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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                )
                                )
NetCom Technologies, Inc.       )    File No. EB-00-SJ-094
                                )
Condominio Castillo del Mar, PMB-1222)  NAL/Acct.             No.  

200132680001
#4633 Isla Verde Ave.          ) 
Carolina, Puerto Rico 00979-53000    )
                                   

                  MEMORANDUM OPINION AND ORDER 

Adopted:  May 7, 2001                   Released:  May 9, 2001

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

1.        In this Memorandum  Opinion and  Order (``Order''),  we 
  grant in  part a petition for  reconsideration filed by  NetCom 
  Technologies, Inc.  (``NetCom'')1 of a  Forfeiture Order  which 
  issued  a  monetary  forfeiture  in  the  amount  of   thirteen 
  thousand dollars ($13,000)  to Netcom for willful and  repeated 
  violations  of   Sections  17.4(a)(1)  and   17.51(b)  of   the 
  Commission's   Rules  (``Rules'').2    The   noted   violations 
  involved NetCom's  failure to register  its Juana Diaz,  Puerto 
  Rico  antenna  structure and  its  failure  to  exhibit  medium 
  intensity obstruction lighting  on its Juana Diaz, Puerto  Rico 
  antenna structure.  For the reasons that follow, we reduce  the 
  forfeiture  amount  to   ten  thousand  five  hundred   dollars 
  ($10,500).

                           II.  BACKGROUND

2.        On September 21, 2000,  an agent from the  Commission's 
  San  Juan,  Puerto  Rico  Resident  Agent  Office  (``San  Juan 
  Office'')  inspected  a communications  tower  in  Juana  Diaz, 
  Puerto  Rico at  the approximate  coordinates 1802'02''  North 
  latitude  and 06628'27''  West  longitude at  8:00  a.m.  AST.  
  Although  the tower  was more  than 200  feet in  height  above 
  ground  level, the  agent observed  that there  were no  medium 
  intensity obstruction lights in operation on the tower.  

3.        On September 29,  2000, the agent  inspected the  Juana 
  Diaz  tower at  8:00 a.m.  and again  at 5:15  p.m. AST.   Both 
  times,  the  agent  observed  that  the  tower  had  no  medium 
  intensity  obstruction   lighting  in  operation.   The   agent 
  searched  Commission  and  industry  databases  and  found   no 
  antenna structure registration for this tower.  

4.        On October  2, 2000,  the agent  contacted the  Federal 
  Aviation  Administration's  San  Juan  Flight  Service  Station 
  (``San Juan  FSS'') to find out whether  there was a Notice  to 
  Airmen  (``NOTAM'')  in  effect  for  the  Juana  Diaz   tower.  
  Section  17.48(a)  of the  Rules  requires  that  tower  owners 
  immediately report  to the nearest  FAA Flight Service  Station 
  or   office   any  extinguished   or   improperly   functioning 
  obstruction lights not  corrected within 30 minutes.3  The  FAA 
  then issues a NOTAM  for a period of 15 days advising  aircraft 
  pilots  that  there  is an  antenna  structure  at  a  specific 
  location  with a  temporary light  outage.   The San  Juan  FSS 
  informed the  agent that there was no  NOTAM in effect for  the 
  Juana Diaz tower.  

5.        On October 3, 2000, after obtaining contact information 
  for  the Juana  Diaz  tower from  the  owner of  a  neighboring 
  tower, the agent  contacted Mr. Luis Sanchez, the  construction 
  manager for  NetCom.   The agent advised  Mr. Sanchez that  the 
  medium obstruction lighting on the Juana Diaz tower was not  in 
  operation and that there was no NOTAM in effect for the  tower.  
  The agent  also advised Mr. Sanchez  that there was no  antenna 
  structure  registration  for  the  tower  in  the  Commission's 
  database and  requested that  Mr. Sanchez  provide evidence  of 
  the structure's registration with the Commission.  Mr.  Sanchez 
  informed  the agent  that the  lighting problems  on the  Juana 
  Diaz tower had been  ongoing for about two weeks.  Mr.  Sanchez 
  also told  the agent that he would  get a NOTAM issued for  the 
  tower  and  that he  would  contact  NetCom's  headquarters  in 
  California  to get  the antenna  structure registration  number 
  for  the tower  and  fax this  information  to the  agent.   On 
  October  10,  2000,  the agent  still  had  not  received  this 
  information  and  again   contacted  Mr.  Sanchez  to   request 
  evidence of  the tower's  registration.  Mr.  Sanchez told  the 
  agent  that he  would have  NetCom's San  Juan office  fax  the 
  agent whatever information  they had.  As of October 13,  2000, 
  the agent still had not received from NetCom any evidence  that 
  the Juana Diaz tower was registered with the Commission.

6.        On October  19,  2000, the  San  Juan Office  issued  a 
  Notice  of Apparent  Liability for  a Forfeiture  (``NAL'')  to 
  NetCom in  the amount of  $13,000 for failing  to register  the 
  Juana  Diaz tower  in violation  of Section  17.4(a)(1) of  the 
  Rules  and  failing to  exhibit  medium  intensity  obstruction 
  lighting on the tower  in violation of Section 17.51(b) of  the 
  Rules.  NetCom  did not  respond to  the NAL.   On February  9, 
  2001,  the  Enforcement   Bureau  issued  a  Forfeiture   Order 
  affirming  the  forfeiture.    NetCom  filed  a  petition   for 
  reconsideration of the  Forfeiture Order on March 9, 2001.   In 
  this petition,  NetCom requests that  we reduce the  forfeiture 
  amount  from  $13,000  to  $1,000.   NetCom  asserts  that  the 
  forfeiture  should be  reduced  because  it was  aware  of  the 
  lighting outage  and was already taking  action to correct  the 
  problem prior  to being notified by  the FCC about the  outage.  
  In addition,  NetCom argues  that its failure  to register  the 
  tower  was not  a ``willful''  violation  because it  filed  an 
  antenna structure  registration application electronically  for 
  the tower in June 2000 but did not realize that the  electronic 
  filing had  not been effective.   Finally, NetCom asserts  that 
  this is  the first  time it  has been cited  by the  FCC for  a 
  violation.

                           III.  DISCUSSION

7.        In its petition for reconsideration, NetCom argues that 
  the forfeiture  should be reduced because  it was aware of  the 
  lighting outage on the Juana Diaz tower and was already  taking 
  action to correct the  problem when the FCC first contacted  it 
  about  the  outage.   NetCom  states  that  it  discovered  the 
  lighting outage in late September 2000 and repeatedly  restored 
  the lighting prior to  being notified by the FCC on October  3, 
  2000 that  the lighting  was not  functioning.  NetCom  further 
  states that after being notified of the lighting outage by  the 
  FCC,  it conducted  an  extensive examination  of  the  tower's 
  lighting  mechanism  and discovered  a  latent  defect  in  the 
  lighting  mechanism  that  had  interfered  with  the  previous 
  restorations.  Citing Motorola, Inc., 12 FCC Rcd 15268  (Compl. 
  &  Inf. Bur.  1997) (``Motorola''),  NetCom asserts  that in  a 
  similar situation  the Commission reduced  a forfeiture  issued 
  to Motorola where Motorola's attempts to fix a lighting  outage 
  ``stemmed from Motorola's  own efforts and not a hasty  attempt 
  to comply  due to the FCC  inspection.''  We are not  persuaded 
  that NetCom's  actions provide  a basis for  mitigation of  the 
  forfeiture  amount.   In  this  regard,  we  believe  that  the 
  instant  case  is  distinguishable  from  Motorola.   As  noted 
  above,  Section  17.48(a) of  the  Rules  requires  that  tower 
  owners immediately  report to  the nearest  FAA Flight  Service 
  Station or  office any extinguished  or improperly  functioning 
  obstruction  lights  not  corrected  within  30  minutes.    In 
  Motorola, the forfeiture amount was reduced based on a  finding 
  that Motorola notified the FAA of the lighting outage prior  to 
  the inspection  of the tower by the  FCC and stayed in  contact 
  with the FAA until the lighting outage was corrected.  Id.   In 
  the  instant  case,  although  NetCom  acknowledges  that   the 
  lighting  on   the  Juana  Diaz   tower  had  been   repeatedly 
  malfunctioning  for about  two weeks,  it did  not comply  with 
  Section 17.48(a) and  report the improperly functioning  lights 
  to the  FAA prior to being contacted  by the FCC.  We  consider 
  prompt notification to the FAA as required by Section  17.48(a) 
  to be  essential in ensuring safety  to air navigation.   Given 
  NetCom's  failure  to  report  the  repeatedly   malfunctioning 
  lights  to the FAA,  we find  that its actions  to correct  the 
  lighting problem, while  commendable, do not warrant  reduction 
  of the forfeiture.

8.        NetCom also  argues that  its failure  to register  the 
  antenna structure  was not  a ``willful''  violation because  a 
  contractor  retained  by  NetCom  filed  an  antenna  structure 
  registration  application  electronically for  the  Juana  Diaz 
  tower in  June 2000, but  did not realize  that the  electronic 
  filing  had  not  been  effective.   NetCom  asserts  that  the 
  failure of  the filing was due to  a fault in the  Commission's 
  electronic filing system.   We disagree with NetCom's  argument 
  that its  failure to register the  antenna structure was not  a 
  ``willful''    violation.     Section    312(f)(1)    of    the 
  Communications  Act of  1934,  as amended,  (``Act'')  provides 
  that  ``the term  `willful,' when  used with  reference to  the 
  commission  or omission  of any  act,  means the  conscious  or 
  deliberate commission or omission of such act, irrespective  of 
  any intent to violate any provision of this Act or any rule  or 
  regulation of the  Commission ....''4  This definition  applies 
  to the term ``willful''  as used in Section 503(b) of the  Act.  
  See  Southern  California Broadcasting  Co.,  6  FCC  Rcd  4387 
  (1991).  A violation  resulting from an inadvertent mistake  or 
  a failure  to become  familiar with the  FCC's requirements  is 
  considered  a willful  violation.   See PBJ  Communications  of 
  Virginia, Inc., 7 FCC Rcd 2088 (1992); Standard  Communications 
  Corp., 1 FCC Rcd  358 (1986); Triad Broadcasting Co., Inc.,  96 
  FCC  2d 1235,  1242 (1984).   Furthermore, the  Commission  has 
  long held  that licensees and  other Commission regulatees  are 
  responsible for the  acts and omissions of their employees  and 
  independent  contractors.   See  MTD, Inc.,  6 FCC  Rcd 34,  35 
  (1991); Wagenvoord Broadcasting Co., 35 FCC 2d 361 (1972).

9.        As an initial  matter, we  note that  NetCom offers  no 
  evidence  or explanation  to  support its  assertion  that  the 
  failure of  the filing was due to  a fault in the  Commission's 
  electronic  filing system,  rather than  an error  made by  its 
  contractor.   Moreover, we  do not  see how  NetCom could  have 
  reasonably  believed  that  the  electronic  filing  had   been 
  effective.  In Streamlining the Commission's Antenna  Structure 
  Clearance  Procedure, 11  FCC  Rcd 4272,  4281-82  (1995),  the 
  Commission stated that  electronic filing of antenna  structure 
  registrations  ``will   enable  the  owner   to  register   the 
  structure  with  the  Commission  and  receive  a  registration 
  number within  minutes.''  In  a June 21,  1999, public  notice 
  announcing new  procedures for antenna structure  registration, 
  the  Commission indicated  that it  would issue  a file  number 
  upon  electronic filing  of an  antenna structure  registration 
  but would not issue  a Registration Number until it grants  the 
  registration.5  The Commission further stated that  ``[b]ecause 
  the   new  system   will  process   applications   immediately, 
  electronic filers  will be  able to  submit their  applications 
  and receive  a valid Registration Number  within minutes if  it 
  passes all system edits.''6  In addition, the on-line help  for 
  the  electronic  antenna  structure  registration   application 
  states  ``[i]f there  are  no  errors and  the  application  is 
  successfully submitted and autogranted, the system will  return 
  a message  with the file  number of your  application and  your 
  new  registration.''7   Thus, a  tower  owner  which  files  an 
  antenna structure registration application electronically  will 
  know if its  application was submitted successfully because  it 
  will receive a confirmation message with a file number and,  in 
  most  instances,  a Registration  Number  within  minutes.   If 
  NetCom's  contractor  had  filed  the  electronic   application 
  successfully,  he would  have received  a confirmation  message 
  with a file number.  Failing to receive a confirmation  message 
  with a  file number, he should  have known that the  electronic 
  filing was not  successfully submitted.  As noted above,  under 
  longstanding Commission  precedent, NetCom  is responsible  for 
  the acts  and omissions of  its contractor.  Further,  although 
  NetCom never received a Registration Number or a paper copy  of 
  the Registration,8  it did  not follow through  to verify  that 
  the   application  had   been  received   by  the   Commission.  
  Accordingly, we conclude that NetCom's failure to register  its 
  antenna structure was a willful violation.

10.       Finally, NetCom argues  that the  forfeiture should  be 
  reduced because it  has no history of prior violations.   After 
  considering   NetCom's   history   of   compliance   with   the 
  Commission's  rules, we  conclude  that it  is  appropriate  to 
  reduce the forfeiture from $13,000 to $10,500.

                        IV.  ORDERING CLAUSES

11.       Accordingly, IT IS  ORDERED that,  pursuant to  Section 
  503(b)  of   the  Communications  Act   of  1934,  as   amended 
  (``Act''),9 and  Sections 0.111,  0.311 and  1.80(f)(4) of  the 
  Rules,10 NetCom  Technologies, Inc., IS  LIABLE FOR A  MONETARY 
  FORFEITURE in the  amount of ten thousand five hundred  dollars 
  ($10,500) for failing  to register its Juana Diaz, Puerto  Rico 
  antenna structure in willful and repeated violation of  Section 
  17.4(a)(1)  of the  Rules and  for  failing to  exhibit  medium 
  intensity obstruction lighting  on its Juana Diaz, Puerto  Rico 
  antenna structure in willful and repeated violation of  Section 
  17.51(b) of the Rules.

12.       Payment of the forfeiture shall  be made in the  manner 
  provided for in Section  1.80 of the Rules11 within 30 days  of 
  the  release of  this Order.   If the  forfeiture is  not  paid 
  within the  period specified, the case  may be referred to  the 
  Department  of  Justice  for  collection  pursuant  to  Section 
  504(a) of the Act.12  Payment shall be made by mailing a  check 
  or  similar instrument,  payable to  the order  of the  Federal 
  Communications  Commission,   to  the  Federal   Communications 
  Commission,  Forfeiture  Collection  Section,  Finance  Branch, 
  P.O.  Box 73482,  Chicago,  Illinois 60673-7482.   The  payment 
  should note the  NAL/Acct. No. referenced above.  Requests  for 
  full  payment under  an installment  plan  should be  sent  to: 
  Chief,  Revenue  and Receivables  Operations  Group,  445  12th 
  Street, S.W., Washington, D.C. 20554.13

13.       IT IS FURTHER ORDERED that, a copy of this Order  shall 
  be  sent  by  Certified  Mail,  Return  Receipt  Requested,  to 
  counsel  for NetCom  Technologies, Inc.,  Rachael E.  Schwartz, 
  Esq.,   Baker  &   McKenzie,   815  Connecticut   Ave.,   N.W., 
  Washington, D.C.  20006.


                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

  1   NetCom Technologies, Inc. is  now known as VelociTel,  Inc.  
However, for convenience, we will continue to refer to the entity 
as ``NetCom,'' the name used at the time the violations occurred.

     2 47 C.F.R.  17.4(a)(1) and 17.51(b).

  3   47 C.F.R.  17.48(a).   

  4   47 U.S.C.  312(f)(1).

  5   Public Notice,  ``Commission Announces  New Procedures  for 
Antenna Structure Registration,'' DA  99-1186 (released June  21, 
1999).    

  6   Id.      

  7   See http://wtbwww05.fcc.gov/ULSTower/helpappq.html.   

  8    In  the  June  21,  1999,  public  notice  announcing  new 
procedures for  antenna  structure registration,  the  Commission 
stated that it will continue to issue a paper Registration  (Form 
854R)  for  each  antenna  structure  registration.   See  Public 
Notice,  ``Commission  Announces   New  Procedures  for   Antenna 
Structure Registration,'' DA 99-1186 (released June 21, 1999).   

     9 47 U.S.C.  503(b).

     10 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

     11 47 C.F.R.  1.80.

     12 47 U.S.C.  504(a).

     13 See 47 C.F.R.  1.1914.