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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
KYS, Inc. ) File No. EB-01-DT-415
d/b/a Sandusky Bay Marine Towing) NAL/Acct. No. 200232360003
Sandusky, Ohio ) FRN 0006-0042-20
)
FORFEITURE ORDER
Adopted: March 26, 2002 Released: March 28, 2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of one thousand five hundred
dollars ($1,500) to KYS, Inc. d/b/a Sandusky Bay Marine Towing
(``KYS'') for violation of the Great Lakes Agreement
(``GLA'')1 and Section 80.953(a) and (b) of the Commission's
Rules (``Rules'').2 The noted violation involves KYS's
navigation of a towing vessel, the Recovery, on the Great
Lakes without having obtained the annual GLA inspection and
certification of its marine VHF radiotelephone equipment.
2. On December 31, 2001, the Commission's Detroit,
Michigan, Field Office (``Detroit Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'') to KYS for a
forfeiture in the amount of two thousand two hundred dollars
($2,200).3 KYS filed a response to the NAL on January 29,
2002.
II. BACKGROUND
3. The GLA and Section 80.953(a) and (b) of the Rules
require, among other things, that all vessels 65 feet or over
in length (20 meters), most towing vessels, and vessels
carrying more than six passengers for hire be equipped with a
marine VHF radiotelephone installation when navigating on the
Great Lakes. These provisions are intended to promote safety
of life and property on the Great Lakes by means of radio and
require inspection and certification of the radiotelephone
installation at least once every 13 months.
4. On June 29, 2001, an FCC agent from the Detroit Office
conducted random inspections in Sandusky, Ohio of vessels
subject to the GLA to determine whether the vessels had
current GLA safety inspections and certifications.4 The agent
inspected a vessel owned by KYS, the Recovery, and determined
that the vessel did not have a current GLA safety inspection
and certification for its marine VHF radiotelephone equipment.
The agent also determined that the vessel had recently
navigated the waters of the Great Lakes as a towing vessel.
As a follow-up to the random inspection, the agent requested
and received copies of the Recovery's ship station logs.
Review of these logs revealed that the Recovery had navigated
the waters of the Great Lakes on at least June 10, 11, 19 and
24, 2001, without a valid inspection and certification.
5. On July 26, 2001, the District Director of the Detroit
Office issued an Official Notice of Violation (``NOV'') to KYS
for failure to have the vessel Recovery inspected under the
provisions of the GLA. On August 20, 2001, the Detroit Office
received a response to the NOV in which KYS admitted to the
violation.
6. On December 31, 2001, the Detroit Office issued an NAL
in the amount of $2,200 to KYS for navigating a towing vessel
on the Great Lakes without having obtained the annual GLA
inspection and certification of its marine VHF radiotelephone
equipment, in violation of the GLA and Section 80.953(a) and
(b) of the Rules. The Detroit Office arrived at the $2,200
forfeiture amount by multiplying the $550 maximum statutory
per day forfeiture amount for violation of the GLA by four,
the number of days on which KYS admitted to navigating the
Recovery without a valid inspection and certification. In its
January 29, 2002, response to the NAL, KYS acknowledges that
the violation occurred but requests rescission or mitigation
of the forfeiture amount. KYS argues that a $2,200 forfeiture
is excessive because the violation was an oversight, the VHF
radio was used on only two of the four occasions when the
Recovery navigated the waters of the Great Lakes, and one of
the four occasions was an ``errand of mercy'' performed on
behalf of the local police department when its marine patrol
boat ran out of gas. KYS also argues that the NAL incorrectly
references Section 506(a) of the Communications Act of 1934,
as amended (``Act''),5 when in fact Section 506(a) of the Act
was repealed and renumbered as Section 507(a). Furthermore,
KYS asserts that the Act imposes a $500 per day maximum fine
for violations of the GLA, not a $550 per day maximum fine.
Finally, KYS asserts that the Commission should treat the
violation as a single, isolated incident, instead of imposing
the maximum per day fine for each day the Recovery navigated
the Great Lakes, because there was no showing that the
violation was willful or repeated; that the violation was
immediately corrected upon being brought to its attention; and
that it has an overall history of compliance and showed good
faith by voluntary disclosing information to the Enforcement
Bureau.
III. DISCUSSION
7. The forfeiture amount in this case was assessed in
accordance with Section 506(a) of the Act, Section 1.80 of the
Rules,6 and The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087 (1997), recon. denied,
15 FCC Rcd 303 (1999) (``Policy Statement''). In examining
KYS's response, Section 1.80(b)(4) of the Rules requires that
the Commission take into account certain downward adjustment
criteria, including minor violation, good faith or voluntary
disclosure, history of overall compliance and inability to
pay.7
8. KYS admits that it navigated the towing vessel Recovery
on the Great Lakes on June 10, 11, 19 and 24, 2001, without a
current GLA safety inspection and certification. We therefore
conclude that KYS violated the GLA and Section 80.953(a) and
(b) of the Rules.
9. KYS argues that its violation was an ``oversight'' in
that the Recovery was only pressed into service when its other
vessel, which is not subject to the provisions of the GLA,
developed engine trouble. However, this circumstance does not
mitigate KYS's violation. Navigation without a valid GLA
certification increases the risk to safety of life and
therefore is a significant violation.8 Likewise, the fact
that the VHF radio was only used on two of the four occasions
when the Recovery navigated the waters of the Great Lakes and
the fact that one of the four occasions was an ``errand of
mercy'' for a local police department do not mitigate the
violation.
10. KYS's assertion that the NAL incorrectly references
Section 506(a) of the Act is without merit. In 1980, Congress
repealed the former Section 506 of the Act and redesignated
Section 507, the statutory provision at issue here, as Section
506.9 We note, however, that this provision is still codified
at Section 507 of Title 47 of the United States Code. Thus,
as indicated in the NAL, this provision is properly cited as
Section 506 of the Act, but 47 U.S.C. § 507.
11. KYS's argument that Section 506(a) of the Act imposes a
$500 per day maximum fine, not a $550 per day maximum fine, is
also incorrect. The Debt Collection Improvement Act of
1996,10 which amends the Federal Civil Penalties Inflation
Adjustment Act of 1990,11 requires federal agencies to adjust
maximum statutory forfeiture penalties for inflation at least
once every four years using a specified formula.12 Consistent
with this statute, the Commission amended Section 1.80(b)(5)
of the Rules13 in September 2000 to adjust its maximum
statutory forfeiture penalties for inflation.14 This
amendment increased the maximum per day penalty specified in
Section 506(a) for violation of the GLA from $500 to $550.15
12. In addition, we disagree with KYS's argument that we
should treat the violation in this case as a single, isolated
incident, instead of imposing the maximum per day fine for
each day the Recovery navigated the Great Lakes, because there
was no showing that the violation was willful or repeated.
First, we note that there is no requirement that we show that
a violation was willful or repeated in order to impose the
maximum statutory forfeiture penalty pursuant to Section
506(a) of the Act.16 Second, as noted above, navigation
without a valid GLA certification is a significant violation
because it increases the risk to safety of life. Third,
contrary to KYS's argument, the violation was repeated in that
the Recovery navigated the Great Lakes on at least four
separate days without a current GLA inspection and
certification. Therefore, we conclude that the NAL properly
imposed the maximum per day fine for each day the Recovery
navigated the Great Lakes.
13. Although KYS asserts that the violation was corrected
immediately upon being brought to its attention, we note that
corrective action taken after notice of a violation, while
commendable, does not mitigate the violation.17 However, we
conclude that KYS's overall history of compliance does justify
reduction of the forfeiture amount from $2,200 to $1,500.18
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED that, pursuant to Section
506(a) of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,19 KYS, Inc., IS LIABLE FOR A MONETARY FORFEITURE in
the amount of one thousand five hundred dollars ($1,500) for
violation of the Great Lakes Agreement and Section 80.953(a)
and (b) of the Rules.
15. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of
the release of this Order. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for collection pursuant to Section
504(a) of the Act.20 Payment may be made by mailing a check
or similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
payment should reference NAL/Acct. No. 200232360003 and FRN
0006-0042-20. Requests for full payment under an installment
plan should be sent to: Chief, Revenue and Receivables Group,
445 12th Street, S.W., Washington, D.C. 20554.21
16. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by Certified Mail Return Receipt Requested to KYS,
Inc., Sandusky Bay Marine Towing, 603 42nd Street, Sandusky,
Ohio 44870, and to its counsel, William H. Smith, Jr., Esq.,
Smith & Lehrer, Co., L.P.A., 308 West Adams Street, Sandusky,
Ohio 44870.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 Agreement Between Canada and the United States for the
Promotion of Safety on the Great Lakes by Means of Radio, April
26, 1973, US.-Canada, 25 UST 935, T.I.A.S. 7837, amended 30 UST
2523, T.I.A.S. 9352.
2 47 C.F.R. § 80.953(a) and (b).
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232360003 (Enf. Bur., Detroit Office, released December 31,
2001).
4 Although the required annual inspections of radiotelephone
installations aboard vessels subject to the provisions of the GLA
have been privatized, the FCC conducts spot-check inspections to
monitor compliance. Amendment of the Commission's Rules
Concerning the Inspection of Radio Installations of Large Cargo
and Small Passenger Ships, 13 FCC Rcd 13556, 13564 (1998).
5 47 U.S.C. § 507(a).
6 47 C.F.R. § 1.80.
7 47 C.F.R. § 1.80(b)(4).
8 See Shepler's, Inc., 16 FCC Rcd 14547, 14548 (Enf. Bur.
2001).
9 P.L. 96-507, 94 Stat 2747 (1980).
10 P.L. 104-134, 110 Stat 1321 (1996).
11 P.L. 101-410, 104 Stat 890 (1990).
12 See 28 U.S.C. § 2461. See also 47 C.F.R. § 1.80(b)(5).
13 See 47 C.F.R. § 1.80(b)(5).
14 Amendment of Section 1.80(b) of the Commission's Rules,
Adjustment of Forfeiture Maxima to Reflect Inflation, 15 FCC Rcd
18221 (2000).
15 Id. See 47 C.F.R. § 1.80(b)(5).
16 See 47 U.S.C. § 507(a). Section 503(b)(1) of the Act
provides that certain violations of the Act and the Rules must be
willful or repeated in order for the Commission to impose a
forfeiture penalty. However, Section 503(b)(1) explicitly states
that ``this subsection shall not apply to any conduct which is
subject to forfeiture under title II, part II or III of title
III, or section 506 of this Act.'' 47 U.S.C. § 503(b)(1).
17 See Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
18 See 47 U.S.C. § 504(b); see also 47 C.F.R. § 1.80, Note to
paragraph (b)(4): Section III. Non-Section 503 Forfeitures That
Are Affected by the Downward Adjustment Factors.
19 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
20 47 U.S.C. § 504(a).
21 See 47 C.F.R. § 1.1914.