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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of NewCom International, Inc. Licensee of Fixed Earth
Stations E040267 and E050018 Miami, FL ) ) ) ) ) ) ) ) File No.:
EB-11-MA-0052 Acct. No.: 201332600004 FRN: 0010802528
ORDER
Adopted: April 17, 2013 Released: April 17, 2013
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau (Bureau) of the Federal Communications
Commission (Commission) and NewCom International, Inc. (NewCom). The
Consent Decree terminates the Bureau's investigation into whether NewCom
violated Section 301 of the Communications Act of 1934, as amended (Act),^
and Section 25.102(a) of the Commission's rules (Rules)^ by operating a
fixed earth station to communicate with a space station without Commission
authority.
2. The Bureau and NewCom have negotiated the terms of a Consent Decree
that resolves this matter. A copy of the Consent Decree is attached hereto
and incorporated herein 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. Based solely on the record developed to date in this investigation and
in the absence of material new evidence relating to this matter, we
conclude that the investigation described in the Consent Decree raises no
substantial or material questions of fact as to whether NewCom 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 Sections 4(i) and 503(b)
of the Communications Act of 1934, as amended,^ and Sections 0.111, 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
TERMINATED.
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 NewCom International, Inc., 15590 NW 15th Avenue, Miami, FL
33169, and to its attorney, Frank G. Lamancusa, Bingham McCutchen LLP,
2020 K Street NW, Washington, DC 20006-1806.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of NewCom International, Inc. Licensee of Fixed Earth
Stations E040267 and E050018 Miami, FL ) ) ) ) ) ) ) ) File No.:
EB-11-MA-0052 Acct. No.: 201332600004 FRN: 0010802528
CONSENT DECREE
1. The Enforcement Bureau of the Federal Communications Commission and
NewCom International, Inc., by their authorized representatives,
hereby enter into this Consent Decree for the purpose of terminating
the Bureau's investigation into whether NewCom International, Inc.
violated Section 301 of the Communications Act of 1934, as amended,
and Section 25.102(a) of the Commission's rules,^ ^ by communicating
with a space station without Commission authority.
I. DEFINITIONS
2. 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. "Communications Laws" means collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to
which NewCom is subject by virtue of its business activities,
including but not limited to, the fixed earth station requirements
contained in Part 25 of the Rules.
f. "Compliance Plan" means the compliance obligations, programs, and
procedures described in this Consent Decree at paragraph 9.
g. "Covered Employees" means all employees and agents of NewCom who
perform or supervise, oversee, or manage the performance of, duties
that relate to NewCom's responsibilities under the Licensing Rules.
h. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
i. "Investigation" means the investigation initiated by the Bureau on
March 23, 2010 into possible violations of Section 301 of the Act and
Section 25.102(a) of the Rules regarding NewCom's operation of a
fixed earth station to communicate with the Russian
Federation-licensed Intersputnik Express AM44 space station without
Commission authorization.
j. "Licensing Rules" means Section 301 of the Act and Section 25.102(a)
of the Rules, and other Communications Laws that prohibit the use or
operation of a space or earth station without a valid Commission
authorization or in a manner inconsistent with such authorization.
k. "NewCom" means NewCom International, Inc. and its
predecessors-in-interest and successors-in-interest.
l. "Operating Procedures" means the standard, internal operating
procedures and compliance policies established by NewCom to implement
the Compliance Plan.
m. "Parties" means NewCom and the Bureau, and each of which is a
"Party."
n. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
o. "STA" means the Special Temporary Authority granted by the
Commission's International Bureau to NewCom to operate a fixed earth
station consistent with Part 25 of the Rules.
II. BACKGROUND
3. Section 301 of the Act and Section 25.102(a) of the Rules prohibit the
use or operation of any apparatus for the transmission of energy or
communications or signals by space or earth stations except under and
in accordance with an appropriate authorization granted by the
Commission.^ NewCom admits that it began communications with the
Express AM44 space station without Commission authorization on May 19,
2009, despite knowing at that time that Express AM44 was not expressly
permitted to serve the U.S. market.^ NewCom did not notify Commission
staff regarding its transmissions to the Express AM44 space station
until July 9, 2009, and did not file an initial STA application to
transmit to the Express AM44 space station until October 30, 2009.
Moreover, NewCom continued to communicate with the Express AM44 space
station without authorization until its amended STA, filed on June 29,
2012, was granted on September 24, 2012.^ Subsequently, Newcom and the
Bureau entered into settlement discussions.
III. TERMS OF AGREEMENT
4. 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.
5. Jurisdiction. NewCom agrees that the Bureau has jurisdiction over it
and the matters contained in this Consent Decree and that the Bureau
has the authority to enter into and adopt this Consent Decree.
6. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the Effective Date as defined herein. As of
the Effective Date, the Adopting Order and this Consent Decree shall
have the same force and effect as any other order of the Commission.
Any violation of the Adopting Order or of the terms of this Consent
Decree shall constitute a separate violation of a Commission order,
entitling the Commission to exercise any rights and remedies attendant
to the enforcement of a Commission order.
7. 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 the
Investigation. In consideration for the termination of the
Investigation, NewCom 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, 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
NewCom concerning the matters that were the subject of the
Investigation. The Bureau also agrees that in the absence of new
material evidence it will not use the facts developed in the
Investigation through the Effective Date, 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 NewCom with
respect to NewCom's basic qualifications, including its character
qualifications, to be a Commission licensee or to hold Commission
licenses or authorizations.
8. Compliance Officer. Within thirty (30) calendar days after the
Effective Date, NewCom shall designate a senior corporate manager with
the requisite corporate and organizational authority to serve as
Compliance Officer and to discharge the duties set forth below. The
person designated as the Compliance Officer shall be responsible for
developing, implementing, and administering the Compliance Plan and
ensuring that NewCom complies with the terms and conditions of the
Compliance Plan and this Consent Decree. In addition to the general
knowledge of the Communications Laws necessary to discharge his/her
duties under this Consent Decree, the Compliance Officer shall have
specific knowledge of the Licensing Rules prior to assuming his/her
duties.
9. Compliance Plan. For purposes of settling the matters set forth
herein, NewCom agrees that it shall within sixty (60) calendar days
after the Effective Date, develop and implement a Compliance Plan
designed to ensure future compliance with the Communications Laws and
with the terms and conditions of this Consent Decree. With respect to
the Licensing Rules, NewCom shall implement the following procedures:
a. Operating Procedures on Licensing Rules. Within sixty (60) calendar
days after the Effective Date, NewCom shall establish Operating
Procedures that all Covered Employees must follow to help ensure
NewCom's compliance with the Licensing Rules. NewCom's Operating
Procedures shall include internal procedures and policies
specifically designed to ensure that NewCom obtains any required
Commission authorizations prior to commencing operations on any
frequencies and that NewCom's operations on such frequencies are
consistent with such Commission authorizations.
b. Compliance Manual. Within sixty (60) calendar days after the
Effective Date, the Compliance Officer shall develop and distribute a
Compliance Manual to all Covered Employees. The Compliance Manual
shall explain the Licensing Rules and set forth the Operating
Procedures that Covered Employees shall follow to help ensure
NewCom's compliance with the Licensing Rules. NewCom shall
periodically review and revise the Compliance Manual as necessary to
ensure that the information set forth therein remains current and
complete. NewCom shall distribute any revisions to the Compliance
Manual promptly to all Covered Employees.
c. Compliance Training Program. NewCom shall establish and implement a
Compliance Training Program on compliance with the Licensing Rules
and the Operating Procedures. As part of the Compliance Training
Program, Covered Employees shall be advised of NewCom's obligation to
report any noncompliance with the Licensing Rules under paragraph 10
of this Consent Decree and shall be instructed on how to disclose
noncompliance to the Compliance Officer. All Covered Employees shall
be trained pursuant to the Compliance Training Program within sixty
(60) calendar days after the Effective Date, except that any person
who becomes a Covered Employee at any time after the Effective Date
shall be trained within thirty (30) calendar days after the date such
person becomes a Covered Employee. NewCom shall repeat the compliance
training on an annual basis and shall periodically review and revise
the Compliance Training Program as necessary to ensure that it
remains current and complete and to enhance its effectiveness.
10. Reporting Noncompliance. NewCom shall report any noncompliance with
the Licensing Rules and with the terms and conditions of this Consent
Decree within fifteen (15) calendar days after discovery of such
noncompliance. Such reports shall include a detailed explanation of
(i) each instance of noncompliance; (ii) the steps that NewCom has
taken or will take to remedy such noncompliance; (iii) the schedule on
which such remedial actions will be taken; and (iv) the steps that
NewCom has taken or will take to prevent the recurrence of any such
noncompliance. All reports of noncompliance shall be submitted to the
Regional Counsel, South Central Region, Enforcement Bureau, Federal
Communications Commission, Atlanta Office, 3575 Koger Blvd. Suite 320,
Duluth, GA 30096, with a copy submitted electronically to
[1]SCR-Response@fcc.gov. The obligations set forth in this paragraph
10 shall expire twenty-four (24) months after the Effective Date.
11. Compliance Reports. NewCom shall file Compliance Reports with the
Commission ninety (90) calendar days after the Effective Date, twelve
(12) months after the Effective Date, and twenty-four (24) months
after the Effective Date.
a. Each Compliance Report shall include a detailed description of
NewCom's efforts during the relevant period to comply with the terms
and conditions of this Consent Decree and the Licensing Rules. In
addition, each Compliance Report shall include a certification by the
Compliance Officer, as an agent of and on behalf of NewCom, stating
that the Compliance Officer has personal knowledge that NewCom (i)
has established and implemented the Compliance Plan; (ii) has
utilized the Operating Procedures since the implementation of the
Compliance Plan; and (iii) is not aware ofany instances of
noncompliance with the terms and conditions of this Consent Decree,
including the reporting obligations set forth in paragraph 10 hereof.
b. The Compliance Officer's certification shall be accompanied by a
statement explaining the basis for such certification and must comply
with Section 1.16 of the Rules,^ and be subscribed to as true under
penalty of perjury in substantially the form set forth therein.
c. If the Compliance Officer cannot provide the requisite certification,
the Compliance Officer, as an agent of and on behalf of NewCom, shall
provide the Commission with a detailed explanation of the reason(s)
why and describe fully (i) each instance of noncompliance; (ii) the
steps that NewCom has taken or will take to remedy such
noncompliance, including the schedule on which proposed remedial
actions will be taken; and (iii) the steps that NewCom has taken or
will take to prevent the recurrence of any such noncompliance,
including the schedule on which such preventive action will be taken.
d. All Compliance Reports shall be submitted to the Regional Counsel,
South Central Region, Enforcement Bureau, Federal Communications
Commission, Atlanta Office, 3575 Koger Blvd. Suite 320, Duluth, GA
30096, with a copy submitted electronically to
[2]SCR-Response@fcc.gov.
12. Termination Date. Unless stated otherwise, the obligations set forth
in paragraphs 8 through 11 of this Consent Decree shall expire
twenty-four (24) months after the Effective Date.
13. Complaints; Subsequent Investigations. Nothing in this Consent Decree
shall prevent the Commission or its delegated authority from
adjudicating complaints against NewCom for alleged violations of the
Act, or for any other type of alleged misconduct, regardless of when
such misconduct took place. The Commission's adjudication of any such
complaints will be based solely on the record developed in that
proceeding. Except as expressly provided in this Consent Decree, this
Consent Decree shall not prevent the Commission from investigating new
evidence of noncompliance by NewCom with the Communications Laws.
14. Voluntary Contribution. NewCom agrees that it will make a voluntary
contribution to the United States Treasury in the amount of twenty
five thousand dollars ($25,000) (Voluntary Contribution), such
Voluntary Contribution to be made in installments (each an Installment
Payment). The first Installment Payment in the amount of three
thousand dollars ($3,000.00) is due within thirty (30) calendar days
of the Effective Date. The balance of the Voluntary Contribution will
be made in eleven consecutive monthly payments of two thousand dollars
($2,000.00) payable on the first day of each month beginning with the
second month following the Effective Date. The final payment is due
on the first day of twelfth month following the Effective Date
(Maturity Date). NewCom acknowledges and agrees that upon execution
of this Consent Decree, the Voluntary Contribution and each
Installment Payment shall become a "Claim " or "Debt" as defined in 31
U.S.C. S 3701(b)(1). Upon an Event of Default (as defined below), all
procedures for collection as permitted by law may, at the Commission's
discretion, be initiated. In addition, NewCom agrees that it will
make the first and all subsequent Installment Payments in United
States Dollars without further demand or notice by the dates specified
above. NewCom shall also send electronic notification of each payment
to [3]SCR-Response@fcc.gov on the dates said payments are made. The
payments must be made by check or similar instrument, wire transfer,
or credit card, and must include the Account number and FRN referenced
above. Regardless of the form of payment, a completed 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).
Below are additional instructions you should follow based on the form
of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to the Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent via
overnight mail to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL,
1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete the
wire transfer and ensure appropriate crediting of the wired funds, a
completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on the
same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to the Federal Communications Commission, P.O. Box 979088,
St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
If you have questions regarding payment procedures, please contact the
Financial Operations Group Help Desk by phone, 1-877-480-3201, or by
e-mail, [4]ARINQUIRIES@fcc.gov.
15. Event of Default. NewCom agrees that an Event of Default shall occur
upon the failure by NewCom to pay the full amount of any Installment
Payment on or before the due date specified in this Consent Decree.
16. Interest, Charges for Collection, and Acceleration of Maturity Date.
After an Event of Default has occurred under this Consent Decree, the
then unpaid amount of the Voluntary Contribution shall accrue
interest, computed using the U.S. Prime Rate in effect on the date of
the Event of Default plus 4.75 percent, from the date of the Event of
Default until payment in full. Upon an Event of Default, the then
unpaid amount of the Voluntary Contribution, together with interest,
as aforesaid, any penalties permitted and/or required by the law,
including but not limited to 31 U.S.C. S 3717 and administrative
charge(s), plus the costs of collection, litigation, and attorneys'
fees, shall become immediately due and payable, without notice,
presentment, demand, protest, or notice of protest of any kind, all of
which are waived by NewCom.
17. Waivers. NewCom 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 an Adopting
Order as defined herein. NewCom 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 NewCom nor the Commission shall contest the
validity of the Consent Decree or of the Adopting Order, and NewCom
shall waive any statutory right to a trial de novo. NewCom 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.
18. Invalidity. 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.
19. 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 NewCom does not expressly
consent) that provision will be superseded by such Rule or Commission
order.
20. Admission of Liability. Notwithstanding any of NewCom's prior
submissions in this proceeding, NewCom admits, for Commission civil
enforcement purposes and in express reliance on the provisions of
Paragraph 7 herein, that its communications with the Express AM44
space station prior to September 24, 2012 violated Section 301 of the
Communications Act and Section 25.102(a) of the Rules.
21. Successors and Assigns. NewCom agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
22. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties.
23. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
24. 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.
25. Authorized Representative. The individual signing this Consent Decree
on behalf of NewCom represents and warrants that he is fully
authorized by NewCom to execute this Consent Decree and to bind NewCom
to the obligations set forth herein. The FCC signatory represents that
she is signing this Consent Decree in her official capacity and that
she is authorized to execute this Consent Decree.
26. 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.
______________________________ P. Michele Ellison Chief, Enforcement
Bureau ________________________________ Date
________________________________ Jaime Dickinson President and Chief
Operating Officer NewCom International, Inc.
________________________________ Date
^ 47 U.S.C. S 301.
^ 47 C.F.R. S 25.102(a).
^ 47 U.S.C. SS 154(i), 503(b).
^ 47 C.F.R. SS 0.111, 0.311.
^ 47 U.S.C. S 301; 47 C.F.R. S25.102(a).
^ 47 U.S.C. S 301, 47 C.F.R. S 25.102(a).
^ Letter from Frank G. Lamancusa, Attorney for NewCom International, Inc.,
to Steven DeSena, Resident Agent, Miami Office, South Central Region,
Enforcement Bureau at 5 (July 1, 2011) (on file in EB-11-MA-0052).
^ Satellite Communications Services Information, Report No. SES-01488,
Public Notice, 2012 WL 4458775, at *12 (IB Sept. 26, 2012).
^ 47 C.F.R. S 1.16.
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
Federal Communications Commission DA 13-610
8
Federal Communications Commission DA 13-610
References
Visible links
1. mailto:SCR-Response@fcc.gov
2. mailto:SCR-Response@fcc.gov
3. mailto:SCR-Response@fcc.gov
4. mailto:ARINQUIRIES@fcc.gov