******************************************************** 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 ) ) NAL/Acct. No.: 315VB0016 Beyel Brothers, Inc. ) West Palm Beach, FL ) ) ) ) ) MEMORANDUM OPINION AND ORDER Adopted: September 25, 1997 Released: September 29, 1997 By the Compliance and Information Bureau: 1. In this Order, we address the Notice of Forfeiture (NOF) for $8,000 issued to Beyel Brothers, Inc. (Beyel Brothers) on March 8, 1993, by the Compliance and Information Bureau, of the Federal Communications Commission. The forfeiture was issued under authority of Section 503(b) of the Communications Act of 1934, as amended (Act), 47 U.S.C. 503(b), for willfully violating Section 301 of the Act, 47 U.S.C. 301. We have evaluated all of the circumstances in this case and conclude that a forfeiture in the amount of $8,000 is warranted. II. BACKGROUND 2. On November 28, 1992, at the Compliance and Information Bureau's Vero Beach Office, an agent intercepted transmissions on 156.5 MHz. The transmitter was identified by the agent as WBC6076, coming from the vessel Salvation Rose. The modulation exceeded the maximum authorized level for the marine service. Furthermore, the operator failed to give the station identification at both the beginning and end of the communication. Correspondence with the licensee of record for the vessel indicated that the Salvation Rose had been sold to Beyel Brothers on October 28, 1992. An agent from the Vero Beach Field Office contacted Beyel Brothers and determined that the radio aboard the Salvation Rose was not licensed. Agents of the Vero Beach Field Office again intercepted communications from the Salvation Rose on January 22, 1993. This time the transmissions were on Marine Channel 16 using the call sign WB4093. The Commission's database holds no record of a license issued to the Beyel Brothers for this frequency or call sign. 3. On February 3, 1993, the Vero Beach Field Office released a Notice of Apparent Liability (NAL) to Beyel Brothers which proposed a monetary forfeiture in the amount of $8,000. The NAL asked Beyel Brothers to pay the forfeiture or respond within thirty days of the NAL release date. After thirty days, having received no response from Beyel Brothers, the Vero Beach Field Office issued an NOF on March 8, 1993, affirming the amount of forfeiture at $8,000. 4. An attorney representing Beyel Brothers sent a response to the NAL, dated March 5, 1993, to the Commission's bank lockbox. This response was received at the Commission on March 22, 1993. III. DISCUSSION 5. We first note that the Commission received Beyel Brothers' response after the thirty day deadline. Although the response was dated within the thirty day period, it should have been received by the Commission before the end of the thirty days. Nonetheless, we will consider the arguments raised in the response. 6. Beyel Brothers' attorney requested mitigation or revocation of the $8,000 forfeiture, and stated that the violation did not benefit Beyel Brothers, did not cause any harm, and was not intentional or egregious. Beyel Brothers' response also noted that the operator of the vessel had left the company, and Beyel Brothers had been unable to locate him to investigate the incident. The response asserted further that the vessel's operator had been acting outside the scope of his authority. Finally, Beyel Brothers claimed that the forfeiture would be a substantial financial hardship on its business. 7. As the NAL indicated, Beyel Brothers, Inc. was not licensed by the Commission to transmit on 156.5 MHz or transmit non-emergency communications on Marine Channel 16. Although Beyel Brothers claims that the violation was not intentional, Beyel Brothers has not denied that the unlicensed broadcast operation occurred. Commission precedent indicates that an intent to deliberately violate the Act is not a prerequisite to establish the willfulness of a violation. Therefore, the violation was willful. See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). We also disagree with Beyel Brothers' contention that the violation was not egregious. A violator's lack of economic gain and the lack of actual harm resulting from the violation may indicate, in some cases, that the violation is not egregious. In this case, however, Beyel Brothers transmitted non-emergency communications on Marine Channel 16, a channel reserved exclusively for emergency communications. The potential for interference with emergency communications raises safety-of-life concerns that make the violation in this case egregious. In reference to Beyel Brothers' claim that the radio was operated outside the scope of his authority, we note that the captain of the Salvation Rose was operating the radio that was located on board the vessel owned by Beyel Brothers. The captain was employed by Beyel Brothers, and as owner of the vessel and employer, Beyel Brothers is responsible for the actions of its employees. See Triad Broadcasting Co., 96 FCC Rcd 1235 (1984). Beyel Brothers' allegation that the captain acted outside the scope of his authority is totally unsupported and, therefore, does not absolve Beyel Brothers of it's responsibility. 8. We note that the NOF followed the Commission's forfeiture guidelines that were vacated by the court in United States Telephone Assn 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). 9. With respect to its ability to pay a forfeiture, Beyel Brothers submitted copies of financial judgements and tax liens to demonstrate that the forfeiture would constitute a substantial financial hardship. Based on a careful evaluation of the information submitted, we conclude that Beyel Brothers has failed to adequately document its inability to pay. The Commission requires that petitioners who claim inability to pay a forfeiture provide financial statements that accurately reflect the petitioner's financial status. Our determination regarding ability to pay a forfeiture reflects whether the petitioner, in general, is financially capable of paying a forfeiture, not whether financial data from a limited portion of the petitioner's operations can sustain a forfeiture. Here, the documentary evidence needed to support an inability to pay claim was incomplete. The documents submitted on behalf of Beyel Brothers concerned only money owed by the company. The response contained no evidence of payments toward the debt, or documents concerning the company's gross revenues. The Commission previously has stated that in general, gross revenues are the best indicator of ability to pay a forfeiture. Use of gross revenues to determine a party's ability to pay is reasonable and appropriate in analyzing a company's financial condition for forfeiture purposes. PJB Communications of Virginia, 7 FCC Rcd 2088-89 (1992). In the circumstances, we are not persuaded by Beyel Brothers' arguments regarding economic hardship. Accordingly, upon consideration of all factors in this case, and in light of Section 503 of the Act, we find that the forfeiture amount of $8,000 is warranted. IV. ORDERING CLAUSES 10. IT IS ORDERED, pursuant to Sections 503(b) and 504(b) of the Act, 47 U.S.C. 503(b), 504(b), and Section 1.80(b)(3) of the Commission's Rules, 47 C.F.R.  1.80(b)(3), that Beyel Brothers, Inc. IS LIABLE FOR MONETARY FORFEITURE in the amount of $8,000 for willful violation of Section 301 of the Act, 47 U.S.C. 301. The amount specified was determined after consideration of the factors set forth in Section 503(b) of the Communications Act. 11. IT IS FURTHER ORDERED, pursuant to Sections 1.80(f)(3) and (h) of the Commission's Rules, 47 C.F.R. 1.80(f)(3) and (h), that Beyel Brothers, Inc. must pay the full amount of the monetary forfeiture amount of eight thousand dollars ($8,000) within thirty (30) days of the date of release of this Order. Forfeitures shall be paid by check, money order, or credit card drawn on a United States financial institution payable to the Federal Communications Commission. 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). Please place NAL/Acct. No. 315VB0016 on the remittance and mail it to: Federal Communications Commission Post Office Box 73482 Chicago, Illinois 60673-7482 12. Any application for review of this decision may be filed within 30 days from the release date of this Order in accordance with Section 1.115 of the Commission's Rules, 47 C.F.R. 1.115, and mailed to: Federal Communications Commission Legal Services Group, Compliance Division, CIB Attention: Mail Stop Code 1500-E/MSL 1919 M Street, N.W. Washington, DC 20554 13. IT IS FURTHER ORDERED that a copy of this Order shall be sent by certified mail, return receipt requested, to Beyel Brothers, Inc. and its counsel. FEDERAL COMMUNICATIONS COMMISSION Richard D. Lee Acting Chief, Compliance and Information Bureau