Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554




                                            )                               
                                                                            
                                            )                               
                                                                            
                                            )                               
                                                                            
     In the Matter of                       )   File No. EB-06-TC-4496      
                                                                            
     PriorityOne Telecommunications, Inc.   )   NAL/Acct. No. 200732170055  
                                                                            
     Apparent Liability for Forfeiture      )   FRN: 0004272373             
                                                                            
                                            )                               
                                                                            
                                            )                               
                                                                            
                                            )                               


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted:  March 29, 2007 Released:  March 29, 2007

   By the Chief, Enforcement Bureau:

   I. INTRODUCTION

   1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
   that PriorityOne Telecommunications, Inc. ("PriorityOne") apparently
   violated section 64.2009(e) of the Commission's rules by failing to have a
   corporate officer with personal knowledge execute an annual certificate
   stating that the company has established operating procedures adequate to
   ensure compliance with the Commission's rules governing protection and use
   of customer proprietary network information ("CPNI"). Protection of CPNI
   is a fundamental obligation of all telecommunications carriers as provided
   by section 222 of the Communications Act of 1934, as amended
   ("Communications Act" or "Act"). Based upon our review of the facts and
   circumstances surrounding this apparent violation and, in particular, the
   serious consequences that may flow from inadequate concern for and
   protection of CPNI, we propose a monetary forfeiture of $100,000 against
   PriorityOne for its apparent failure to comply with section 64.2009(e) of
   the Commission's rules.

   II. BACKGROUND

   2. The Enforcement Bureau ("Bureau") has been investigating the adequacy
   of procedures implemented by telecommunications carriers to ensure
   confidentiality of their subscribers' CPNI, based on concerns regarding
   the apparent availability to third parties of sensitive, personal
   subscriber information. For example, some companies, known as "data
   brokers," have advertised the availability of records of wireless
   subscribers' incoming and outgoing telephone calls for a fee. Data brokers
   have also advertised the availability of certain landline toll calls.

   3. As part of our inquiry into these issues, the Bureau sent a Letter of
   Inquiry ("LOI") to PriorityOne on December 5, 2006, directing it to
   produce the compliance certificates for the previous five (5) years that
   it had prepared pursuant to section 64.2009(e) of the Commission's rules.
   On December 11, 2006, PriorityOne submitted a document in response to the
   Bureau's LOI. The document submitted by PriorityOne does not satisfy the
   requirements set forth in the rule. Accordingly, we issue this proposed
   forfeiture.

   III. DISCUSSION

   4. Section 222 imposes the general duty on all telecommunications carriers
   to protect the confidentiality of their subscribers' proprietary
   information. The Commission has issued rules implementing section 222 of
   the Act. The Commission required carriers to establish and maintain a
   system designed to ensure that carriers adequately protected their
   subscribers' CPNI. Section 64.2009(e) is one such requirement. Pursuant to
   section 64.2009(e):

   A telecommunications carrier must have an officer, as an agent of the
   carrier, sign a compliance certificate on an annual basis stating that the
   officer has personal knowledge that the company has established operating
   procedures that are adequate to ensure compliance with the rules in this
   subpart. The carrier must provide a statement accompanying the certificate
   explaining how its operating procedures ensure that it is or is not in
   compliance with the rules in this subpart.

   5. PriorityOne's December 11 response to the Bureau's December 5 LOI
   describes generally how PriorityOne uses CPNI. The document, however, does
   not contain a statement by an officer "that the officer has personal
   knowledge that [PriorityOne] has established operating procedures that are
   adequate to ensure compliance with the [CPNI] rules. . . ." Accordingly,
   PriorityOne's submission, on its face, does not comply with section
   64.2009(e) of the Commission's rules. Further, PriorityOne has not
   provided any additional information in response to our request
   demonstrating that it has otherwise complied with the Commission's CPNI
   rules by preparing and maintaining a certificate that satisfies the
   requirements of section 64.2009(e). Finally, PriorityOne failed to provide
   any compliance certificates for the years preceeding the most recent one,
   executed February 3, 2006.

   6. We conclude that PriorityOne has apparently failed to comply with the
   requirement that it have an officer certify on an annual basis that the
   officer has personal knowledge that PriorityOne has established operating
   procedures adequate to ensure compliance with the Commission's CPNI rules.
   For this apparent violation, we propose a forfeiture.

   IV. FORFEITURE AMOUNT

   7. Section 503(b) of the Communications Act authorizes the Commission to
   assess a forfeiture of up to $130,000 for each violation of the Act or of
   any rule, regulation, or order issued by the Commission under the Act. The
   Commission may assess this penalty if it determines that the carrier's
   noncompliance is "willful or repeated." For a violation to be willful, it
   need not be intentional. In exercising our forfeiture authority, we are
   required to 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 such other
   matters as justice may require." In addition, the Commission has
   established guidelines for forfeiture amounts and, where there is no
   specific base amount for a violation, retained discretion to set an amount
   on a case-by-case basis.

   8. The Commission's forfeiture guidelines do not address the specific
   violation at issue in this proceeding. In determining the proper
   forfeiture amount in this case, however, we are guided by the principle
   that there may be no more important obligation on a carrier's part than
   protection of its subscribers' proprietary information. Consumers are
   increasingly concerned about the security of their sensitive, personal
   data that they must entrust to their various service providers, whether
   they are financial institutions or telephone companies. Given the
   increasing concern about the security of this data, and evidence that the
   data appears to be widely available to third parties, we must take
   aggressive, substantial steps to ensure that carriers implement necessary
   and adequate measures to protect their subscribers' CPNI, as required by
   the Commission's existing CPNI rules. Additionally, in three recent
   actions, the Commission has issued Notices of Apparent Liability for
   Forfeiture in the amount of $100,000 against carriers for failure to
   maintain certifications in compliance with section 64.2009(e) of the
   Commission's rules. In this case, PriorityOne has apparently failed to
   implement necessary and adequate measures, as required, to protect the
   subscribers' CPNI data entrusted to it, as evidenced by the apparent
   insufficiency of the required compliance certification. Based on all the
   facts and circumstances present in this case, we believe the proposed
   forfeiture of $100,000 is warranted.

   9. PriorityOne will have the opportunity to submit further evidence and
   arguments in response to this NAL to show that no forfeiture should be
   imposed or that some lesser amount should be assessed. For example,
   PriorityOne may present evidence that it has compelling financial
   arguments to reduce the proposed forfeiture or that it has maintained a
   history of overall compliance. To support a claim of inability to pay, the
   petitioner must submit: (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. The Commission will fully consider any such
   arguments made by PriorityOne in its response to this NAL.

   V. CONCLUSION AND ordering clauses

   10. We have determined that PriorityOne has apparently violated Section
   64.2009(e) of the Commission's rules by failing to prepare and maintain a
   certification in compliance with the rule. We find PriorityOne apparently
   liable for $100,000.

   11. ACCORDINGLY, IT IS ORDERED THAT, pursuant to Section 503(b) of the
   Communications Act of 1934, as amended, Section 1.80(f)(4) of the
   Commission's rules, and authority delegated by Sections 0.111 and 0.311 of
   the Commission's rules, PriorityOne IS LIABLE FOR A MONETARY FORFEITURE in
   the amount of one hundred thousand dollars ($100,000) for willfully or
   repeatedly violating Section 64.2009 of the Commission's rules, by failing
   to prepare and maintain a certificate that complies with 64.2009(e).

   12. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the
   Commission's rules, within thirty days of the release date of this NOTICE
   OF APPARENT LIABILITY, PriorityOne SHALL PAY the full amount of the
   proposed forfeiture or SHALL FILE a written statement seeking reduction or
   cancellation of the proposed forfeiture.

   13. Payment of the forfeiture must be made by check or similar instrument,
   payable to the order of the Federal Communications Commission. The payment
   must include the NAL/Acct. No. and FRN No. referenced above. Payment by
   check or money order may be mailed to Forfeiture Collection Section,
   Finance Branch, Federal Communications Commission, P.O. Box 358340,
   Pittsburgh, PA 15251. Payment by overnight mail may be sent to Mellon
   Client Service Center, 500 Ross Street, Room 670, Pittsburgh, PA
   15262-0001. Attn: FCC Module Supervisor. Payment by wire transfer may be
   made to ABA Number 043000261, receiving bank Mellon Bank, and account
   number 911-6229. Please include your NAL/Acct. No. with your wire transfer
   remittance. Requests for payment of the full amount of this NAL under an
   installment plan should be sent to Chief, Credit and Management Center,
   445 12^th Street, S.W., Washington, D.C. 20554.

   14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by
   Certified Mail, Return Receipt Requested to PriorityOne
   Telecommunications, Inc.

   FEDERAL COMMUNICATIONS COMMISSION

   Kris A. Monteith

   Chief, Enforcement Bureau

   See 47 C.F.R. S64.2009(e).

   CPNI is defined as information that relates to the quantity, technical
   configuration, type, destination, location, and amount of use of a
   telecommunications service subscribed to by any customer of a
   telecommunications carrier, and that is made available to the carrier by
   the customer solely by virtue of the customer-carrier relationship. See 47
   U.S.C. S 222(h)(1)(A); 47 C.F.R. S 64.2003(d).

   See, e.g. http://www.epic.org/privacy/iei/.

   See id.

   Letter from Marcy Greene, Deputy Chief, Telecommunications Consumers
   Division, Enforcement Bureau, Federal Communications Commission, to Kelly
   Mutch, President and CEO, PriorityOne Telecommunications, Inc. (December
   5, 2006) ("December 5 LOI").

   Section 222 of the Communications Act provides that: "Every
   telecommunications carrier has a duty to protect the confidentiality of
   proprietary information of, and relating to, other telecommunications
   carriers, equipment manufacturers, and customers, including
   telecommunication carriers reselling telecommunications services provided
   by a telecommunications carrier." 47 U.S.C S 222.

   In the Matter of Implementation of the Telecommunications Act of 1996:
   Telecommunications Carriers' Use of Customer Proprietary Network
   Information and Other Customer Information and Implementation of the
   Non-Accounting Safeguards of Sections 271 and 272 of the Communications
   Act of 1934, as amended,  Order and Further Notice of Proposed Rulemaking,
   13 FCC Rcd 8061 (1998) ("CPNI Order"); see also  In the Matter of
   Implementation of the Telecommunications Act of 1996: Telecommunications
   Carriers' Use of Customer Proprietary Network Information and Other
   Customer Information and Implementation of the Non-Accounting Safeguards
   of Sections 271 and 272 of the Communications Act of 1934, as amended,
   Order on Reconsideration and Petitions for Forbearance,  14 FCC Rcd 14409
   (1999);  In the Matter of Implementation of the Telecommunications Act of
   1996: Telecommunications Carriers' Use of Customer Proprietary Network
   Information and Other Customer Information and Implementation of the
   Non-Accounting Safeguards of Sections 271 and 272 of the Communications
   Act of 1934, as amended; 2000 Biennial Regulatory Review -- Review of
   Policies and Rules Concerning Unauthorized Changes of Consumers' Long
   Distance Carriers,  Third Report and Order and Third Further Notice of
   Proposed Rulemaking, 17 FCC Rcd 14860 (2002).

   47 C.F.R. S 64.2009(e).

   Section 503(b)(2)(B) provides for forfeitures against common carriers of
   up to $130,000 for each violation or each day of a continuing violation up
   to a maximum of $1,325,000 for each continuing violation.  47 U.S.C. S
   503(b)(2)(B). See Amendment of Section 1.80 of the Commission's Rules and
   Adjustment of Forfeiture Maxima to Reflect Inflation, 15 FCC Rcd 18221
   (2000); Amendment of Section 1.80 of the Commission's Rules and Adjustment
   of Forfeiture Maxima to Reflect Inflation, 19 FCC Rcd 10945 (2004)
   (increasing maximum forfeiture amounts to account for inflation).

   47 U.S.C. S 503(b)(1)(B) (The Commission has authority under this section
   of the Act to assess a forfeiture penalty against a common carrier if the
   Commission determines that the carrier has "willfully or repeatedly"
   failed to comply with the provisions of the Act or with any rule,
   regulation, or order issued by the Commission under the Act); see also 47
   U.S.C. S 503(b)(4)(A) (The section provides that the Commission must
   assess such penalties through the use of a written notice of apparent
   liability or notice of opportunity for hearing). Here, as described above,
   PriorityOne's actions were willful as it apparently failed to prepare the
   required compliance certification.

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

   See 47 U.S.C. S 503(b)(2)(D); see also The Commission's Forfeiture Policy
   Statement and Amendment of Section 1.80 of the Commission's Rules, 12 FCC
   Rcd 17087 (1997) ("Forfeiture Policy Statement"); recon. denied, 15 FCC
   Rcd 303 (1999).

   Forfeiture Policy Statement, 12 FCC Rcd 17098-99, P 22.

   AT&T, Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 751
   (Enf. Bur. rel. Jan. 30, 2006); Alltel Corp., Notice of Apparent Liability
   for Forfeiture, 21 FCC Rcd 746 (Enf. Bur. rel. Jan 30, 2006); Cbeyond
   Communications LLC, Notice of Apparent Liability for Forfeiture, 21 FCC
   Rcd 4316 (Enf. Bur. rel. April 21, 2006).

   47 U.S.C. S 503(b)(4)(A).

   47 U.S.C. S 503(b)(4)(C); 47 C.F.R. S 1.80(f)(3).

   47 C.F.R. S 1.80(b)(4) (discussing factors the Commission or its designee
   will consider in deciding appropriate forfeiture amount).

   47 U.S.C. S 503(b).

   47 C.F.R. S 1.80(f)(4).

   47 C.F.R. SS 0.111, 0.311.

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 07-1414

   3

   Federal Communications Commission DA 07-1414