Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from
WordPerfect or Word to ASCII Text format.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Word or WordPerfect version or Adobe Acrobat version (above).
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
ENTERGY SECURITY CORPORATION ) File No. 920EF0059
)
Operator of Fixed Microwave Service Stations )
WNEP492 and WNEH696 in Metarie and New )
Orleans, Louisiana )
MEMORANDUM OPINION AND ORDER
Adopted: December 6, 1999 Released:
December 7, 1999
By the Chief, Enforcement Bureau:
I. Introduction
1. In this Memorandum
Opinion and Order, we grant a request, filed on October 29,
1999, by Entergy Security Corporation (``Entergy''),
operator of Fixed Microwave Service Stations WNEP492 and
WNEH696, Metarie and New Orleans, Louisiana, to reduce the
forfeiture proposed in Notice of Apparent Liability for
Forfeiture, DA 99-1936, (Wireless Tel. Bureau, released
October 1, 1999) (``NAL''). We find that Entergy acquired
control of those two stations without prior Commission
consent, in violation of Section 310(d) of the
Communications Act of 1934, as amended (``Act'')1 and former
Section 101.53(a) of the Commission's Rules.2 We conclude,
based upon the information presented by Entergy, that a
forfeiture in the amount of $9,000 is appropriate in this
instance.
II. Background
2. In 1997, Entergy, a wholly-owned subsidiary of
Entergy Corporation,3 was engaged in ``the business of
providing remote alarm monitoring services . . . utiliz[ing]
telephone landlines and/or wireless facilities to receive,
process and transmit emergency and other information.''4
Entergy merged with Armor Systems, Inc. (``Armor''), another
alarm monitoring service provider, and the parties ``closed
the transaction on October 15, 1997.''5 Prior to the
merger, the stations in question were licensed to Armor.6
3. Entergy acquired control of the two stations as a
result of the October 1997 merger. On January 4, 1999,
Entergy filed an FCC Form 415 to assign Armor's two stations
to Entergy.7 Entergy also filed a request for special
temporary authority (``STA'') to operate the stations during
the pendency of the assignment application.8 In response to
a Commission letter9 seeking more information regarding the
assignment, Entergy explained that the merger ``had
inadvertently closed without prior FCC approval because of
[Armor's and Entergy's] unfamiliarity with the approval
requirement.''10 Entergy further stated that it ``did not
learn of the prior approval requirement resulting from the
merger until approached about a subsequent transaction11
involving an acquisition of the merged entity.''12 The
Commission granted the STA on January 15, 1999. Entergy's
assignment application remains pending.
III. Discussion
4. In its response to the NAL, Entergy does not deny
acquiring control of these stations without obtaining prior
Commission approval.13 It argues, however, that the
proposed forfeiture should be reduced because of Entergy's
record of compliance with the Commission's Rules. In that
regard, Entergy represents:
For many years, Entergy, through its subsidiaries,
has held numerous radio licenses issued by the
Commission to utilize radio facilities necessary
for the conduct of its business operations. These
facilities have been operated for many years in
compliance with the Commission's rules and
regulations, and Entergy has not received any
violation notices or fines from the Commission for
rules violations.14
Entergy cites several cases for the proposition that the
Commission will reduce forfeitures when a licensee has a
record of compliance with the Commission's Rules.15 Entergy
specifically asks that the forfeiture amount be reduced to
$9,000.16
5. Our records show that Entergy has been a
Commission licensee since 1994, and there is no record of
Entergy having been previously cited for violating the
Commission's rules with respect to its Title III licenses.
We note that Entergy Services, Inc., a company commonly
owned with Entergy, was recently found to have violated
certain Commission rules with respect to the rates charged
for pole attachments.17 While we believe this finding is
relevant to an evaluation of Entergy's record of compliance
with the Commission's Rules, the types of violations found
in that proceeding could not take place at the stations
involved in this case, and there is no evidence that
Entergy's violations were deliberate. Under these
circumstances, we believe its overall record of compliance
with the Commission's Rules should be viewed positively.
Section 503(b)(2)(D) of the Act requires us to consider,
inter alia, ``any history of prior offenses'' in setting a
forfeiture amount. In light of Entergy's general record of
compliance with the Commission's Rules, we agree that a
reduction of the proposed forfeiture amount from $12,000 to
$9,000 is appropriate. Accordingly, we will impose a $9,000
forfeiture.
IV. Conclusion and Ordering Clauses
6. ACCORDINGLY, IT IS ORDERED that the ``Request for
Reduction or Remission of Forfeiture'' filed October 29,
1999, by Entergy Security Corporation IS GRANTED to the
extent Entergy seeks a reduction of the proposed forfeiture
amount from $12,000 to $9,000.
7. IT IS FURTHER ORDERED, pursuant to Section 503(b)
of the Communications Act of 1934, as amended,18 and Section
1.80 of the Commission's Rules,19 that Entergy SHALL FORFEIT
to the United States the sum of nine thousand dollars
($9,000)20 for willfully and repeatedly violating Section
310(d) of the Communications of Act of 1934, as amended, and
former Section 101.53(a) of the Commission's Rules.
8. IT IS FURTHER ORDERED that a copy of this
Memorandum Opinion and Order shall be sent, by Certified
Mail/Return Receipt Requested, to Denise C. Redmann, Esq.,
Senior Counsel, Entergy Services, Inc., 639 Loyola Avenue,
26th Floor, New Orleans, Louisiana 70113, and to Entergy's
counsel, John A. Prendergast, Esq., Blooston, Mordkofsky,
Jackson & Dickens, 2120 L Street, N.W., Washington, D.C.
20037.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 U.S.C. § 310(d).
2 47 C.F.R. § 101.53(a). That rule was replaced by Section
1.948 of the Commission's Rules on February 12, 1999. In
the Matter of Biennial Review - Amendment of Parts 0, 1, 13,
22, 24, 26, 27, 80, 87, 90, 95, 97, and 101 of the
Commission's Rules to Facilitate the Development and Use of
the Universal Licensing System in the Wireless
Telecommunications Services, 13 FCC Rcd 21027 (1998).
Section 101.53 is applicable here because Entergy filed its
authorization request prior to the February 12, 1999,
effective date.
3 See Application of Sonitrol Southeast, Inc. for a
Determination of Exempt Telecommunications Status Under
Section 34 of the Public Utility Holding Company Act of
1935, as Added by Section 103 of the Telecommunications Act
of 1996, 12 FCC Rcd 10429 (OGC 1997).
4 Application of Entergy ETHC Merger Company for a
Determination of Exempt Telecommunications Status Under
Section 34 of the Public Utility Holding Company Act of
1935, as Added by Section 103 of the Telecommunications Act
of 1996, 12 FCC Rcd 10427, 10428 (OGC 1997). See also
Letter Dated June 15, 1999, from Glenn L. Schroeder,
Authorized Employee of Entergy at the Time of Merger, to
Sharon C. Bowers, Informal Complaints & Public Inquiry
Branch, Federal Communications Commission (``Schroeder
Letter'').
5 See Schroeder Letter.
6 See Application for Authorization for Microwave Services,
Exhibit, filed January 4, 1999, by Entergy Security.
7 Id.
8 See Request for STA, filed January 14, 1999, by Entergy.
9 See Letter Dated May 17, 1999, from Sharon C. Bowers,
Chief, Informal Complaints & Public Inquiry Branch,
Enforcement & Consumer Information Division, Wireless
Telecommunications Bureau, to John A. Prendergast of
Blooston, Mordkofsky, Jackson & Dickens, counsel for
Entergy.
10 See Schroeder Letter, supra.
11 See Application for Authorization in the Microwave
Services filed January 4, 1999, by ADT Security Services,
Inc., for assignment of stations WNEP492 and WNEH696 from
Entergy to ADT.
12 See Schroeder Letter, supra.
13 See ``Request for Reduction or Remission of Forfeiture''
filed October 29, 1999 by Entergy (``Entergy Response''),
pp. 2-4.
14 Id., p. 2.
15 Id., pp. 2-4, citing Courtesy Communications, Inc., 14
FCC Rcd 4198 (1999), Liberty Communications, Inc., DA 94-648
(Com. Car. Bureau 1994), David L. Hollingsworth, 7 FCC Rcd
6640 (Com. Car. Bureau 1992).
16 Id., p. 6. Entergy also argues that a $12,000 forfeiture
would be unnecessarily punitive. Entergy Response, pp. 4-5.
In light of our action reducing the forfeiture, we need not
address that argument.
17 Texas Cable and Telecommunications Association, et al.
v. Entergy Services, Inc., 14 FCC Rcd 9138 (Cable Bureau
1999).
18 47 U.S.C. § 503(b).
19 47 C.F.R. § 1.80.
20 Payment of the forfeiture may be made by credit card
through the Commission's Billings and Collections Branch at
(202) 418-1995 or 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
note the file number 920EF0059.