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

In the Matter of                )
                                )
KYS, Inc.                       )    File No. EB-01-DT-415
d/b/a Sandusky Bay Marine Towing)    NAL/Acct. No. 200232360003
Sandusky, Ohio                  )    FRN 0006-0042-20
                                )    
                                   

                        FORFEITURE ORDER 

Adopted:  March 26, 2002                Released:  March 28, 2002

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

1.        In  this  Forfeiture  Order  (``Order''),  we  issue  a 
  monetary forfeiture in the amount of one thousand five  hundred 
  dollars ($1,500) to KYS, Inc. d/b/a Sandusky Bay Marine  Towing 
  (``KYS'')   for  violation   of  the   Great  Lakes   Agreement 
  (``GLA'')1 and  Section 80.953(a) and  (b) of the  Commission's 
  Rules  (``Rules'').2    The  noted  violation  involves   KYS's 
  navigation  of a  towing vessel,  the  Recovery, on  the  Great 
  Lakes without  having obtained  the annual  GLA inspection  and 
  certification of its marine VHF radiotelephone equipment.

2.        On  December  31,   2001,  the  Commission's   Detroit, 
  Michigan, Field Office (``Detroit Office'') issued a Notice  of 
  Apparent  Liability  for Forfeiture  (``NAL'')  to  KYS  for  a 
  forfeiture in  the amount of two  thousand two hundred  dollars 
  ($2,200).3  KYS  filed a  response to  the NAL  on January  29, 
  2002.

                         II.  BACKGROUND

3.        The GLA  and Section  80.953(a) and  (b) of  the  Rules 
  require, 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 navigating on  the 
  Great Lakes.  These  provisions are intended to promote  safety 
  of life and property  on the Great Lakes by means of radio  and 
  require  inspection  and certification  of  the  radiotelephone 
  installation at least once every 13 months.

4.        On June 29, 2001, an FCC agent from the Detroit  Office 
  conducted  random  inspections in  Sandusky,  Ohio  of  vessels 
  subject  to  the  GLA to  determine  whether  the  vessels  had 
  current GLA safety inspections and certifications.4  The  agent 
  inspected a vessel  owned by KYS, the Recovery, and  determined 
  that the  vessel did not have  a current GLA safety  inspection 
  and certification for its marine VHF radiotelephone  equipment.  
  The  agent  also  determined  that  the  vessel  had   recently 
  navigated the  waters of the  Great Lakes as  a towing  vessel.  
  As a  follow-up to the random  inspection, the agent  requested 
  and  received  copies of  the  Recovery's  ship  station  logs.  
  Review of these  logs revealed that the Recovery had  navigated 
  the waters of the  Great Lakes on at least June 10, 11, 19  and 
  24, 2001, without a valid inspection and certification.

5.        On July 26, 2001, the District Director of the  Detroit 
  Office issued an Official Notice of Violation (``NOV'') to  KYS 
  for failure  to have  the vessel Recovery  inspected under  the 
  provisions of the GLA.  On August 20, 2001, the Detroit  Office 
  received a  response to the  NOV in which  KYS admitted to  the 
  violation.

6.        On December 31, 2001, the Detroit Office issued an  NAL 
  in the amount of  $2,200 to KYS for navigating a towing  vessel 
  on  the Great  Lakes without  having  obtained the  annual  GLA 
  inspection and certification  of its marine VHF  radiotelephone 
  equipment, in  violation of the GLA  and Section 80.953(a)  and 
  (b) of  the Rules.  The  Detroit Office arrived  at the  $2,200 
  forfeiture  amount by  multiplying the  $550 maximum  statutory 
  per day  forfeiture amount for  violation of the  GLA by  four, 
  the number  of days  on which  KYS admitted  to navigating  the 
  Recovery without a valid inspection and certification.  In  its 
  January 29,  2002, response to the  NAL, KYS acknowledges  that 
  the violation  occurred but requests  rescission or  mitigation 
  of the forfeiture amount.  KYS argues that a $2,200  forfeiture 
  is excessive  because the violation was  an oversight, the  VHF 
  radio  was used  on only  two of  the four  occasions when  the 
  Recovery navigated  the waters of the  Great Lakes, and one  of 
  the  four occasions  was an  ``errand of  mercy'' performed  on 
  behalf of  the local police department  when its marine  patrol 
  boat ran out of gas.  KYS also argues that the NAL  incorrectly 
  references Section  506(a) of the  Communications Act of  1934, 
  as amended (``Act''),5 when  in fact Section 506(a) of the  Act 
  was repealed  and renumbered as  Section 507(a).   Furthermore, 
  KYS asserts  that the Act imposes a  $500 per day maximum  fine 
  for violations  of the GLA,  not a $550  per day maximum  fine.  
  Finally,  KYS asserts  that  the Commission  should  treat  the 
  violation as a  single, isolated incident, instead of  imposing 
  the maximum  per day fine for  each day the Recovery  navigated 
  the  Great  Lakes,  because  there  was  no  showing  that  the 
  violation  was willful  or  repeated; that  the  violation  was 
  immediately corrected upon being brought to its attention;  and 
  that it  has an overall history  of compliance and showed  good 
  faith by  voluntary disclosing information  to the  Enforcement 
  Bureau.

                      III.      DISCUSSION

7.        The forfeiture  amount in  this  case was  assessed  in 
  accordance with Section 506(a) of the Act, Section 1.80 of  the 
  Rules,6 and  The Commission's Forfeiture  Policy Statement  and 
  Amendment  of Section  1.80 of  the  Rules to  Incorporate  the 
  Forfeiture Guidelines, 12 FCC Rcd 17087 (1997), recon.  denied, 
  15 FCC  Rcd 303  (1999) (``Policy  Statement'').  In  examining 
  KYS's response, Section  1.80(b)(4) of the Rules requires  that 
  the Commission  take into account  certain downward  adjustment 
  criteria, including  minor violation, good  faith or  voluntary 
  disclosure,  history of  overall  compliance and  inability  to 
  pay.7

8.        KYS admits that it navigated the towing vessel Recovery 
  on the Great Lakes  on June 10, 11, 19 and 24, 2001, without  a 
  current GLA safety inspection and certification.  We  therefore 
  conclude that  KYS violated the GLA  and Section 80.953(a)  and 
  (b) of the Rules.

9.        KYS argues that its  violation was an ``oversight''  in 
  that the Recovery was only pressed into service when its  other 
  vessel, which  is not  subject to  the provisions  of the  GLA, 
  developed engine trouble.  However, this circumstance does  not 
  mitigate  KYS's  violation.  Navigation  without  a  valid  GLA 
  certification  increases  the  risk  to  safety  of  life   and 
  therefore  is a  significant  violation.8  Likewise,  the  fact 
  that the VHF radio  was only used on two of the four  occasions 
  when the Recovery navigated  the waters of the Great Lakes  and 
  the  fact that one  of the  four occasions was  an ``errand  of 
  mercy''  for a  local police  department  do not  mitigate  the 
  violation.  

10.       KYS's assertion  that  the NAL  incorrectly  references 
  Section 506(a) of the Act is without merit.  In 1980,  Congress 
  repealed the  former Section  506 of the  Act and  redesignated 
  Section 507, the statutory provision at issue here, as  Section 
  506.9  We note, however, that this provision is still  codified 
  at Section  507 of Title 47 of  the United States Code.   Thus, 
  as indicated  in the NAL, this  provision is properly cited  as 
  Section 506 of the Act, but 47 U.S.C.  507.

11.       KYS's argument that Section 506(a) of the Act imposes a 
  $500 per day maximum fine, not a $550 per day maximum fine,  is 
  also  incorrect.   The  Debt  Collection  Improvement  Act   of 
  1996,10  which amends  the  Federal Civil  Penalties  Inflation 
  Adjustment Act of  1990,11 requires federal agencies to  adjust 
  maximum statutory forfeiture  penalties for inflation at  least 
  once every four years using a specified formula.12   Consistent 
  with this  statute, the Commission  amended Section  1.80(b)(5) 
  of  the  Rules13  in  September  2000  to  adjust  its  maximum 
  statutory   forfeiture   penalties   for   inflation.14    This 
  amendment increased  the maximum per  day penalty specified  in 
  Section 506(a) for violation of the GLA from $500 to $550.15

12.       In addition, we  disagree with KYS's  argument that  we 
  should treat the violation  in this case as a single,  isolated 
  incident,  instead of  imposing the  maximum per  day fine  for 
  each day the Recovery navigated the Great Lakes, because  there 
  was  no showing  that the  violation was  willful or  repeated.  
  First, we note that  there is no requirement that we show  that 
  a violation  was willful  or repeated  in order  to impose  the 
  maximum  statutory  forfeiture  penalty  pursuant  to   Section 
  506(a)  of  the Act.16   Second,  as  noted  above,  navigation 
  without a  valid GLA certification  is a significant  violation 
  because  it increases  the  risk  to safety  of  life.   Third, 
  contrary to KYS's argument, the violation was repeated in  that 
  the  Recovery  navigated  the Great  Lakes  on  at  least  four 
  separate   days   without  a   current   GLA   inspection   and 
  certification.  Therefore,  we conclude that  the NAL  properly 
  imposed the  maximum per  day fine  for each  day the  Recovery 
  navigated the Great Lakes.

13.       Although KYS asserts that  the violation was  corrected 
  immediately upon being  brought to its attention, we note  that 
  corrective  action taken  after notice  of a  violation,  while 
  commendable, does  not mitigate the  violation.17  However,  we 
  conclude that KYS's overall history of compliance does  justify 
  reduction of the forfeiture amount from $2,200 to $1,500.18

                      IV.  ORDERING CLAUSES

14.       Accordingly, IT IS  ORDERED that,  pursuant to  Section 
  506(a) of the Act, and Sections 0.111, 0.311 and 1.80(f)(4)  of 
  the Rules,19 KYS, Inc., IS LIABLE FOR A MONETARY FORFEITURE  in 
  the amount  of one thousand five  hundred dollars ($1,500)  for 
  violation of  the Great Lakes  Agreement and Section  80.953(a) 
  and (b) of the Rules.

15.       Payment of the forfeiture shall  be made in the  manner 
  provided for  in Section 1.80  of the Rules  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.20  Payment may be  made by mailing a  check 
  or  similar instrument,  payable to  the order  of the  Federal 
  Communications  Commission,   to  the  Federal   Communications 
  Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.   The 
  payment  should reference  NAL/Acct. No.  200232360003 and  FRN 
  0006-0042-20.  Requests for  full payment under an  installment 
  plan should be sent to:  Chief, Revenue and Receivables  Group, 
  445 12th Street, S.W., Washington, D.C. 20554.21

16.       IT IS FURTHER ORDERED that  a copy of this Order  shall 
  be  sent by  Certified Mail  Return Receipt  Requested to  KYS, 
  Inc., Sandusky  Bay Marine Towing,  603 42nd Street,  Sandusky, 
  Ohio 44870,  and to its counsel,  William H. Smith, Jr.,  Esq., 
  Smith & Lehrer,  Co., L.P.A., 308 West Adams Street,  Sandusky, 
  Ohio 44870.

                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

  1  Agreement Between  Canada  and  the United  States  for  the 
Promotion of Safety on the Great  Lakes by Means of Radio,  April 
26, 1973, US.-Canada, 25 UST  935, T.I.A.S. 7837, amended 30  UST 
2523, T.I.A.S. 9352.

  2 47 C.F.R.  80.953(a) and (b).  

  3 Notice  of Apparent Liability  for Forfeiture, NAL/Acct.  No. 
200232360003 (Enf. Bur.,  Detroit Office,  released December  31, 
2001).    

  4 Although  the required annual  inspections of  radiotelephone 
installations aboard vessels subject to the provisions of the GLA 
have been privatized, the FCC conducts spot-check inspections  to 
monitor  compliance.   Amendment   of  the   Commission's   Rules 
Concerning the Inspection of  Radio Installations of Large  Cargo 
and Small Passenger Ships, 13 FCC Rcd 13556, 13564 (1998).

  5 47 U.S.C.  507(a).

  6 47 C.F.R.  1.80.

  7 47 C.F.R.  1.80(b)(4).

  8  See Shepler's,  Inc., 16  FCC Rcd  14547, 14548  (Enf.  Bur. 
2001).

  9 P.L. 96-507, 94 Stat 2747 (1980).

  10 P.L. 104-134, 110 Stat 1321 (1996).

  11 P.L. 101-410, 104 Stat 890 (1990).

  12 See 28 U.S.C.  2461.  See also 47 C.F.R.  1.80(b)(5).

  13 See 47 C.F.R.  1.80(b)(5).

  14  Amendment of  Section 1.80(b)  of the  Commission's  Rules, 
Adjustment of Forfeiture Maxima to Reflect Inflation, 15 FCC  Rcd 
18221 (2000).

  15 Id.  See 47 C.F.R.  1.80(b)(5).

  16  See 47  U.S.C.   507(a).   Section  503(b)(1) of  the  Act 
provides that certain violations of the Act and the Rules must be 
willful or  repeated in  order  for the  Commission to  impose  a 
forfeiture penalty.  However, Section 503(b)(1) explicitly states 
that ``this subsection shall  not apply to  any conduct which  is 
subject to forfeiture  under title II,  part II or  III of  title 
III, or section 506 of this Act.''  47 U.S.C.  503(b)(1).

  17 See Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).

  18 See 47 U.S.C.   504(b); see also 47 C.F.R.  1.80, Note  to 
paragraph (b)(4):  Section III. Non-Section 503 Forfeitures  That 
Are Affected by the Downward Adjustment Factors.

  19 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  20 47 U.S.C.  504(a).

  21 See 47 C.F.R.  1.1914.