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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
) File No. EB-07-IH-4916
Ultimate Medium Communications
Corporation ) NAL/Acct. No. 200732080036
Apparent Liability for Forfeiture ) FRN No. 0011607538
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: September 20, 2007 Released: September 24, 2007
By the Chief, Investigations and Hearings Division:
1. In this Notice of Apparent Liability for Forfeiture and Order ("NAL"),
we find that Ultimate Medium Communications Corporation ("UMCC")
apparently violated Commission orders by willfully and repeatedly
failing to respond to directives of the Enforcement Bureau ("Bureau")
to provide certain information and documents. Based on our review of
the facts and circumstances of this case, and for the reasons
discussed below, we find that UMCC is apparently liable for a monetary
forfeiture in the amount of $20,000.
2. UMCC is an Indiana-based company that provides local and long distance
voice and data services. UMCC filed a Telecommunications Reporting
Worksheet ("Worksheet") on December 1, 2005, but has not filed any
subsequent Worksheet since that time. On June 14, 2007, the Bureau
issued a letter of inquiry ("LOI") to UMCC to obtain information
concerning UMCC's compliance with, among other things, various
regulatory program filing and contribution requirements. The LOI
directed UMCC to respond to the Bureau's inquiries by July 5, 2007.
Despite receiving the LOI, UMCC failed to provide the LOI response by
the due date.
3. The Bureau sent a follow-up letter on July 19, 2007 ("Follow-Up
Letter") directing UMCC to provide complete responses to inquiries in
the LOI by July 26, 2007. The Follow-Up Letter also warned UMCC that
its failure to respond fully to the Bureau's LOI could subject the
company to potential enforcement action. Upon receiving the facsimile
transmission on July 19, 2007, UMCC's Chief Executive Officer ("CEO")
told Bureau staff that part of the letter was jumbled and claimed that
UMCC did not receive the LOI. Per UMCC's request, Bureau staff
subsequently sent that day via the e-mail address provided by the
company's CEO the Follow-Up Letter and a courtesy copy of the LOI.
UMCC again failed to respond to the LOI. Bureau staff made a final
attempt on July 30, 2007 to contact UMCC to determine if or when the
company would respond to the LOI. UMCC's CEO claimed that he did not
receive the July 19, 2007 E-Mail and that he would contact Bureau
staff after checking with his employees. To date, the Bureau has not
received a response to the LOI.
4. Under section 503(b)(1) of the Communications Act of 1934, as amended
(the "Act"), any person who is determined by the Commission to have
willfully or repeatedly failed to comply with any provision of the Act
or any rule, regulation, or order issued by the Commission shall be
liable to the United States for a forfeiture penalty. Section
312(f)(1) of the Act defines "willful" as "the conscious and
deliberate commission or omission of [any] act, irrespective of any
intent to violate" the law. The legislative history to section
312(f)(1) of the Act clarifies that this definition of willful applies
to both sections 312 and 503(b) of the Act and the Commission has so
interpreted the term in the section 503(b) context. The Commission
also may assess a forfeiture for violations that are merely repeated,
and not willful. "Repeated" means that the act was committed or
omitted more than once, or lasts more than one day. To impose such a
forfeiture penalty, the Commission must issue a notice of apparent
liability 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. The Commission will then issue a forfeiture
if it finds by a preponderance of the evidence that the person has
willfully or repeatedly violated the Act or a Commission order or
A. Apparent Violation
5. We find that UMCC apparently violated Commission orders by willingly
and repeatedly failing to respond to Bureau inquiries. Section 218 of
the Act specifically authorizes the Commission 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." Sections 4(i), 4(j), and 403 of the Act unequivocally
grant the Commission the power to direct responses to inquires in
order to execute its functions. As indicated above, the Bureau
directed UMCC to provide certain documents and information to enable
the Commission to perform its enforcement function and evaluate
allegations that UMCC may have violated Commission rules. There is no
question that UMCC received both the June 14, 2007 LOI and the
Follow-Up Letter. Further, Bureau staff took the additional step of
contacting UMCC by telephone to determine if or when UMCC would be
responding to the LOI. Despite the Bureau's efforts to elicit
information from UMCC, as of the date of this NAL, UMCC has failed to
provide its response to the Bureau's LOI. We therefore conclude that
UMCC's continuing failure to respond to the Bureau's LOI constitutes
an apparent willful or repeated violation of Commission orders.
A. Proposed Forfeiture Amount
6. Section 503(b)(2)(B) of the Act authorizes the Commission to assess a
forfeiture of up to $130,000 for each violation or each day of a
continuing violation, up to a statutory maximum of $1,325,000 for a
single act or failure to act. 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."
7. We propose a forfeiture in the amount of $20,000 for UMCC's willful or
repeated failure to respond to the LOI. 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, and $4,000 for failure to respond to a
Commission communication. We find that UMCC's total failure to respond
to the LOI, notwithstanding the Bureau's multiple attempts to obtain
the company's response, warrants a substantial increase to this base
amount. Misconduct of this type exhibits a disregard for the
Commission's authority and, more importantly, threatens to compromise
the Commission's ability to adequately investigate violations of its
rules. In this case, such misconduct inhibits our ability adequately
to detect and deter potential rule violations in areas of critical
importance to the Commission -- contributions to the federal
regulatory programs. Prompt and full responses to Bureau inquiry
letters are critical to the Commission's enforcement function. We
therefore propose a total forfeiture against UMCC of $20,000 for
failing to respond to Commission communications. This forfeiture
amount is consistent with recent precedent in similar cases, where
companies failed to provide responses to Bureau inquiries concerning
compliance with the Commission's rules despite evidence that the
letters of inquiry had been received.
8. We also direct UMCC to respond fully to the June 14, 2007 LOI within
thirty (30) days of the release of this order. Failure to do so may
constitute an additional violation potentially subjecting UMCC to
further penalties, including potentially higher monetary forfeitures,
the revocation of operating authority, and the disqualification of any
UMCC principal from the provision of any common carrier services
without the prior consent of the Commission.
IV. ORDERING CLAUSES
9. ACCORDINGLY, IT IS ORDERED THAT, pursuant to section 503(b) of the
Communications Act of 1934, as amended, 47 U.S.C. S: 503(b), and
section 1.80 of the Commission's rules, 47 C.F.R. S:1.80, Ultimate
Medium Communications Corporation is hereby NOTIFIED of its APPARENT
LIABILITY FOR FORFEITURE in the amount of $20,000 for willfully and
repeatedly violating Commission orders.
10. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the
Commission's rules, 47 C.F.R. S: 1.80, within thirty (30) days of the
release date of this NOTICE OF APPARENT LIABILITY FOR FORFEITURE,
Ultimate Medium Communications Corporation SHALL PAY the full amount
of the proposed forfeiture currently outstanding on that date or SHALL
FILE a written statement seeking reduction or cancellation of the
11. Payment by check or money order, payable to the order of the "Federal
Communications Commission," 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. The payment should note the NAL/Acct. No.
12. IT IS FURTHER ORDERED, that pursuant to sections 4(i), 4(j), 218 and
403 of the of the Communications Act of 1934, as amended, 47 U.S.C.
S:S: 4(i), 4(j), 218 and 403, and section 54.711 of the Commission's
rules, 47 C.F.R. S: 54.711, Ultimate Medium Communications
Corporation, shall fully respond to the June 14, 2007 and July 19,
2007 Letters of Inquiry sent by the FCC's Enforcement Bureau within
thirty (30) days of the release of this order.
13. The response, if any, to this NOTICE OF APPARENT LIABILITY FOR
FORFEITURE must be mailed to Hillary S. DeNigro, Chief, Investigations
and Hearings Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street, S.W., Suite 4-C330, Washington, D.C.
20554 and must include the NAL/Acct. No. referenced above. In
addition, a copy of the response, if any, should be sent to the
following E-mail address: email@example.com.
14. 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; 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
15. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Chief, Revenue and Receivables Operations Group, 445 12th Street, SW,
Washington, DC 20554.
16. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT LIABILITY
shall be sent, by certified mail/return receipt requested to Scott
Wilson, Ultimate Medium Communications Corporation, 484 East Carmel
Drive, #290, Carmel, IN 46032.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
(accessed August 23, 2007);
(assessed August 23, 2007);
(accessed August 23, 2007).
Letter from Trent B. Harkrader, Deputy Chief, Investigations and Hearings
Division, Enforcement Bureau, to Scott Wilson, Chief Executive Officer,
Ultimate Medium Communications Corporation, dated June 14, 2007 (the
"LOI"). Bureau staff sent the LOI to UMCC's address in Camel, IN by
certified mail, return receipt requested and facsimile. Receipt of the
letter is shown by confirmation of the facsimile transmission to the
facsimile number and the signed certified mail return receipt card.
Telecommunications carriers must submit first a Form 499-A registration,
and upon issuance of a filer identification number by USAC, must submit
thereafter annual Telecommunications Reporting Worksheets for the purpose
of assessing various regulatory fee program payments. See 47 C.F.R. S:S:
1.1157, 52.17, 52.32, 54.706, 54.711, 64.604 and 64.1195. In addition,
telecommunications carriers, with certain exceptions, must file quarterly
Worksheets to determine monthly universal service contributions. See 47
C.F.R. S:S: 54.706, 54.711, 54.713; FCC Form 499-Q (2007) (quarterly
Worksheets). USAC is the data collection agent for FCC Form 499s. See FCC
Form 499-A (2007) at 8; FCC Form 499-Q (2007).
Receipt of the letter is shown by confirmation of the facsimile
transmission to the facsimile number and the signed certified mail return
Letter from Trent B. Harkrader, Deputy Chief, Investigations and Hearings
Division, Enforcement Bureau, to Scott Wilson, Ultimate Medium
Communications Corporation, dated July 19, 2007 ("Follow-Up Letter"). The
letter was initially sent by certified mail/return receipt and by
facsimile. Receipt of the letter is shown by confirmation of the facsimile
transmission to the facsimile number. There was no return receipt for the
E-Mail from Diana Lee, Attorney Advisor, Investigations and Hearings
Division, to Scott Wilson, Chief Executive Officer, Ultimate Medium
Communications Corporation (July 19, 2007) ("July 19, 2007 E-Mail"). UMCC
confirmed the e-mail address as valid prior to e-mail delivery. In
addition, UMCC listed the e-mail address as contact information on UMCC's
2005 FCC Form 499-A.
47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1); see also 47 U.S.C. S:
503(b)(1)(D) (forfeitures for violation of 14 U.S.C. S: 1464).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) ("Southern
California Broadcasting Co.").
See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of
Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362, P: 10
(2001) ("Callais Cablevision") (issuing a Notice of Apparent Liability
for, inter alia, a cable television operator's repeated signal leakage).
Southern California Broadcasting Co., 6 FCC Rcd at 4388, P: 5; Callais
Cablevision., 16 FCC Rcd at 1362, P: 9.
47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591 (2002) ("SBC Forfeiture Order").
47 U.S.C. S: 218.
47 U.S.C. S:S: 154(i),(j), & 403.
See supra at nn. 6-8.
See, e.g., SBC Forfeiture Order, 17 FCC Rcd 7589, 7599-7600, P:P: 23-28
(ordering $100,000 forfeiture for egregious and intentional failure to
certify the response to a Bureau inquiry); Globcom, Inc., Notice of
Apparent Liability for Forfeiture and Order, 18 FCC Rcd 19893, 19898 n. 36
(2003) (noting delayed response to an LOI is considered dilatory behavior
which may result in future sanctions); BigZoo.Com Corporation, Notice of
Apparent Liability for Forfeiture and Order, 19 FCC Rcd 24437 (Enf. Bur.
2004), Order of Forfeiture, 20 FCC Rcd 3954 (Enf. Bur. 2005) ("BigZoo")
(ordering $20,000 forfeiture for failure to respond to an LOI); American
Family Association, Licensee of Station KBMP(FM), Enterprise, Kansas,
Notice of Apparent Liability for Forfeiture, 19 FCC Rcd 14072, Forfeiture
Order, 19 FCC Rcd 22025 (Enf. Bur. 2004) (ordering $3,000 forfeiture
against non-commercial educational station for a partial response to an
LOI); World Communications Satellite Systems, Inc., Notice of Apparent
Liability for Forfeiture, 18 FCC Rcd 18545 (Enf. Bur. 2003) (proposing
$10,000 forfeiture for non-responsive reply to an LOI); Donald W.
Kaminski, Jr., Notice of Apparent Liability for Forfeiture, 16 FCC Rcd
10707 (Enf. Bur. 2001), Forfeiture Order, 18 FCC Rcd 26065 (Enf. Bur.
2003) (ordering $4,000 forfeiture for individual's failure to respond to
47 U.S.C. S: 503(b)(2)(B); see also 47 C.F.R. S: 1.80(b)(2); Amendment of
Section 1.80(b) of the Commission's Rules, Adjustment of Forfeiture Maxima
to Reflect Inflation, Order, 19 FCC Rcd 10945 (2004).
47 U.S.C. S: 503(b)(2)(D).
47 C.F.R. S: 1.80; Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
Report and Order, 12 FCC Rcd 17087, 17114 (1997) ("Forfeiture Policy
Statement"), recon. denied 15 FCC Rcd 303 (1999).
See, e.g., Universal Telecommunications, Inc., Notice of Apparent
Liability for Forfeiture and Order, 21 Rcd 6579 (Enf. Bur. 2006) (ordering
$20,000 forfeiture for failure to respond to an LOI); BigZoo, 20 FCC Rcd
at 3955 (same); QuickLink Telecom, Inc., Order of Forfeiture, 20 FCC Rcd
14464 (Enf. Bur. 2005) (same).
See CCN, Inc., et. al, Order to Show Cause and Opportunity for Hearing,
Order, 13 FCC Rcd 13599 (1998) (revoking carrier's operating authority
based on findings of repeated violations); see also, e.g., Business
Options, Inc., Consent Decree, 19 FCC Rcd 2916 (2003); NOS Communications,
Inc., Affinity Network Incorporated and NOSVA Limited Partnership, Consent
Decree, 2003 WL 22439710 (2003).
See 47 C.F.R. S: 1.1914.
(Continued from previous page)
Federal Communications Commission DA 07-4019
Federal Communications Commission DA 07-4019