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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-03-DT-883
West Harbor Towing Service )
) NAL/ Acct. No.
Port Clinton, Ohio )
) FRN: 0004 8484 01
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 15,
By the District Director, Detroit Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that West Harbor Towing Service (``West Harbor
Towing'') has apparently violated the Great Lakes Agreement
(``GLA'')1 and Sections 80.953(a) and 80.953(b) of the
Commission's Rules2 (the ``Rules'') as a result of their vessel
the ``West Harbor'' navigating the Great Lakes without having the
annual GLA inspection and certification of their marine VHF
radiotelephone equipment. We conclude that West Harbor Towing is
apparently liable for forfeiture in the amount of one thousand
one hundred dollars ($1,100).
2. The GLA requires, among other things, that all vessels
65 feet or over in length (20 meters), most towing vessels, and
vessels carrying more than six passengers for hire be equipped
with a marine VHF radiotelephone installation when navigated on
the Great Lakes. The GLA is intended to promote safety of life
and property on the Great Lakes by means of radio and requires
the radiotelephone installation be inspected and certified at
least once every thirteen months. The inspection of GLA subject
vessels may be performed by the holder of an FCC General
Radiotelephone Operator License, GMDSS Radio Maintainer's
License, Second Class Radiotelegraph Operator's Certificate or
First Class Radiotelegraph Operator's Certificate.
3. On September 24, 2003 FCC agents from the Detroit
Office conducted random inspections in Port Clinton, Ohio of
vessels subject to the GLA to determine whether GLA inspections
were being conducted and certified. The agents inspected the
tugboat ``West Harbor'' and determined that the vessel did not
have a current GLA safety inspection and certification. The
agents also determined that the vessel had navigated the waters
of the Great Lakes as a towing vessel. A review of the ship
radiotelephone log indicated that the ``West Harbor'' had
navigated on September 10, 2003, and September 13, 2003 without a
valid GLA certification.
4. In order to promote the safety of life and property on
the Great Lakes, the Great Lakes Agreement, and Sections
80.953(a) and 80.953(b) of the Rules require that vessels subject
to the GLA have the radiotelephone installation inspected and
certified annually. The vessel ``West Harbor'' was not
5. Based on the evidence before us, we find that West
Harbor Towing willfully3 and repeatedly4 violated the Great Lakes
Agreement and Sections 80.953(a) and 80.953(b) of the
Commission's Rules as a result of their vessel the ``West
Harbor'' having navigated the Great Lakes on September 10 and
September 13, 2003 without having had their radiotelephone
installation inspected and certified as required by the Great
Lakes Agreement. The Commission's Forfeiture Policy Statement
and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087, 17113 (1997), recon.
denied, 15 FCC Rcd 303(1999) (``Forfeiture Policy Statement'')5,
sets the statutory maximum amount forfeiture at five hundred
fifty dollars ($550) per day for violation of Great Lakes
Agreement. In assessing the monetary forfeiture amount, we must
take into account the downward adjustment factors set forth in
Section 1.80 of the Rules for non-Section 503 forfeitures, which
include minor violations, good faith or voluntary disclosure,
history of overall compliance, and inability to pay. While this
is not a minor violation, the record reveals that West Harbor has
an overall history of compliance. Applying the Policy Statement
and the adjustment criteria to the instant case, we believe that
a one thousand one hundred dollar ($1,100) monetary forfeiture is
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED THAT, pursuant to Section
506(a) of the Act6 and Sections 0.111, 0.311 and 1.80 of the
Rules7, West Harbor Towing is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of one thousand one
hundred dollars ($1,100) for willfully and repeatedly violating
the Great Lakes Agreement and Sections 80.953(a) and 80.953(b) of
the Commission's Rules.
7. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NOTICE
OF APPARENT LIABILITY, West Harbor Towing SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
8. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. 200432360002, FRN: 0004 8484 01.
9. Any response to this NAL must be mailed to Federal
Communications Commission, Enforcement Bureau, Spectrum
Enforcement Division, 445 12th Street, S.W., Washington, D.C.
20554 and MUST INCLUDE THE NAL/Acct. No. 200432360002, FRN: 0004
10. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the petitioner submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices (``GAAP'');
or (3) some other reliable and objective documentation that
accurately reflects the petitioner's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
11. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent to
Chief, Revenue and Receivables Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.8
12. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Sta. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Spectrum Enforcement Division.
Your certification should indicate whether you, including your
parent entity and its subsidiaries, meet one of the definitions
set forth in the list provided by the FCC's Office of
Communications Business Opportunities (OCBO) set forth in
Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
13. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to West Harbor Towing Service, 2175 N.E.
Catawba Road, Lot 28, Port Clinton, Ohio 43452 and to West Harbor
Towing Service, 19336 Laurel, Rocky River, Ohio 44116.
James A. Bridgewater
Attachment A - Condensed List of Small Entities, October 2002
1 Agreement Between Canada and the United States for the
Promotion of Safety on the Great Lakes by Means of Radio T.I.A.S.
7837, amended T.I.A.S. 9352 (Great Lakes Agreement).
2 47 C.F.R. §§ 80.953(a), and 80.953(b).
3 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to Section 503(b) of the Act, provides that ``[t]he term
`willful', when used with reference to the commission or omission
of any act, means the conscious and deliberate commission or
omission of such act, irrespective of any intent to violate any
provision of this Act ....'' See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
4 Section 312(f)(2), which also applies to Section 503(b),
provides: [t]he term ``repeated'', when used with reference to
the commission or omission of any act, means the commission or
omission of such act more than once or, if such commission or
omission is continuous, for more than one day.
547 C.F.R. § 1.80.
6 47 U.S.C. § 507(a).
7 47 C.F.R. §§ 0.111, and 0.311.
8 See 47 C.F.R. § 1.1914.