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


                                )
                                )
In the Matter of                 )
                                )
NECLEC, LLC                      )    File No. EB-01-IH-0017j
OCN# 4580                        )    NAL/Acct. No. 200132080041
                                )    FRN 0005-0234-78
                                )
                                )


                  MEMORANDUM OPINION AND ORDER

Adopted:  May 8, 2002                   Released:  May 10, 2002

By the Chief, Enforcement Bureau:


                        I.   INTRODUCTION

In this Order,  we deny  NECLEC, LLC's  (``NECLEC'') request  for 
cancellation and refund  of its  payment of  a $6,000  forfeiture 
proposed in  our  Notice  of Apparent  Liability  for  Forfeiture 
(``NAL'').1  In  the NAL,  we  determined that  NECLEC  willfully 
failed to report its number utilization and forecast data,  which 
constituted an apparent violation of  47 C.F.R.  52.15(f).   For 
the reasons  set forth  below, we  conclude that  NECLEC has  not 
justified its request. 



                         II.       BACKGROUND



On April 24, 2001, the Chief, Enforcement Bureau, acting pursuant 
to delegated authority,  issued the  NAL to  NECLEC, proposing  a 
$6,000 forfeiture. We  issued the  NAL because  it appeared  that 
NECLEC 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  file 
NRUF reports for  each separate  legal entity  represented by  an 
Operating Company  Number  (`OCN'').3  It  appeared  that  NECLEC 
failed to file an NRUF report  for one OCN, which was  referenced 
in our NAL.  We therefore  determined that NECLEC 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

NECLEC initially responded to the NAL on May 24, 2001, and stated 
that it had submitted payment  of the $6,000 forfeiture  proposed 
in the NAL.  However, NECLEC supplemented its response on June 1, 
2001, and reported  that it had  located evidence to  demonstrate 
that it  had indeed  timely  filed the  September 15,  2000  NRUF 
report.  Based   upon  this   supplemental  information,   NECLEC 
requested cancellation  of  the  forfeiture  and  refund  of  its 
payment of the $6,000 forfeiture penalty.

 

                       III.    DISCUSSION



A forfeiture penalty that is paid voluntarily is not  recoverable 
absent  a  showing  of  fraud,  duress,  or  mistake  of   fact.5   
Pursuant to section 504  of the Act, the  subject of an NAL  need 
not pay a forfeiture until the United States seeks recovery and a 
final judgment is entered  by a district court  after a trial  de 
novo.6   Moreover,  the Act  expressly prohibits  the  Commission 
from taking prejudicial action based  on a forfeiture unless  the 
forfeiture has been paid or a final court order requires  payment 
of the forfeiture.7  Therefore,  NECLEC did not  have to pay  the 
forfeiture until a  district court  ruled on the  matter after  a 
trial de  novo, and  as a  matter  of law,  could not  have  been 
penalized for doing  so.8   NECLEC's payment  of the  forfeiture, 
thus, was voluntary.  

However, NECLEC  states  that  after the  paying  the  forfeiture 
penalty,  it   discovered  evidence   that  it   believed   would 
demonstrate filing of the September 15, 2000 report.  Under these 
circumstances, we  will  consider whether  NECLEC's  payment  was 
based on a mistake of  fact.  We have reviewed the  documentation 
that NECLEC submitted with  its supplement, and  find that it  is 
insufficient  to   demonstrate   compliance   with   the   filing 
requirements.  In this regard, carriers generally are required to 
report number  utilization  and  forecast  data  electronically.9  
According to the instructions for  electronic filing of the  NRUF 
report due September 15, 2000, carriers were required to transmit 
their reports as  an e-mail  attachment.  NECLEC  did not  follow 
this procedure  for  filing  its  NRUF  report.10   NeuStar,  the 
designated NANPA, has  confirmed that the  procedure that  NECLEC 
attempted to use to submit its NRUF report would have prompted an 
error message,  indicating that  electronic transmission  of  the 
report was not completed.   NeuStar installed this error  message 
on the  first  day  that NRUF  reports  could  be  electronically 
completed and  transmitted,  and  there is  nothing  in  NECLEC's 
showing to indicate that it  attempted to file the report  before 
this error message was in place.  Because NECLEC failed to follow 
the electronic filing procedures, NANPA did not receive its  NRUF 
report. Under  these circumstances,  we believe  that NECLEC  has 
failed  to  demonstrate  a  mistake  of  fact.   NECLEC  has  not 
presented any  evidence  to  suggest  that  its  payment  of  the 
forfeiture penalty was  based on fraud  or duress.   Accordingly, 
NECLEC is not entitled to a refund.

    

                    IV.     ORDERING CLAUSES


Accordingly,  IT  IS  ORDERED  THAT  NECLEC  LLC's  request   for 
cancellation and refund of its  payment of the $6,000  forfeiture 
proposed in our Notice of Apparent Liability, NECLEC, LLC, 16 FCC 
Rcd 8630 (EB 2001) IS HEREBY DENIED.  

IT IS FURTHER ORDERED that a copy of this Order shall be sent  by 
Certified   Mail/Return  Receipt  Requested,  to  Rachel   Allen, 
Director of Legal/Regulatory, NECLEC, LLC, 190 Old Derby  Street, 
Suite 101,  Hingham, Massachusetts,  02043  and to  its  counsel, 
Cameron F. Kerry, Esq., and  Lisa N. Anderson, Esq., Mintz  Levin 
Cohn Ferris Glovsky  and Popeo  PC, 701  Pennsylvania Ave,  N.W., 
Washington, DC  20004. 


                         FEDERAL COMMUNICATIONS COMMISSION
                    

     

                         David H. Solomon
                         Chief, Enforcement Bureau


_________________________

1  See NECLEC, LLC, 16 FCC Rcd 8630 (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).  

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   Associated Broadcasters, Inc., 12 FCC Rcd 3324 (1997);  C.R. 
Communications, Inc., 15 FCC Rcd 19114 (EB 2000).

6   47 U.S.C.  504(a).  

7   47 U.S.C.  504(c).

8   See Pleasant Broadcasting  v. FCC, 564  F.2d 496, 498  (D.C. 
Cir.  1977)(``forfeitures   imposed   by  the   Commission   are 
recoverable, absent voluntary payment, only in civil proceedings 
brought  by  the  United   States  Attorneys  in  the   district 
court.'').  

9   47 C.F.R.  52.15(f)(3)(iii).  See NRO Order, 15 FCC Rcd  at 
7598.  

10   See Supplemental Response, Exhibit B.