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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:
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.
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.
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
9 47 C.F.R. § 52.15(f)(3)(iii). See NRO Order, 15 FCC Rcd at
10 See Supplemental Response, Exhibit B.