WPC 2BJ Z CourierCourierCourier BoldOed6X@`7@HP LaserJet 4_230_1HPLAS4.PRS 4d  @7\oe@26ZK#|d BoldHP LaserJet 4M (PCL) RM 149HPLA4MPC.PRSd  @7\IZ@#|d2XX01Í ÍX01Í Í<r5ddd,Oed6X@`7@<~9nnn,o'n6X@`7&@}:nnn,n `7&<K#BBB,B6X@`7J@<?xxx,>fx6X@`7X@CourierCourier Boldurier BoldؐEU؃vW t^vhvjWrW FVrW;Vw1r;Fs*FPvhhjDW tFPW~uMM2 ~9- 3'3'Standard3'3'StandardHPLAS4.PRS 4d     =Њ#n6X@`7o'&@#$// N.A.L., Oncor Comm'ns, Inc., File No. ENF 9504, FCC # 95127 //$  x-$/ 47 C.F.R.  64.1100 Verification of orders for LDS generated by telemarketing /$  ~:<#n6X@`7o'&@#, Before the  }:< FEDERAL COMMUNICATIONS COMMISSION    }:K<Washington, D.C. 20554 ă  ~9-X` hp x (#%'0*,.8135@8:fX@#Letter from David J. Florio to Heather McDowell, dated February 27, 1995.(#Ƶ Moreover, in its  x-response to the staff's second information request, Oncor made no mention  xn-of the "commission checks" and instead described its customary  x-telemarketing and onsite sales techniques. Thus, while Oncor described  x-its typical sales and verification procedures, it has produced no  x-evidence that it obtained any form of LOA from MTA or specified what, if  x-any, steps it followed to verify telemarketing sales that resulted in the MTA PIC conversions.  ~:K <| III. DISCUSSION ă  ~9 - ` a-x6.` ` We have carefully evaluated the information obtained as a  xM-result of our investigation, and, based on the foregoing, we conclude  x-that Oncor is apparently liable for forfeiture for willful and repeated violations of the Commission's rules and PIC change requirements.  ~9M- ` -x7.` ` Our review of the MTA allegations as well as Oncor's response  xM-and supporting materials has uncovered that between at least November  x-1993 and at least April 1994, Oncor submitted PIC change requests to NYT  x-that resulted in the conversion of over one hundred pay telephone lines  ~9)- x\-from AT&T, MTA's presubscribed IXC, to Oncor.)VJ. ~9-  @-ԍXxOur authority to assess forfeitures for many of the unauthorized   -conversions is governed by the one year limitations period in   {-Section 503(b) of the Communications Act. 47 U.S.C.  503(b)(6)(B).   {-This provision states in relevant part that, "No forfeiture penalty   -shall be determined or imposed against any person under this   {-subsection if . . . the violation charged occurred more than 1 year   -prior to the date of issuance of the required notice or notice of apparent liability."(#Ɵ Our investigation has  x-revealed that Oncor converted, or caused the conversion of, at least  x{-ninetyfour (94) different MTA telephone lines on or about April 2,  ~9N- x.-1994.rN J. ~9 -  -ԍXxOncor identified the telephone lines converted, as well as the dates   n-on which Oncor service began and ended, in its response to the   @-staff's second information request. Letter from Elisa Zafrani to  ~9"-Kathie Kneff, dated January 12, 1995. (#r Thus, our action here is within the one year limitations period  ~9-for forfeiture actions.zJ. ~9$-  -ԍXx47 U.S.C.  503(b)(6)(B). We stress, however, that it appears that   -Oncor did not comply with the Commission's rules or orders in   -ordering PIC changes to any of the MTA telephones or a Commack Union   3-Free School District telephone. Indeed, some of the earlier   -unauthorized changes to MTA telephones, albeit no longer actionable,"'0*((("   n-are an added factor demonstrating that Oncor's violations were   -willful and repeated. Therefore, while forfeiture penalties based   -upon conversions that were corrected prior to April 1994 are time   -barred, we strongly admonish Oncor for its apparently unauthorized conversion of these telephone lines. (#Ɖ"#0*(("Ԍ ~9- ` 3-ԙx8.` ` We find the violations particularly egregious in this case.  x-Oncor has produced no arguments or evidence that counter MTA's claim that  x-it did not authorize or approve any of the PIC changes. Oncor has not  x-submitted evidence of an LOA or other written authorization, electronic  x@-authorization through use of an 800 number, verification of oral  x-authorization, or use of an acceptable information package including a  x-cancellation option. Thus, it appears that Oncor failed to secure an LOA  x@-or utilize any of the four permissible telemarketing methods for  ~9-converting a customer's PIC established by the Commission.{#J. ~9Z -ԍXx47 C.F.R.  64.1100; PIC Change Order, 7 FCC Rcd at 1045.(#{  ~9&- ` -x9.` ` In an apparent attempt to explain the unauthorized  x-conversions, Oncor has made the general claim that, through its agents,  xM-it sent "commission checks" that were designed to function as an LOA  ~9K - x-once cashed or deposited by MTA. Even if we condoned Oncor's practice  ~9 - x-of using commission checks as LOAs, J. ~9#-  -ԍXxThis practice, as well as several other issues relating to   -unauthorized PIC changes, is under review in a pending rulemaking  ~9-  -proceeding. Policies and Rules Concening Unauthorized Changes of  ~9H-  -Consumers' Long Distance Carriers, Notice of Proposed Rulemaking, 9 FCC Rcd. 6887 (1994), 59 Fed. R. 63750 (December 9, 1994).(# Oncor has presented no evidence that  x-MTA ever endorsed such checks in connection with the telephone lines at  x-issue here, nor has it provided evidence that the commission checks were  x-otherwise accepted or approved by the MTA. On the contrary, information  x-obtained during the investigation indicates that MTA routinely returned  x-the checks to Oncor with a letter explaining that MTA relies solely on  x-a competitive bidding process to select a PIC for its pay telephones and  ~9- x-did not recognize any relationship with Oncor. J. ?<ԍXx#x6X@`7>fX@#See supra, note 19.(# Oncor, however, continued to make unauthorized PIC changes to MTA's pay telephones.  ~9(- ` -x10.` ` Oncor's attempt to distance itself from the unlawful PIC  x-changes by pointing to the culpability of its distributors, independent  ~9- x-telemarketing agents, or "subagents" is unavailing. J. ~9 -  -ԍXxOncor also seems to suggest that it should not be held liable for   -the unauthorized PIC changes because its distributor contract   -provisions and sales manuals require compliance with Commission   -statutes, rules, and policies. We find this argument similarly unpersuasive.(#Ǝ In this instance,  x@-the distributors' or agents' actions do not relieve Oncor of its  x-independent obligation to ensure compliance with our rules, nor do they  x-otherwise mitigate Oncor's role in the apparent violations. The  x{-Communications Act deems the acts or omissions of an agent or other  xM-person acting for a common carrier to be the acts or omissions of the")0*((?"  ~9- x-carrier itself.LJ. ~9G-ԍXx47 U.S.C.  217.(#L Hence, the Act expressly prohibits a carrier from  x-evading the requirements of the Act or the Commission's rules or orders  x-by hiring someone else to engage in conduct that contravenes these requirements.  ~9- ` -x11.` ` Furthermore, the facts before us reveal that the unauthorized  ~9J- x-MTA PIC changes followed a consistent pattern (e.g., periodic conversion  x-of large batches of telephone numbers on the same date), and were  x-repeated in the face of prior cancellations by the MTA. For example, of  xM-the ninetyfour (94) MTA telephone lines that are the subject of this  x-action, sixtyfour (64) had been previously switched to Oncor and MTA had  xM-quickly thereafter cancelled Oncor's service. Moreover, MTA had also  x-previously notified Oncor that it did not want Oncor service when it  ~9K - xM-returned Oncor's socalled "commission checks." We therefore find no  x-support for a determination that the unauthorized PIC changes were  x-isolated incidents or the result of a "rogue" marketing agent. Based on  x@-the number and frequency of the unauthorized conversions and the  xM-circumstances surrounding them, we can reasonably conclude that Oncor  x-apparently knew or should have known that MTA had not authorized Oncor  xM-to provide service for its pay telephones. Thus, it appears that the  x-unauthorized PIC changes were the result of either deliberate misconduct  x-by Oncor or its reckless disregard for the Commission's rules and orders.  xM-For these reasons we find that the facts support a determination that  ~9q-Oncor's apparent violations were willful and repeated._qGJ. ~97-ԍXxSee id.  503(b)(1)(B).(#_  ~9- ` -x12.` ` Section 503(b)(2)(B) of the Communications Act authorizes the  x-Commission to assess a forfeiture of up to one hundred thousand dollars  x-($100,000) for each violation or each day of a continuing violation up  x-to a statutory maximum of one million dollars ($1,000,000) for a single  ~9- x-act or failure to act.UJ. ~9-ԍXxId.  503(b)(2)(B).(#U In exercising such authority, the Commission is  xM-required to take into account "the nature, circumstances, extent, and  x-gravity of the violation and, with respect to the violator, the degree  x-of culpability, any history of prior offenses, ability to pay, and such  ~9- x\-other matters as justice may require."XEJ. ~9[-ԍXxId. at  503(b)(2)(D).(#X For purposes of assessing an  x-appropriate forfeiture penalty in this case, we regard the conversion of  ~9- x-each of the ninetyfour (94) MTA telephone linesWJ. ~9H!-ԍXxSee supra note 21.(#W as a separate  x-violation. After weighing the circumstances surrounding the violations,  x-we find Oncor to be apparently liable for a forfeiture of fifteen  x-thousand dollars ($15,000) for each of the unauthorized conversions,  x-resulting in a total forfeiture of one million four hundred ten thousand  x-dollars ($1,410,000) (94 x $15,000). Based on the information obtained  x-during the investigation of this matter, we believe this amount is  x-reasonable relative to Oncor's assets and revenues. Oncor, however, will  x-have the opportunity to submit evidence and arguments in response to this  x-NAL to show that no forfeiture should be imposed or that some lesser"tC0*((&"  ~9- x-amount should be assessed. J. ~9G-ԍXxSee 47 U.S.C.  503(b)(4)(C); 47 C.F.R.  1.80(f)(3).(#ƀ In this regard, we note that we have  x-previously held that a licensee's gross revenues are the best indicator  x-of its ability to pay a forfeiture and that use of gross revenues to  x-determine a party's ability to pay is reasonable, appropriate, and a  x-useful yardstick in helping to analyze a company's financial condition  ~9- x-for forfeiture purposes.!nGJ. ~9Y-  -ԍXxPJB Communications of Virginia, 7 FCC Rcd 208889 (1992) (PJB  ~9-Communications). (#ƴ In PJB Communications, we found that  x-forfeitures of $5,000 and $3,000 assessed against two jointly owned and  x-operated paging companies were not excessive because the total forfeiture  x-amount ($8,000) represented approximately 2.02 percent of the companies'  ~9o- x-combined gross revenues of $395,469."o}J. ~9k -  3-ԍXxId. at 2089; see also, David L. Hollingsworth d/b/a Worland   -Services, 7 FCC Rcd 6640 (Com. Car. Bur. 1992) ($6,000 forfeiture   @-representing approximately 1.21 percent of licensee's 1991 gross   -revenues and approximately 1.34 percent of projected 1992 gross  ~9G-  -revenues not found to be excessive); Afton Communications Corp., 7   -FCC Rcd 6741 (Com. Car. Bur. 1992) ($6,000 forfeiture representing   -approximately 3.91 percent of 1990 gross revenues and 2.75 percent of projected 1992 gross revenues not found to be excessive).(# We will give full consideration  x-to any financial information provided by Oncor before assessing a final forfeiture amount. x  ~:K <0  IV. CONCLUSIONS AND ORDERING CLAUSES ă  ~9 - 3'3'StandardHPLA4MPC.PRSd  3'3'StandardHPLA4MPC.PRSd  հ   #n6X@`7Fc&@# 3'3'StandardHPLA4MPC.PRSd  3'3'StandardHPLA4MPC.PRSd  հ  ~9 - ` 3-x13.` ` We have carefully reviewed the information obtained through  x-our investigation and conclude that on or about April 2, 1994, Oncor  x-apparently converted or caused a local exchange carrier to convert  xM-ninetyfour (94) MTA telephone lines without MTA's authorization. We  xM-further conclude that Oncor thereby willfully and repeatedly violated  x-Commission rules governing changes in long distance carriers, and that  x{-its conduct warrants a forfeiture in the amount of one million four hundred ten thousand dollars ($1,410,000).  ~9)- ` a-x14.` ` Accordingly, IT IS ORDERED, pursuant to Section 503(b) of  x-Communications Act of 1934, as amended, 47 U.S.C.  503(b), and Section  x-1.80 of the Commission's rules, 47 C.F.R.  1.80, Oncor Communications,  x-Inc. IS HEREBY NOTIFIED of an Apparent Liability for Forfeiture in the  x-amount of one million four hundred ten thousand dollars ($1,410,000) for  x-its willful and repeated violation of the Commission's PIC change rules  ~9s- x-and orders, 47 C.F.R.  64.1100; PIC Change Order, 7 FCC Rcd 1038 (1992);  ~9*- xM-Allocation Order, 101 FCC 2d 911 (1985); Waiver Order, 101 FCC 2d 935  ~9-(1985).  ~9O- ` &-x15.` ` IT IS FURTHER ORDERED, pursuant to Section 1.80 of the  x-Commission's rules, 47 C.F.R.  1.80, that within thirty days of the  xM-release of this Notice, Oncor Communications, Inc. SHALL PAY the full" "0*(("  ~9- x.-amount of the proposed forfeitureQ#U ~9G-  -ԍXxThe forfeiture amount should be paid by check or money order drawn   -to the order of the Federal Communications Commission, and should   @-be mailed to Federal Communications Commission, P.O. Box. 73482, Chicago, Illinois 606737482.(#Q OR SHALL FILE a response showing why the proposed forfeiture should not be imposed or should be reduced.  ~9%- ` -x16.` ` IT IS FURTHER ORDERED that a copy of this Notice of Apparent  x-Liability for Forfeiture SHALL BE SENT by certified mail to Counsel for  x-Oncor Communications, Inc., Mitchell F. Brecher, Esq., Donelan, Cleary,  xM-Wood & Maser, P.C. Suite 750, 1100 New York Avenue, N.W., Washington, D.C. 200053934. x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@William F. Caton x` `  hh@Acting Secretary