Click here for Adobe Acrobat 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
Adobe Acrobat version (above).
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
NORTHEAST UTILITIES ) File No. EB-01-IH-0262
) NAL/Acct. No. 20023208002
Licensee of Various Land Mobile )
and Microwave Stations )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: November 6, 2001 Released:
November 7, 2001
By the Chief, Investigations and Hearings Division,
Enforcement Bureau:
I. Introduction
1. In this Notice of Apparent Liability for Forfeiture we
find that Northeast Utilities failed to disclose in multiple
applications filed with the Commission that it had been
convicted of felonies, in apparent willful and repeated
violation of Section 1.17 of the Commission's rules, 47
C.F.R. § 1.17. We conclude that that Northeast Utilities is
apparently liable for a forfeiture in the amount of $20,000.
II. Background
2. On September 27, 1999, Northeast Utilities Service
Company, a subsidiary of Northeast Utilities, pleaded guilty
to six counts of violating the Clean Water Act. On the same
day, Northeast Nuclear Energy Company, another subsidiary of
Northeast Utilities, pleaded guilty to 19 counts of
violating the Atomic Energy Act by submitting false and
inaccurate operator license applications to the Nuclear
Regulatory Commission. Each company was ordered to pay a
$3.35 million fine and was placed on probation for three
years. Each offense constituted a felony.
3. Between September 28, 1999, and November 27, 2000,
Northeast Utilities, either directly or through its
subsidiaries, filed more than 128 applications with the
Commission for various purposes. Each of the forms
specifically inquired whether the applicant, or any entity
with a controlling interest in the applicant, had ever been
convicted of a felony. In each instance, the applicant
responded in the negative.
4. On November 28, 2000, Northeast Utilities Service
Company filed an application on FCC Form 603, seeking
Commission consent to the transfer of control of certain
authorizations to another entity. In that application, it
disclosed to the Commission for the first time that
Northeast Utilities had been convicted of the felonies
described above. Northeast Utilities thereafter amended its
previously-filed applications which were still pending in
order, albeit belatedly, to provide information about the
convictions.
5. The Enforcement Bureau's Investigations & Hearings
Division subsequently conducted an investigation into
Northeast Utilities' apparent failure to properly disclose
the company's criminal background in applications filed with
the Commission. In a May 15, 2001, response to a letter of
inquiry from the Investigations & Hearings Division,
Northeast Utilities explained:
[Northeast Utilities] answered in the negative
[regarding whether it had ever been convicted of a
felony] as there was a misunderstanding as to the
fact that these were indeed felony convictions.
The [Northeast Utilities] personnel responsible
for the licensing were aware that [Northeast
Utilities] plead ``guilty to violations'' but did
not understand that this was classified as a
criminal ``felony''. It was never [Northeast
Utilities'] intent to misrepresent this conviction
and as soon as [Northeast Utilities'] staff became
aware of this error, they worked with counsel and
staff at [Northeast Utilities' communications law
firm] to correct all outstanding applications and
to identify the process to attach the necessary
notification to all applications going forward.
6. Notwithstanding Northeast Utilities' disclosure on
November 28, 2000, Northeast Utilities Service Company, in
August 2001, filed two additional applications with the
Commission. In each application, Northeast Utilities
Service Company responded in the negative when asked whether
it had been convicted of a felony.
III. Discussion
7. Section 1.17 of the Commission's rules, 47 C.F.R. §
1.17, states in pertinent part that "No applicant . . .
shall . . . in any application, pleading, or report or any
other written statement submitted to the Commission, make
any . . . willful material omission bearing on any matter
within the jurisdiction of the Commission." A "willful
material omission" need not be accompanied by an intent to
deceive. Curators of the University of Missouri, 16 FCC Rcd
1174, 1181 (2001) (recon. pending),1 citing Abacus
Broadcasting Corp., 8 FCC Rcd 5110, 5115 (Rev. Bd. 1993).
8. Northeast Utilities disclosed its felony convictions to
the Commission in a filing on November 28, 2000. Prior to
that date, however, Northeast Utilities filed more than 128
applications in which it failed to disclose the convictions.
Of the 128 applications, six were filed within the last year
and are, thus, actionable under Section 503(b)(6)(B) of the
Communications Act of 1934, as amended, 47 U.S.C. §
503(b)(6)(B). Northeast Utilities also filed two
applications after November 28, 2000, in which it again
erroneously responded in the negative when asked whether it
had been convicted of a felony. Each of the applications
was filed on behalf of Northeast Utilities or a subsidiary
by an authorized company individual who certified to the
truthfulness, correctness, and completeness of the
information therein. While the company may not have
intended to mislead the Commission, under the Commission's
precedent in the Curators of the University of Missouri
case, Northeast Utilities willfully omitted material
information in multiple filings by certifying in the
negative that it had not been convicted of a felony. By
failing to disclose its criminal background in the various
applications, Northeast Utilities essentially prevented the
Commission from carrying out its statutory obligations
contained in Section 309 of the Communications Act of 1934,
as amended, 47 C.F.R. § 309. Section 309 requires the
Commission, in the case of each application, to make a
public interest determination as to whether the application
should be granted. Furthermore, Northeast Utilities'
failure to inform the Commission of its felony criminal
convictions frustrated the efficient administration of the
Commission's processes. In order to carry out its business,
the Commission, by necessity, must rely on the accuracy and
completeness of the information provided by those who come
before it. Northeast Utilities failed to carry out its
obligations in this regard.
9. Based on the foregoing, we find that Northeast
Utilities apparently willfully and repeatedly (on eight
separate occasions within the statute of limitations),
violated Section 1.17 of the Commission's rules. Under these
circumstances, we take into account "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." Section 503(b)(2) of the
Communications Act of 1934, as amended, 47 C.F.R. §
503(b)(2). In the Curators of the University of Missouri
case cited above, the Commission proposed an $8,000
forfeiture for an analogous willful omission in both an
application and a response to the staff. Here, there are
more violations, but disclosure was voluntary. On balance,
we conclude that a proposed forfeiture in the total amount
of $20,000 is appropriate for the eight apparent violations
involved here.
IV. Ordering Clauses
10. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Communications Act of 1934, as amended, 47
U.S.C. § 503(b), and Section 1.80 of the Commission's rules,
47 C.F.R. § 1.80, Northeast Utilities IS APPARENTLY LIABLE
FOR A FORFEITURE in the amount of $20,000, for apparently
willfully and repeatedly violating Section 1.17 of the
Commission's rules, 47 C.F.R. § 1.17.
11. IT IS FURTHER ORDERED that, pursuant to 47 C.F.R. §
1.80, within 30-days of the release of this NOTICE OF
APPARENT LIABILITY, Northeast Utilities SHALL PAY the full
amount of the proposed forfeiture2 or SHALL FILE a written
response seeking reduction or cancellation of the proposed
forfeiture.3
12. IT IS FURTHER ORDERED that a copy of this Notice of
Apparent Liability for Forfeiture shall be sent by Certified Mail - Return Receipt
Requested, to Cristi Walker, Counsel, Northeast Utilities,
107 Selden Street, Berlin CT 06037.
FEDERAL COMMUNICATIONS COMMISSION
Charles W. Kelley
Chief, Investigations and Hearings
Division
Enforcement Bureau
_________________________
1 This case involved an apparent violation of Section
73.1015, 47 C.F.R. § 73.1015. Section 73.1015 and Section
1.17 contain identical language prohibiting the making of a
``willful material omission'' in an application filed with
the Commission.
2 Payment of the forfeiture shall be made by mailing a check
or similar instrument, payable to the order of the ``Federal
Communications Commission,'' to the Forfeiture Collection
Section, Finance Branch, Federal Communications Commission,
P.O. Box 73482, Chicago, Illinois 60673-7482. The payment
shall note the NAL/Acct. No. referenced above.
3 The response, if any, shall be directed to Charles W.
Kelley, Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445
12th Street, SW, Room 3-B443, Washington DC 20554. The
response shall note the File No. and NAL/Acct No. referenced
above. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability
to pay unless the respondent submits: (1) federal tax
returns for the most recent three-year period; (2) financial
statements prepared according to generally accepted
accounting practices (GAAP); or (3) some other reliable and
objective documentation that accurately reflects the
respondent'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. Requests for payment of the full amount of this
Notice of Apparent Liability under an installment plan shall
be directed to: Chief, Revenue and Receivables Operations
Group, 445 12th Street, SW, Washington DC 20554. See 47
C.F.R. § 1.1914.