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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

                         )   File No. EB-08-TC-2581      
     In the Matter of                                    
                         )   NAL/Acct. No. 200832170071  
     Qwest Corporation                                   
                         )   FRN: 0003746757             


   Adopted: September 12, 2008 Released: September 12, 2008

   By the Chief, Enforcement Bureau:


    1. In this Notice of Apparent Liability For Forfeiture ("NAL"), we find
       that Qwest Corporation ("Qwest"), as an eligible telecommunications
       carrier ("ETC"), apparently violated Section 54.418 of the
       Commission's rules. Specifically, we find that Qwest apparently
       willfully and repeatedly failed to provide certain Lifeline customers
       with notices about the transition of over-the-air full power
       broadcasting from analog to digital service (the "DTV transition") in
       the monthly bills or bill notices received by these customers. Based
       upon our review of the facts and circumstances surrounding this
       apparent violation, we find that Qwest is apparently liable for a
       monetary forfeiture in the amount of fifty-one thousand dollars


    2. On February 19, 2008, the Commission adopted DTV consumer education
       outreach requirements intended to promote consumer awareness of the
       upcoming DTV transition. Under these requirements, ETCs that receive
       federal universal service funds must provide their Lifeline or Link-Up
       customers with notices about the DTV transition in the monthly bills
       or bill notices received by such customers. The notices must be in
       clear and conspicuous print and must contain at least the following
       information about the DTV transition:

     * After February 17, 2009, a television receiver with only an analog
       broadcast tuner will require a converter box to receive full power
       over-the-air broadcasts with an antenna because of the Nation's
       transition to digital broadcasting. Analog-only TVs should continue to
       work as before to receive low power, Class A, or translator television
       stations and with cable and satellite TV services, gaming consoles,
       VCRs, DVD players, and similar products.

     * Information about the DTV transition is available at, and
       information about subsidized coupons for digital-to-analog converter
       boxes is available at or 1-888-DTV-2009.

   If an ETC's Lifeline or Link-Up customers do not receive paper versions of
   either a bill or a notice of billing, then those customers must receive
   equivalent monthly notices in whatever medium in which they receive
   information about their monthly bill. As an alternative to the billing
   notices, ETCs may send separate monthly mailers with the required
   information about the DTV transition. ETCs should have begun to send the
   required DTV consumer education notices on April 30, 2008, and may cease
   doing so in March 2009.

    3. Qwest provides local telephone service to customers in numerous states
       and is an ETC that receives federal universal service funds. On July
       2, 2008, the Commission issued a Letter of Inquiry ("LOI") to Qwest to
       determine whether Qwest had complied with Section 54.418 of the rules.
       In its response to the LOI, Qwest states that "in the process of
       preparing its response to this inquiry, [Qwest] discovered that
       Lifeline and Link-Up customers receiving on-line bills in [Qwest's]
       central and western regions had not been receiving the DTV transition
       notice. This was an oversight." The company offers no further
       explanation for the error. According to the company, approximately
       8,500 of its Lifeline and Link-Up customers in nine western states
       failed to receive DTV transition notices in the months of May, June,
       and July 2008. Qwest states that it has fixed this problem and that
       its Lifeline and Link-Up customers who receive on-line bills in the
       central and western region would begin receiving the monthly notice in
       their August bills.

    4. Under Section 503(b)(1) of 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 may also 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 violated the Act or a Commission rule.


   A. Qwest Apparently Violated the Commission's Rules Requiring DTV
   Transition Notices To Lifeline and Link-Up Customers

    5. Qwest concedes that it failed to send DTV transition notices to
       approximately 8,500 Lifeline and Link-Up customers in the months of
       May, June, and July 2008. Accordingly, we find that Qwest apparently
       willfully and repeatedly violated Section 54.418(a) of the
       Commission's rules by failing to provide the required DTV transition
       notice to numerous Lifeline and Link-Up subscribers either as a
       separate mailer or with their May, June, and July 2008 bills.

   B. Proposed Forfeiture

    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 exercising such authority, we are 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."

    7. The Commission's Forfeiture Policy Statement and Section 1.80 of the
       Rules do not establish a specific base forfeiture for violation of
       Section 54.418(a)'s notice requirements. The Commission has warned,
       however, that "any omission of a specific rule violation from the ...
       [forfeiture guidelines] ... should not signal that the Commission
       considers any unlisted violation as nonexistent or unimportant."
       Indeed, the Commission emphasized the importance of the ETC
       requirements in the DTV Consumer Education Initiative:

   In a survey on the DTV transition, the GAO found that over-the-air
   households are more likely to have lower incomes than cable or satellite
   households and that approximately 48 percent of exclusive over-the-air
   viewers have household incomes less than $30,000.... Because the DTV
   transition will greatly affect lower income households and the
   Lifeline/Link-Up programs already serve this same demographic, we have an
   already established communication path that can be used to further the
   success of the DTV transition. By communicating with these lower income
   households, we ensure that all Americans will have the knowledge they need
   in order to prepare for the DTV broadcast transition.

   The Commission further noted that Americans rely heavily on their
   televisions to receive emergency information through the Emergency Alert
   System, and tragedy might result if people lost the ability to receive
   such alerts because they were unaware of the DTV transition. "Therefore,
   ensuring that all Americans receive notice of the upcoming DTV transition,
   including those that have been identified as at risk of not receiving the
   necessary information, is a critical step to achieving our mandate to
   promote public safety."

    8. Because of the significance of the Commission's DTV transition notice
       requirements and the potential scale of violations in this area, we
       find instructive the forfeiture calculation methodologies adopted by
       the Commission in other DTV-related enforcement areas. For example, in
       cases involving the interstate shipment or importation of television
       receivers incapable of receiving digital broadcast signals, the
       Commission based its forfeiture calculations on each unit shipped or
       imported. To reflect the increasing seriousness of the violations as
       the number of non-compliant units shipped or imported rises, the
       Commission established tiers of violations with increasing per-unit
       forfeitures for each successive tier. The Commission adopted a similar
       approach for cases involving the interstate shipment or U.S.
       manufacture of television receivers that do not comply with the
       Commission's program blocking rules. In the Funai NAL, the Commission
       again proposed a forfeiture for each television receiver shipped
       interstate that did not comply with FCC rules, calculating the
       forfeiture based on tiers of units with increasing penalty amounts as
       the tiers progressed.

    9. We find that a similar approach should apply to violations of the DTV
       Consumer Education requirements, and will appropriately take into
       account the specific facts of each individual case. Therefore, in
       cases involving an ETC's failure to send monthly DTV transition
       notices to its Lifeline/Link-Up customers in apparent violation of 47
       C.F.R. S: 54.118, we will base our forfeiture calculations on the
       number of customers each month that failed to receive proper notice of
       the DTV transition, with increasing per customer forfeitures imposed
       for each successive month in which the ETC failed to comply with the
       Commission's rules. Such an approach should encourage prompt
       compliance and adequately punish the most egregious violators. Thus,
       for a single month of violations, an ETC will face a forfeiture of one
       dollar ($1.00) for each customer that did not receive proper notice of
       the DTV transition. We will increase the per-customer penalty for each
       additional month by an additional dollar. Thus, a second month of
       violations will result in a forfeiture of two dollars ($2.00) per
       customer, a third month would result in a forfeiture of three dollars
       ($3.00) per customer, and so on. We caution that if this forfeiture
       calculation approach does not adequately deter future violations by
       Qwest or other ETCs, we will consider other penalties within the scope
       of our authority, including substantially higher forfeitures.

   10. In this case, Qwest failed to send proper DTV transition notices to
       8,500 customers each month during May, June, and July 2008. Therefore,
       the forfeiture for Qwest 's apparent violations is $51,000.
       Accordingly, we propose a total forfeiture of $51,000 against Qwest
       for its apparent willful and repeated violations of Section 54.418(a).

   11. Because of the number of Lifeline/Link-Up customers served by ETCs,
       the failure to provide DTV consumer education notices as required by
       the Commission's rules is crucial, especially since consumers
       participating in the Lifeline and Link-Up programs are particularly
       likely to be over-the-air viewers and billing notices are a critical
       means of reaching them. The imminent nature of the DTV transition and
       its potential impact on unaware consumers further increases the
       importance of each and every educational opportunity.

   IV. ordering clauses

   12. 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, Qwest IS LIABLE FOR A MONETARY
       FORFEITURE in the amount of fifty-one thousand dollars ($51,000) for
       willfully and repeatedly violating Section 54.418(a) of the
       Commission's rules.

   13. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
       Commission's rules, within thirty (30) days of the release date of
       this Notice of Apparent Liability for Forfeiture, Qwest SHALL PAY the
       full amount of the proposed forfeiture or SHALL FILE a written
       statement seeking reduction or cancellation of the proposed

   14. Payment of the forfeiture must be made by check or similar instrument,
       payable to the order of the Federal Communications Commission. The
       payment(s) must include the NAL/Account Numbers and FRN Numbers
       referenced above. Payment by check or money order may be mailed to
       Federal Communications Commission, P.O. Box 979088, St. Louis, MO
       63197-9000. Payment by overnight mail may be sent to U.S. Bank -
       Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
       Louis, MO 63101. Payment by wire transfer may be made to ABA Number
       021030004, receiving bank TREAS/NYC, and account number 27000001. For
       payment by credit card, an FCC Form 159 (Remittance Advice) must be
       submitted.  When completing the FCC Form 159, enter the NAL/Account
       number in block number 23A (call sign/other ID), and enter the letters
       "FORF" in block number 24A (payment type code). Qwest will also send
       electronic notification on the date said payment is made to Requests for full payment under an installment
       plan should be sent to:  Chief Financial Officer -- Financial
       Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C. 
       20554.   Please contact the Financial Operations Group Help Desk at
       1-877-480-3201 or Email: with any questions
       regarding payment procedures. 

   15. The response, if any, must be mailed both to the Office of the
       Secretary, Federal Communications Commission, 445 12th Street, SW,
       Washington, DC 20554, ATTN: Enforcement Bureau - Telecommunications
       Consumers Division, and to Marcy Greene, Deputy Chief,
       Telecommunications Consumers Division, Enforcement Bureau, Federal
       Communications Commission, 445 12th Street, SW, Washington, DC 20554,
       and must include the NAL/Acct. Nos. referenced in the caption.

   16. 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
       documentation submitted.

   17. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
       for Forfeiture shall be sent by Certified Mail Return Receipt
       Requested and First Class Mail to Tiffany West Smink, Senior Attorney,
       Qwest, 1801 California Street, 10th Floor, Denver, CO 80202.


   Kris Anne Monteith

   Chief, Enforcement Bureau

   47 C.F.R. S:54.418.

   See DTV Consumer Education Initiative, Report and Order, 23 FCC Rcd 4134
   (2008) ("DTV Consumer Education Initiative Report and Order").

   The Lifeline/Link-Up programs provide discounts off the initial
   installation and monthly costs of telephone service to millions of
   low-income consumers. Id. at 4162.

   47 C.F.R. S:54.418(a).

   Id. at S:54.418(b).

   Id. at S:54.418(c).


   The DTV transition notice requirements for ETCs went into effect 30 days
   after the effective date of Section 54.418. That date was March 31, 2008.
   See Media Bureau Announces Effective Date for the Rules in the DTV
   Consumer Education Initiative, Public Notice, DA 08-757 (Media Bur. rel.
   March 28, 2008).

   Letter from Colleen Heitkamp, Chief, Telecommunications Consumers
   Division, Enforcement Bureau, Federal Communications Commission to Melissa
   Newman, Vice President Federal Regulatory Affairs,, Qwest Corporation
   dated July 2, 2008 ("LOI").

   Letter from Tiffany West Smink, Senior Attorney, Qwest Corporation., to
   Robert Somers, Senior Attorney, and Colleen Heitkamp, Chief,
   Telecommunications Consumers Division, Enforcement Bureau, Federal
   Communications Commission, dated August 1, 2008 at 3 ("LOI Response").

   Id. The states involved were Arizona, Colorado, Idaho, Montana, New
   Mexico, Oregon, Utah, Washington, and Wyoming.

   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) ("This provision
   [inserted in Section 312] defines the terms 'willful' and repeated' for
   purposes of section 312, and for any other relevant section of the act
   (e.g., section 503).... As defined ... 'willful' means that the licensee
   knew that he was doing the act in question, regardless of whether there
   was an intent to violate the law. "Repeated" means more than once, or
   where the act is continuous, for more than one day. Whether an act is
   considered to be 'continuous' would depend upon the circumstances in each
   case. The definitions are intended primarily to clarify the language in
   sections 312 and 503, and are consistent with the Commission's application
   of those terms ...").

   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, para.
   10 (2001) ("Callais Cablevision, Inc.") (issuing a Notice of Apparent
   Liability for, inter alia, a cable television operator's repeated signal

   Southern California Broadcasting Co., 6 FCC Rcd at 4388, para. 5; Callais
   Cablevision, Inc., 16 FCC Rcd at 1362, para. 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, para. 4 (2002).

   LOI Response at 3.

   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, Order, 19 FCC Rcd 10945 (2004).
   We note that effective September 2, 2008, the maximum forfeiture amount
   allowed increased to $150,000 for each violation or each day of a
   continuing violation, up to a maximum of $1.5 million for a single act or
   failure to act. Inflation Adjustment of Maximum Forfeiture Penalties,
   Final Rule, 73 Fed. Reg. 44663, 44664 (2008). Because the apparent
   violations here occurred prior to the effective date of the inflationary
   adjustment, the increased forfeiture amounts do not apply.

   47 U.S.C. S: 503(b)(2)(D); The 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, 17100-01 para. 27 (1997)
   (Forfeiture Policy Statement), recon. denied, 15 FCC Rcd 303 (1999).

   See Forfeiture Policy Statement, 12 FCC Rcd at 17115.

   Forfeiture Policy Statement, 12 FCC Rcd at 17099.

   DTV Education Initiative Report and Order, 23 FCC Rcd at 4162.

   Id. at 4162.

   Id. at 4163.

   See, e.g., Invision Industries, Inc., Notice of Apparent Liability for
   Forfeiture, FCC 08-187 (rel. Aug. 18, 2008) (proposing a $324,000
   forfeiture for the unlawful importation of 4,115 analog-only television

   Id. at P:P: 19-20.

   See Funai Corporation, Inc., Notice of Apparent Liability for Forfeiture,
   22 FCC Rcd 19663 (2007) ("Funai NAL") (subsequent history omitted).


   Using the formula described above, Qwest's proposed forfeiture liability
   is derived as follows: (8,500 * $1.00) + (8,500 * $2.00) + (8,500 * $3.00)
   = $51,000.

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

   47 U.S.C. S: 1.80(f)(4).

   47 C.F.R. S:S: 0.111, 0.311.

   47 C.F.R. S: 1.80.

   (...continued from previous page)


   Federal Communications Commission DA 08-2093


   Federal Communications Commission DA 08-2093