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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-373
In the Matter of
) Acct. No. 200832100077
NOVA Chemicals, Inc.
) FRN No. 0002848208
)
ORDER
Adopted: September 3, 2008 Released: September 5, 2008
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and NOVA Chemicals, Inc.
("NOVA"). The Consent Decree terminates an investigation by the Bureau
against NOVA for possible violations of section 301 of the
Communications Act of 1934, as amended, ("Act") and sections 1.903(a)
and 1.949(a) of the Commission's Rules ("Rules") regarding the
operation of its Private Land Mobile Radio Service ("PLMRS") station
WPLH775 without Commission authority and its failure to file a timely
renewal application for the station.
2. The Bureau and NOVA have negotiated the terms of the Consent Decree
that resolve this matter. A copy of the Consent Decree is attached
hereto and incorporated by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and terminating the investigation.
4. In the absence of material new evidence relating to this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether NOVA possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to section 4(i) of the
Communications Act of 1934, as amended, and sections 0.111 and 0.311
of the Commission's Rules, the Consent Decree attached to this Order
IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
CANCELLED.
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Jeffrey E. Rummel, Esq., Counsel for NOVA Chemicals
Inc., Arent Fox LLP, 1050 Connecticut Avenue, NW, Washington, DC
20036-5339 and Jack S. Mustoe, Senior Vice President, Chief Legal
Officer and Corporate Secretary, NOVA Chemicals Inc., US Operating
Center, 1550 Corapolis Heights Road, Moon Township, PA 15108.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-373
In the Matter of
) Acct. No. 200832100077
NOVA Chemicals, Inc.
) FRN No. 0002848208
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and NOVA Chemicals, Inc. ("NOVA"), by
their authorized representatives, hereby enter into this Consent Decree
for the purpose of terminating the Bureau's investigation into whether
NOVA violated section 301 of the Communications Act of 1934, as amended,
("Act") and sections 1.903(a) and 1.949(a) of the Commission's Rules
("Rules") regarding the operation of its Private Land Mobile Radio Service
("PLMRS") station without Commission authority and its failure to file a
timely renewal application for the station.
I. DEFINITIONS
1. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C. S:
151 et seq.
b. "Adopting Order" means an Order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
e. "Compliance Plan" means the program described in this Consent Decree
at paragraph 8.
f. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
g. "Investigation" means the investigation commenced by the Bureau's
March 28, 2008 Letter of Inquiry ("LOI") regarding whether NOVA
violated section 301 of Act and sections 1.903(a) and 1.949(a) of the
Rules by operating its PLMRS station without Commission authority and
by failing to file a timely renewal application for the station.
h. "NOVA" means NOVA Chemicals, Inc. and its predecessors-in-interest and
successors-in-interest.
i. "Parties" means NOVA and the Bureau.
j. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
1. Pursuant to section 301 of the Act and section 1.903(a) of the Rules,
the use or operation of any apparatus for the transmission of energy
or communications or signals by a wireless radio station is
prohibited except under, and in accordance with, a Commission
authorization. Additionally, section 1.949(a) of the Rules requires
that licensees file renewal applications for wireless radio stations,
"no later than the expiration date of the authorization for which
renewal is sought, and no sooner than 90 days prior to expiration."
Absent a timely filed renewal application, a wireless radio station
license automatically terminates.
2. On March 28, 2008, the Bureau issued a LOI to NOVA. The March 28,
2008 LOI directed NOVA, among other things, to submit a sworn written
response to a series of questions relating to the unauthorized
operation of its PLMRS station WPLH775 without Commission authority
and for failing to file a timely renewal application for the station.
NOVA responded to the March 28, 2008 LOI on April 25, 2008.
III. TERMS OF AGREEMENT
3. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order
without change, addition, modification, or deletion.
4. Jurisdiction. NOVA agrees that the Bureau has jurisdiction over it
and the matters contained in this Consent Decree and has the
authority to enter into and adopt this Consent Decree.
5. Effective Date; Violations. The Parties agree that this Consent
Decree shall become effective on the date on which the Bureau
releases the Adopting Order. Upon release, the Adopting Order and
this Consent Decree shall have the same force and effect as any other
Order of the Bureau. Any violation of the Adopting Order or of the
terms of this Consent Decree shall constitute a separate violation of
a Bureau Order, entitling the Bureau to exercise any rights and
remedies attendant to the enforcement of a Commission Order.
6. Termination of Investigation. In express reliance on the covenants
and representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate its
investigation. In consideration for the termination of said
investigation, NOVA agrees to the terms, conditions, and procedures
contained herein. The Bureau further agrees that in the absence of
new material evidence, the Bureau will not use the facts developed in
this investigation through the Effective Date of the Consent Decree,
or the existence of this Consent Decree, to institute, on its own
motion, any new proceeding, formal or informal, or take any action on
its own motion against NOVA concerning the matters that were the
subject of the investigation. The Bureau also agrees that it will not
use the facts developed in this investigation through the Effective
Date of this Consent Decree, or the existence of this Consent Decree,
to institute on its own motion any proceeding, formal or informal, or
take any action on its own motion against NOVA with respect to NOVA's
basic qualifications, including its character qualifications, to be a
Commission licensee.
7. Compliance Plan. For purposes of settling the matters set forth
herein, NOVA agrees to create within 30 days of the Effective Date a
Compliance Plan related to future compliance with the Act, the
Commission's Rules, and the Commission's Orders. The Plan will
include the following components:
a. Database. Within thirty (30) days of the Effective Date, NOVA shall
generate information about the Company's telecommunications licenses
and practices. This information shall be maintained and periodically
updated in the form of an electronic database or a facilities
listing. This information shall be made available to the Company's
personnel who are responsible for maintaining the telecommunications
licenses. The Company, either directly or through its outside
telecommunications counsel, shall maintain a tickler listing to
prompt the timely filing of license renewal applications.
b. Training. Within ninety (90) days of the Effective Date, parties
responsible for the purchase, acquisition, and sale of NOVA's radio
equipment and/or entities or properties which may include
telecommunications assets shall be trained about the timely filing
of radio station applications, modifications to existing radio
facilities, renewal of radio licenses, and applications for prior
consent to changes in ownership or control of telecommunications
licenses. Outside telecommunications counsel will supplement this
training by memoranda and other updates on a periodic basis and when
necessary to keep the Company informed of Commission policy and
regulatory compliance requirements.
c. Compliance Officer. NOVA will appoint a Compliance Officer who will
be responsible for overseeing NOVA's compliance with this Compliance
Plan and applicable FCC requirements.
d. Compliance Reports. NOVA will file compliance reports with the
Commission ninety (90) days after the Effective Date, six months
after the Effective Date, and twelve months after the Effective
Date. Each compliance report shall include a compliance certificate
from an officer, as an agent of NOVA, stating that the officer has
personal knowledge that NOVA has established operating procedures
intended to ensure compliance with this Consent Decree, together
with an accompanying statement explaining the basis for the
officer's compliance certification. All compliance reports shall be
submitted to the Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street, S.W.,
Washington, D.C. 20554. All reports shall also be submitted
electronically to Ricardo M. Durham, Senior Deputy Chief,
Enforcement Bureau, Spectrum Enforcement Division, Ricardo.Durham
@fcc.gov, and Nissa Laughner, Attorney Advisor, Enforcement Bureau,
Spectrum Enforcement Division, Nissa.Laughner@fcc.gov.
e. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire twelve months after the Effective Date.
8. Voluntary Contribution. NOVA agrees that it will make a voluntary
contribution to the United States Treasury in the amount of seven
thousand five hundred dollars ($7, 500). The payment will be made
within thirty days after the Effective Date of the Adopting Order.
The payment must be made by check or similar instrument, payable to
the Order of the Federal Communications Commission. The payment must
include the Account Number and FRN Number referenced in the caption
to the Adopting Order. Payment by check or money order may be mailed
to Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the Account number
in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). NOVA will also send
electronic notification on the date said payment is made to
Ricardo.Durham @fcc.gov and Nissa.Laughner@fcc.gov.
9. Waivers. NOVA waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or stay,
or to otherwise challenge or contest the validity of this Consent
Decree and the Adopting Order, provided the Bureau issues the
Adopting Order without change, addition, modification, or deletion.
NOVA shall retain the right to challenge Commission interpretation of
the Consent Decree or any terms contained herein. If either Party (or
the United States on behalf of the Commission) brings a judicial
action to enforce the terms of the Adopting Order, neither NOVA nor
the Commission shall contest the validity of the Consent Decree or
the Adopting Order, and NOVA shall waive any statutory right to a
trial de novo. NOVA hereby agrees to waive any claims it may
otherwise have under the Equal Access to Justice Act, 5 U.S.C. S: 504
and 47 C.F.R. S: 1.1501 et seq., relating to the matters addressed in
this Consent Decree.
10. Severability. The Parties agree that if any of the provisions of the
Adopting Order or the Consent Decree shall be invalid or
unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable the entire Adopting Order or
Consent Decree, but rather the entire Adopting Order or Consent
Decree shall be construed as if not containing the particular invalid
or unenforceable provision or provisions, and the rights and
obligations of the Parties shall be construed and enforced
accordingly. In the event that this Consent Decree in its entirety is
rendered invalid by any court of competent jurisdiction, it shall
become null and void and may not be used in any manner in any legal
proceeding.
11. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent rule or Order
adopted by the Commission (except an Order specifically intended to
revise the terms of this Consent Decree to which NOVA does not
expressly consent) that provision will be superseded by such
Commission rule or Order.
12. Successors and Assigns. NOVA agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
13. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further agree that this Consent Decree does not constitute
either an adjudication on the merits or a factual or legal finding or
determination regarding any compliance or noncompliance with the
requirements of the Act or the Commission's Rules and Orders.
14. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
15. Paragraph Headings. The headings of the Paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
16. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
17. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
_______________________________
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
________________________________
Date
________________________________
William C. Mitchell
Vice President, Legal
NOVA Chemicals, Inc.
________________________________
Date
________________________________
J. Alan Crittenden
Vice President, Legal
NOVA Chemicals, Inc.
________________________________
Date
47 U.S.C. S: 301.
47 C.F.R. S:S: 1.903(a) and 1.949(a).
47 U.S.C. S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S: 301.
47 C.F.R. S:S: 1.903(a) and 1.949(a).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Jack S. Mustoe,
Senior Vice President, Chief Legal Officer and Corporate Secretary, Nova
Chemicals Inc. (March 28, 2008) ("March 28, 2008 LOI").
47 U.S.C. S: 301.
47 C.F.R. S:S: 1.903(a) and 1.949(a).
47 U.S.C. S: 301; 47 C.F.R. S: 1.903(a).
47 C.F.R. S: 1.949(a).
47 C.F.R. S: 1.955(a)(1).
See March 28, 2008 LOI.
Letter from Jeffrey E. Rummel, Esq., Counsel for Nova Chemicals Inc., to
Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (April 25, 2008) ("April 25,
2008 LOI Response").
Federal Communications Commission DA 08-1967
Federal Communications Commission DA 08-1967
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Federal Communications Commission DA 08-1967