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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Lamar County Cellular, Inc. ) File No. EB-05-SE-184
) NAL/Acct. No. 200632100012
) FRN # 0007260862
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 26, 2006 Released: April 26, 2006
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Lamar County Cellular, Inc. ("Lamar") apparently willfully and
repeatedly violated Section 20.18(d) of the Commission's Rules
("Rules"), by failing to provide Enhanced 911 ("E911") Phase I service
within six months of a valid request by the Texas Commission on State
Emergency Communications ("Texas CSEC") on behalf of the Paris Police
Department of Lamar County, Texas. For Lamar's apparent violations,
and for the reasons discussed below, we propose a forfeiture in the
amount of twelve thousand dollars ($12,000).
2. Under Phase I of the E911 requirements, wireless carriers must provide
the designated Public Safety Answering Point ("PSAP") with both the
telephone number of the mobile handset that originated the 911 call
and the location of the base station or cell site that received the
911 call. Further, wireless carriers are required to provide such
information by April 1, 1998 or within six months of a valid request
by the designated PSAP, whichever is later.
3. A PSAP request is deemed valid if the PSAP can demonstrate that it
will be capable of receiving and utilizing the Phase I data no later
than six months after its request. Specifically, a PSAP request is
deemed valid if the PSAP can demonstrate that: (i) a mechanism is in
place for recovering the PSAP's costs; (ii) it has ordered the
equipment necessary to receive and utilize the E911 data to be
installed no later than six months following its request; and (iii) it
has made a timely request to the appropriate local exchange carrier
for the necessary trunking and other facilities.
4. On June 23, 2005, the Texas CSEC, the agency responsible for
coordinating, overseeing and implementing emergency communications and
911 programs in the state of Texas, filed a complaint with the
Enforcement Bureau regarding Lamar's failure to timely implement E911
Phase I service in Lamar County, Texas. The Texas CSEC asserted that
it sent Lamar a request to implement E911 Phase I service on behalf of
the Paris Police Department of Lamar County, Texas, in October 1999.
According to the Texas CSEC, to date Lamar has not fulfilled the E911
Phase I service request.
5. On July 6, 2005, the Enforcement Bureau's Spectrum Enforcement
Division ("Division") issued Lamar a Letter of Inquiry ("LOI"). Lamar
responded to the LOI on August 10, 2005, and supplemented its response
on November 17, 2005.
6. In its response to the LOI, Lamar admitted that it received the Texas
CSEC's request and conceded that the request was valid. Lamar stated
that it is a "bare bones operation" that maintains a single analog
cell site in the town of Paris in Lamar County, which is served by a
single PSAP, the Paris Police Department. In order to save on
operating costs, Lamar does not operate its own cellular switch but
rather utilizes other carriers' cellular switching services. When it
received the initial October 1999 Phase I request from the Texas CSEC,
Lamar was using cellular switching services provided by CenturyTel.
Due to jurisdictional LATA boundary issues, Lamar had its
cellular-originated 911 calls routed from the CenturyTel cellular
switch to the local landline switch owned by Blossom Telephone Company
("Blossom") in Lamar County. Lamar claimed that, at that time, it
implemented what it believed "in good faith" to be a Phase I compliant
solution. While Lamar's solution, by default, identified its lone cell
site as the one being used by the emergency caller, it did not contain
the caller's call-back number. Lamar maintained that, at that time, it
did not realize that the FCC's rules require a call-back number. Lamar
stated that the Texas CSEC informed it that it had not achieved Phase
I compliance in November of 2002.
7. Lamar asserted that it then began working with CenturyTel to achieve
Phase I compliance, but in early 2003, ALLTEL acquired CenturyTel and
Lamar had to renew its Phase I implementation efforts with ALLTEL. As
part of these efforts, Lamar installed a digital trunk to the
selective router in Dallas, Texas, which serves the Paris Police
Department. Lamar asserted that it worked with ALLTEL to achieve Phase
I compliance using this arrangement but was unable to craft a Phase I
8. Lamar stated that in March 2005, it changed its cellular switching
host from ALLTEL to Pine Cellular. Lamar indicated that it has Pine
Cellular's switch route 911 calls via analog Multi-Frequency ("MF")
trunks back through the Blossom switch and then to the PSAP. According
to Lamar, both the Pine Cellular and Blossom switches required
upgrades for Lamar to be able to send the Phase I data to the PSAP.
Lamar asserted in its August 10, 2005 response to the LOI that it was
working with the switch manufacturer to implement a Call-Path
Associated Signaling solution whereby the Pine Cellular switch sends a
10-digit p-ANI in the form of Emergency Services Routing Digits and
the calling party's number to the Blossom switch, which in turn would
forward this information to the selective router serving the Paris
Police Department. However, in its November 17, 2005 supplement to the
LOI response, Lamar reported that on August 11, 2005, it learned that
the Blossom switch cannot be physically configured to pass such Phase
I p-ANI data to the selective router assigned to the Paris Police
Department using the incoming MF trunks.
9. Lamar noted in its November 17, 2005 supplement that it is currently
pursuing a plan involving completion of a digital circuit using
terrestrial microwave facilities located between its leased cellular
switch and a new landline switch. This plan would also utilize the
E911 services of a Non-Call Path Associated Signaling ("NCAS")
solution vendor. Lamar stated that it has commenced construction of
the microwave path and entered into contract negotiations with the
NCAS solution vendor. Further, Lamar expected to order the dedicated
T1 facilities necessary to carry its wireless 911 traffic from the
landline switch to the selective router by November 30, 2005. Based on
the time required to complete construction of the microwave link,
provision the dedicated T1 facilities, and deploy the NCAS solution,
Lamar stated that it expects to be fully Phase I compliant by February
10. As stated previously, Section 20.18(d) of the Rules requires wireless
carriers to provide to the designated PSAP both the 911 caller's
telephone (call back) number and the location of the cell site or base
station that received the 911 call from any mobile handset accessing
their systems by April 1, 1998 or within six months of a valid request
by a designated PSAP, whichever is later. The record establishes, and
Lamar does not dispute, that the Texas CSEC made a valid request on
behalf of the designated PSAP in October 1999. Moreover, the record
indicates, and Lamar does not dispute, that it did not transmit the
required data (both the 911 caller's call back number and the cell
site location) and thus did not provide compliant E911 Phase I service
within six months of the Texas CSEC's valid request.
11. Under Section 503(b) of the Act and Section 1.80(a) of the Rules, any
entity that willfully and repeatedly fails to comply with the
requirements of the Act or the Rules shall be liable for a forfeiture
penalty. For purposes of Section 503(b) of the Act, the term "willful"
means that the violator consciously and deliberately acted or failed
to act, irrespective of any intent to violate the Commission's
requirements, and the term "repeatedly" means that the act or failure
to act occurred more than once or more than one day if the violation
has been continuous in nature. Based on the record before us, we find
that Lamar apparently willfully and repeatedly violated Section
20.18(d) of the Rules by failing to comply with the Commission's E911
Phase I requirements within six months of the Texas CSEC's valid
12. Under Section 503(b)(6) of the Act, we are barred from proposing a
forfeiture for apparent violations that occurred more than one year
prior to the date of this NAL, but we are not barred from taking into
account the fact that Lamar's apparent violations began prior to that
time period in determining the appropriate forfeiture amount. The
forfeiture amount proposed herein thus takes into account the
continuing nature of Lamar's violations, but relates to the company's
apparent willful and repeated failure to achieve full E911 Phase I
compliance within the one-year statutory period.
13. Under Section 503(b)(2)(B) of the Act, a common carrier may be
assessed a forfeiture of up to $130,000 for each violation, or for
each day of a continuing violation up to a maximum of $1.325 million
for a single act or failure to act. Additionally, in determining the
appropriate forfeiture amount, we need to consider the factors set
forth in Section 503(b)(2)(D) of the Act , which includes "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 such other matters as justice may
require," as well as guidelines set forth in the Commission's
Forfeiture Policy Statement.
14. The Commission's Forfeiture Policy Statement and Section 1.80 of the
Rules do not establish a base forfeiture for violation of Section
20.18(d). Nevertheless, the Commission has stated that the "omission
of a specific rule violation from the list ... [establishing base
forfeiture amounts] should not signal that the Commission considers
any unlisted violation as nonexistent or unimportant. The Commission
expects, and it is each licensee's obligation to know and comply with
all Commission's rules." Thus, the Commission retains its discretion
to issue forfeitures on a case-by-case basis, and has assessed
forfeiture liability, for rule violations irrespective of whether
corresponding base forfeiture amounts have been established.
15. Having considered the statutory factors and recent precedent, we find
that the gravity and the extent of Lamar's apparent willful and
repeated violation of Section 20.18(d) warrants a proposed forfeiture
in the amount of $12,000. In this connection, the Commission has found
that violations of E911 requirements are extremely serious given the
critical function these requirements serve in promoting and
safeguarding life and property. We also note that the E911 Phase I
requirements set forth in Section 20.18(d) have been in effect for
over eight years, and that Lamar's failure to comply with those
requirements and provide Phase I service was repeated and continuous
in nature. Indeed, we note that nearly six years have lapsed since
Lamar received the Texas CSEC's valid request for E911 Phase I service
and that Lamar apparently has yet to fully implement a technical
solution that would impart critical data (the 911 caller's call back
number) to the Paris Police Department of Lamar County, Texas.
16. We recognize that Lamar has encountered difficulties in its efforts to
develop a compliant technical solution. However, the Commission has
repeatedly stated that "an assertion that a vendor, manufacturer, or
other entity was unable to supply compliant products will not excuse
noncompliance" with E911 requirements. A carrier's "concrete and
timely actions" taken with a vendor, manufacturer, or other entity may
be considered as possible mitigation factors in an enforcement
context. Here, Lamar has not shown that it exercised the level of
diligence expected of carriers in processing the Texas CSEC's request
for Phase I service to warrant mitigation. Rather, the record
establishes, and Lamar admits, that after it received the Texas CSEC's
request for E911 Phase I service in October 1999, Lamar did not
recognize its responsibilities and thus did not undertake concrete or
timely action to address and implement a compliant E911 Phase I
solution. Accordingly, we find that no mitigation of the proposed
forfeiture amount is warranted on this basis.
17. We also find that no downward adjustment of the proposed forfeiture
amount is warranted on the basis of Lamar's professed "good faith"
belief that by providing the PSAP with the location of its cell site
it was E911 Phase I compliant. As a Commission licensee, Lamar is
charged with being familiar and complying with applicable Commission
requirements. Moreover, it is a well established and longstanding
principle that ignorance of the law is not a mitigating factor and
does not warrant a downward adjustment of the proposed forfeiture
18. Finally, given that Lamar apparently is still not providing E911 Phase
I service to the Paris Police Department, we require Lamar, pursuant
to Section 308(b) of the Act, to submit a report within 30 days of the
release of this NAL, explaining the status of its deployment of Phase
I service to the Paris Police Department, including a timeline for
19. We find that Lamar apparently willfully and repeatedly violated
Section 20.18(d) of the Rules by failing to fulfill a valid request
for E911 Phase I service to a PSAP within six months of the date of
the request. For its violations, we propose a $12,000 forfeiture.
IV. ORDERING CLAUSES
20. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Section 1.80 of the Rules, Lamar County Cellular, Inc. is
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of $12,000 for willful and repeated violation of Section
20.18(d) of the Rules.
21. 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 for Forfeiture, Lamar County Cellular, Inc. SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
22. IT IS FURTHER ORDERED that, pursuant to Section 308(b) of the Act,
Lamar County Cellular, Inc. SHALL SUBMIT the report described in
paragraph 18 within thirty days of the release date of this Notice of
Apparent Liability for Forfeiture to: Federal Communications
Commission, Enforcement Bureau, Spectrum Enforcement Division, 445
12^th Street, S.W., Washington, D.C. 20054, ATTN: Ava Holly Berland.
23. 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. Payment of the forfeiture must be made
by check or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the NAL/Acct. No.
and FRN No. referenced above. Payment by check or money order may be
mailed to Federal Communications Commission, P.O. Box 358340,
Pittsburgh, PA 15251-8340. Payment by overnight mail may be sent to
Mellon Bank/LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106. Requests for
payment of the full amount of the NAL under an installment plan should
be sent to: Associate Managing Director - Financial Operations, 445
12^th Street, S.W., Room 1A625, Washington, D.C. 20554.
24. The response, if any, must be mailed to the Office of the Secretary,
Federal Communications Commission, 445 12th Street, S.W., Washington,
D.C. 20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division,
and must include the NAL/Acct. No. referenced in the caption.
25. 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; 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
26. IT IS FURTHER ORDERED that a copy of this Notice of Apparent
Liability for Forfeiture shall be sent by first class mail and
certified mail return receipt requested to Mr. Rod Brown, Lamar County
Cellular, Inc., 3940 Lamar Avenue, Paris, Texas 75462-5206, and to
Michael R. Bennet, Esq., Bennet & Bennet, PLLC, 10 G Street, N.E.,
7^th Floor, Washington, D.C. 20002.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Spectrum Enforcement Division
47 C.F.R. S 20.18(d).
See 47 C.F.R. S 20.18(j)(1), (2); see also Revision of the Commission's
Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems,
Petition of City of Richardson, Texas, Order, 16 FCC Rcd 18982, 18982 P 1
(2001), recon. granted in part, denied in part, Revision of the
Commission's Rules to Ensure Compatibility with Enhanced 911 Emergency
Calling Systems, Petition of City of Richardson, Texas, Order on
Reconsideration, 17 FCC Rcd 24282 (2002).
See Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission to Rod
Brown, Lamar County Cellular, Inc. (July 6, 2005).
See Letter from Kenneth C. Johnson, Esq. and Gregory W. Whiteaker, Esq.,
Bennet & Bennet, PLLC to Ava Holly Berland, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (August 10, 2005)
See Letter from Michael R. Bennet, Esq. and Kenneth C. Johnson, Esq.,
Bennet & Bennet, PLLC to Ava Holly Berland, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (November 17, 2005)
Response at 1-2.
Lamar noted that Blossom and Lamar are affiliated companies. Id. at n. 2.
Id. at 2. Lamar stated that a fixed pseudo-ANI ("p-ANI") from the Lamar
cellular emergency caller was sent from the CenturyTel switch to the Paris
Police Department identifying Lamar's solitary cellular site. Id. at n. 3.
Id. at 3.
We note that Lamar has not updated its response to the LOI as of the date
of this NAL to indicate that it has achieved full Phase I compliance.
47 U.S.C. S 503(b).
47 C.F.R. S 1.80(a).
See H.R. Rep. No. 97-765, 97^th Cong. 2d Sess. 51 at 2294-95 (1982)
(stating that the definitions of willful and repeated, set forth in
Section 312(f)(1) and (2), shall govern Section 503(b)); see also Telecom
House, Inc., 20 FCC Rcd 15131 P 14 (2005); Southern California
Broadcasting, 6 FCC Rcd 4387, 4388 P 5 (1991); Bureau D'Electronique
Applique, 20 FCC Rcd 17893 PP 9-10 (Enf. Bur., Spectrum Enf. Div., 2005).
47 U.S.C. S 503(b)(6).
See, e.g., Globcom, Inc. d/b/a Globcom Global Communications, 18 FCC Rcd
19893, 19903 P 23 (2003), forfeiture ordered, FCC 06-49 (rel. April 19,
2006); Roadrunner Transportation, Inc., 15 FCC Rcd 9669, 9671-71 P 8
(2000); Cate Communications Corp., 60 RR 2d 1386, 1388 P 7 (1986); Eastern
Broadcasting Corp., 10 FCC 2d 37, 37-38 P 3 (1967).
47 U.S.C. S 503(b)(2)(B).
47 U.S.C. S 503(b)(2)(D).
See The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd
17087, 17115 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
Id. at 12 FCC Rcd at 17099 P 22.
See Callais Cablevision, Inc., 17 FCC Rcd 22626, 22630 PP 19-20 (2002)
(assessing an aggregate $133,000 forfeiture irrespective of the absence of
an established base forfeiture for violations of the cable signal leakage
standards); Midwest Television, Inc., 20 FCC Rcd 3959 (Enf. Bur. 2005)
(assessing a $20,000 proposed forfeiture irrespective of the absence of an
established base forfeiture for failure to broadcast emergency information
accessible to hearing impaired viewers); A-O Broadcasting Corp., 31
Communications Reg. (P&F) 411 P 22 (2003), forfeiture ordered, 20 FCC Rcd
756 (2005) (assessing a $28,000 forfeiture, inter alia, irrespective of
the absence of an established base forfeiture for violations of radio
frequency exposure limits).
See Dobson Cellular Systems, Inc. and American Cellular Corporation, FCC
06-48 (rel. April 18, 2006) (proposing a total $750,000 forfeiture against
two commonly-owned carriers for failure to provide E911 Phase I service in
response to valid PSAP requests in nine instances and failure to provide
E911 Phase II service in response to valid PSAP requests in 41 instances)
("Dobson"); Sprint Spectrum LP d/b/a Sprint PCS, 19 FCC Rcd 19901,
19906-07 PP 12-13 (Enf. Bur. 2004), consent decree ordered, 20 FCC Rcd
12328 (Enf. Bur. 2005) (proposing a $50,000 forfeiture for E911 Phase I
violations, based on the carrier's failure to implement Phase I E911
service seven months after receiving valid requests on behalf of two
PSAPs) ("Sprint PCS").
See Revision of the Commission's Rules to Ensure Compatibility with
Enhanced 911 Emergency Calling Systems, Second Memorandum Opinion and
Order, 14 FCC Rcd 20850, 20852 P 2 (1999), clarified, 16 FCC Rcd 18982
(2001); see also Dobson, FCC 06-48 P 59; T-Mobile USA, Inc., 18 FCC Rcd
3501, 3504 P 7 (2003); Sprint PCS, 19 FCC Rcd at 19906 P 12.
See Revision of the Commission's Rules to Ensure Compatibility with
Enhanced 911 Emergency Calling Systems, Phase II Compliance Deadlines for
Non-Nationwide CMRS Carriers, Order to Stay, 17 FCC Rcd 14841, 14854 P 37
(2002); Revision of the Commission's Rules to Ensure Compatibility of
Enhanced 911 Emergency Calling Systems, Request for Waiver by Sprint
Spectrum LP d/b/a Sprint PCS, 16 FCC Rcd 18330, 18340 P 32 (2001);
Revision of the Commission's Rules to Ensure Compatibility of Enhanced 911
Emergency Calling Systems, Request for Waiver by AT&T Wireless Services,
16 FCC Rcd 18253, 18261 P 26 (2001); see also Sprint PCS, 19 FCC Rcd at
19905 P 10.
See Forfeiture Policy Statement, 12 FCC Rcd at 17099 P 22 (stating that
"[t]he Commission expects, and it is each licensee's obligation, to know
and comply with all of the Commission's rules"); see also Communication
Services Integrated, Inc., 37 Communication Reg. (P&F) 29 P 14 (2005);
Monroe Area Broadcasters Inc., 18 FCC Rcd 6255, 6257 P 9 (Enf. Bur. 2003).
See Southern California Broadcasting, 6 FCC Rcd at 4387 P 3 (finding that
inadvertence and/or mistaken beliefs regarding Commission requirements are
"at best, ignorance of the law, which the Commission does not consider a
mitigating circumstance"); see also Evergreen Broadcasting, 26 FCC 2d 453
P 4 (1970); Barnacle Broadcasting Company Ltd., 19 FCC Rcd 13830, 13832-33
P 10 (Enf. Bur. 2004).
47 U.S.C. S 308(b).
47 U.S.C. S 504(a)
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-937
Federal Communications Commission DA 06-937