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Released: April 17, 2013

Federal Communications Commission

DA 13-610

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
NewCom International, Inc.
)
File No.: EB-11-MA-0052
)
Acct. No.: 201332600004
Licensee of Fixed Earth Stations
)
FRN: 0010802528
E040267 and E050018
)
Miami, FL
)
)

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),1 and Section
25.102(a) of the Commission’s rules (Rules)2 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,3 and Sections 0.111, 0.311 of the Commission’s rules,4 the
Consent Decree attached to this Order

IS ADOPTED

.


1 47 U.S.C. § 301.
2 47 C.F.R. § 25.102(a).
3 47 U.S.C. §§ 154(i), 503(b).

Federal Communications Commission

DA 13-610

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




4 47 C.F.R. §§ 0.111, 0.311.
2

Federal Communications Commission

DA 13-610

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
NewCom International, Inc.
)
File No.: EB-11-MA-0052
)
Acct. No.: 201332600004
Licensee of Fixed Earth Stations
)
FRN: 0010802528
E040267 and E050018
)
Miami, FL
)
)

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,1 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. § 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.


1 47 U.S.C. § 301; 47 C.F.R. §25.102(a).

Federal Communications Commission

DA 13-610

(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.2 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.3 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, 2012.4 Subsequently, Newcom and the
Bureau entered into settlement discussions.


2 47 U.S.C. § 301, 47 C.F.R. § 25.102(a).
3 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).
4 Satellite Communications Services Information, Report No. SES-01488, Public Notice, 2012 WL 4458775, at *12
(IB Sept. 26, 2012).
2

Federal Communications Commission

DA 13-610

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
3

Federal Communications Commission

DA 13-610

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 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 of
4

Federal Communications Commission

DA 13-610

any 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,5 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 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. § 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 SCR-Response@fcc.gov on
the dates said payments are made. The payments must be made by check or similar instrument, wire


5 47 C.F.R. § 1.16.
5

Federal Communications Commission

DA 13-610

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.6 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:
Ÿ
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.
Ÿ
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.
Ÿ
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, 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. § 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


6 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
6

Federal Communications Commission

DA 13-610

under the Equal Access to Justice Act, 5 U.S.C. § 504 and 47 C.F.R. § 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.
7

Federal Communications Commission

DA 13-610

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
8

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