the most recent three years or other reliable and objective documentation that accurately reflects the Petitioner's current financial status. See generally, PJB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992) (although gross revenues is often a best indicator of a company's ability to pay, factors other than gross revenues may also be considered). In cases involving individuals, financial documentation other than financial statements is often submitted such as copies of filed tax forms or other objective information. For example, individuals claiming inability to pay monetary forfeitures have submitted information such as child support payments, tax liens, and garnishments to corroborate their debts or liabilities. See eg., Timothy Harold Hoffman, DA 96-2180, Compliance and Information Bureau, released December 24, 1996. On February 25, 1994, we sent Petitioner a letter reminding him that the documentary evidence needed to support his inability to pay claim was incomplete. By an undated letter received on March 28, 1994, Petitioner responded by submitting IRS federal tax forms for 1991 and 1992 that were dated March 1, 1994 and March 10, 1994. Because the Petitioner appears to have completed these tax forms only in response to our February 25 request, and the Petitioner presented no evidence showing that the tax forms were indeed filed with the Internal Revenue Service, we do not find the financial information submitted by Petitioner to be credible. Therefore, we reject Petitioner's claim that he is unable to pay the monetary forfeiture. 6. We have reassessed the monetary forfeiture amount in this case in accordance with the statutory factors set forth in Section 503(b) of the Act, 47 U.S.C.  503(b)(2)(D). Given the seriousness of this violation, and because it is of critical importance that FCC's agents have access to inspect radio facilities, we conclude that a $2,000 forfeiture is warranted. IV. ORDERING CLAUSES 7. 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 and the monetary forfeiture is asessed at $2,000. 8. IT IS FURTHER ORDERED that, Mr. Barry Stevenson must, within thirty (30) days of the release date of this Order, pay the forfeiture amount of $2,000 or file an Application for Review of the CIB's Order pursuant to 47 C.F.R.  1.115. Payment may be made by check, money order, or credit card payable to the Federal Communications Commission. Please place NAL/Acct. No. 315ST0004 on the remittance and mail it to: Federal Communications Commission Post Office Box 73482 Chicago, Illinois 60673-7482 Applications for Review should be filed at: Compliance Division, CIB Mail Stop 1500E3/PDH 1919 M Street, N.W. Washington, D.C. 20554 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). 9. IT IS FURTHER ORDERED that a copy of this Order shall be sent by certified mail, return receipt requested to Mr. Barry Stevenson. FEDERAL COMMUNICATIONS COMMISSION Beverly G. Baker Chief, Compliance and Information Bureau