******************************************************** 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 ) ) Frank J. Bartholomew ) NAL/Acct. No. 815PA0002 254 Sugar Road ) RRI Box 254 ) Fredericksburg, Pennsylvania ) FORFEITURE ORDER Adopted: May 12, 1998Released: May 13, 1998 By the Compliance and Information Bureau: 1. Before the Bureau is a Notice of Apparent Liability (NAL) released on December 18, 1998, and the January 5, 1998 response thereto, filed by Frank J. Bartholomew. The NAL proposes imposition of a forfeiture in the amount of $17,000 pursuant to Section 503(b) of the Communications Act of 1934, as amended (the Act), 47 U.S.C.  503(b), against Mr. Bartholomew for violation of Section 301 of the Act, 47 U.S.C. 301 and 47 C.F.R.   15.209, 15.239 of the Rules. 2. For the reasons noted below, we are reducing the amount of the forfeiture to $2,000. BACKGROUND 3. Prompted by a complaint, the Compliance and Information Bureau's (CIB) Philadelphia Field Office, monitored and located an unauthorized transmission by Mr. Bartholomew on 88.7 MHz on October 10, 1997. Field strength measurements taken at that time demonstrated that the transmissions exceeded the limits allowed under Section 15.239 of the Commission's rules, 47 C.F.R.  15.239. On October 10, 1997, an FCC agent attempted to inspect the station. The agent approached the property, consisting of a business and farm house, from which the transmissions were emanating. The apparent owner of the premises refused to respond to questions posed by the FCC agent regarding the name of the property owner and operator of the radio facilities. The agent also asked for, but was refused, permission to inspect the radio transmission facilities. 4. The agent left and was eventually able to ascertain the identity of Mr. Bartholomew from a neighbor. The FCC agent returned to the station on October 11, 1997, and again asked Mr. Bartholomew to allow the inspection and again he refused. The FCC agent then orally warned Mr. Bartholomew that operation of the station was in violation of the Act. The station was still operating as the agent was leaving the area. 5. In his response, Mr. Bartholomew admits to operating a radio transmitting facility on 88.7 MHz. He does contend, however, that his operation was legal because his equipment was type accepted, the output power was less than 1/10 of a watt, and there were no spurious emissions of any sort. He argues that the ERP at the antenna was still within limits and that transmissions could be heard up to four miles away, simply due to the improved technology and performance of receivers. Mr. Bartholomew also notes that if he had been told that his transmission exceeded authorized limits he would have ceased transmissions. The investigation revealed that the transmission signals could be heard over a 288 square mile area. DISCUSSION 6. The Commission derives its forfeiture authority from Section 503 of the Act, 47 U.S.C.  503. In assessing the forfeiture amount in this case, the Philadelphia Office followed Section 503 of the Act, Section 1.80 of the rules, 47 C.F.R.  1.80, and the forfeiture standards established in the Commission's Policy Statement, Standards for Assessing Forfeitures, (Policy Statement), 12 FCC Rcd 17087 (1997). In assessing forfeitures, 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). 7. Respondent had no broadcasting license or other Commission authorization, yet admits to broadcasting on the FM frequency. Mr. Bartholomew admits that his transmission covered an area up to four miles. The NAL indicated that the station's emissions exceeded the emissions limits allowed for operation without a license. The investigation further revealed that Respondent continued operation of the radio equipment even after he was aware that his operations were in violation of the Act and he refused to allow inspection of the equipment. 8. Although Mr. Bartholomew states that he would have ceased transmission had he known that the emissions exceeded authorized levels, information in the NAL rebuts this contention. The NAL states that the agent informed Mr. Bartholomew that his transmissions violated the Act. In addition to operating without a license, Mr. Bartholomew refused to allow inspection of the equipment in violation of Section 303(n) of the Act as noted in the NAL. Mr. Bartholomew does not address this issue in his response to the NAL. Failure to allow inspection is a serious matter. The Commission's authority to inspect radio facilities is a cornerstone of the FCC's ability to ensure compliance with the Communications Act and FCC rules. See Norfolk Southern Railway Company, 11 FCC Rcd 519 (1996). Inspection is critical to ensure that serious interference concerns, especially regarding safety of life matters, can be resolved quickly. 9. We note that, subsequent to the issuance of the NAL, Mr. Bartholomew ceased operations. While cessation of operation is a mitigating factor that must be considered, we cannot ignore Mr. Bartholomew's failure to allow inspection. Accordingly, based on all of the facts of this case, we believe that a forfeiture in the amount of $2,000 is warranted. ORDERING CLAUSES 10. ACCORDINGLY, IT IS ORDERED that, pursuant to 47 U.S.C.  503(b), and Section 1.80 of the Commission's Rules, 47 C.F.R.  1.80, Frank J. Bartholomew IS LIABLE FOR A MONETARY FORFEITURE in the amount of two thousand dollars ($2,000) for violation of Section 301 of the Communications Act, 47 U.S.C. 301 and Sections 15.209 and 15.239 of the Commission's Rules, 47 C.F.R.  15.209, 15.239. 11. IT IS FURTHER ORDERED, pursuant to Section 1.80(f) of the Commission's Rules, 47 C.F.R.  1.80(f), that Frank J. Bartholomew shall, within thirty (30) days of the release of this Forfeiture Order pay the full amount of the forfeiture. Forfeitures shall be paid by check, credit card or money order payable to the Federal Communications Commission. The remittance should be marked "NAL/Acct. No.815PA0002" and mailed to the following address: Federal Communications Commission Post Office Box 73482 Chicago, IL 60673-7482 Petitions for Reconsideration pursuant to Section 1.106, 47 C.F.R.  1.106 of the Rules, or Applications for Review pursuant to Section 1.115, 47 C.F.R. 1.115, should be sent to: Chief, Compliance Division, CIB Federal Communications Commission 1919 M Street, N.W. Washington, D.C. 20554 ATTN: Mail Stop 1500E3AJC 11. IT IS FURTHER ORDERED that a copy of this Order shall be sent certified mail, return-receipt requested, to Frank J. Bartholomew and to his attorney. FEDERAL COMMUNICATIONS COMMISSION Pamera D. Hairston Chief, Compliance Division