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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

     In the Matter of                          File No.: EB-10-SE-147       
     Northeast Utilities Service Company       NAL/Acct. No.: 201132100034  
     Former Licensee of Station WQFD453        FRN: 0003583721              


   Adopted: September 1, 2011 Released: September 1, 2011

   By the Acting Chief, Spectrum Enforcement Division, Enforcement Bureau:

   I. introduction

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       Northeast Utilities Service Company ("Northeast Utilities"), former
       licensee of Private Land Mobile Radio Service ("PLMRS") station
       WQFD453, Waterbury, Connecticut, apparently liable for a forfeiture in
       the amount of nineteen thousand dollars ($19,000) for apparent willful
       and repeated violation of section 301 of the Communications Act of
       1934, as amended ("Act"), and section 1.903(a) of the Commission's
       rules ("Rules"). The apparent violation involves Northeast Utilities'
       operation of its PLMRS station for more than three years without
       Commission authority.

   II. background

    2. On June 8, 2006, Northeast Utilities filed an application for
       authority to provide private land mobile communications at a liquefied
       gas facility in Waterbury, Connecticut. On June 20, 2006, the
       Commission's Wireless Telecommunications Bureau ("Wireless Bureau")
       granted that application under call sign WQFD453 until the license
       expiration date of June 20, 2016. The Commission's records indicate
       that on June 14, 2007, Northeast Utilities filed an application to
       cancel the license for station WQFD453, and on June 15, 2007, the
       Wireless Bureau cancelled the station's license. More than three years
       later, on September 3, 2010, Northeast Utilities filed with the
       Wireless Bureau a request for Special Temporary Authority ("STA") to
       operate on the UHF frequency pair previously authorized by WQFD453 for
       a period of 180 days or until the company obtained regular authority
       to operate on that UHF frequency pair. In its STA request, Northeast
       Utilities stated that it recently became aware that the company's
       license for WQFD453 was "inadvertently" cancelled in June 2007.
       Northeast Utilities also acknowledged that it continued operating
       station WQFD453 after cancellation of its license. On September 10,
       2010, the Wireless Bureau granted the STA request under call sign
       WQML289, and on September 23, 2010, the Wireless Bureau granted
       Northeast Utilities a license for a new PLMRS station under call sign

    3. Because it appeared that Northeast Utilities may have operated station
       WQFD453 for three years after cancellation of the station license, the
       Wireless Bureau referred the matter to the Enforcement Bureau for
       investigation and possible enforcement action. On April 5, 2011, the
       Spectrum Enforcement Division of the Enforcement Bureau issued a
       letter of inquiry to Northeast Utilities.

    4. In its May 4, 2011 response to the LOI, Northeast Utilities confirms
       that it filed an application to cancel its license for station WQFD453
       on June 14, 2007. Northeast Utilities further concedes that it
       continued to operate the station during the three-year period lasting
       from the time the license was cancelled to the time the STA was
       granted. Northeast Utilities explains that from late 2005 through
       early 2006, during the time period that it filed its application for
       PLMRS station WQFD453, it also submitted several applications to the
       Commission for authority to operate Digital Supervisory Control and
       Data Acquisition ("DSCADA") units in the 450-470 MHz band throughout
       Connecticut. Northeast Utilities asserts that, in canceling the
       license, it mistakenly believed that WQFD453 was intended for use in
       DSCADA operations rather than for PLMRS. According to Northeast
       Utilities, it only became aware of the unauthorized operation in 2010
       when a former employee who was familiar with the PLMRS operations at
       the Waterbury site "returned as a contractor and discovered the
       cancelled license." Northeast Utilities states that, upon learning of
       the unauthorized operation, it "immediately advised the Commission
       that it had recently become aware" that the license for WQFD453 had
       been canceled and requested both temporary and regular operating
       authority for its Waterbury land mobile operations. Further, it states
       that it is developing a process to avoid unauthorized operations in
       the future.


    5. Section 301 of the Act and section 1.903(a) of the Rules prohibit the
       use or operation of any apparatus for the transmission of energy or
       communications or signals by radio except under, and in accordance
       with, a Commission-granted authorization. As a Commission licensee,
       Northeast Utilities was required to maintain its authorization in
       order to operate station WQFD453. Northeast Utilities admitted that it
       continued to operate its PLMRS station without Commission authority
       from June 15, 2007 until September 10, 2010, when its STA request was
       granted. By operating station WQFD453 for a period of more than three
       years after the license had been cancelled, Northeast Utilities
       apparently violated section 301 of the Act and section 1.903(a) of the

    6. Section 503(b) of the Act and section 1.80(a) of the Rules provide
       that any person who willfully or repeatedly fails to comply with the
       provisions of the Act or the Rules shall be liable for a forfeiture
       penalty. For purposes of section 503(b) of the Act, the term "willful"
       means that the violator knew that it was taking the action in
       question, irrespective of any intent to violate the Rules, and
       "repeated" means more than once. Based on the record before us, it
       appears that Northeast Utilities' apparent violation of section 301 of
       the Act and section 1.903(a) of the Rules is both willful and

    7. In determining the appropriate forfeiture amount, section 503(b)(2)(E)
       of the Act directs us to consider factors such as "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 such other matters as justice may

    8. Section 1.80(b)(4) of the Rules sets a base forfeiture amount of
       $10,000 for operation of a station without Commission authority. We
       thus begin with the $10,000 base forfeiture amount for Northeast
       Utilities' continued operation of station WQFD453 after the
       cancellation of its license on June 15, 2007. While this base is
       subject to adjustment, either upward or downward, we find no basis for
       a downward adjustment. Northeast Utilities maintains that the license
       for station WQFD453 was "inadvertently" cancelled. This
       characterization, however, is somewhat misleading as Northeast
       Utilities admits that it intended to cancel the license, but did so
       under the mistaken impression that the license was no longer needed
       for its intended purpose. In any event, Northeast Utilities continued
       to operate WQFD453 without the required authority after the license
       was cancelled. The Commission has long established that administrative
       oversight or inadvertence is not a mitigating factor warranting
       downward adjustment of a forfeiture. In addition, Northeast Utilities
       seemingly attempts to mitigate its responsibility for the violation by
       explaining that a former employee with the most direct knowledge of
       this license had retired. Even if this were relevant, however, we note
       that the cancellation occurred prior to this employee's retirement.
       Moreover, Northeast Utilities' assertion in its LOI Response that it
       is developing a process to avoid future violations, while laudable,
       does not negate its liability for the instant violations, nor do any
       post-investigation remedial efforts warrant reduction of the

    9. Given the totality of the circumstances, and consistent with the
       Forfeiture Policy Statement, we conclude that an upward adjustment of
       the $10,000 base forfeiture is warranted. In this regard, we take into
       account the fact that Northeast Utilities' unlawful operation
       continued for more than three years. We also recognize that Northeast
       Utilities is a company with more than four billion dollars in annual
       revenue. To ensure that forfeiture liability is a deterrent and not
       simply a cost of doing business, the Commission has determined that
       large or highly-profitable companies, such as Northeast Utilities,
       should expect the assessment of higher forfeitures for violations. 
       Therefore, based on all the factors and evidence, including the
       extended period of unauthorized operation and Northeast Utilities'
       ability to pay a forfeiture, we find that an upward adjustment of the
       base forfeiture is warranted. Accordingly, we propose a forfeiture of

   iv ordering clauses

   10. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the Act
       and sections 0.111, 0.311, and 1.80 of the Rules, Northeast Utilities
       Service Company IS hereby NOTIFIED of its APPARENT LIABILITY FOR A
       FORFEITURE in the amount of nineteen thousand dollars ($19,000) for
       the willful and repeated violation of section 301 of the Act and
       section 1.903(a) of the Rules.

   11. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the Rules, 
       within thirty (30) calendar days after the release date of this Notice
       of Apparent Liability for Forfeiture, Northeast Utilities Service
       Company SHALL PAY the full amount of the proposed forfeiture or SHALL
       FILE a written statement seeking reduction or cancellation of the
       proposed forfeiture consistent with paragraph 13 below.

   12. Payment of the forfeiture must be made by check or similar instrument,
       payable to the order of the Federal Communications Commission. The
       payment must include the NAL/Account Number and FRN referenced above.
       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 NAL/Account number in
       block number 23A (call sign/other ID), and enter the letters "FORF" in
       block number 24A (payment type code). Requests for full payment under
       an installment plan should be sent to: Chief Financial Officer -
       Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
       DC 20554. Please contact the Financial Operations Group Help Desk at
       1-877-480-3201 or Email: with any questions
       regarding payment procedures. Northeast Utilities Service Company must
       also send electronic notification to and on the date said payment is made.

   13. The written statement seeking reduction or cancellation of the
       proposed forfeiture, if any, must include a detailed factual statement
       supported by appropriate documentation and affidavits pursuant to
       sections 1.80(f)(3) and 1.16 of the Rules. The written statement must
       be mailed to the Office of the Secretary, Federal Communications
       Commission, 445 12th Street, S.W., Washington, DC 20554, ATTN:
       Enforcement Bureau - Spectrum Enforcement Division, and must include
       the NAL/Account Number referenced in the caption. The statement must
       also be emailed to and to
       The Commission will not consider reducing or canceling a forfeiture in
       response to a claim of inability to pay unless the petitioner submits:
       (1) federal tax returns for the most recent three-year period; (2)
       financial statements prepared according to generally accepted
       accounting practices; or (3) some other reliable and objective
       documentation that accurately reflects the petitioner's current
       financial status. Any claim of inability to pay must specifically
       identify the basis for the claim by reference to the financial
       documentation submitted.

   14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
       for Forfeiture shall be sent by first class mail and certified mail,
       return receipt requested, to Northeast Utilities Service Company, P.O.
       Box 270, Hartford, CT 06141-0270, and to Mr. Jack Richards, Counsel
       for Northeast Utilities Service Company, Keller and Heckman, LLP, 1001
       G Street Northwest, Suite 500 West, Washington, D.C. 20001.


   John D. Poutasse

   Acting Chief

   Spectrum Enforcement Division

   Enforcement Bureau

   47 U.S.C. S: 301.

   47 C.F.R. S: 1.903(a).

   See File No. 0002643157.

   See File No. 0003071219. 


   See attachment to STA request.



   See File No. 0004377111.

   See File No. 0004382096.

   See Letter from John D. Poutasse, Acting Chief, Spectrum Enforcement
   Division, Enforcement Bureau, Federal Communications Commission, to Mr.
   Jack Richards, Esq., Keller and Heckman LLP, Counsel for Northeast
   Utilities Service Company (April 5, 2011) ("LOI").

   See Letter from Jack Richards and Gregory E. Kunkle, Keller and Heckman
   LLP, Counsel for Northeast Utilities Service Company, to Marlene H.
   Dortch, Secretary, Federal Communications Commission (May 4, 2011) ("LOI

   Id at 2.


   Id. According to Northeast Utilities, "DSCADA units are used in connection
   with reclosers and switches to minimize electric utility service outage
   duration, isolate downed conductors in remote areas, provide automated
   switching and tagging in areas remote from service areas, and switch
   critical customers remotely." Id. at 2.

   Northeast Utilities states that when the company determined that it would
   not use DSCADA at the Waterbury site, it cancelled the WQFD453 license.
   Id. at 3.




   47 U.S.C. S: 301; 47 C.F.R. S: 1.903(a).

   See Id.

   47 U.S.C. S: 503(b).

   47 C.F.R. S: 1.80(a).

   See 47 U.S.C. S: 312(f)(1) & (2). See also Southern California
   Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991),
   recon. denied, 7 FCC Rcd 3454 (1992) (the definitions of willful and
   repeated contained in the Act apply to violations for which forfeitures
   are assessed under section 503(b) of the Act).

   While section 503(b)(6) of the Act bars the Commission from proposing a
   forfeiture for violations that occurred more than a year prior to the
   issuance of an NAL, we may consider the fact that Northeast Utilities'
   misconduct occurred over an extended period (between 2007 and 2010) to
   place "the violations in context, thus establishing the licensee's degree
   of culpability and the continuing nature of the violations." Roadrunner
   Transportation Inc., Forfeiture Order, 15 FCC Rcd 9669, 9671-72 (2000);
   see also BASF Corporation P: 9; Call Mobile  P: 10. The forfeiture amount
   we propose herein relates only to Northeast Utilities' apparent violations
   that have occurred within the past year.

   47 U.S.C. S: 503(b)(2)(E). See also 47 C.F.R. S: 1.80(b)(4), Note to
   paragraph (b)(4): Section II. Adjustment Criteria for Section 503
   Forfeitures; Forfeiture Policy Statement, Report and Order, 12 FCC Rcd
   17087, 17110 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
   Policy Statement").

   47 C.F.R. S: 1.80(b)(4).

   See Southern California, 6 FCC Rcd at 4387 (stating that "inadvertence ...
   is at best, ignorance of the law, which the Commission does not consider a
   mitigating circumstance").

   We further note that it would be unreasonable for a company of Northeast
   Utilities' size to rely on a single employee to monitor its operations and
   ensure compliance in this regard.

   See LOI Response at 3.

   See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099, 6099 P: 7
   (1994) (corrective action taken to comply with the Rules is expected, and
   does not mitigate any prior forfeitures or violations); see also, United
   States Cellular Corp., Notice of Apparent Liability for Forfeiture, 22 FCC
   Rcd 16424, 16429 P: 14 (2007) (remedial efforts taken after the deadline
   did not mitigate violation of the Commission's E911 rules and relevant
   orders); AT&T Wireless Services, Inc., Forfeiture Order, 17 FCC Rcd 21866,
   21875-6 P:P: 26-28 (2002) (remedial action to correct tower painting
   violation was not a mitigating factor warranting reduction of forfeiture).

   See BASF Corporation, Notice of Apparent Liability for Forfeiture, 25 FCC
   Rcd 17300 P: 11; See also, Call Mobile Inc., Notice of Apparent Liability
   for Forfeiture, 26 FCC Rcd 74.

   For 2010, Northeast Utilities' revenue was $4.9 billion. See
   northeast-utilities-eps-outperforms and

   See Forfeiture Policy Statement, 12 FCC Rcd at 17099-100 (cautioning all
   entities and individuals that, independent from the uniform base
   forfeiture amounts, the Commission will take into account the subject
   violator's ability to pay in determining the amount of a forfeiture to
   guarantee that forfeitures issued against large or highly profitable
   entities are not considered merely an affordable cost of doing business,
   and noting that such large or highly profitable entities should expect
   that the forfeiture amount set out in a Notice of Apparent Liability
   against them may in many cases be above, or even well above, the relevant
   base amount).

   For entities that are not common carriers, broadcast licensees, or cable
   operators, section 1.80(b)(3) of the Rules, 47 C.F.R. S: 1.80(b)(3),
   provides that "the amount of any forfeiture penalty determined under this
   section shall not exceed $16,000 for each violation or each day of a
   continuing violation, except that the amount assessed for any continuing
   violation shall not exceed a total of $112,500 for any single act or
   failure to act."

   47 U.S.C. S: 503(b).

   47 C.F.R. S:S: 0.111, 0.311, 1.80.

   47 C.F.R. S: 1.80.

   47 C.F.R. S:S: 1.80(f)(3), 1.16.

   (...continued from previous page)


   Federal Communications Commission DA 11-1491


   Federal Communications Commission DA 11-1491