Click here for Adobe Acrobat version
Click here for Microsoft Word version
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.
Federal Communications Commission DA 16- 511
Federal Communications Commission
Washington, DC 20554
In the Matter of
Vermont Telephone Company, Inc.
Participant in Auction No. 86
File No.: EB-IHD-13-00010654
NAL/Acct. No.: 201232080004
MEMORANDUM OPINION AND ORDER
Adopted: May 6, 2016 Released: May 9, 2016
By the Chief, Enforcement Bureau:
1. We grant the Petition for Reconsideration filed by Vermont Telephone Company, Inc.
(VTel or Company) seeking review of the forfeiture order issued in this proceeding by the Enforcement
Bureau (Bureau). In addition, we terminate the Forfeiture Order. In the Forfeiture Order, the Bureau
imposed a $25,000 penalty against VTel under Section 1.17 of the Commission’s rules (Rules) for failing
to submit accurate gross revenue information to the Commission in Connection with the bidding credit
the Company received in Auction No. 86.
2. On October 14, 2011, the Bureau issued a Notice of Apparent Liability for Forfeiture
(NAL) against VTel in the amount of $34,000 for its apparent willful and repeated violation of Sections
1.17 and 1.65 of the Rules.
On November 14, 2011, VTel filed a response to the NAL requesting that
“the Commission not impose the proposed forfeiture of $34,000.”
On December 23, 2014, the Bureau
issued a Forfeiture Order against VTel under Section 1.17 of the Rules.
On January 22, 2015, VTel filed
an Application for Review of the Forfeiture Order.
On April 15, 2016, VTel submitted a letter to the
The investigation was initiated under EB-11-IH-0734 and subsequently assigned File No. EB-IHD-13-00010654.
Vermont Telephone Company, Inc., Forfeiture Order, 29 FCC Rcd 16052, 106054–55, para. 10 (Enf. Bur. 2014)
See Vermont Telephone Co., Inc. Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 14130 (Enf. Bur. 2011)
See Vermont Telephone Company, Inc., Response to Notice of Apparent Liability at 1 (Nov. 14, 2011) (on file in
EB-IHD-13-00010654) (NAL Response).
See Forfeiture Order, 29 FCC Rcd at 16054–55, para. 15 (reducing the amount of VTel’s apparent liability from
$34,000 to a penalty of $25,000); 47 CFR § 1.17 (requiring that an applicant for a Commission authorization submit
truthful and accurate factual information to the Commission).
See Vermont Telephone Company, Inc., Application for Review at 3 (filed Jan. 22, 2015) (on file in EB-IHD-13-
00010654) (Application for Review).
Federal Communications Commission DA 16-511
Commission, permitting the Enforcement Bureau to treat its Application for Review, in the alternative, as
a Petition for Reconsideration.
3. The Commission is a regulatory agency with broad prosecutorial discretion in
The Commission may exercise broad discretion with respect to enforcement
investigations “so long as the matter is within the agency’s jurisdiction.”
The Supreme Court has
repeatedly recognized that “an agency’s decision not to prosecute or enforce, whether through civil or
criminal process, is a decision generally committed to an agency’s absolute discretion.”
considerable discretion is necessary because, among other reasons, “[t]he agency is far better equipped . .
. to deal with the many variables involved in the proper ordering of its priorities.”
4. Consistent with our prosecutorial discretion in enforcement proceedings, and based on
the totality of the circumstances and a careful weighing of the benefits of further adjudication against the
costs to the agency,
the Bureau has determined that the public interest is best served by granting the
relief requested by VTel’s Petition for Reconsideration and vacating the Forfeiture Order.
IV. ORDERING CLAUSES
5. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the Communications
Act of 1934, as amended, and Section 1.106 of the Rules, the Petition for Reconsideration filed by VTel
IS GRANTED on the basis discussed herein.
6. IT IS FURTHER ORDERED that the Forfeiture Order IS VACATED and the above-
captioned investigation IS TERMINATED.
See Letter from Bennett L. Ross, Esq., Wiley Rein LLP, Counsel to Vermont Telephone Company, Inc. to
Marlene H. Dortch, Secretary, Federal Communications Commission (April 15, 2016) (April 2016 Letter) (on file in
EB-IHD-13-00010654); citing Main Street Tel. Com; Complaint Regarding Unauthorized Change of Subscriber’s
Telecommunications Carrier, Order on Reconsideration, 24 FCC Rcd 2521 (2009) (treating Application for Review
of action taken pursuant to delegated authority as a Petition for Reconsideration pursuant to 47 U.S.C. § 405 and 47
CFR § 1.1106. and finding it proper to “consider the merits of the Petition because it was filed within thirty days of
the release of the [underlying order]”); Burlington Cablevision, Inc., Order on Reconsideration, 13 FCC Rcd 772
(1998) (treating an Application for Review as a Petition for Reconsideration); see also Channel 51 of San Diego,
Inc., Order, 27 FCC Rcd 1922, para. 3 (Enf. Bur. 2012) (on the Bureau’s own motion, treating an application for
review as a Petition for Reconsideration).
See Radio One Licenses, LLC, Forfeiture Order, 19 FCC Rcd 23922, 23932, para. 24 (2004) (citingEmery
Telephone, Memorandum Opinion and Order, 15 FCC Rcd 7181, 7186 (1999)) (Radio One).
See 47 U.S.C. § 403. See also Viacom Inc., ESPN Inc., Forfeiture Order, 30 FCC Rcd 797, 804, para. 18 (2015)
(Viacom/ESPN); Spanish Broad. Sys. Holding Co., Inc., Forfeiture Order, 27 FCC Rcd 11956, 11959, para. 8 n. 30
(EB 2012) (Section 403 provides broad discretion as to the type of misconduct the Commission may investigate and
subject to enforcement action).
Heckler v. Chaney, 470 U.S. 821, 831 (1985) (citing United States v. Batchelder, 442 U.S. 114 (1979); United
States v. Nixon, 418 U.S. 683 (1974); Vaca v. Sipes, 386 U.S. 171 (1967); Confiscation Cases, 7 Wall. 454 (1869)).
Radio One, 19 FCC Rcd at 23932, para. 24 (citing N.Y. State Dept. of Law v. FCC, 984 F.2d 1209, 1213 (D.C.
47 U.S.C. § 405; 47 CFR § 1.106.
Federal Communications Commission DA 16-511
7. IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and shall be
sent by first class mail and certified mail, return receipt requested, to Dr. J. Michel Guité, Chief Executive
Officer, Vermont, Telephone Company, Inc., 354 River St., Springfield, VT 05156, and its counsel
Bennett L. Ross, Esq., Wiley Rein LLP, 1776 K Street, N.W., Suite 800, Washington, DC 20006.
FEDERAL COMMUNICATIONS COMMISSION