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                           1.   Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In the Matter of                 )
                                )
DIGITAL TELEPORT,  INC.          )
OCN# 7102                        )    File No. EB-01-IH-0017f
                                )    NAL/Acct. No. 200132080037
                                )
                                )
                                )
                                )


           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted:  April 20, 2001             Released: April 24, 2001

By the Chief, Enforcement Bureau:


                        I.   INTRODUCTION



In this Notice of Apparent Liability for Forfeiture (``NAL''), we 
find that  Digital  Teleport,  Inc.  (``Digital  Teleport'')  has 
apparently violated 47 C.F.R.  52.15(f) by willfully failing  to 
report its number utilization and forecast data.  Based upon  our 
review of the facts and  circumstances in this case, we  conclude 
that Digital Teleport  is apparently liable  for a forfeiture  in 
the amount of  $6,000.



                         II.       BACKGROUND


Section 251(e) of the Communications Act of 1934, as amended (the 
``Act''), grants  the Commission  plenary jurisdiction  over  the 
North American Numbering  Plan (``NANP'')  and related  telephone 
numbering issues  in  the  United  States.   The  Commission  has 
identified two primary goals  related to this statutory  mandate: 
to ensure that the  limited numbering resources  of the NANP  are 
used efficiently for the benefit of both consumers and  carriers; 
and to  ensure that  all carriers  have the  numbering  resources 
necessary to compete  in the  rapidly growing  telecommunications 
marketplace. 1 The Commission recently adopted administrative and 
technical measures that  facilitate the  monitoring of  numbering 
resource usage within the NANP and promote more efficient use  of 
numbering resources,  including  new  mandatory  utilization  and 
forecast  data  reporting  requirements.2  Monitoring  individual 
carriers' use of  numbering resources  encourages efficiency  and 
forestalls premature  exhaustion of  numbering resources.   Thus, 
section 52.15(f) of the Commission's rules requires U.S. carriers 
receiving numbering resources from  the North American  Numbering 
Plan  Administrator  (``NANPA''),  a  Pooling  Administrator,  or 
another telecommunications  carrier,  to report  semiannually  on 
their actual and forecast number  usage.3   These data are to  be 
reported on  FCC  Form 502,  the  North American  Numbering  Plan 
Numbering Resource Utilization/Forecast (``NRUF'') Report.  

The staff of  the Common Carrier  Bureau determined that  Digital 
Teleport apparently did not file the mandatory NRUF report due on 
September 15, 2000.  On January 29, 2001, the Enforcement  Bureau 
sent a letter to Digital  Teleport, which explained that  Digital 
Teleport might be subject to enforcement action if it had  failed 
to comply with  the mandatory reporting  requirements of  section 
52.15(f). In addition, our letter cautioned Digital Teleport that 
the NANPA would  withhold numbering resources  as a sanction  for 
failure  or  refusal  to  comply  with  the  mandatory  reporting 
requirements.4 

 Our  letter gave  Digital Teleport  the opportunity  to  provide 
proof of filing of the NRUF report due on September 15, 2000, and 
reminded Digital Teleport that  its next NRUF  report was due  on 
February 1,  2001.   Digital  Teleport did  not  respond  to  our 
letter.5

  

                       III.    DISCUSSION



Section 503(b)(1)(B)  of the  Act provides  that any  person  who 
willfully or  repeatedly fails  to  comply with  the Act  or  the 
Commission's rules shall be liable for a forfeiture penalty.6  We 
conclude that Digital Teleport failed to file the NRUF report due 
on September  15,  2000.  Thus, Digital  Teleport  is  apparently 
liable for forfeiture for the willful violation of section  52.15 
of the Commission's rules, which requires U.S. carriers to report 
on their actual and forecast  number usage.7  The Commission  has 
held that an act or omission is ``willful'' if the violator  knew 
it was taking the action in question, whether or not there is any 
intent to violate the rule.8 Based upon the record before us,  it 
appears that  Digital  Teleport's  failure  to  comply  with  the 
reporting requirements was willful.

In assessing a forfeiture, Section  503(b)(2)(D) of the Act9  and 
section 1.80(b)(4)10  of the  Commission's  rules require  us  to 
consider 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 
other such  matters as  justice  may require.   The  Commission's 
Forfeiture Guidelines  establish  a  base amount  of  $3,000  for 
failure to file required forms or information.11  The  Guidelines 
also provide that we may issue  a higher or lower forfeiture,  as 
permitted by statute.12   Based upon the  information before  us, 
and taking into  consideration the factors  expressed in  Section 
503(b)(2)(D) of the Act, we find that a forfeiture that is higher 
than the base amount is warranted in this case.  

The Commission  has  emphasized  that  consistent,  accurate  and 
complete reporting  of number  utilization and  forecast data  is 
critical  to   promoting   efficiency  and   avoiding   premature 
exhaustion of numbering  resources.13 The potential  harm to  the 
integrity  and   objectives   of   the   Commission's   numbering 
administration  and  optimization   strategies  caused  by   non-
compliance  with  the  section  52.15(f)  reporting  requirements 
increases as  a non-compliant  carrier's inventory  of  numbering 
resources increases.  We therefore find that it is appropriate to 
take into  account the  amount of  Digital Teleport's  unreported 
numbering  resources  in   determining  the  forfeiture   amount.  
Numbering resources  are  assigned  either in  blocks  of  10,000 
numbers referred to as central office  codes or NXX codes, or  in 
blocks of 1,000 numbers.  Digital  Teleport has been assigned  17 
NXX codes.  Under  these circumstances,  we find  that an  upward 
adjustment of  the base  forfeiture  is appropriate  for  Digital 
Teleport's failure to file the required NRUF report, and we  thus 
impose a forfeiture  in the  amount of  $6,000, which  represents 
double the base forfeiture for failure to file required report.

Our January 29,  2001 letter reminded  Digital Teleport that  its 
next semiannual  NRUF report  was due  on February  1, 2001.   It 
appears that Digital  Teleport may  not have  filed this  report.  
Failure to file the February NRUF report, as required by  section 
52.15(f),  would   constitute  a   separate  violation   of   the 
Commission's rules. We warn Digital Teleport that failure to file 
the February report or  future reports could  form the basis  for 
additional notices of  apparent liability.  Moreover, if  Digital 
Teleport fails to comply with the NRUF reporting requirements  in 
the future, the Common Carrier Bureau may deem that its numbering 
resources  are  unused,  and  thus  begin  reclamation  of  those 
numbering resources.14  In addition, the Commission may  consider 
proceedings to revoke  the section 214  authorizations and  Title 
III licenses  of carriers  that persist  in their  non-compliance 
with section 52.15(f).

 

                      IV.  ORDERING CLAUSES


Accordingly, IT IS ORDERED THAT, pursuant to 47 U.S.C.   503(b), 
and 47 C.F.R.  1.80,  Digital Teleport, Inc. is hereby  NOTIFIED 
of its APPARENT LIABILITY FOR A  FORFEITURE in the amount of  six 
thousand dollars ($6,000)  for violating  the Commission's  rules 
that require U.S. carriers to  report actual and forecast  number 
usage.

IT IS FURTHER ORDERED THAT, pursuant to 47 C.F.R.  1.80,  within 
thirty  days  of  this  NOTICE  OF  APPARENT  LIABILITY,  Digital 
Teleport,  Inc.  SHALL  PAY  the  full  amount  of  the  proposed 
forfeiture or SHALL FILE a written statement seeking reduction or 
cancellation of the proposed forfeiture.

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. referenced above.

The response, if any, must be mailed to Charles W. Kelley, Chief, 
Investigations and Hearings Division, Enforcement Bureau, Federal 
Communications Commission,  445 12th  Street, S.W,  Room  3-B443, 
Washington DC  20554  and MUST  INCLUDE  the file  number  listed 
above.

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.

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.  See 47 C.F.R.  1.1914.

Commission  records   indicate   that  Digital   Teleport,   Inc. 
apparently has not designated an agent for service of  Commission 
decisions, as required by 47  C.F.R.  1.47(h).  Accordingly,  IT 
IS FURTHER  ORDERED  that  a  copy of  this  Notice  of  Apparent 
Liability for Forfeiture shall be posted in 
the Office of the Secretary.15  In addition, a copy will be  sent 
by Certified Mail/Return Receipt  Requested, to Digital  Teleport 
Inc., 8112 Maryland Ave., 4th Floor, St. Louis, MO  63105.  

     

                         FEDERAL COMMUNICATIONS COMMISSION
                    

     

                         David H. Solomon
                         Chief, Enforcement Bureau


_________________________

1  Numbering Resource Optimization, Report and Order and Further 
Notice of Proposed Rulemaking  in CC Docket  No. 99-200, 15  FCC 
Rcd 7574  (2000)(``NRO  Order''); recon.  and  clarification  in 
part, Second Report  and Order, Order  on Reconsideration in  CC 
Docket 96-98 and CC Docket 99-200, and Second Further Notice  of 
Proposed Rulemaking in  CC Docket 99-200,  FCC 00-429 (Dec.  29, 
2000).  

2  Id. 

3  The NRUF reports are  due on or before  February 1 and on  or 
before August  1 of  each year.   See 47  C.F.R.   52.15(f)(6).  
However, we note that the deadline for filing reports due August 
1, 2000 was extended to  September 15, 2000. Numbering  Resource 
Optimization, CC Docket No. 99-200, FCC 00-280 (Jul. 31, 2000).   

4  47 C.F.R.   52.25(g)(3)(iv).  See NRO Order,  15 FCC Rcd  at 
7609-10.   

5  The Enforcement Bureau mailed the January 29, 2001 letter  to 
Digital Teleport by  certified mail,  return receipt  requested.  
The return receipt reflects  that Digital Teleport received  the 
Bureau's letter on February 5, 2001. 

6  47 U.S.C.  503(b)(1)(B).   See also 47 C.F.R.   1.80(a)(2).  
Recently, the Commission  amended Section 1.80  of its rules  to 
make inflation adjustments in the maximum penalties that may  be 
imposed.  Accordingly,  for  a common  carrier,  the  forfeiture 
limit for  each  violation  is  now  $120,000,  with  a  maximum 
potential forfeiture of  $1,200,000 for  a continuing  violation 
involving a  single act  or failure  to act.   See Amendment  of 
Section 1.80(b)  of the  Commission's Rules,  15 FCC  Rcd  18221 
(2000).   

7 Carriers are required to  file NRUF reports by separate  legal 
entity for  each Operating  Company  Number (``OCN'').   See  47 
C.F.R.    52.15(f)(3)(ii).    Our  January   29,  2001   letter 
referenced one OCN for which Digital Teleport apparently had not 
filed an NRUF report due September 15, 2000.

8  Southern  California Broadcasting  Company,  6 FCC  Rcd  4387 
(1991).   

9  47 U.S.C.  503(b)(2)(D).

10  47 C.F.R.   1.80(b)(4).  

11   The Commission's Forfeiture Policy Statement and  Amendment 
of Section  1.80  of the  Rules  to Incorporate  the  Forfeiture 
Guidelines, 12 FCC Rcd 17087  (1997), recon. denied, 15 FCC  Rcd 
303 (1999)(``Forfeiture  Guidelines'')(codified at  47 C.F.R.   
1.80(b)(4) Note).   

12  Id. 

13 NRO Order at 7593.

14 See NRO Order at 7678-7683.  

15  See 47 C.F.R.  1.47(h).