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1. Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
)
R & G DISTRIBUTORS, INC. ) File No. EB-01-IH-0017q
OCN# 6841 ) NAL/Acct. No. 200132080048
) FRN 0003-2716-16
)
)
FORFEITURE ORDER
Adopted: June 7, 2002 Released: June 11, 2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
In this Order, we issue a monetary forfeiture against R&G
Distributors, Inc. (``R&G'') for willful violation of 47 C.F.R. §
52.15(f). The noted violation involves R&G's failure to report
its number utilization and forecast data. Based upon our review
of the facts and circumstances of this case, including R&G's
response to our Notice of Apparent Liability (``NAL''),1 we
conclude that R&G is liable for a forfeiture in the amount of
$6,000.
II. BACKGROUND
On April 24, 2001, the Chief, Enforcement Bureau, acting pursuant
to delegated authority, issued the NAL to R&G, proposing a $6,000
forfeiture. We issued the NAL because it appeared that R&G 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 report for each
separate legal entity represented by an Operating Company Number
(`OCN'').3 It appeared that R&G failed to file an NRUF report for
one OCN, which was referenced in our NAL. We therefore
determined that R&G 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
R&G responded to the NAL, and does not contest the finding that
it failed to comply with the reporting requirements of section
52.15(f). However, R&G requests reduction of the forfeiture
penalty from $6,000 to $3,000. R&G argues that the Bureau failed
to adequately explain or justify its proposed imposition of the
upward adjustment of suggested base amount of the forfeiture
penalty and that the forfeiture penalty proposed is
disproportionate to the rule violation at issue.
III. DISCUSSION
The NAL explicitly states that the proposed forfeiture was
assessed in accordance with applicable statutory provisions, the
Commission's rules and the Commission's Forfeiture Guidelines. 5
Section 503(b) of the Act requires that, in examining R&G's
response, we take into account 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.6 R&G
asserts that the Forfeiture Guidelines establish a base amount of
$3,000 for failure to file required forms, but that we failed to
adequately explain why we imposed the same upward adjustment
assessed to carriers with much larger inventories of numbering
resources that had also apparently failed to file the September
15, 2000 NRUF report. We disagree.
Our NAL emphasized the critical importance of consistent and
accurate reporting of number utilization and forecast data.7 The
NAL explained that we imposed an upward adjustment based upon the
potential harm to the Commission's numbering administration and
optimization caused by non-compliance with section 52.15(f). The
amount of the upward adjustment took into account R&G's inventory
of numbering resources, which encompasses multiple NXX codes.8
Under Section 503(b)(2)(D) of the Act and the Forfeiture
Guidelines, the Bureau has broad flexibility to determine the
appropriate forfeiture.9 In this regard, the upward adjustment
creates an incentive for carriers to report on their number
utilization and forecast data in addition to recognizing the
potential harm to numbering administration and optimization when
carriers do not comply with section 52.15(f).10 Although we
generally proposed higher forfeiture amounts for carriers with a
greater amount of numbering resources at issue, we are not
required to assess a different forfeiture based on each
individual carrier's number inventory. Thus, we find that the
calculation of the forfeiture penalty is reasonable and
appropriate. R&G's citation to precedent imposing a lower
forfeiture penalty for a paging carrier's unlicensed operation
over an extended period of time does not compel a different
result.11 In addition, we decline to reduce the forfeiture
amount based on R&G's argument that it is an intermediate carrier
and thus was required to report only utilization data. We have
reviewed R&G's response in light of the statutory factors set
forth above, and find that R&G has not justified reduction of the
proposed forfeiture. Accordingly, we affirm the forfeiture.
IV. ORDERING CLAUSES
Accordingly, IT IS ORDERED, pursuant to 47 U.S.C. § 503(b), and
47 C.F.R. § 0.111, 0.311 and 1.80, that R&G Distribution FORFEIT
to the United States the sum of six thousand dollars ($6,000) for
willfully violating the Commission's rules that require U.S.
carriers to report actual and forecast number usage.
Payment of the forfeiture may be made by mailing a check or money
order, 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, within 30 days of the release of this
Forfeiture Order.12 The payment MUST INCLUDE the FCC
Registration Number (FRN) referenced above and should note the
NAL/Acct. No. referenced above. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for collection pursuant to 47 U.S.C. § 504.
A request for payment of the full amount of this Forfeiture Order
under an installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.13
IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall
be sent by Certified Mail/Return Receipt Requested, to Eziquel
DeLa Torre, R&G Distributors, Inc., 1665 W. 68th Street, Suite
201, Hialeah, FL 33014, with a copy to its counsel, Henry A.
Solomon, Esq., Garvey, Schubert & Barer, 1000 Potomac Street,
N.W., Washington, DC 20007.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 See R and G Distributors, Inc., 16 FCC Rcd 8665 (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 47 U.S.C. § 503(b); 47 C.F.R. § 1.80; 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)(``Forfeiture
Guidelines'')(codified at 47 C.F.R. § 1.80(b)(4) Note).
6 47 C.F.R. § 503(b)(2)(D).
7 Id.
8 R and G Distributors, 16 FCC Rcd at 8667.
9 47 U.S.C. § 503(b)(2)(D). See Forfeiture Guidelines, 12 FCC
Rcd at 17100 (1997). See, e.g., SBC Communications Inc., 16 FCC
Rcd 12306 (2001).
10 See 47 C.F.R. § 1.80(b)(4) Note.
11 Teton Communications Incorporated, 10 FCC Rcd 8832 (WTB
1995).
12 See 47 C.F.R. § 1.80(h).
13 See 47 C.F.R. § 1.1914.