**Before the**

## Federal Communications Commission

## Washington, D.C. 20554

**In the Matter of** )

) File No. EB-03-DT-883

West Harbor Towing Service )

) NAL/ Acct. No. 200432360002

Port Clinton, Ohio )

) FRN: 0004 8484 01

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Released: March 15, 2004**

By the District Director, Detroit Office, Enforcement Bureau:

# I. INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that West Harbor Towing Service ("West Harbor Towing") has
    apparently violated the Great Lakes Agreement ("GLA")[^1] and
    Sections 80.953(a) and 80.953(b) of the Commission's Rules[^2] (the
    "Rules") as a result of their vessel the "West Harbor" navigating
    the Great Lakes without having the annual GLA inspection and
    certification of their marine VHF radiotelephone equipment. We
    conclude that West Harbor Towing is apparently liable for forfeiture
    in the amount of one thousand one hundred dollars (\$1,100).

## II. BACKGROUND

2.  The GLA requires, 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 navigated on the Great Lakes.
    The GLA is intended to promote safety of life and property on the
    Great Lakes by means of radio and requires the radiotelephone
    installation be inspected and certified at least once every thirteen
    months. The inspection of GLA subject vessels may be performed by
    the holder of an FCC General Radiotelephone Operator License, GMDSS
    Radio Maintainer's License, Second Class Radiotelegraph Operator's
    Certificate or First Class Radiotelegraph Operator's Certificate.

3.  On September 24, 2003 FCC agents from the Detroit Office conducted
    random inspections in Port Clinton, Ohio of vessels subject to the
    GLA to determine whether GLA inspections were being conducted and
    certified. The agents inspected the tugboat "West Harbor" and
    determined that the vessel did not have a current GLA safety
    inspection and certification. The agents also determined that the
    vessel had navigated the waters of the Great Lakes as a towing
    vessel. A review of the ship radiotelephone log indicated that the
    "West Harbor" had navigated on September 10, 2003, and September 13,
    2003 without a valid GLA certification.

## 

## III. DISCUSSION

4.  In order to promote the safety of life and property on the Great
    Lakes, the Great Lakes Agreement, and Sections 80.953(a) and
    80.953(b) of the Rules require that vessels subject to the GLA have
    the radiotelephone installation inspected and certified annually.
    The vessel "West Harbor" was not certified.

5.  Based on the evidence before us, we find that West Harbor Towing
    willfully[^3] and repeatedly[^4] violated the Great Lakes Agreement
    and Sections 80.953(a) and 80.953(b) of the Commission's Rules as a
    result of their vessel the "West Harbor" having navigated the Great
    Lakes on September 10 and September 13, 2003 without having had
    their radiotelephone installation inspected and certified as
    required by the Great Lakes Agreement. *The Commission's Forfeiture
    Policy Statement and Amendment of Section 1.80 of the Rules to
    Incorporate the Forfeiture Guidelines*, 12 FCC Rcd 17087, 17113
    (1997), *recon. denied*, 15 FCC Rcd 303(1999) ("*Forfeiture Policy
    Statement*")[^5], sets the statutory maximum amount forfeiture at
    five hundred fifty dollars (\$550) per day for violation of Great
    Lakes Agreement. In assessing the monetary forfeiture amount, we
    must take into account the downward adjustment factors set forth in
    Section 1.80 of the Rules for non-Section 503 forfeitures, which
    include minor violations, good faith or voluntary disclosure,
    history of overall compliance, and inability to pay. While this is
    not a minor violation, the record reveals that West Harbor has an
    overall history of compliance. Applying the Policy Statement and the
    adjustment criteria to the instant case, we believe that a one
    thousand one hundred dollar (\$1,100) monetary forfeiture is
    warranted.

##### 

##### IV. ORDERING CLAUSES

6.  Accordingly, IT IS ORDERED THAT, pursuant to Section 506(a) of the
    Act[^6] and Sections 0.111, 0.311 and 1.80 of the Rules[^7], West
    Harbor Towing is hereby NOTIFIED of this APPARENT LIABILITY FOR A
    FORFEITURE in the amount of one thousand one hundred dollars
    (\$1,100) for willfully and repeatedly violating the Great Lakes
    Agreement and Sections 80.953(a) and 80.953(b) of the Commission's
    Rules.

7.  IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the Rules,
    within thirty days of the release date of this NOTICE OF APPARENT
    LIABILITY, West Harbor Towing SHALL PAY the full amount of the
    proposed forfeiture or SHALL FILE a written statement seeking
    reduction or cancellation of the proposed forfeiture.

8.  Payment of the forfeiture may 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 should note the NAL/Acct. No. 200432360002,
    FRN: 0004 8484 01.

9.  Any response to this NAL must be mailed to Federal Communications
    Commission, Enforcement Bureau, Spectrum Enforcement Division, 445
    12th Street, S.W., Washington, D.C. 20554 and MUST INCLUDE THE
    NAL/Acct. No. 200432360002, FRN: 0004 8484 01.

10. 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 ("GAAP"); 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.

11. Requests for payment of the full amount of this Notice of Apparent
    Liability under an installment plan should be sent to Chief, Revenue
    and Receivables Operations Group, 445 12th Street, S.W., Washington,
    D.C. 20554.[^8]

12. Under the Small Business Paperwork Relief Act of 2002, Pub L. No.
    107-198, 116 Sta. 729 (June 28, 2002), the FCC is engaged in a
    two-year tracking process regarding the size of entities involved in
    forfeitures. If you qualify as a small entity and if you wish to be
    treated as a small entity for tracking purposes, please so certify
    to us within thirty (30) days of this NAL, either in your response
    to the NAL or in a separate filing to be sent to the Spectrum
    Enforcement Division. Your certification should indicate whether
    you, including your parent entity and its subsidiaries, meet one of
    the definitions set forth in the list provided by the FCC's Office
    of Communications Business Opportunities (OCBO) set forth in
    Attachment A of this Notice of Apparent Liability. This information
    will be used for tracking purposes only. Your response or failure to
    respond to this question will have no effect on your rights and
    responsibilities pursuant to Section 503(b) of the Communications
    Act. If you have questions regarding any of the information
    contained in Attachment A, please contact OCBO at (202) 418-0990.

13. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
    LIABILITY shall be sent by Certified Mail, Return Receipt Requested,
    to West Harbor Towing Service, 2175 N.E. Catawba Road, Lot 28, Port
    Clinton, Ohio 43452 and to West Harbor Towing Service, 19336 Laurel,
    Rocky River, Ohio 44116.

FEDERAL COMMUNICATIONS COMMISSION

James A. Bridgewater

District Director

Detroit Office

Attachment A -- Condensed List of Small Entities, October 2002

[^1]: Agreement Between Canada and the United States for the Promotion
    of Safety on the Great Lakes by Means of Radio T.I.A.S. 7837,
    amended T.I.A.S. 9352 (Great Lakes Agreement).

[^2]: 47 C.F.R. §§ 80.953(a), and 80.953(b).

[^3]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies
    to Section 503(b) of the Act, provides that "\[t\]he term 'willful',
    when used with reference to the commission or omission of any act,
    means the conscious and deliberate commission or omission of such
    act, irrespective of any intent to violate any provision of this Act
    ...." *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^4]: Section 312(f)(2), which also applies to Section 503(b), provides:
    \[t\]he term "repeated", when used with reference to the commission
    or omission of any act, means the commission or omission of such act
    more than once or, if such commission or omission is continuous, for
    more than one day.

[^5]: 47 C.F.R. § 1.80.

[^6]: 47 U.S.C. § 507(a).

[^7]: 47 C.F.R. §§ 0.111, and 0.311.

[^8]: See 47 C.F.R. § 1.1914.