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Northeast Utilities Service Company

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Released: September 1, 2011

Federal Communications Commission

DA 11-1491

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

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

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"),1 and section 1.903(a) of the Commission's rules
("Rules").2 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, 2016.3 The Commission's records
indicate that on June 14, 2007, Northeast Utilities filed an application to cancel the license for station
WQFD453,4 and on June 15, 2007, the Wireless Bureau cancelled the station's license.5 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.6 In its STA request, Northeast Utilities stated that it recently became aware that the company's
license for WQFD453 was "inadvertently" cancelled in June 2007.7 Northeast Utilities also


1 47 U.S.C. 301.
2 47 C.F.R. 1.903(a).
3 See File No. 0002643157.
4 See File No. 0003071219.
5 See http://wireless2.fcc.gov/UlsApp/ApplicationSearch/applMain.jsp?applID=4026351.
6 See attachment to STA request.
7 Id.

Federal Communications Commission

DA 11-1491

acknowledged that it continued operating station WQFD453 after cancellation of its license.8 On
September 10, 2010, the Wireless Bureau granted the STA request under call sign WQML289,9 and on
September 23, 2010, the Wireless Bureau granted Northeast Utilities a license for a new PLMRS station
under call sign WQMM619.10
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.11
4.
In its May 4, 2011 response to the LOI,12 Northeast Utilities confirms that it filed an
application to cancel its license for station WQFD453 on June 14, 2007.13 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.14 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.15
Northeast Utilities asserts that, in canceling the license, it mistakenly believed that WQFD453 was
intended for use in DSCADA operations rather than for PLMRS.16 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."17 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.18 Further, it states that it is developing a process to avoid unauthorized operations in the
future.19


8 Id.
9 See File No. 0004377111.
10 See File No. 0004382096.
11 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").
12 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
Response").
13 Id at 2.
14 Id.
15 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.
16 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.
17 Id.
18 Id.
19 Id.
2

Federal Communications Commission

DA 11-1491

III.

DISCUSSION

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.20 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 Rules.21
6.
Section 503(b) of the Act22 and section 1.80(a) of the Rules23 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.24 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
repeated.25
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 require."26
8.
Section 1.80(b)(4) of the Rules27 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


20 47 U.S.C. 301; 47 C.F.R. 1.903(a).
21 See Id.
22 47 U.S.C. 503(b).
23 47 C.F.R. 1.80(a).
24 See 47 U.S.C. 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).
25 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 9; Call Mobile 10. The
forfeiture amount we propose herein relates only to Northeast Utilities' apparent violations that have occurred within
the past year.
26 47 U.S.C. 503(b)(2)(E). See also 47 C.F.R. 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").
27 47 C.F.R. 1.80(b)(4).
3

Federal Communications Commission

DA 11-1491

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.28 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.29 Moreover, Northeast Utilities' assertion in its LOI Response that it is
developing a process to avoid future violations,30 while laudable, does not negate its liability for the
instant violations, nor do any post-investigation remedial efforts warrant reduction of the forfeiture.31
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.32 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.33 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. 34 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 $19,000.35


28 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").
29 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.
30 See LOI Response at 3.
31 See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099, 6099 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 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 26-28 (2002) (remedial action to correct
tower painting violation was not a mitigating factor warranting reduction of forfeiture).
32 See BASF Corporation, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 17300 11; See also, Call
Mobile Inc.
, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 74.
33 For 2010, Northeast Utilities' revenue was $4.9 billion. See http://www.dailymarkets.com/stock/2011/03/11/
northeast-utilities-eps-outperforms and http://www.nu.com/investors/reports/PDF/NU-AnnualReport_2010.pdf.
34 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).
35 For entities that are not common carriers, broadcast licensees, or cable operators, section 1.80(b)(3) of the Rules,
47 C.F.R. 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."
4

Federal Communications Commission

DA 11-1491

IV

ORDERING CLAUSES

10.
Accordingly,

IT IS ORDERED

that, pursuant to section 503(b) of the Act36 and sections
0.111, 0.311, and 1.80 of the Rules,37 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,38 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:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures. Northeast Utilities Service
Company must also send electronic notification to Neal.McNeil@fcc.gov and Karen.Mercer@fcc.gov 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.39 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 Neal.McNeil@fcc.gov and to
Karen.Mercer@fcc.gov. 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


36 47 U.S.C. 503(b).
37 47 C.F.R. 0.111, 0.311, 1.80.
38 47 C.F.R. 1.80.
39 47 C.F.R. 1.80(f)(3), 1.16.
5

Federal Communications Commission

DA 11-1491

for Northeast Utilities Service Company, Keller and Heckman, LLP, 1001 G Street Northwest, Suite 500
West, Washington, D.C. 20001.

FEDERAL COMMUNICATIONS COMMISSION

John D. Poutasse
Acting Chief
Spectrum Enforcement Division
Enforcement Bureau
6

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