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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-01-IH-0642
SBC Communications, Inc. ) NAL/Acct. No. 20023208001
Apparent Liability for ) FRN Nos. 0004-3051-24
Forfeiture ) 0004-3335-
Adopted: April 9, 2002
Released: April 15, 2002
By the Commission:1
In this Forfeiture Order, we find that SBC Communications, Inc.
(``SBC'') violated an Enforcement Bureau (``Bureau'') order
requiring SBC to provide sworn verification of the truth and
accuracy of answers to a letter of inquiry (``LOI'') that the
Bureau issued pursuant to authority provided by the
Communications Act of 1934, as amended (``Act'').2 Based on the
facts and circumstances before us and after considering SBC's
response to the Bureau's Notice of Apparent Liability (``NAL'')
in this matter, we conclude that SBC is liable for a forfeiture
of one hundred thousand dollars ($100,000), the amount the Bureau
proposed in the NAL.
As described more fully in the NAL,3 on October 1, 2001, the
Enforcement Bureau sent SBC an LOI directing SBC to provide
answers to several questions regarding possible discrimination by
SBC in its provisioning and maintenance of digital subscriber
line (``DSL'') technology and possible misrepresentations by SBC
to the Bureau.4 The Bureau further directed SBC to verify the
veracity of its answers by providing a sworn statement attesting
to the truth and accuracy of the responses.5 SBC did not object
to or challenge the Bureau's order in any manner. Instead, on
October 22, 2001, SBC submitted a response to the LOI that
addressed the questions but omitted the requisite sworn
statement.6 SBC did not identify this omission to the Bureau.
Soon after receiving SBC's response to the LOI, Enforcement
Bureau staff discovered the omission and contacted the company to
determine the reason for the noncompliance and to provide the
company with an opportunity to correct it. SBC, however,
disclosed to Bureau staff that it had intentionally refused to
provide the sworn statement and that it did not intend to comply
with that aspect of the Bureau's order.7 The Bureau informed the
company that SBC was in violation of the order.8 On November 2,
2001, SBC had still not provided the sworn statement, and the
Bureau issued the NAL proposing a forfeiture of $100,000 and
again directing SBC to provide a sworn statement. As with the
Bureau's original direction to provide a sworn statement, SBC did
not request that the Bureau or the Commission stay the portion of
the NAL directing it again to provide a sworn statement. On
November 7, 2001, SBC provided the sworn statement, noting that
it did so ``under protest.''9 On December 3, 2001, SBC filed its
response to the NAL.10
Under section 503(b) of the Act, ``[a]ny person who is determined
by the Commission to have . . . willfully or repeatedly failed to
comply with . . . any order issued by the Commission under this
Act'' shall be liable for a forfeiture penalty.11 In order to
impose such a forfeiture, the Commission must issue a notice of
apparent liability, the notice must be received, and the person
against whom the notice has been issued must have an opportunity
to show, in writing, why no such forfeiture penalty should be
imposed.12 The Commission will then issue a forfeiture order if
it finds by a preponderance of the evidence that the person has
violated the relevant order.13 As set forth in detail below, we
conclude that, based on this standard, SBC is subject to
The issue presented here is whether SBC violated the Bureau's
directive that SBC provide sworn verification of the accuracy and
truthfulness of its answers to the Commission's written
inquiries. SBC argues that the Commission has no authority to
require it to submit an attestation in the circumstances
presented here. But the order at issue here was squarely within
the Commission's authority and, in any event, parties are
required to comply with Commission orders even if they believe
them to be outside the Commission's authority. Therefore, based
upon our review of the NAL, of SBC's response thereto, and of the
record in this matter, we find that SBC willfully violated a
II.A. Congress Authorized The Commission To Require
Regulated Entities To Provide Sworn Statements
Verifying The Truth And Accuracy Of Information
Submitted During A Commission Investigation. 15
The Commission has statutory authority to require its regulatees
to attest to the veracity and accuracy of answers to written
questions that we pose during the course of an investigation into
potential violations of the Act or Commission rules. In sections
4(i), 4(j), 218, 403, and 208 of the Act, Congress afforded us
with broad authority to investigate regulated entities.16 This
broad investigative authority in these sections individually and
collectively encompasses the authority to obtain from carriers
information supported by attestations to ensure that the
information is accurate and truthful.
Section 218 of the Act authorizes us to ``obtain from . . .
carriers . . . full and complete information necessary to enable
the Commission to perform the duties and carry out the objects
for which it was created.''17 This provision plainly grants us
broad investigative power. SBC's argument that section 218 does
not speak to the means by which we may obtain information is
misplaced.18 As we will explain more fully below, in many cases
information supported by attestation is ``information necessary''
to enable us to perform our enforcement function.19 Therefore,
section 218's broad grant of authority covers our action here.
Section 403 also gives the Commission broad authority to ``make
and enforce orders'' relating to the matter under
investigation.20 Moreover, it gives the Commission the same
``powers and authority'' in conducting an investigation that it
would have when investigating a section 208 complaint.21 In this
regard, section 208 says the Commission can investigate such
matters ``in such manner and such means as it shall deem
The broad authority in sections 4(i) and 4(j) for the Commission
to ``issue such orders . . . as may be necessary in the execution
of its functions'' and to ``conduct its proceedings in such
manner as will best conduce the proper dispatch of business and
to the ends of justice'' further supports our authority to
require attestations.23 It is well established that sections
4(i) and 4(j) afford us broad general authority and power,24 and
the Bureau's action here falls comfortably within the scope of
that authority as well.
We are not persuaded by SBC's argument that sworn verification
here was not ``necessary'' and thus was outside the scope of our
authority under section 4(i).25 When the Commission conducts an
investigation, the subject of the investigation may be the
exclusive source of information on which the Commission must
ultimately rely to determine the subject's compliance. In these
situations, the willingness of the subject to attest to the truth
and accuracy of the information can be critical. This type of
attestation takes on even greater significance when, as in this
case, a core question at issue is whether a carrier has engaged
in misrepresentation to the Commission.26 As we have said in
another context, we afford greater weight to comments and
pleadings supported by affidavits or sworn statements than to
unsupported contrary pleadings.27 Indeed, a party's failure to
submit such an attestation in the context of an investigation has
led to a higher forfeiture amount for the underlying substantive
violation.28 These types of verifications can be necessary to
the Commission's investigative function,29 and the requirement of
such verification here falls squarely within the category of acts
and orders envisioned as necessary under section 4(i).30
SBC protests that the requirement that it attest to the veracity
of responses to the Bureau's questions is not a ``question of
procedure'' that properly falls within section 4(j).31 But this
requirement is precisely a procedural means by which the
Commission obtains the substantive response it seeks, i.e.,
answers that bear a unique imprimatur of reliability. Indeed,
this type of requirement is a standard and fundamental procedural
tool in the context of both Commission formal complaint
proceedings and in civil litigation generally. As noted above,
section 208 of the Act (which is incorporated here through
section 403), states that it is the ``duty'' of the Commission to
investigate ``in such manner and by such means as it shall deem
proper.''32 Our rules implementing section 208 state that the
Commission ``may require parties [to a complaint proceeding] to
submit any additional information it deems appropriate for a
full, fair, and expeditious resolution of the proceeding,
including affidavits and exhibits,''33 and they require that
interrogatories in complaint proceedings ``are to be answered . .
. in writing under oath or affirmation.''34 Similarly, the
Federal Rules of Civil Procedure require that parties must
provide answers to interrogatories under oath.35 The attestation
requirement is identical in function and purpose to these other
requirements. Thus, section 4(j) also provides authority for the
In sum, we find that the Bureau was well within its statutory
authority in requiring SBC to provide a sworn written
verification of the truth and accuracy of its responses to the
LOI. In defying that directive, SBC willfully violated a
II.B. The Commission's Subpoena Power Is Not Relevant To
In section 409 of the Act, Congress afforded the Commission with
subpoena power to compel ``the attendance and testimony of
witnesses and the production of all books, papers, schedules of
charges, contracts, agreements, and documents relating to any
matter under investigation.''36 SBC's primary argument in
defense of its defiance of the Bureau's order is that the
Commission may only require carriers to attest to the veracity of
their LOI responses pursuant to this section 409 subpoena power
and all of its accompanying statutory and constitutional
procedures and protections. Even assuming, arguendo, that
section 409 provides the exclusive means for the Commission to
obtain information within the ambit of that section,37 we reject
SBC's argument simply because section 409 has no relevance to the
requirement that a carrier attest to the veracity and accuracy of
its answers to our written inquiries.
By its own terms, section 409 relates only to the ``attendance
and testimony of witnesses,'' and the production of documentary
evidence.38 Section 409 is styled ``General Provisions Relating
to Proceedings - Witnesses and Depositions,'' setting forth the
limited scope of its applicability. Section 409 itself
acknowledges that the Commission has means other than subpoenas
to obtain information from parties.39 In relevant part, section
409 governs the use of the Commission's subpoena power to compel
individuals to appear and testify at hearings or depositions.
The Bureau did not seek to compel the appearance of witnesses for
testimony. The LOI merely sought a ``sworn written response''40
verifying the truth and accuracy of SBC's answers to the LOI. As
noted above, in this respect the LOI followed long-standing
Commission practice. We have routinely required affidavits and
verifications from regulated entities during the course of
various proceedings without asserting subpoena power.41 Our
orders requiring regulatees to submit affidavits or to swear to
the accuracy of responses to our written inquiries do not trigger
the requirements of section 409.
Consequently, we reject SBC's argument that the specific
requirements of section 409 supersede the more general provisions
of sections 218, 403, 4(i) and 4(j).42 Although section 409 may
be more detailed in its requirements, those requirements simply
do not apply to the circumstances of this case.43 Rather,
sections 218, 403, 4(i), and 4(j) control here.44 Therefore, we
also reject SBC's assertion that the Bureau's failure to comply
with the procedural requirements of section 409 rendered its
order invalid.45 Those requirements did not apply to the
C.SBC's Constitutional Arguments Are Without Merit.
Our federal constitution affords to subjects of administrative
subpoenas or other administrative orders particular rights of
access to judicial review. First, as to administrative
subpoenas, SBC invokes the right of a subject of such a subpoena
to judicial review before the subject is obliged to suffer
penalties for refusing to comply.46 Second, as to other
administrative orders, SBC refers us to its asserted right to an
opportunity to raise a good faith challenge to an order before
being sanctioned.47 We reject each of these arguments because
they depend on fundamental misconstructions of the relevant facts
and applicable law in this case.
First, as we concluded above, this case did not involve a
subpoena, and SBC is incorrect that the Act required the Bureau
to use a subpoena.48 Therefore, the constitutional protections
that attach to the enforcement of a subpoena are not applicable
here. Even so, Congress provided a carefully constructed
protocol for our forfeiture proceedings that allows ample
opportunity for judicial review before any subject of a
Commission forfeiture order may suffer any penalties for refusing
to comply with that order. The Act explicitly provides that no
one can be forced to pay a Commission-imposed non-hearing
forfeiture unless or until the forfeiture order has been
subjected to federal judicial review in a trial de novo.49 Thus,
SBC will have access to full-blown judicial review before
suffering any penalty.50 For this reason, and more fundamentally
because no subpoena was at issue in this case, we find that the
Bureau's actions did not violate any constitutional requirements
related to pre-enforcement judicial review of subpoenas.
Second, we find SBC's argument that the Bureau improperly
sanctioned a constitutionally protected good faith challenge to
be misplaced.51 As an initial matter, an NAL is not itself a
sanction; it is a proposed sanction. In addition, contrary to
its assertions, SBC did not raise any type of affirmative
challenge to the Bureau's sworn statement directive. Rather, it
failed even to disclose its noncompliance to the Bureau.
Moreover, SBC had conducted itself in this manner on two prior
occasions, and never brought its objection to the Bureau's
Far from extinguishing SBC's right to challenge the sworn
statement directive, the Bureau virtually invited such a
challenge. Before issuing the NAL in this case, the Bureau
notified SBC that it had discovered the omission of the sworn
statement, gave SBC the opportunity to admit and correct its
noncompliance, and informed SBC that it was in violation of a
Commission order.53 At that point in time, and even before, SBC
could have raised a good faith challenge to the order. As an
initial matter, SBC could have taken the minimal step of alerting
the Bureau of its concerns prior to, or simultaneous with, its
submission of its October 22, 2001 response to the LOI. In
addition, at the same time, or at least upon receiving notice
that it was in violation of the order, SBC could have petitioned
the Commission or the Bureau for a stay of the portion of the
October 1, 2001 order that required the sworn statement.54
Nonetheless, SBC chose not to avail itself of the opportunity to
raise a genuine good faith challenge to the order.55
SBC's mere belief that the Bureau's sworn statement directive was
unlawful cannot excuse its conduct here, and it certainly cannot
amount to a good faith challenge to the order. The Act provides
that ``[a]ll such orders shall continue in force for the period
of time specified in the order or until the Commission or a court
of competent jurisdiction issues a superseding order.''56
Moreover, ``[i]t shall be the duty of every person, its agents
and employees, and any receiver or trustee thereof, to observe
and comply with such orders so long as the same shall remain in
effect.''57 As we have stated very recently, ``a licensee cannot
ignore a Commission order simply because it believes such order
to be unlawful.''58
Finally, none of the cases on which SBC bases this argument would
support a finding that SBC exercised a good faith challenge in
this case.59 To the contrary, SBC did ```default [and]
contumaciously refuse to comply,'' and our process ```provides
full opportunity for judicial review before any coercive
sanctions may be imposed.'''60 We reject SBC's argument that the
Bureau improperly sanctioned a good faith challenge to the LOI.
The Bureau provided ample due process to SBC.
D.The Forfeiture Amount Is Lawful and Appropriate.
22. Section 503(b)(2)(B) of the Act authorizes the
Commission to assess a forfeiture of up to $120,000 for each
violation, or each day of a continuing violation, up to a
statutory maximum of $1,200,000 for a single act or failure to
act.61 In determining the appropriate forfeiture amount, we
consider the factors enumerated in section 503(b)(2)(D) of the
Act, including ``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
such other matters as justice may require.''62
23. Section 1.80 of the Commission's rules and the
Commission's Forfeiture Policy Statement establish a base
forfeiture amount of $3,000 for failure to file required forms or
information.63 As noted in the NAL, however, the circumstances
of this case justify a substantial increase to this base amount
pursuant to upward adjustment criteria contained in the rules and
the Forfeiture Policy Statement.64 Specifically, the Bureau
found that the adjustment was appropriate because the misconduct
was egregious; the violation was intentional; and the forfeiture
amount must be high enough to serve a deterrent effect in view of
SBC's ability to pay.65
24. SBC objects to several aspects of the Bureau's
reasoning, and it contends that the forfeiture amount proposed in
the NAL is inappropriate because: (1) SBC did not intentionally
violate the LOI; (2) SBC's conduct did not impede the Bureau's
investigation; and (3) SBC and the Bureau still were
``negotiating'' when the Bureau issued the NAL.66 None of these
points has merit.
25. First, SBC explicitly acknowledged to the Bureau that
its failure to comply with the LOI was intentional.67 SBC
admittedly had knowledge of its actions and of the fact that
those actions violated a Commission order.68 The company cannot
now credibly argue that its conduct was unintentional.
26. Second, SBC's refusal to attest to the truth and
accuracy of its responses to the Bureau's written questions did
impede the Bureau's investigation. As the Bureau properly noted
in the NAL, ``SBC's decision not to provide the requisite sworn
statement here obstructs the Bureau's investigation into
discrepancies in SBC's various representations to the Commission.
SBC's conduct strikes at the core of the Bureau's ability to
perform its function, and rises above the level of a mere
omission or failure to file.''69
27. Third, SBC and the Bureau were not ``negotiating'' at
the time the Bureau issued the NAL. Indeed, Bureau staff had
made clear to SBC that SBC's obligation to submit a sworn written
response was not open for negotiation between SBC and the
Bureau.70 In any event, the Bureau was under no obligation even
to inform SBC of its noncompliance or to give SBC an opportunity
to comply. It did so as a courtesy and was not required to do
more.71 When a carrier deliberately violates a Commission
directive, it should not be surprised that the Commission would
issue an NAL upon discovering the violation.
28. For all of the reasons we have discussed above, we find
that SBC's conduct justified the forfeiture amount that the
Bureau proposed. We therefore affirm the $100,000 forfeiture
amount originally proposed by the Bureau.72
III. ORDERING CLAUSES
29. Accordingly, IT IS ORDERED THAT, pursuant to section
503(b) of the Act, 73 and section 1.80 of the Commission's
Rules,74 SBC Communications SHALL FORFEIT to the United States
Government the sum of one hundred thousand dollars ($100,000) for
violating an Enforcement Bureau order to submit a sworn written
response to a Bureau LOI.
30. IT IS FURTHER ORDERED that payment shall be made in the
manner provided for in section 1.80 of the Commission's rules
within 30 days of release of this order.75 If the forfeiture is
not paid within the period specified, the case will be referred
to the Department of Justice for collection pursuant to section
504(a) of the Act.76
31. IT IS FURTHER ORDERED that a copy of this Order of
Forfeiture shall be sent by Certified Mail/Return Receipt
Requested to SBC Communications, c/o Caryn D. Moir, Vice
President - Federal Regulatory, 1401 I Street, N.W., Suite 1100,
Washington, D.C. 20005.
FEDERAL COMMUNICATIONS COMMISSION
William F. Caton
1 We note that the Enforcement Bureau issued the Notice of
Apparent Liability in this case under its delegated authority,
but has now referred the matter to the Commission given the
significance of the challenge to the Commission's authority. 47
C.F.R. § 0.5(c) (``the staff is at liberty to refer any matter
at any stage to the Commission for action, upon concluding that
it involves matters warranting the Commission's
2 47 U.S.C. §§ 218, 403, 154(i), 154(j).
3 SBC Communications, Inc., Notice of Apparent Liability for
Forfeiture, 16 FCC Rcd 19370 (2001) (``NAL'').
4 See Oct. 1, 2001 Letter from Charles W. Kelley, Chief,
Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission to Sandra L. Wagner, Vice
President - Federal Regulatory, SBC Telecommunications, Inc.
6 See Oct. 22, 2001 Letter from William A. Brown, Senior
Counsel, SBC Telecommunications, Inc. to Elizabeth H. Valinoti,
Attorney, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission (``LOI Response'').
7 See Dec. 3, 2001 Response of SBC Communications, Inc. to
Notice of Apparent Liability for Forfeiture (``NAL Response''),
Attachment F, ``Affidavit of Caryn D. Moir'' at ¶ 6. As it
turns out, this instance was not the first in which SBC violated
a Bureau directive to submit a sworn written response to a
Bureau inquiry. In at least two other Bureau investigations,
both of which involved possible misrepresentations by SBC, SBC
ignored a Bureau directive that the company submit a sworn
written response to a Bureau LOI without identifying the
omission to the Bureau and without offering any explanation -
legal or otherwise - for its omission. Compare Letter from
David H. Solomon, Chief, Federal Communications Commission
Enforcement Bureau to Sandra L. Wagner, Vice-President, Federal
Regulatory, SBC Telecommunications, Inc., dated July 26, 2001
(LOI directing a ``sworn written response'') (``July 26, 2001
LOI'') with Letter from Reid M. Figel, counsel to SBC
Communications, Inc. to David H. Solomon, Chief, Federal
Communications Commission Enforcement Bureau dated Sept. 7, 2001
(unsworn written response to July 26, 2001 LOI). Compare Letter
from Bradford M. Berry, Deputy Chief, Federal Communications
Commission Enforcement Bureau to Sandra L. Wagner, Vice-
President, Federal Regulatory, SBC Telecommunications, Inc.,
dated Sept. 14, 2001 (LOI directing a ``sworn written
response'') (``Sept. 14, 2001 LOI'') with Letter from Reid M.
Figel, counsel for SBC Communications, Inc., to Trent Harkrader,
Federal Communications Commission Enforcement Bureau dated Sept.
19, 2001 (unsworn written response to Sept. 14, 2001 LOI).
8 See NAL Response at 5; see also NAL Response, Attachment F,
``Affidavit of Caryn D. Moir'' at ¶ 6.
9 In response to the NAL's order that SBC ``submit, not later
than November 7, 2001, a sworn written response to the Bureau's
LOI,'' NAL at 5, SBC filed an affidavit signed by an officer of
the company attesting that the information submitted in response
to the Bureau's October 1, 2001 LOI was ``true and correct to
the best of [the officer's] knowledge.'' See ``Verification to
Letter of Inquiry, File No. EB-00-IH-0282'' signed by John S.
Habeeb, Director - Regulatory, SBC Advance Services, Inc.,
attached to Nov. 7, 2001 Letter from Caryn D. Moir, Vice
President - Federal Regulatory, SBC Telecommunications, Inc. to
Elizabeth H. Valinoti, Attorney, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission
(``SBC's Nov. 7, 2001 Letter''). SBC submitted this affidavit
``under protest and without prejudice to its contention that the
Enforcement Bureau has no authority either to compel sworn
testimony absent a subpoena or to attach additional costs to SBC
for seeking review of a contested point of law.'' See SBC's
Nov. 7, 2001 Letter at 2.
10 See NAL Response.
11 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(a).
12 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
13 See, e.g., Tuscola Broadcasting Co., Memorandum Opinion and
Order, 76 FCC 2d 367, 371 (1980) (applying preponderance of the
evidence standard in reviewing Bureau level forfeiture order).
Cf. 47 U.S.C. § 312(d) (assigning burden of proof in hearings to
14 Under the Communications Act, a party ``willfully''
violates the Communications Act or a Commission rule or order
when it knows it is taking the action in question, irrespective
of any intent to violate the Commission's rules. See 47 U.S.C.
§ 312(f); Southern California Broadcasting Co., Licensee, Radio
Station KIEV(AM) Glendale, California, Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4387-88, ¶ 5 (1991) (citing legislative
history that definition of willful in section 312(f) applies to
section 503(b)); Liability of Hale Broadcasting Corp., Licensee
of Radio Station WMTS Murfreesboro, Tennessee, Memorandum
Opinion and Order, 79 FCC 2d 169, 171, ¶ 5 (1980).
15 The Commission has delegated to the Enforcement Bureau
broad authority to serve as ``the primary Commission entity
responsible for enforcement of the Communications Act and other
communications statutes, the Commission's rules, Commission
orders and Commission authorizations.'' 47 C.F.R. §§ 0.111(a),
0.311. This delegated authority expressly includes the
authority to ``[i]ssue or draft orders taking or recommending
appropriate action in response to complaints or
investigations,'' and to ``issue . . . appropriate interlocutory
orders and take appropriate action in the exercise of its
responsibilities.'' 47 C.F.R. § 0.111(a)(14). Where this
Forfeiture Order speaks to Commission authority, therefore, it
also applies to the delegated authority of the Enforcement
16 47 U.S.C. §§ 154(i), 154(j), 208, 218, 403. See also 47
U.S.C. §308(b) (authority to investigate radio licensees and
17 47 U.S.C. § 218. ``The Commission may inquire into the
management of the business of all carriers subject to this Act.
. . . The Commission may obtain from such carriers, and from
persons directly or indirectly controlling or controlled by, or
under direct or indirect common control with, such carriers full
and complete information necessary to perform the duties and
carry out the objects for which it was created.'' Id.
18 NAL Response at 18.
19 See infra ¶ 10.
20 47 U.S.C. § 403.
The Commission shall have full authority and
power at any time to institute an inquiry, on
its own motion, in any case and as to any
matter or thing concerning which complaint is
authorized to be made, to or before the
Commission by any provision of this Act, or
concerning which any question may arise under
any of the provisions of this Act, or
relating to the enforcement of any of the
provisions of this Act. The Commission shall
have the same powers and authority to proceed
with any inquiry instituted on its own motion
as though it had been appealed to by
complaint or petition under any of the
provisions of this Act, including the power
to make and enforce any order or orders in
the case, or relating to the matter or thing
concerning which the inquiry is had,
excepting orders for the payment of money.
22 47 U.S.C. § 208(a). ``If such carrier or carriers [in
response to a complaint] shall not satisfy the complaint within
the time specified or there shall appear to be any reasonable
ground for investigating said complaint, it shall be the duty of
the Commission to investigate the matters complained of in such
manner and by such means as it shall deem proper.'' Id.
23 ``The Commission may perform any and all such acts, . . .
and issue such orders, not inconsistent with this Act, as may be
necessary in the execution of its functions.'' 47 U.S.C. §
154(i). ``The Commission may conduct its proceedings in such
manner as will best conduce to the proper dispatch of business
and to the ends of justice.'' 47 U.S.C. § 154(j).
24 See, e.g., U.S. v. Southwestern Cable Co., 392 U.S. 157
(1968). ``Congress declined to `stereotyp(e) the powers of the
Commission to specific details.''' Id. at 180 (quoting NBC v.
U.S., 319 U.S. 190, 219 (1943)). ``Thus, the Commission has
been explicitly authorized to issue `such orders, not
inconsistent with this (Act), as may be necessary in the
execution of its functions.''' Id. (citing section 4(i) of the
Communications Act, 47 U.S.C. § 154(i)). See also FCC v.
Schreiber, 381 U.S. 279, 289 (1965) (section 4(j) ``delegates
broad discretion'' to the Commission to, inter alia, ``make ad
hoc procedural rulings in specific cases.''); Mobile
Communications Corp. of America v. FCC, 77 F.3d 1399, 1404 (D.C.
Cir. 1990) (and cases cited therein).
25 See NAL Response at 16.
26 See NAL 19371 at ¶ 4, 19373 at ¶ 10.
27 See Application of Ameritech Michigan Pursuant to Section
271 of the Communications Act of 1934, as amended, to Provide
In-Region, InterLATA Services in Michigan, CC Docket No. 97-137,
Memorandum Opinion and Order, 12 FCC Rcd 20543, 20569 (1997).
28 See, e.g., Sound Broadcasting Corp., Notice of Apparent
Liability for Forfeiture, 7 FCC Rcd 3378, 3379 (Mass Media
Bureau 1992) (noting that a forfeiture in the ``full amount . .
. allowed by law'' was to be imposed because the company's reply
``included only non-notarized statements . . . although [the
Mass Media Bureau] had requested notarized affidavits'').
29 The fact that 18 U.S.C. § 1001 and 47 C.F.R. § 1.17 require
SBC to tell the truth does not, as SBC suggests, render an
attestation superfluous. See NAL Response at 16, 28. Requiring
submission of an attestation may elicit a higher level of care
and attention than the level that answers unaccompanied by
verification may prompt. Attestations can be necessary to
attain the level of reliability that we require to enforce the
Act and our orders and rules. Moreover, to the extent that, as
SBC suggests, the standards of accuracy, reliability, and
accountability elicited by sections 1001 and 1.17 are truly
indistinguishable from those the company must meet when we
require it to attest to the accuracy and veracity of written
responses, the basis for SBC's objection to such an attestation
30 Similarly, as we have noted above, information supported by
sworn verification may be ``necessary'' for purposes of 47
U.S.C. § 218. See supra ¶ 7.
31 See NAL Response at 16 (citing FCC v. Pottsville
Broadcasting Co., 309 U.S. 134, 138 (1940)).
32 47 U.S.C. § 208(a).
33 47 C.F.R. § 1.732(g) (emphasis added).
34 47 C.F.R. § 1.729(e) (emphasis added).
35 Fed. R. Civ. Pro. 33(b)(1).
36 47 U.S.C. § 409(e) (emphasis added).
37 See infra n.46.
38 47 U.S.C. § 409.
39 47 U.S.C. § 409(m).
40 LOI at 2, 4.
41 See, e.g., Peninsula Communications, Inc., Notice of
Apparent Liability for Forfeiture and Order, 16 FCC Rcd 16124
(2001) (ordering broadcast licensee to ``submit an affidavit
informing [the Commission] whether [it] has ceased operating . .
. translators and whether it intends to operate those
translators at any time in the future absent authorization to do
so''); see also Brindlee Broadcasting Corp., Memorandum Opinion
and Order, 54 FCC 2d 56, 57 (Rev. Bd. 1975) (ordering president
of broadcast license applicant to submit ``an explanation . . .
under oath as to how he plans to fulfill his full-time
commitment to [the license applicant] Brindlee'' and his
commitments to other organizations in which he holds an
42 See NAL Response at 14-18.
43 Our conclusion is perfectly consistent with the case law
SBC cites in its Response to the NAL. For example, in AT&T v.
FCC, the FCC's use of its broad authority conferred in sections
4(i), 4(j), 403 and numerous other sections of the Act
conflicted with ``precise procedures and limitations'' in
section 205 of the Act. AT&T v. FCC, 487 F.2d 865, 873 (2d
Cir. 1973). In this case, however, the procedures and
limitations of section 409 simply do not apply. Hence, no
44 We also note that the Supreme Court has upheld the
Commission's authority to utilize its general section 4(i)
authority even when a more specialized provision of the Act is
at the Commission's disposal. U.S. v. Southwestern Cable Co.,
392 U.S at 180 n.46 (noting that the Commission need not ``issue
prohibitory orders only under, and in conformity with . . .
section [312(b) of the Communications Act],'' and that it
appropriately may rely on its general section 4(i) powers to
issue such orders).
45 NAL Response at 13. The procedural protections afforded by
section 409 include payments to witnesses and deponents, aid to
the Commission by federal courts in instances of disobedience to
a subpoena, depositions before specified, disinterested
officers, and caution to deponents to testify the whole truth.
47 U.S.C. §§ 409(e), (f), (g), (h), (i), (k). We note that
these procedures are for the protection of not only the parties
subject to subpoenas, but also for the protection of the
46 NAL Response at 19-22.
47 NAL Response at 22-25.
48 See supra ¶¶ 13-15.
49 47 U.S.C. § 504(a). If a party chooses not to pay a non-
hearing forfeiture, the Commission may refer the matter to the
U.S. Department of Justice for collection proceedings, in which
case the party is entitled to an entirely new trial on the
merits in federal court.
50 Even assuming that the administrative subpoena cases SBC
cites apply here, none of them requires more than that the
parties have the right to judicial review of an administrative
subpoena before ``suffering penalties for refusing to comply.''
See See v. City of Seattle, 387 U.S. 541, 544 (1967), quoted in,
NAL Response at 19. Indeed, those cases tend to reinforce our
finding here that there is ample opportunity for judicial review
of the order at issue, and that it is incumbent upon SBC to
invoke those protections. See, e.g., Oklahoma Press Publ'g Co
v. Walling, 327 U.S. 186, 217 (1946) (rejecting petitioners'
argument that agency subpoena power would subject them to
impermissible inconvenience, expense, and harrassment precisely
because ``they may make appropriate defense surrounded by every
safeguard of judicial restraint.'') (internal quotation
51 See NAL Response at 22-26.
52 See supra n.7.
53 See supra ¶ 3.
54 47 C.F.R. §§ 1.43, 1.44.
55 Moreover, as we discuss above, see supra ¶ 17, even after
the issuance of this Forfeiture Order, SBC may choose not to pay
the forfeiture and to raise a challenge to our findings in a
trial de novo should the Department of Justice prosecute any
collection action we may refer.
56 47 U.S.C. § 408.
57 47 U.S.C. § 416(c).
58 See Peninsula Communications, Inc., Forfeiture Order, FCC
02-31 at ¶ 5 (rel. Feb. 6, 2002).
59 See NAL Response at 22-26. In these cases, parties subject
to various subpoenas or fines actively sought judicial relief to
stay and/or enjoin the relevant order. See, e.g., Oklahoma
Operating Co. v. Love, 252 U.S. 331, 339 (1920) (laundry company
sued to enjoin Oklahoma Corporation Commission from entertaining
rate complaints against company, and from enforcement related to
such complaints); see also, Reisman v. Caplin, 375 U.S. 440, 441
(1964) (attorney filed suit seeking declaratory ruling and
injunctive relief against IRS to invalidate a subpoena demanding
production of work papers ); see also Belle Fourche Pipeline Co.
v. U.S., 751 F.2d 332, 333 (10th Cir. 1984) (oil company filed
complaint seeking declaratory and injunctive relief against an
investigation by the Federal Energy Regulatory Commission).
60 See NAL Response at 23 (quoting Reisman v. Caplin, 375 U.S.
440, 448 n.8, 450 (1964) (emphasis added)). Even under SBC's
asserted interpretation that section 503(b) must, as a
constitutional matter, permit good faith pre-enforcement
challenges, the Bureau's actions were still entirely
61 47 U.S.C. § 503(b)(2)(B); see also 47 C.F.R § 1.80(b)(2);
see also Amendment of Section 1.80(b) of the Commission's Rules,
Adjustment of Forfeiture Maxima to Reflect Inflation, Order, 15
FCC Rcd 18221 (2000).
62 47 U.S.C. § 503(b)(2)(D); see also The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of the
Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd
17087, 17100 (1997) (``Forfeiture Policy Statement''); recon.
denied 15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80(b)(4).
63 47 C.F.R. § 1.80; Forfeiture Policy Statement, 12 FCC Rcd
at 17114, Appendix A, Section I.
64 NAL at 19372-73.
65 47 C.F.R. § 1.80; Forfeiture Policy Statement, 12 FCC Rcd
66 See NAL Response at 27-29.
67 See NAL Response, Attachment F, ``Affidavit of Caryn D.
Moir'' at ¶ 6.
68 Id. See also supra ¶ 3.
69 NAL 19373 at ¶ 10. See supra ¶ 10 and n.30 (discussing
necessity of attestations to Commission investigations).
70 See NAL Response at 5; see also NAL Response, Attachment F,
``Affidavit of Caryn D. Moir'' at ¶ 6.
71 "The Commission is not required to bargain with its
licensees for the information to which it is entitled in order
properly to carry out its functions." See James A. Kay, Jr.,
Decision, FCC 01-341 at ¶ 40 (rel. Jan. 25, 2002) (quoting Carol
Music, Inc., 37 FCC 379, 384 (1964)) (acknowledging licensee
right to register principled objections to Commission directives
but noting that objections do not negate licensee obligation to
comply with directives).
72 SBC correctly points out that $100,000 is the maximum
forfeiture available at this point in this case, see, e.g., NAL
Response at ii, iv, 27, 28, but the company misunderstands the
reason for that limitation. The Commission is limited here to
imposing a maximum $100,000 forfeiture only because this Order
is based on a Bureau-level NAL in which the Bureau proposed a
forfeiture of $100,000, which is the cap on its delegated
authority. See 47 C.F.R. § 0.311. We note, however, that had
the Commission itself issued the NAL in the first instance, we
could have imposed a forfeiture here of up to $120,000 per day,
up to a maximum of $1.2 million for the more than 10 days for
which SBC's violation continued. See 47 U.S.C. § 503(b)(2)(B);
see also 47 C.F.R § 1.80(b)(2); see also Amendment of Section
1.80(b) of the Commission's Rules, Adjustment of Forfeiture
Maxima to Reflect Inflation, Order, 15 FCC Rcd 18221 (2000).
73 47 U.S.C. § 503(b).
74 47 C.F.R. § 1.80.
76 47 U.S.C. § 504(a).