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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
MariTEL Mississippi River, Inc. ) File No. EB-02-OR-052
) NAL/Acct. No. 200232620006
Licensee of Maritime Public Coast Station ) FRN 0003-4734-
51
WPOJ535 near Pointe a la Hache, Louisiana )
FORFEITURE ORDER
Adopted: January 30, 2003 Released: February 3,
2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of three thousand two
hundred dollars ($3,200) to MariTEL Mississippi River, Inc.
(``MariTEL''), licensee of public coast station WPOJ535, near
Pointe a la Hache, Louisiana, for willful and repeated
violation of Section 80.90 of the Commission's Rules
(``Rules'').1 The noted violation involves MariTEL's failure
to suspend transmissions of a transmitter operating under call
sign WPOJ535 immediately upon detection of a transmitter
malfunction.
2. On July 3, 2002, the Commission's New Orleans,
Louisiana Field Office (``New Orleans Office'') issued a
Notice of Apparent Liability for Forfeiture (``NAL'') to
MariTEL for a forfeiture in the amount of seven thousand
dollars ($7,000).2 MariTEL filed a response to the NAL on
August 2, 2002.
II. BACKGROUND
3. On April 2, 2002, the New Orleans Office received a
complaint from the U.S. Coast Guard in Gulfport, Mississippi,
that a continuous radio signal on VHF marine channel 16 (156.8
MHz) was interfering with its ability to communicate with
vessels. VHF marine channel 16 is the international marine
safety, distress and calling channel for ship, public coast
and private coast stations.3 Using a radio direction finding
vehicle, agents from the New Orleans Office determined that
the source of the interfering signal was a malfunctioning
transmitter operated by MariTEL under call sign WPOJ535 from
an antenna structure located near Pointe a la Hache,
Louisiana. The agents contacted Mark Watros of MariTEL by
telephone at approximately 6:30 p.m., advised him of the
malfunctioning transmitter, and requested that the
transmissions be suspended immediately. However, the
transmissions from MariTEL's transmitter were not suspended
until 7:20 a.m. on April 3, 2002, more than 12 hours after
MariTEL was notified of the malfunctioning transmitter.
During this period, interference was present on the marine
safety, distress and calling channel.
4. On April 12, 2002, the New Orleans Office mailed a
Notice of Violation (``NOV'') to MariTEL at the address of
record for public coast station WPOJ535, citing MariTEL for
violation of Section 80.90 of the Rules. On April 26, 2002,
the U.S. Postal Service returned the NOV to the New Orleans
Office marked ``Attempted Not Known.''
5. On April 30, 2002, the New Orleans Office again mailed
the NOV to the address of record for MariTEL and to a second
address obtained from MariTEL. On May 20, 2002, the U.S.
Postal Service returned the copy of the NOV sent to MariTEL at
its address of record to the New Orleans Office marked
``Attempted Not Known.'' The New Orleans Office never
received any response to the NOV.
6. On July 3, 2002, the New Orleans Office issued an NAL
to MariTEL for a $7,000 forfeiture for failing to ensure that
Commission correspondence mailed to the address of record
would reach the licensee in willful and repeated violation of
Section 1.5 of the Rules4 and failure to suspend transmissions
immediately upon detection of a transmitter malfunction in
willful and repeated violation of Section 80.90 of the Rules.
In its response to the NAL, MariTEL requests cancellation or
reduction of the proposed forfeiture. MariTEL acknowledges
that the mailing address on its authorization for WPOJ535 was
incomplete and that it is unlikely that correspondence
directed to MariTEL at that address would reach the desired
destination.5 However, MariTEL notes that Section 1.5 of the
Rules states that ``unless the licensee advises the Commission
to the contrary, the address contained in the licensee's most
recent application will be used by the Commission'' for the
purpose of serving documents or directing correspondence.
MariTEL asserts that the ``contact information'' section of
its most recent application for WPOJ535 contained sufficient
information so that correspondence would have been received by
its counsel. With respect to the Section 80.90 violation,
MariTEL admits that it caused interference to operations on
VHF channel 16 and did not suspend operation of the
malfunctioning transmitter until more than 12 hours after it
was notified of the problem by the FCC. However, MariTEL
argues that the NAL failed to take into account its response
to the NOV issued on April 30, 2002.6 MariTEL presumes that
since the NAL indicated that no response to the NOV was
received, its alleged failure to respond to the NOV was a
factor in the decision to propose a forfeiture for violation
of Section 80.90. MariTEL maintains that because it did in
fact respond to the NAL, the forfeiture should be canceled or
reduced. In addition, MariTEL asserts that its response to
the NOV explained the circumstances surrounding the violation
of Section 80.90. Specifically, MariTEL states that a
contractor engaged by MariTEL in connection with its
development of a new maritime telecommunications system
inadvertently employed VHF channel 16 in order to test an
element of the new system and disabled an automatic ``time
out'' feature of the system. MariTEL further states that upon
learning of the violation from the FCC, it took all measures
necessary to cease the offending transmissions and that it has
taken measures to ensure that the violation does not recur.
Finally, MariTEL asserts that its overall history of
compliance with the Commission's rules warrants reduction or
cancellation of the proposed forfeiture.
III. DISCUSSION
7. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of
1934, as amended, (``Act''),7 Section 1.80 of the Rules,8 and
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''). In examining MariTEL's
response, Section 503(b) of the Act requires that the
Commission 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.9
8. After reviewing MariTEL's response to the NAL and
Commission records, we agree with MariTEL that its most recent
application did include a current and complete mailing
address. Accordingly, we cancel the $3,000 forfeiture
proposed in the NAL for violation of Section 1.5 of the Rules.
9. Section 80.90 of the Rules provides that transmissions
authorized under the Part 80 rules must be suspended
immediately upon detection of a transmitter malfunction and
must remain suspended until the malfunction is corrected.
MariTEL does not dispute that its transmitter caused
interference to operations on VHF channel 16, the
international marine safety, distress and calling channel, and
that it did not suspend operation of the transmitter until
more than 12 hours after it was notified of the problem by the
FCC. Accordingly, we conclude that MariTEL willfully10 and
repeatedly11 violated Section 80.90 of the Rules. Contrary to
MariTEL's suggestion, the fact that the New Orleans Office
never received MariTEL's response to the NOV did not factor
into the decision to impose a forfeiture for violation of
Section 80.90.12 Rather, the $4,000 forfeiture proposed in
the NAL is the base forfeiture amount for unauthorized
emissions.13 Thus, the fact that MariTEL apparently did
respond to the NOV does not warrant cancellation or reduction
of the proposed forfeiture.
10. MariTEL also asserts that the violation occurred
because its contractor inadvertently employed VHF channel 16
in order to test an element of a new maritime
telecommunications system and disabled an automatic ``time
out'' feature of the system. We do not think that this fact
justifies any reduction of the forfeiture amount. The
Commission has repeatedly held that licensees are responsible
for the acts and omissions of their independent contractors.14
MariTEL further asserts that upon learning of the violation
from the FCC, it took all measures necessary to cease the
offending transmissions. However, MariTEL offers no
explanation as to why it waited more than 12 hours to suspend
operation of the transmitter. MariTEL's failure to suspend
operation of the transmitter immediately as required by
Section 80.90 is particularly serious given that the
transmitter was operating on a marine safety, distress and
calling channel. Moreover, while MariTEL states that it has
taken steps to ensure that the violation does not recur, the
Commission has stated that remedial actions taken to correct a
violation are not mitigating factors warranting reduction of a
forfeiture.15 Nevertheless, we find that MariTEL's overall
history of compliance with the Commission's rules justifies
reduction of the forfeiture proposed for violation of Section
80.90 from $4,000 to $3,200.
11. We have examined MariTEL's response to the NAL pursuant
to the statutory factors above, and in conjunction with the
Policy Statement as well. As a result of our review, we
conclude that MariTEL willfully and repeatedly violated
Section 80.90 of the Rules, but we reduce the forfeiture
proposed for this violation from $4,000 to $3,200. In
addition, we cancel the $3,000 forfeiture proposed in the NAL
for violation of Section 1.5 of the Rules.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section
503 of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,16 MariTEL Mississippi River, Inc. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of three thousand two
hundred dollars ($3,200) for willful and repeated violation of
Section 80.90 of the Rules.
13. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of
the release of this Order. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for collection pursuant to Section
504(a) of the Act.17 Payment may be made by mailing a check
or similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
payment should reference NAL/Acct. No. 200232620006 and FRN
0003-4734-51. Requests for full payment under an installment
plan should be sent to: Chief, Revenue and Receivables
Operations Group, 445 12th Street, S.W., Washington, D.C.
20554.18
14. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail, return receipt
requested, to counsel for MariTEL Mississippi River, Inc.,
Russell H. Fox, Esq., Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C., 701 Pennsylvania Avenue, N.W., Suite 900,
Washington, D.C. 20004.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 80.90.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232620006 (Enf. Bur., New Orleans Office, released July 3,
2002).
3 See 47 C.F.R. § 80.369(e)(3).
4 47 C.F.R. § 1.5.
5 The mailing address on MariTEL's authorization included only
the street address for its counsel, without reference to a suite
number, the name of its counsel, or the counsel's law firm.
6 A copy of MariTEL's response to the NOV is attached as an
exhibit to its response to the NAL. The letter, which is dated
May 15, 2002, was never received by the New Orleans Office.
7 47 U.S.C. § 503(b).
8 47 C.F.R. § 1.80.
9 47 U.S.C. § 503(b)(2)(D).
10 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that ``[t]he term `willful,'
... means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act or any rule or regulation of the Commission authorized
by this Act ....'' See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
11 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which
also applies to forfeitures assessed pursuant to Section 503(b)
of the Act, provides that ``[t]he term `repeated,' ... means the
commission or omission of such act more than once or, if such
commission or omission is continuous, for more than one day.''
12 We note that failure to respond to an NOV is a violation of
Section 1.89 of the Rules. See 47 C.F.R. §1.89. The NAL did not
impose a forfeiture for this violation.
13 See Policy Statement, 12 FCC Rcd at 17114; see also, 47
C.F.R. § 1.80(b)(4), Note to paragraph (b)(4): Section I.¾Base
Amounts for Section 503 Forfeitures.
14 See Eure Family Limited Partnership, FCC 02-293 (released
November 1, 2002), citing MTD, Inc., 6 FCC Rcd 34, 35 (1991) and
Wagenvoord Broadcasting Co., 35 FCC 2d 361 (1972).
15 See Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
16 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
17 47 U.S.C. § 504(a).
18 See 47 C.F.R. § 1.1914.