On December 14, 2009, the Bureau released an order adopting a Consent Decree with BNSF Railway Co. (“BNSF”) terminating an investigation of BNSF’s compliance with Section 310(d) of the Communications Act in connection with the sale to another railroad of BNSF’s communication system for a portion of railroad track. BNSF failed to seek FCC approval for the assignment of land mobile and microwave licenses prior to consummation of the transaction. BNSF later filed applications seeking FCC consent to the assignment of the licenses, all of which were granted.
BNSF has also failed to disclose on FCC Forms 601 and 603, submitted with various FCC filings, its 1998 guilty plea to a felony and payment of a $10 million fine and $9 million in remediation costs for violating the Clean Water Act and another statute. BNSF states that its employees responsible for FCC filings had little or no contact with employees involved in environmental matters and were unaware of BNSF’s felony conviction. Upon learning of the omitted felony conviction disclosures, BNSF promptly disclosed the conviction to the FCC.
Under the Consent Decree, BNSF agreed to develop and implement a compliance plan to ensure compliance with Section 310(d) and FCC Rule 1.17, requiring truthful statements to the FCC. Elements of the plan include designation of a compliance officer, development of a compliance manual (including due diligence instructions), compliance training for relevant employees, and the submission of periodic compliance reports. The compliance plan requirements terminate after three years. BNSF also agreed to make a voluntary contribution to the U.S. Treasury of $110,000.
On January 4, 2010, the Bureau’s Investigations and Hearings Division released an NAL against Shop at Home Holdings, Inc. (“SHH”), for its apparent acquisition of two satellite earth station licenses without prior FCC consent in violation of Section 310(d). SHH acquired the licenses as part of a larger corporate transaction in 2006. In 2008, SHH learned of the need to obtain prior FCC consent for the assignment of licenses and filed remedial applications seeking such consent, which were granted in 2009. The NAL stated that the base forfeiture for the unauthorized assignment of a license is $8,000. Because SHH operated the licenses for two years without filing corrective applications, the NAL proposed a forfeiture of $16,000.