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

In the Matter of                 )
DIGITAL TELEPORT, INC.           )    File No. EB-01-IH-0017f
OCN# 7102                        )    NAL/Acct. No. 200132080037
                                )    FRN 0005-6540-09

                        FORFEITURE ORDER

   Adopted:  June 7, 2002               Released:  June 11, 2002

By the Chief, Enforcement Bureau:

                        I.   INTRODUCTION

In this Forfeiture Order, we issue a monetary forfeiture  against 
Digital  Teleport,  Inc.   (``Digital  Teleport'')  for   willful 
violation of 47 C.F.R.  52.15(f).  The noted violation  involves 
Digital Teleport's failure to  report its number utilization  and 
forecast  data.   Based  upon  our   review  of  the  facts   and 
circumstances of this case, including Digital Teleport's response 
to our Notice of Apparent Liability (``NAL''),1 we conclude  that 
Digital Teleport  has  justified  a  reduction  of  the  proposed 
forfeiture and that it is liable  for a forfeiture in the  amount 
of  $4,800. 

                         II.  BACKGROUND

On April 24, 2001, the Chief, Enforcement Bureau, acting pursuant 
to delegated  authority,  issued  the NAL  to  Digital  Teleport, 
proposing a  $6,000  forfeiture. We  issued  the NAL  because  it 
appeared that Digital Teleport had failed to report on its actual 
and forecast  number usage  by  filing FCC  Form 502,  the  North 
American Numbering Plan  Numbering Resource  Utilization/Forecast 
(``NRUF'') Report that was due on September 15, 2000.2   Carriers 
are required to file NRUF reports for each separate legal  entity 
represented  by  an  Operating  Company  Number  (``OCN'').3   It 
appeared that Digital Teleport failed to file an NRUF report  for 
one  OCN,  which  was  referenced  in  our  NAL.   We   therefore 
determined that Digital Teleport 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 usage.4

Digital Teleport responded to the NAL, and requests  cancellation 
or reduction  of  the  forfeiture.   Digital  Teleport  does  not 
contest the finding that it  failed to comply with the  reporting 
requirements of  section  52.15(f).   However,  Digital  Teleport 
asserts that the Bureau's  method for determining the  forfeiture 
amount is  flawed.  Additionally,  Digital Teleport  argues  that 
there are mitigating circumstances that justify reduction of  the 
forfeiture amount.  In this regard, Digital Teleport specifically 
asserts that  it  has  a  history of  past  compliance  with  the 
Commission's rules.

                       III.    DISCUSSION

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  Digital 
Teleport'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 Digital Teleport has not justified 
cancellation of the forfeiture, we  find that a reduction of  the 
forfeiture amount is warranted. 

Digital Teleport asserts that the Forfeiture Guidelines establish 
a base amount of $3,000 for  failure to file required forms,  but 
that we consistently assessed forfeitures of at least $6,000  for 
failure to  file an  NRUF report.   Digital Teleport  bases  this 
assertion on review of a number of NALs contemporaneously  issued 
to other carriers, proposing forfeitures for failure to file  the 
September 15, 2000 NRUF report.  Digital Teleport argues that the 
Forfeiture Guidelines require that we assess a forfeiture in  the 
$3,000 base amount.  We disagree. 

Our NAL  emphasized the  critical  importance of  consistent  and 
accurate reporting of number utilization and forecast data.7  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  Digital 
Teleport's inventory  of  numbering  resources.8   Under  Section 
503(b)(2)(D) of the Act and the Forfeiture Guidelines, the Bureau 
has broad flexibility to  determine the appropriate  forfeiture.9  
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).10 Thus,  we find  that the  calculation of  the 
forfeiture penalty is reasonable and appropriate.

Digital Teleport also  presents other factors  in support of  its 
argument that a reduction of the forfeiture amount is  justified.  
Digital Teleport contends that its  failure to comply with a  new 
filing requirement mitigates its degree of culpability.   Digital 
Teleport points out that the  September 15, 2000 NRUF report  was 
the first report  required under section  52.15(f), but that  the 
NAL cites Southern California Broadcasting Company, a case  which 
involved repeated violations of a  rule in effect for ten  years. 
However, we cited Southern California Broadcasting only in  order 
to define  the term  ``willful''  as used  in the  Act.   Digital 
Teleport does not dispute that  its actions were willful, and  we 
reject its argument that the forfeiture amount should be  reduced 
based on  the  recent adoption  of  the section  52.15  reporting 
requirements.   As  explained  above,  our  NAL  emphasized   the 
critical importance  of  consistent  and  accurate  reporting  of 
number utilization and forecast  data, and we  find no reason  to 
reduce  the  forfeiture  penalty  because  this  was  the   first 
reporting period.11  Digital  Teleport's argument  that the  NRUF 
filing deadline  occurred during  a  period when  its  regulatory 
functions  were  being  transitioned  also  does  not  justify  a 

However, we have verified Digital Teleport's claim that it has an 
overall history of compliance with the Commission's rules,  which 
warrants reduction of the forfeiture amount.12  We have  reviewed 
Digital Teleport's  response  in light of  the statutory  factors 
set forth  above,  and conclude  that  Digital Teleport  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 Digital Teleport,  Inc. 
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 
number usage.

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.13    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, 
D.C. 20554.14

IT IS FURTHER ORDERED that a copy of this Forfeiture Order  shall 
be sent  by Certified   Mail/Return  Receipt Requested,  to  Mark 
Schroeder, Vice  President,  Digital  Teleport,  Inc.,  and  Eric 
Carter, Legal Counsel, Digital Teleport, Inc., 10740 Knall, Suite 
230, Overland Park, Kansas 66211, and to its counsel, Russell  M. 
Blau and  Ronald  W.  Del  Sesto,  Jr.,  Swidler  Berlin  Shereff 
Friedman, LLP, 3000  K Street,  N.W., Suite  300, Washington,  DC 



                         David H. Solomon
                         Chief, Enforcement Bureau


1  See Digital Teleport, Inc., 16 FCC Rcd 8610 (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.     

8  Digital Teleport, 16 FCC Rcd at 8612. 

9   47 U.S.C.  503(b)(2)(D).  See Forfeiture Guidelines, 12 FCC 
Rcd at 17100 (1997).  See, e.g., SBC Communications Inc., 16 FCC 
Rcd 12306 (2001).

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

11   Id.   

12  See, e.g., Page-Comm, 16 FCC Rcd 6842 (EB 2001).

13  See  47 C.F.R.  1.80(h).  

14  See 47 C.F.R.  1.1914.