******************************************************** 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 ) ) Q. M. Tomlinson, Inc. ) NAL Acct. No. 215NF00023 Roanoke, Virginia ) ) ORDER Adopted: February 12, 1997 Released: February 20, 1997 By the Chief, Compliance and Information Bureau: I. INTRODUCTION 1. Q.M. Tomlinson, Inc. filed a Petition for Reconsideration, requesting reconsideration of the monetary forfeiture of $7,500 issued for violation of Section 503(b) of the Communications Act of 1934, as amended, (the Act), 47 U.S.C.  503(b), and Section 90.439 of the Commission's rules, 47 C.F.R.  90.439. For the reasons noted below, the Bureau reduces the monetary forfeiture amount to $5,000. II. BACKGROUND 2. On June 26, 1992, the Norfolk Field Office issued a Notice of Apparent Liability (NAL) for the amount of $7,500 to Q.M. Tomlinson, Inc., licensee of Business Radio Station KNOV565. The penalty was proposed because an employee of Q.M. Tomlinson failed to make the station available for inspection by an authorized representative of the Commission. The Norfolk Field Office considered Q.M. Tomlinson Inc.'s response but proceeded to issue a Notice of Forfeiture (NOF) for $7,500 on November 24, 1992. Q.M. Tomlinson, Inc. (petitioner) has appealed this forfeiture. The petitioner contends that the forfeiture is excessive because it cannot afford to pay the forfeiture amount. III. DISCUSSION 3. As an initial matter, we note that, in assessing the $7,500 forfeiture, the Norfolk 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, CIB 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). 4. On appeal, the petitioner first argues that the monetary forfeiture amount is excessive and it is unable to pay the forfeiture. In support of its claim that it is unable to pay the forfeiture, the petitioner submits a Statements of Income page from its 1991 Financial report. In both the NAL and NOF, we indicated that allegations of an inability to pay a forfeiture must be supported by objective evidence such as a financial statement. The Statements of Income page submitted by the petitioner references an Accountants' Report that was not submitted. No notes are attached to the Statement of Income page, yet the page indicates that the "Notes to Financial Statements are an integral part of these statements". Without the supporting information, we find that this submission is insufficient to support the petitioner's claim that it is unable to pay a forfeiture. 5. Second, the petitioner argues that it did not willfully violate the Commission's rules by failing to allow inspection. Stating that its company is located in an industrial area with a high crime rate, the petitioner contends that its employee's refusal to allow inspection was reasonable in light of the circumstances. The petitioner states that a business across the street was burglarized a week prior to the FCC attempted inspection, that the petitioner's employee worked alone in the reception area, and that the petitioner's employee had never witnessed or heard of an inspection of the company's radio during her seven-year tenure. The petitioner also argues that its employee made a good faith effort to comply with the Commission's rules by calling the radio servicing company after denying the inspection to see if the FCC conducts inspections. 6. As the petitioner concedes in its appeal, the FCC's right to inspect a station is one of the cornerstones of the FCC's ability to ensure compliance with the Communications Act and the Commission's rules. Norfolk Southern Railway, 11 FCC Rcd 2, (DA 95-2480, released: January 19, 1996 (CIB). As a licensee, the petitioner must allow inspection at any time the radio is in operation upon a reasonable request of an authorized FCC representative. 47 U.S.C.  303 (n); 47 C.F.R.  90.439. Whether the employee works alone, or has witnessed or heard of an FCC inspection is not relevant. In addition, the petitioner is accountable for the actions of its employees. Triad Broadcasting Inc., 96 FCC 2d 1235 (1984). The petitioner, as the licensee, is responsible for ensuring that its radio station is operated in compliance with the Act and rules. This responsibility includes ensuring that its employees are cognizant of the licensee's obligations. Calling the service company to ascertain whether the event reflected a bona fide inspection request underscores the licensee's failure to properly inform its employees of its FCC obligations as a licensee. A refusal to allow inspection or a significant delay in allowing the inspection can often shelter egregious violation and is thus a serious violation. The petitioner presented no evidence that the FCC's agent's request was unreasonable. As both the NAL and NOF clearly state, the FCC agent presented his FCC investigator badge and identified himself as a Commission employee upon entering the reception area. As a federal government investigator, the FCC employee had been trained in the proper procedure for presenting his federal credentials to the general public. From the petitioner's submissions, it is unclear why the employee refused the inspection due to concern for her safety when her affidavit states that she frequently worked alone for a construction business in an industrial corridor for seven years, and that her office included a reception area in which "men often come into the office reception area unsolicited looking for work". Given that she was alone on the date of the attempted inspection, she apparently continued to work alone even though she states that she was aware of recent burglaries that occurred nearby. Because her own statement reflects that the employee's responsibilities included dealing routinely with male members of the general public who were not familiar to her, it is unclear why her concern for her safety heightened on the day of the attempted inspection. In the circumstances, we conclude that the employee's actions constituted a violation of the Commission's rules. 7. We have reviewed the Commission's records and find no record of prior violations by the petitioner. After evaluating the facts and circumstances in the case under the statutory guidelines, we conclude that the violation warrants assessment of the forfeiture in the amount of $5,000. IV. ORDERING CLAUSES 8. IT IS ORDERED THAT, pursuant to Section 503(b) of the Act, U.S.C.  503(b), and Section 1.106 of the Rules, 47 C.F.R.  1.106, that the petition for reconsideration is GRANTEDin part, DENIED in all other respects, and the monetary forfeiture amount is reduced to $5,000. 9. IT IS FURTHER ORDERED THAT within thirty (30) days of release of this Order, Q.M. Tomlinson, Inc. must pay the forfeiture amount of Five Thousand Dollars ($5,000) or file an Application for Review of the Bureau's Order pursuant to 47 C.F.R.  1.115. Payment may be made by check, credit card, or money order payable to the Federal Communications Commission. Please place NAL/Acct. No. 215NF00023 on the remittance and mail it to: Federal Communications Commission Post Office Box 73482 Chicago, Illinois 60673-7482 Applications for Review should be submitted to : Compliance Division, CIB Mail Stop 1500E3/AJC Federal Communications Commission 1919 M St. N.W. Washington, D.C. 20554 attn: NAL/Acct. No. 215NF00023 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). 10. IT IS FURTHER ORDERED THAT a copy of this Order shall be sent to Q.M. Tomlinson, Inc. and counsel by Certified Mail -- Return Receipt Requested. FEDERAL COMMUNICATIONS COMMISSION Beverly G. Baker Chief, Compliance and Information Bureau