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1. Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
CHICKASAW TELEPHONE CO. ) File No. EB-01-IH-0017d
OCN# 1980 ) NAL/Acct. No. 200132080035
) FRN 0003-7326-09
Adopted: June 7, 2002 Released: June 11, 2002
By the Chief, Enforcement Bureau:
In this Order, we issue a monetary forfeiture against Chickasaw
Telephone Co. (``Chickasaw'') for willful violation of 47 C.F.R.
§ 52.15(f). The noted violation involves Chickasaw's failure to
report its number utilization and forecast data. Based upon our
review of the facts and circumstances of this case, including
Chickasaw's response to our Notice of Apparent Liability
(``NAL'') ,1 we conclude that Chickasaw has justified a reduction
of the proposed forfeiture and that it is liable for a forfeiture
in the amount of $4,800.
On April 24, 2001, the Chief, Enforcement Bureau, acting pursuant
to delegated authority, issued the NAL to Chickasaw, proposing a
$6,000 forfeiture. We issued the NAL because it appeared that
Chickasaw had failed to report on its actual and forecast number
usage by filing the FCC Form 502, the North American Numbering
Plan Numbering Resource Utilization/Forecast (``NRUF'') Report
due on September 15, 2000.2 The NAL referenced a letter of
inquiry that we sent to Chickasaw January 29, 2001 concerning its
apparent failure to file the September 15, 2000 NRUF report. Our
NAL also indicated that carriers are required to report for each
separate legal entity represented by an Operating Company Number
(`OCN''), and referenced one OCN for which Chickasaw had failed
to file an NRUF report.3 We therefore determined that Chickasaw
had apparently violated section 52.15(f) of the Commission's
rules, which 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
Chickasaw responded to the NAL, and requests cancellation or
reduction of the forfeiture. Chickasaw claims that its failure
to file the NRUF report was inadvertent and not willful. In this
regard, Chickasaw argues that it did not receive effective notice
of its risk of liability for failure to comply with the NRUF
reporting requirements and that it has no prior history of
violating the Commission's rules or reporting requirements.
Chickasaw also states that it has taken steps to ensure its
future compliance with section 52.15(f) and that this and other
mitigating circumstances justify cancellation or substantial
reduction of the proposed forfeiture.
The NAL explicitly states that the proposed forfeiture was
assessed in accordance with applicable statutory provisions, the
Commission's rules and the Commission's Forfeiture Guidelines.5
Section 503(b) of the Act requires that, in examining Chickasaw's
response, 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 other such matters as justice may require.6 Although
Chickasaw has not justified cancellation of the forfeiture, we
find that a reduction of the forfeiture amount is warranted.
Chickasaw argues that the $6,000 forfeiture amount is based upon
an erroneous finding that it deliberately ignored the letter of
inquiry. Chickasaw claims that this is not the case, and that the
Bureau's timing and service of the letter of inquiry did not give
it sufficient notice so that it could comply with the reporting
requirements. In this regard, Chickasaw claims that because the
letter of inquiry was not issued until January 29, 2001, was not
sent to its main office and was not served on its registered
agent, it did not have sufficient notice or time to file the NRUF
report due February 1, 2001, aggravating its noncompliance and
resulting in an upward adjustment of the base forfeiture amount
of $3,000 specified by the Forfeiture Guidelines.
Under Section 503(b)(2)(D) of the Act and the Forfeiture
Guidelines, the Bureau has broad flexibility to determine the
appropriate forfeiture.7 Our NAL noted that Chickasaw had not
responded to our letter of inquiry, but proposed a forfeiture
based upon Chickasaw's failure to file the NRUF report due on
September 15, 2000. Although we reminded Chickasaw that the next
NRUF report was due on February 1, 2001, the letter of inquiry
was directed to the NRUF report due September 15, 2000, and
requested proof of the filing of that report. In addition, our
NAL warned Chickasaw that its failure to file the February 1,
2001 NRUF report or to comply with section 52.15(f) reporting
requirements in the future could form the basis for additional
notices of apparent liability, but did not propose a sanction for
its failure to file the February 1, 2001 NRUF report.8
Our NAL also emphasized the critical importance of consistent and
accurate reporting of number utilization and forecast data.9 The
NAL explained that we imposed an upward adjustment based upon the
potential harm to the Commission's numbering administration and
optimization caused by non-compliance with section 52.15(f). The
amount of the upward adjustment took into account Chickasaw's
inventory of numbering resources.10 In this regard, the upward
adjustment creates an incentive for carriers to report on their
number utilization and forecast data in addition to recognizing
the potential harm to numbering administration and optimization
when carriers do not comply with section 52.15(f).11 Thus, we
also disagree with Chickasaw's assertion that the forfeiture
proposed is unjustifiably punitive.
Furthermore, Chickasaw does not contest our conclusion that it
failed to file the September 15, 2000 NRUF report, but argues
that its failure to comply with the mandatory reporting
requirements of section 52.15(f) was not willful. However, the
term ``willful,'' as used in section 503(b) of the Act, does not
require a finding that the rule violation was intentional or that
the violator was aware that it was committing a rule violation.12
Carriers are required to know and comply with the Commission's
rules, and Chickasaw's assertion that the timing of our letter of
inquiry did not give it adequate notice of the NRUF reporting
requirements is unavailing.13 Moreover, we would not have been
precluded from issuing the NAL based on Chickasaw's apparent
failure to file the September 15, 2000 NRUF report even if no
inquiry letter had been sent. Thus, we reject Chickasaw's
argument that that ``the timing and delivery of the Bureau's
[letter of inquiry] serve to mitigate Chickasaw's culpability.''
Chickasaw also presents other factors in support of its argument
that a cancellation or reduction of the forfeiture amount is
justified. In this regard, Chickasaw asserts that it is a small
rural telephone company with limited resources and that it would
be ``significantly impacted'' by the $6,000 penalty proposed. As
set forth in the NAL, the Commission will not consider reducing
or canceling a forfeiture in response to a claim of inability to
pay unless adequate documentation is submitted: (1) federal tax
returns for the most recent three-year period; (2) financial
statements prepared according to generally accepted account
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 be
specifically identify the basis for the claim by reference to the
financial documentation submitted.14 Chickasaw has not provided
the necessary proof to evaluate its claim of inability to pay.
Moreover, Chickasaw's implementation of procedures to assure the
timeliness of future NRUF filings does not justify reduction or
cancellation of the proposed forfeiture penalty.15 However, we
have verified Chickasaw's claim that it has an overall history of
compliance with the Commission's rules which warrants reduction
of the forfeiture amount.16 We have reviewed Chickasaw's
response in light of the statutory factors set forth above, and
conclude that Chickasaw has not justified cancellation of the
proposed forfeiture but that its overall record justifies a
reduction of the forfeiture from $6,000 to $4,800.
IV. ORDERING CLAUSES
Accordingly, IT IS ORDERED, pursuant to 47 U.S.C. § 503(b), and
47 C.F.R. § 0.111, 0.311 and 1.80, that Chickasaw Telephone Co.
FORFEIT to the United States the sum of four thousand eight
hundred dollars ($4,800) for willfully violating the Commission's
rules that require U.S. carriers to report actual and forecast
Payment of the forfeiture may be made by mailing a check or money
order, 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, within 30 days of the release of this
Forfeiture Order.17 The payment MUST INCLUDE the FCC
Registration Number (FRN) referenced above and should note the
NAL/Acct. No. referenced above. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for collection pursuant to 47 U.S.C. § 504.
A request for payment of the full amount of this Forfeiture Order
under an installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall
be sent by Certified Mail/Return Receipt Requested, to Larry D.
Jones, Corporate Treasurer, Chickasaw Telephone Co., 124 W.
Vinita, P.O. Box 460, Sulphur, Oklahoma 73086-0460, and to its
Mordkofsky, Esq. and Michael B. Adams, Jr., Esq., Blooston,
Mordkofsky, Dickens, Duffy & Prendergast, 2120 L Street, N.W.,
Suite 300, Washington, DC 20037.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 See Chickasaw Telephone Company, 16 FCC Rcd 8600 (EB 2001).
2 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, 15 FCC Rcd 17005 (2000).
3 See 47 C.F.R. § 52.15(f)(3)(ii).
4 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, 16 FCC Rcd 306 (
2000)(``NRO Recon. Order'').
5 47 U.S.C. § 503(b); 47 C.F.R. § 1.80; 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).
6 47 C.F.R. § 503(b)(2)(D).
7 Id. See Forfeiture Policy Statement, 12 FCC Rcd 17087,
17100 (1997). See, e.g., SBC Communications Inc., 16 FCC Rcd
8 Chickasaw Telephone Co., 16 FCC Rcd at 8602.
10 Chickasaw Telephone Co., 16 FCC Rcd at 8602.
11 See 47 C.F.R. § 1.80(b)(4) Note.
12 See, e.g., Valley Page, 12 FCC Rcd 3087, 3088-89 (WTB 1997).
13 See, e.g., Sitka Broadcasting Co., Inc., 70 FCC 2d 2375,
2378 (1979), citing Lowndes County Broadcasting Co., 23 FCC 2d
91 (1970) and Emporium Broadcasting Co., 23 FCC 2d 868 (1970).
Moreover, we note that our letter of inquiry was sent to
Chickasaw's main office in Sulphur, Oklahoma.
14 Chickasaw Telephone Co., 16 FCC Rcd at 8603, ¶ 13.
15 See Station KGVL, Inc., 42 FCC 2d 258, 259 (1973). See also
Coleman Enterprises, Inc., 16 FCC Rcd 10,016, 10,020-21 (2001),
citing Long Distance Services, Inc., 13 FCC Rcd 4444 (CCB
1998)(all common carriers are required to comply with the
Commission's rules, regardless of size or resources, and
remedial efforts do not alter the fact that violations had
taken place or justify mitigation).
16 See, e.g., Page-Comm, 16 FCC Rcd 6842 (EB 2001).
17 See 47 C.F.R. § 1.80(h).
18 See 47 C.F.R. § 1.1914.