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1. Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
NORTH AMERICAN ) File No. EB-01-IH-0017m
TELECOMMUNICATIONS CORPORATION ) NAL/Acct. No. 200132080044
OCN# 8770 ) FRN No. 0004375564
Adopted: February 12, 2003 Released: February 14,
By the Chief, Enforcement Bureau:
In this Forfeiture Order, we find that North American
Telecommunications Corporation (``NATC'') violated 47 C.F.R. §
52.15(f) by willfully failing to report its number utilization
and forecast data. We conclude that NATC is liable for a
forfeiture in the amount of $6,000.
On April 24, 2001, the Chief, Enforcement Bureau, acting pursuant
to delegated authority, issued a Notice of Apparent Liability for
Forfeiture (``NAL'') to NATC, proposing a $6,000 forfeiture.1 We
issued the NAL because it appeared that NATC had failed to report
on its actual and forecast number usage by filing FCC Form 502,
the North American Numbering Plan Numbering Resource
Utilization/Forecast (``NRUF'') Report that was due on September
15, 2000.2 Carriers are required to report for each separate
legal entity represented by an Operating Company Number
(``OCN'').3 It appeared that NATC failed to file an NRUF report
for one OCN, which was referenced in our NAL. We therefore
determined that NATC had apparently violated section 52.15(f) of
the Commission's rules, which requires U.S. carriers receiving
numbering resources from the North American Numbering Plan
Administrator (``NANPA''), a Pooling Administrator, or another
telecommunications carrier, to report semiannually on their
actual and forecast number usage.4
NATC responded to the NAL, and stated that in order to
reorganize, it had filed for Chapter 11 bankruptcy protection on
February 23, 2001. NATC requested that the proposed forfeiture
be dismissed based on bankruptcy filing, or, in the alternative,
that it be given additional time to respond. We extended the
period for NATC to respond to the NAL to June 25, 2001. However,
NATC did not file a further response.
The NAL states that the proposed forfeiture was assessed in
accordance with applicable statutory provisions, the Commission's
rules and the Commission's Forfeiture Guidelines. 5 Section
503(b) of the Act requires that, in examining NATC's response, we
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.6 Although there is
precedent for reducing or rescinding a forfeiture based on
bankruptcy in certain circumstances7, we do not believe that NATC
has justified a reduction or rescission in this case because NATC
failed to respond to the extended deadline for responding to the
NAL. In this regard, as stated in the NAL, 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. NATC did not provide any financial
documentation in support of its request for rescission of the
forfeiture and, therefore, we have no basis upon which to analyze
its request based upon the effect of the bankruptcy on its
ability to pay the proposed forfeiture.
Further, filing for bankruptcy does not preclude the Commission
from issuing an order imposing a forfeiture on NATC for violating
its rules.8 Here, we do not believe that NATC has justified a
reduction or rescission in this case because it has not provided
financial documentation for the Bureau's analysis and because,
even though it filed bankruptcy, it retains control over its
assets. Friendship Cable of Texas, Inc., 17 FCC Rcd 8571 (EB
2002). Moreover, the Commission has ruled that a carrier's
bankruptcy does not excuse its obligation to comply with the Act
and the Commission's rules and that enforcement action will be
taken where appropriate, particularly where the carrier continues
operation during the Chapter 11 reorganization process.9
Furthermore, we have information indicating that NATC also
apparently failed to file the NRUF report due February 1, 2001.
When an NAL has been issued and the recipient appears to continue
to engage in the same rule violation, we are not inclined to
rescind or adjust the forfeiture amount even where the recipient
has filed for bankruptcy protection.10 Accordingly, we affirm
IV. ORDERING CLAUSES
Accordingly, IT IS ORDERED, pursuant to section 503(b) of the
Act, 47 U.S.C. § 503(b), and section 1.80(f)(4) of the
Commission's rules, 47 C.F.R. § 1.80(f)(4), that North American
Telecommunications Corporation SHALL FORFEIT to the United States
Government the sum of six thousand dollars ($6,000) for willfully
violating the Commission's rules that require U.S. carriers to
report actual and forecast number usage. For collection, the
Commission will file a proof of claim at the appropriate time in
North American Telecommunications Corporation's bankruptcy
Payment of the forfeiture may be made by mailing a check or money
order, 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, within 30 days of the release of this
Forfeiture Order.12 The payment must include the FCC
Registration number (FRN) and the NAL/Acct. No. referenced above.
If the forfeiture is not paid within the period specified, the
case may be referred to the Department of Justice for collection
pursuant to 47 U.S.C. § 504. A request for payment of the full
amount of this Forfeiture Order under an installment plan should
be sent to: Chief, Revenue and Receivables Operations Group, 445
12th Street, S.W., Washington, D.C. 20554.13
IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall
be sent by Certified Mail/Return Receipt Requested, to Fred E.
Horton, Jr., Esq., North American Telecommunications Corporation,
875 Merrick Avenue, Westbury, NY 11590.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 See North American Telecommunications Corporation, 16 FCC Rcd
8645 (EB 2001).
2 The NRUF reports are due on or before February 1 and on or
before August 1 of each year. See 47 C.F.R. § 52.15(f)(6).
However, we note that the deadline for filing reports due August
1, 2000 was extended to September 15, 2000. Numbering Resource
Optimization, CC Docket No. 99-200, 15 FCC Rcd 17005 (2000).
3 See 47 C.F.R. § 52.15(f)(3)(ii). See also, NRO Order, 15 FCC
Rcd at 7594; NRO Recon. Order, 15 FCC Rcd at 353-54.
4 Numbering Resource Optimization, Report and Order and Further
Notice of Proposed Rulemaking in CC Docket No. 99-200, 15 FCC
Rcd 7574 (2000)(``NRO Order''); recon. and clarification in
part, Second Report and Order, Order on Reconsideration in CC
Docket 96-98 and CC Docket 99-200, and Second Further Notice of
Proposed Rulemaking in CC Docket 99-200, 16 FCC Rcd 306 (
2000)(``NRO Recon. Order'').
5 47 U.S.C. § 503(b); 47 C.F.R. § 1.80; 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)(``Forfeiture
Guidelines'')(codified at 47 C.F.R. § 1.80(b)(4) Note).
6 47 U.S.C. § 503(b)(2)(D).
7 See Dennis Elam, Trustee for Bakcor Broadcasting, Inc.,
Debtor, 11 FCC Rcd 1137 (1996)(forfeiture rescinded after
bankruptcy trustee was appointed and the violator was no longer
associated with the subject radio stations); Interstate Savinds,
Inc. d/b/a ISI Communications, 12 FCC Rcd 2934 (CCB
1997)(forfeiture rescinded where trustee was appointed in
Chapter 7 liquidation, removing violator from operating as a
common carrier and from involvement in dissolution or
distribution of assets. Requiring trustee to pay the forfeiture
would diminish estate assets available to innocent creditors and
serve no public purpose).
8 See 11 U.S.C. § 362(b)(4). See Coleman Enterprises, Inc., 16
FCC Rcd 24385, 24389 n. 28 (2000)(Forfeiture Order) (filing for
bankruptcy does not preclude the Commission from issuing an
Order of Forfeiture). See also United States of America v.
Commonwealth Companies, Inc., 913 F.2d 518 (8th Cir. 1990).
9 Coleman Enterprises, Inc., 16 FCC Rcd 10016, 10019-21
(2001)(Order on Reconsideration), citing Interstate Savings,
Inc., 12 FCC Rcd 2934 (1997).
10 William Flippo, 15 FCC Rcd 23340 (EB 2000)(Forfeiture
Order), citing J.C. Maxwell Broadcasting Group, Inc (WMPR(FM)),
8 FCC Rcd 784 (1993).
11 See United States v. Commonwealth Companies, Inc., 913 F. 2d
518, 523 (8th Cir. 1990).
12 See 47 C.F.R. § 1.80(h).
13 See 47 C.F.R. § 1.1914.