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Federal Communications Commission
Washington, D.C. 20554
In the Matter of File No.: EB-10-SE-147
Northeast Utilities Service Company NAL/Acct. No.: 201132100034
Former Licensee of Station WQFD453 FRN: 0003583721
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 1, 2011 Released: September 1, 2011
By the Acting Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Northeast Utilities Service Company ("Northeast Utilities"), former
licensee of Private Land Mobile Radio Service ("PLMRS") station
WQFD453, Waterbury, Connecticut, apparently liable for a forfeiture in
the amount of nineteen thousand dollars ($19,000) for apparent willful
and repeated violation of section 301 of the Communications Act of
1934, as amended ("Act"), and section 1.903(a) of the Commission's
rules ("Rules"). The apparent violation involves Northeast Utilities'
operation of its PLMRS station for more than three years without
2. On June 8, 2006, Northeast Utilities filed an application for
authority to provide private land mobile communications at a liquefied
gas facility in Waterbury, Connecticut. On June 20, 2006, the
Commission's Wireless Telecommunications Bureau ("Wireless Bureau")
granted that application under call sign WQFD453 until the license
expiration date of June 20, 2016. The Commission's records indicate
that on June 14, 2007, Northeast Utilities filed an application to
cancel the license for station WQFD453, and on June 15, 2007, the
Wireless Bureau cancelled the station's license. More than three years
later, on September 3, 2010, Northeast Utilities filed with the
Wireless Bureau a request for Special Temporary Authority ("STA") to
operate on the UHF frequency pair previously authorized by WQFD453 for
a period of 180 days or until the company obtained regular authority
to operate on that UHF frequency pair. In its STA request, Northeast
Utilities stated that it recently became aware that the company's
license for WQFD453 was "inadvertently" cancelled in June 2007.
Northeast Utilities also acknowledged that it continued operating
station WQFD453 after cancellation of its license. On September 10,
2010, the Wireless Bureau granted the STA request under call sign
WQML289, and on September 23, 2010, the Wireless Bureau granted
Northeast Utilities a license for a new PLMRS station under call sign
3. Because it appeared that Northeast Utilities may have operated station
WQFD453 for three years after cancellation of the station license, the
Wireless Bureau referred the matter to the Enforcement Bureau for
investigation and possible enforcement action. On April 5, 2011, the
Spectrum Enforcement Division of the Enforcement Bureau issued a
letter of inquiry to Northeast Utilities.
4. In its May 4, 2011 response to the LOI, Northeast Utilities confirms
that it filed an application to cancel its license for station WQFD453
on June 14, 2007. Northeast Utilities further concedes that it
continued to operate the station during the three-year period lasting
from the time the license was cancelled to the time the STA was
granted. Northeast Utilities explains that from late 2005 through
early 2006, during the time period that it filed its application for
PLMRS station WQFD453, it also submitted several applications to the
Commission for authority to operate Digital Supervisory Control and
Data Acquisition ("DSCADA") units in the 450-470 MHz band throughout
Connecticut. Northeast Utilities asserts that, in canceling the
license, it mistakenly believed that WQFD453 was intended for use in
DSCADA operations rather than for PLMRS. According to Northeast
Utilities, it only became aware of the unauthorized operation in 2010
when a former employee who was familiar with the PLMRS operations at
the Waterbury site "returned as a contractor and discovered the
cancelled license." Northeast Utilities states that, upon learning of
the unauthorized operation, it "immediately advised the Commission
that it had recently become aware" that the license for WQFD453 had
been canceled and requested both temporary and regular operating
authority for its Waterbury land mobile operations. Further, it states
that it is developing a process to avoid unauthorized operations in
5. Section 301 of the Act and section 1.903(a) of the Rules prohibit the
use or operation of any apparatus for the transmission of energy or
communications or signals by radio except under, and in accordance
with, a Commission-granted authorization. As a Commission licensee,
Northeast Utilities was required to maintain its authorization in
order to operate station WQFD453. Northeast Utilities admitted that it
continued to operate its PLMRS station without Commission authority
from June 15, 2007 until September 10, 2010, when its STA request was
granted. By operating station WQFD453 for a period of more than three
years after the license had been cancelled, Northeast Utilities
apparently violated section 301 of the Act and section 1.903(a) of the
6. Section 503(b) of the Act and section 1.80(a) of the Rules provide
that any person who willfully or repeatedly fails to comply with the
provisions 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 knew that it was taking the action in
question, irrespective of any intent to violate the Rules, and
"repeated" means more than once. Based on the record before us, it
appears that Northeast Utilities' apparent violation of section 301 of
the Act and section 1.903(a) of the Rules is both willful and
7. In determining the appropriate forfeiture amount, section 503(b)(2)(E)
of the Act directs us to consider factors such as "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
8. Section 1.80(b)(4) of the Rules sets a base forfeiture amount of
$10,000 for operation of a station without Commission authority. We
thus begin with the $10,000 base forfeiture amount for Northeast
Utilities' continued operation of station WQFD453 after the
cancellation of its license on June 15, 2007. While this base is
subject to adjustment, either upward or downward, we find no basis for
a downward adjustment. Northeast Utilities maintains that the license
for station WQFD453 was "inadvertently" cancelled. This
characterization, however, is somewhat misleading as Northeast
Utilities admits that it intended to cancel the license, but did so
under the mistaken impression that the license was no longer needed
for its intended purpose. In any event, Northeast Utilities continued
to operate WQFD453 without the required authority after the license
was cancelled. The Commission has long established that administrative
oversight or inadvertence is not a mitigating factor warranting
downward adjustment of a forfeiture. In addition, Northeast Utilities
seemingly attempts to mitigate its responsibility for the violation by
explaining that a former employee with the most direct knowledge of
this license had retired. Even if this were relevant, however, we note
that the cancellation occurred prior to this employee's retirement.
Moreover, Northeast Utilities' assertion in its LOI Response that it
is developing a process to avoid future violations, while laudable,
does not negate its liability for the instant violations, nor do any
post-investigation remedial efforts warrant reduction of the
9. Given the totality of the circumstances, and consistent with the
Forfeiture Policy Statement, we conclude that an upward adjustment of
the $10,000 base forfeiture is warranted. In this regard, we take into
account the fact that Northeast Utilities' unlawful operation
continued for more than three years. We also recognize that Northeast
Utilities is a company with more than four billion dollars in annual
revenue. To ensure that forfeiture liability is a deterrent and not
simply a cost of doing business, the Commission has determined that
large or highly-profitable companies, such as Northeast Utilities,
should expect the assessment of higher forfeitures for violations.
Therefore, based on all the factors and evidence, including the
extended period of unauthorized operation and Northeast Utilities'
ability to pay a forfeiture, we find that an upward adjustment of the
base forfeiture is warranted. Accordingly, we propose a forfeiture of
iv ordering clauses
10. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the Act
and sections 0.111, 0.311, and 1.80 of the Rules, Northeast Utilities
Service Company IS hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of nineteen thousand dollars ($19,000) for
the willful and repeated violation of section 301 of the Act and
section 1.903(a) of the Rules.
11. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the Rules,
within thirty (30) calendar days after the release date of this Notice
of Apparent Liability for Forfeiture, Northeast Utilities Service
Company SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture consistent with paragraph 13 below.
12. 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/Account Number and FRN referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer -
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
DC 20554. Please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. Northeast Utilities Service Company must
also send electronic notification to Neal.McNeil@fcc.gov and
Karen.Mercer@fcc.gov on the date said payment is made.
13. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.80(f)(3) and 1.16 of the Rules. The written statement must
be mailed to the Office of the Secretary, Federal Communications
Commission, 445 12th Street, S.W., Washington, DC 20554, ATTN:
Enforcement Bureau - Spectrum Enforcement Division, and must include
the NAL/Account Number referenced in the caption. The statement must
also be emailed to Neal.McNeil@fcc.gov and to Karen.Mercer@fcc.gov.
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
14. 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 Northeast Utilities Service Company, P.O.
Box 270, Hartford, CT 06141-0270, and to Mr. Jack Richards, Counsel
for Northeast Utilities Service Company, Keller and Heckman, LLP, 1001
G Street Northwest, Suite 500 West, Washington, D.C. 20001.
FEDERAL COMMUNICATIONS COMMISSION
John D. Poutasse
Spectrum Enforcement Division
47 U.S.C. S: 301.
47 C.F.R. S: 1.903(a).
See File No. 0002643157.
See File No. 0003071219.
See attachment to STA request.
See File No. 0004377111.
See File No. 0004382096.
See Letter from John D. Poutasse, Acting Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission, to Mr.
Jack Richards, Esq., Keller and Heckman LLP, Counsel for Northeast
Utilities Service Company (April 5, 2011) ("LOI").
See Letter from Jack Richards and Gregory E. Kunkle, Keller and Heckman
LLP, Counsel for Northeast Utilities Service Company, to Marlene H.
Dortch, Secretary, Federal Communications Commission (May 4, 2011) ("LOI
Id at 2.
Id. According to Northeast Utilities, "DSCADA units are used in connection
with reclosers and switches to minimize electric utility service outage
duration, isolate downed conductors in remote areas, provide automated
switching and tagging in areas remote from service areas, and switch
critical customers remotely." Id. at 2.
Northeast Utilities states that when the company determined that it would
not use DSCADA at the Waterbury site, it cancelled the WQFD453 license.
Id. at 3.
47 U.S.C. S: 301; 47 C.F.R. S: 1.903(a).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80(a).
See 47 U.S.C. S: 312(f)(1) & (2). See also Southern California
Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991),
recon. denied, 7 FCC Rcd 3454 (1992) (the definitions of willful and
repeated contained in the Act apply to violations for which forfeitures
are assessed under section 503(b) of the Act).
While section 503(b)(6) of the Act bars the Commission from proposing a
forfeiture for violations that occurred more than a year prior to the
issuance of an NAL, we may consider the fact that Northeast Utilities'
misconduct occurred over an extended period (between 2007 and 2010) to
place "the violations in context, thus establishing the licensee's degree
of culpability and the continuing nature of the violations." Roadrunner
Transportation Inc., Forfeiture Order, 15 FCC Rcd 9669, 9671-72 (2000);
see also BASF Corporation P: 9; Call Mobile P: 10. The forfeiture amount
we propose herein relates only to Northeast Utilities' apparent violations
that have occurred within the past year.
47 U.S.C. S: 503(b)(2)(E). See also 47 C.F.R. S: 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
Forfeitures; Forfeiture Policy Statement, Report and Order, 12 FCC Rcd
17087, 17110 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
47 C.F.R. S: 1.80(b)(4).
See Southern California, 6 FCC Rcd at 4387 (stating that "inadvertence ...
is at best, ignorance of the law, which the Commission does not consider a
We further note that it would be unreasonable for a company of Northeast
Utilities' size to rely on a single employee to monitor its operations and
ensure compliance in this regard.
See LOI Response at 3.
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099, 6099 P: 7
(1994) (corrective action taken to comply with the Rules is expected, and
does not mitigate any prior forfeitures or violations); see also, United
States Cellular Corp., Notice of Apparent Liability for Forfeiture, 22 FCC
Rcd 16424, 16429 P: 14 (2007) (remedial efforts taken after the deadline
did not mitigate violation of the Commission's E911 rules and relevant
orders); AT&T Wireless Services, Inc., Forfeiture Order, 17 FCC Rcd 21866,
21875-6 P:P: 26-28 (2002) (remedial action to correct tower painting
violation was not a mitigating factor warranting reduction of forfeiture).
See BASF Corporation, Notice of Apparent Liability for Forfeiture, 25 FCC
Rcd 17300 P: 11; See also, Call Mobile Inc., Notice of Apparent Liability
for Forfeiture, 26 FCC Rcd 74.
For 2010, Northeast Utilities' revenue was $4.9 billion. See
See Forfeiture Policy Statement, 12 FCC Rcd at 17099-100 (cautioning all
entities and individuals that, independent from the uniform base
forfeiture amounts, the Commission will take into account the subject
violator's ability to pay in determining the amount of a forfeiture to
guarantee that forfeitures issued against large or highly profitable
entities are not considered merely an affordable cost of doing business,
and noting that such large or highly profitable entities should expect
that the forfeiture amount set out in a Notice of Apparent Liability
against them may in many cases be above, or even well above, the relevant
For entities that are not common carriers, broadcast licensees, or cable
operators, section 1.80(b)(3) of the Rules, 47 C.F.R. S: 1.80(b)(3),
provides that "the amount of any forfeiture penalty determined under this
section shall not exceed $16,000 for each violation or each day of a
continuing violation, except that the amount assessed for any continuing
violation shall not exceed a total of $112,500 for any single act or
failure to act."
47 U.S.C. S: 503(b).
47 C.F.R. S:S: 0.111, 0.311, 1.80.
47 C.F.R. S: 1.80.
47 C.F.R. S:S: 1.80(f)(3), 1.16.
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Federal Communications Commission DA 11-1491
Federal Communications Commission DA 11-1491