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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Northeast Passage Corporation. ) File No. EB-00-PA-362
512 U.S. Highway 9 )
Forked River, New Jersey 08731 ) NAL/Acct No.:
200132400003
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 22,
2001
By the District Director, Philadelphia Office, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Northeast Passage Corporation (``NEPC'')
has apparently violated Sections 17.4(a) and 1.89(b) of the
Commission's Rules and Regulations (the ``Rules'') by failing to
register its antenna structure and failing to respond to
Commission correspondence.1 We conclude that NEPC is apparently
liable for a forfeiture in the amount of seven thousand dollars
($7,000).
II. BACKGROUND
2. By letter dated September 13, 2000, SBC Wireless Inc.
informed the Federal Communications Commission's Enforcement
Bureau that NEPC failed to register an antenna structure with the
Commission. SBC Wireless Inc. stated that it leases space on the
unregistered antenna structure that is located in Forked River,
New Jersey near the coordinates 39o 49' 37'' N by 074o 12' 10''
W. The Enforcement Bureau's Technical and Public Safety Division
forwarded the complaint to the Philadelphia Office for
investigation.
3. During a telephone conversation with FCC agent David
Dombrowski, Walter Holmes of NEPC acknowledged that NEPC is the
owner of the antenna structure, the overall height of the antenna
structure is greater than 200 feet above ground level and the
antenna structure was never registered with the Commission.
Walter Holmes stated that Northeast Passage Corp. voluntarily
installed obstruction lighting on the antenna structure for
aeronautical purposes.
4. On October 20, 2000, the Philadelphia Office issued NEPC
a Notice of Violation for failure to register the antenna
structure with the Commission, in violation of Section 17.4(a) of
the Rules. The Philadelphia Office requested NEPC to submit a
written response addressing the violation within 10 days
following receipt of the Notice of Violation. On November 28,
2000, Walter Holmes contacted the Philadelphia Office by
telephone and advised FCC agent Trent Williams that NEPC received
the Notice of Violation.
5. As of December 7, 2000, NEPC had not registered its
antenna structure or submitted a written response to the October
20, 2000 Notice of Violation. Therefore, on December 7, 2000,
the Philadelphia Office issued NEPC a Notice of Violation for
failure to respond to Commission correspondence, in violation of
Section 1.89(b) of the Rules. In the Notice of Violation, the
Philadelphia Office included a copy of the October 20, 2000
Notice of Violation and stated that it had not received a reply
from NEPC. The Philadelphia Office sent the December 7, 2000
Notice of Violation to NEPC by certified mail. According to the
return receipt, NEPC received the Notice of Violation from the
U.S. Postal Service on December 15, 2000.
6. As of this date, the Philadelphia Office has not
received a reply to the Notices of Violation issued on October
20, 2000 and December 7, 2000 and the Commission has no record
that NEPC registered the antenna structure. Although the
Philadelphia Office has made numerous attempts to contact NEPC by
telephone, NEPC has not returned any of the telephone calls.
III. DISCUSSION
7. Pursuant to Section 17.4(a) of the Rules, the owner of
any proposed or existing antenna structure that requires a notice
of proposed construction to the Federal Aviation Administration
(``FAA'') must register the structure with the Commission.
Pursuant to Section 17.7(a) of the Rules, a notification to the
FAA is required for any construction or alteration of an antenna
structure of more than 200 feet above ground level.2 In Section
17.2(a) of the Rules, an antenna structure is defined as the
supporting structures and any appurtenances mounted thereon.3
Based on measurements conducted by FCC agent Trent Williams of
the Philadelphia Office and Valcom Wireless Construction, Inc.,
the overall height of the antenna structure exceeds 200 feet
above ground level. Consequently, NEPC must register the antenna
structure with the Commission by filing FCC Form 854 (Application
for Antenna Structure Registration).
8. In the Notices of Violation issued on October 20, 2000
and December 7, 2000, the Philadelphia Office required NEPC to
submit a written response addressing its failure to register the
antenna structure. Section 1.89(b) of the Rules requires that
within 10 days from receipt of the Notice of Violation, the
recipient shall send a written answer, in duplicate, directly to
the Commission office originating the official notice. Section
1.89(c) of the Rules requires that the answer to each notice
shall contain a statement of action taken to correct the
condition or omission complained of and to preclude its
recurrence.4
9. Based on the evidence before us, we find that NEPC
willfully5 violated Section 17.4(a) of the Rules by failing to
register its antenna structure and Section 1.89(b) of the Rules
by failing to respond to Commission correspondence.
10. Pursuant to Section 1.80 of the Rules,6 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''), the base amount for failure to respond to
official Commission correspondence is $4,000, and the base amount
for failure to register antenna structures is $3,000 (failure to
file required forms or information). The total base forfeiture
for both violations is $7,000. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in Section 503(b)(2)(D) of the Communications
Act of 1934, as amended, (the ``Act''),7 that include 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. Applying the Policy Statement and statutory
factors to the instant case, we believe that a monetary
forfeiture in the amount of seven thousand dollars ($7,000) is
warranted.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act8, and Sections 0.111, 0.311 and 1.80 of the
Rules,9 NORTHEAST PASSAGE CORPORATION is hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of seven
thousand dollars ($7,000) for violating Sections 17.4(a) and
1.89(b) of the Rules.
12. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the date of release of this
NOTICE OF APPARENT LIABILITY, NORTHEAST PASSAGE CORPORATION SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
proposed forfeiture.
13. Payment of the forfeiture may be made by mailing a
check or similar instrument, 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. The payment should note the
NAL/Acct. No. 200132400003.
14. The response, if any, must be mailed to the Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington, D.C.
20554 and MUST INCLUDE THE NAL/Acct. No. 200132400003 referenced
above.
15. 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.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
submitted.
16. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.10
17. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to NORTHEAST PASSAGE CORPORATION at 512 U.S. Highway 9,
Forked River, New Jersey 08731.
FEDERAL COMMUNICATIONS COMMISSION
John E. Rahtes
District Director
Philadelphia Office
_________________________
1 47 C.F.R. §§ 17.4(a) and 1.89(b).
2 47 C.F.R. § 17.7(a).
3 47 C.F.R. § 17.2(a).
4 47 C.F.R. § 1.89(c).
5 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to Section 503(b) of the Act, provides that ``[t]he term
`willful', when used with reference to the commission or omission
of any act, means the conscious and deliberate commission or
omission of such act, irrespective of any intent to violate any
provision of this Act or any rules or regulations of the
Commission authorized by this Act....'' See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
6
47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, and 0.311.
10 See 47 C.F.R. § 1.1914.