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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 ) ) Blackship Computer Systems ) NAL Acct. 315SF0027 San Jose, California ) ) ORDER Adopted: February 12, 1997 Released: February 20, 1997 By the Chief, Compliance and Information Bureau: I. INTRODUCTION 1. Blackship Computer Systems (Blackship) filed a Petition for Reconsideration requesting review of the monetary forfeiture of $5,600 issued pursuant to Section 503(b), 47 U.S.C. 503(b), of the Communications Act of 1934, as amended, (the Act), for violation of Section 302 of the Act, 47 U.S.C. 302, and Section 2.803 of the Commission's Rules, 47 C.F.R. 2.803. For the reasons noted below, the Bureau concludes that a forfeiture in the amount of $5,600 is warranted. II. BACKGROUND 2. On December 31, 1992, the San Francisco Field Office issued a Notice of Apparent Liability (NAL) for $10,000 to Blackship for exhibiting and offering for sale a Class B personal computer (Blackship 386DX40 desktop computer) without certification as required by Section 15.3 of the Commission's Rules, 47 C.F.R. 15.3. An FCC inspector observed a displayed sign on the desktop computer stating "This unit is for sale" at the Fall Comdex Computer Trade Show on November 19, 1992. Marketing uncertified equipment violates Section 302 of the Act, 47 U.S.C.  302, and Section 2.803 of the Commission's rules, 47 C.F.R.  2.803. In assessing the forfeiture, the San Francisco Field Office also considered that Blackship had received an earlier NAL for marketing uncertified devices. 3. Blackship responded to the NAL on January 29, 1993, contending that the it did not willfully violate the Commission's rules because it posted a "Not for Sale" sign beside the computer and that the other NAL should not be considered because the device in that case was certified and, therefore, not relevant to the instant case. Reiterating that the uncertified computer was indeed improperly displayed for sale, the San Francisco Field Office did accept Blackship's other argument and issued a Notice of Forfeiture (NOF) for $5,600 on March 3, 1993. By letter dated April 8, 1993, Blackship asked for further review of its case. On June 22,1994, the Compliance and Information Bureau (CIB) affirmed the NOF issued by the San Francisco Field Office. On August 15, 1994, CIB returned the petition to a pending status. III. DISCUSSION 4. The Bureau responded to the petition for reconsideration on June 22, 1994, but subsequently set aside this action and returned the petition to a pending status on August 15, 1994. See Blackship Computer Systems, 9 FCC Rcd 4469 (1994). The Bureau's action setting aside the June 22, 1994 order responded to the decision by the United States Court of Appeals for the District of Columbia Circuit in United States Telephone Assoc. v. FCC, 28 F.3d 1232 (D.C. Cir. 1994), which vacated the Commission's Forfeiture Policy Statement, 8 FCC Rcd 6215 (1993). The Bureau followed the forfeiture guidelines established in the Policy Statement to determine the forfeiture amount in its June 22, 1994, order and now 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). 5. Section 503(b)(2)(C) of the Act specifies a maximum forfeiture amount of $10,000 for each violation or each day of a continuing violation with the total not to exceed $75,000 for any one act or failure to act that results in a violation. In determining a forfeiture penalty, the Commission must 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). At issue is the sign displayed beside the computer. The FCC inspector's report indicates that the sign displayed beside the computer initially indicated that the device was for sale. The inspector's report also notes that the inspector first inspected other devices in Blacksmith's display and when the inspector observed the device again at issue, the sign had been modified to indicate that the device was not for sale. Blackship asserts that the sign on display beside the uncertified computer indicated that it was not for sale. Blackship, however, did not offer any affidavits or statements under penalty of perjury from Blackship's representative to support its assertion and, therefore, we cannot evaluate the credibility to Blackship's assertion. Upon review of all the circumstances and the whole record in this case, we conclude that a forfeiture in the amount of $5,600 is still warranted. IV. ORDERING CLAUSES 6. Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the Communications Act, 47 U.S.C.  503(b), and Section 1.80 and 1.106 of the Commission's Rules, 47 C.F.R. 1.80 and 1.106, the Petition for Reconsideration is DENIED. Petitioner may file an Application for Review of this decision within thirty (30) days of the release date of this Order pursuant to Section 1.115 of the rules. 47 C.F.R. 1.115. 7. IT IS FURTHER ORDERED, that Blackship Computer Systems must pay the forfeiture amount of five thousand six hundred dollars ($5,600) within thirty (30) days of release date of this Order. Forfeitures shall be paid by check, credit card, or money order drawn on a United States financial institution payable to the Federal Communications Commission. Please place NAL/Acct. 315SF0027 on the remittance and mail it to: Federal Communications Commission P. O. Box 73482 Chicago, IL 60673-7482 Applications for Review should be submitted to: Compliance Division, Compliance and Information Bureau Mail Stop 1500E3/DMH attn: 315SD0027 Federal Communications Commission 1919 M St. N.W. Washington, D.C. 20554 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 Blackship Computer Systems. FEDERAL COMMUNICATIONS COMMISSION Beverly G. Baker Chief, Compliance and Information Bureau