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1. Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
CDS NETWORKS, INC. )
OCN# 4282 ) File No. EB-01-IH-0017c
) NAL/Acct. No. 200132080034
)
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 20, 2001 Released: April 24, 2001
By the Chief, Enforcement Bureau:
I. INTRODUCTION
In this Notice of Apparent Liability for Forfeiture (``NAL''), we
find that CDS Networks, Inc. (``CDS'') has apparently violated 47
C.F.R. § 52.15(f) by willfully failing to report its number
utilization and forecast data. Based upon our review of the
facts and circumstances in this case, we conclude that CDS is
apparently liable for a forfeiture in the amount of $6,000.
II. BACKGROUND
Section 251(e) of the Communications Act of 1934, as amended (the
``Act''), grants the Commission plenary jurisdiction over the
North American Numbering Plan (``NANP'') and related telephone
numbering issues in the United States. The Commission has
identified two primary goals related to this statutory mandate:
to ensure that the limited numbering resources of the NANP are
used efficiently for the benefit of both consumers and carriers;
and to ensure that all carriers have the numbering resources
necessary to compete in the rapidly growing telecommunications
marketplace.1 The Commission recently adopted administrative and
technical measures that facilitate the monitoring of numbering
resource usage within the NANP and promote more efficient use of
numbering resources, including new mandatory utilization and
forecast data reporting requirements.2 Monitoring individual
carriers' use of numbering resources encourages efficiency and
forestalls premature exhaustion of numbering resources. Thus,
section 52.15(f) of the Commission's rules requires U.S. carriers
receiving numbering resources from the North American Numbering
Plan Administrator (``NANPA''), a Pooling Administrator, or
another telecommunications carrier, to report semiannually on
their actual and forecast number usage.3 These data are to be
reported on FCC Form 502, the North American Numbering Plan
Numbering Resource Utilization/Forecast (``NRUF'') Report.
The staff of the Common Carrier Bureau determined that CDS
apparently did not file the mandatory NRUF report due on
September 15, 2000. On January 29, 2001, the Enforcement Bureau
sent a letter to CDS, which explained that CDS might be subject
to enforcement action if it had failed to comply with the
mandatory reporting requirements of section 52.15(f). In
addition, our letter cautioned CDS that the NANPA would withhold
numbering resources as a sanction for failure or refusal to
comply with the mandatory reporting requirements.4
Our letter gave CDS the opportunity to provide proof of filing
of the NRUF report due on September 15, 2000, and reminded CDS
that its next NRUF report was due on February 1, 2001. CDS did
not respond to our letter.5
III. DISCUSSION
Section 503(b)(1)(B) of the Act provides that any person who
willfully or repeatedly fails to comply with the Act or the
Commission's rules shall be liable for a forfeiture penalty.6 We
conclude that CDS failed to file the NRUF report due on September
15, 2000. Thus, CDS is apparently liable for forfeiture for the
willful violation of section 52.15 of the Commission's rules,
which requires U.S. carriers to report on their actual and
forecast number usage.7 The Commission has held that an act or
omission is ``willful'' if the violator knew it was taking the
action in question, whether or not there is any intent to violate
the rule.8 Based upon the record before us, it appears that CDS's
failure to comply with the reporting requirements was willful.
In assessing a forfeiture, Section 503(b)(2)(D) of the Act9 and
section 1.80(b)(4)10 of the Commission's rules require us to
consider 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
other such matters as justice may require. The Commission's
Forfeiture Guidelines establish a base amount of $3,000 for
failure to file required forms or information.11 The Guidelines
also provide that we may issue a higher or lower forfeiture, as
permitted by statute.12 Based upon the information before us,
and taking into consideration the factors expressed in Section
503(b)(2)(D) of the Act, we find that a forfeiture that is higher
than the base amount is warranted in this case.
The Commission has emphasized that consistent, accurate and
complete reporting of number utilization and forecast data is
critical to promoting efficiency and avoiding premature
exhaustion of numbering resources.13 The potential harm to the
integrity and objectives of the Commission's numbering
administration and optimization strategies caused by non-
compliance with the section 52.15(f) reporting requirements
increases as a non-compliant carrier's inventory of numbering
resources increases. We therefore find that it is appropriate to
take into account the amount of CDS's unreported numbering
resources in determining the forfeiture amount. Numbering
resources are assigned either in blocks of 10,000 numbers
referred to as central office codes or NXX codes, or in blocks of
1,000 numbers. CDS has been assigned 12 NXX codes. Under these
circumstances, we find that an upward adjustment of the base
forfeiture is appropriate for CDS's failure to file the required
NRUF report, and we thus impose a forfeiture in the amount of
$6,000, which represents double the base forfeiture for failure
to file required report.
Our January 29, 2001 letter reminded CDS that its next semiannual
NRUF report was due on February 1, 2001. It appears that CDS may
not have filed this report. Failure to file the February NRUF
report, as required by section 52.15(f), would constitute a
separate violation of the Commission's rules. We warn CDS that
failure to file the February report or future reports could form
the basis for additional notices of apparent liability. Moreover,
if CDS fails to comply with the NRUF reporting requirements in
the future, the Common Carrier Bureau may deem that its numbering
resources are unused, and thus begin reclamation of those
numbering resources.14 In addition, the Commission may consider
proceedings to revoke the section 214 authorizations and Title
III licenses of carriers that persist in their non-compliance
with section 52.15(f).
IV. ORDERING CLAUSES
Accordingly, IT IS ORDERED THAT, pursuant to 47 U.S.C. § 503(b),
and 47 C.F.R. § 1.80, CDS Networks, Inc. is hereby NOTIFIED of
its APPARENT LIABILITY FOR A FORFEITURE in the amount of six
thousand dollars ($6,000) for violating the Commission's rules
that require U.S. carriers to report actual and forecast number
usage.
IT IS FURTHER ORDERED THAT, pursuant to 47 C.F.R. § 1.80, within
thirty days of this NOTICE OF APPARENT LIABILITY, CDS Networks,
Inc. SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation
of the proposed forfeiture.
Payment of the forfeiture may be made by mailing a check or
similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. referenced above.
The response, if any, must be mailed to Charles W. Kelley, Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W, Room 3-B443,
Washington DC 20554 and MUST INCLUDE the file number listed
above.
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 (``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.
Requests for payment of the full amount of this Notice of
Apparent Liability under an installment plan should be sent to:
Chief, Revenue and Receivables Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554. See 47 C.F.R. § 1.1914.
Commission records indicate that CDS Networks, Inc. apparently
has not designated an agent for service of Commission decisions,
as required by 47 C.F.R. § 1.47(h). Accordingly, IT IS FURTHER
ORDERED that a copy of this Notice of Apparent Liability for
Forfeiture shall be posted in the Office of the Secretary.15 In
addition, a copy will be sent by Certified Mail/Return Receipt
Requested, to CDS Networks, Inc., 2661 S. Pacific Highway,
Medford, OR 97502 and to its agent registered with the Secretary
of State of Oregon, David W. Axelrod, 1211 SW 5th Ave, Suite
1600, Portland, OR 97204.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 Numbering Resource Optimization, Report and Order and Further
Notice of Proposed Rulemaking in CC Docket No. 99-200, 15 FCC
Rcd 7574 (2000)(``NRO Order''); recon. and clarification in
part, Second Report and Order, Order on Reconsideration in CC
Docket 96-98 and CC Docket 99-200, and Second Further Notice of
Proposed Rulemaking in CC Docket 99-200, FCC 00-429 (Dec. 29,
2000).
2 Id.
3 The NRUF reports are due on or before February 1 and on or
before August 1 of each year. See 47 C.F.R. § 52.15(f)(6).
However, we note that the deadline for filing reports due August
1, 2000 was extended to September 15, 2000. Numbering Resource
Optimization, CC Docket No. 99-200, FCC 00-280 (Jul. 31, 2000).
4 47 C.F.R. § 52.25(g)(3)(iv). See NRO Order, 15 FCC Rcd at
7609-10.
5 The Enforcement Bureau mailed the January 29, 2001 letter to
CDS by certified mail, return receipt requested. The return
receipt reflects that CDS received the Bureau's letter on
February 3, 2000.
6 47 U.S.C. § 503(b)(1)(B). See also 47 C.F.R. § 1.80(a)(2).
Recently, the Commission amended Section 1.80 of its rules to
make inflation adjustments in the maximum penalties that may be
imposed. Accordingly, for a common carrier, the forfeiture
limit for each violation is now $120,000, with a maximum
potential forfeiture of $1,200,000 for a continuing violation
involving a single act or failure to act. See Amendment of
Section 1.80(b) of the Commission's Rules, 15 FCC Rcd 18221
(2000).
7 Carriers are required to file NRUF reports by separate legal
entity for each Operating Company Number (``OCN''). See 47
C.F.R. § 52.15(f)(3)(ii). Our January 29, 2001 letter
referenced one OCN for which CDS apparently had not filed an
NRUF report due September 15, 2000.
8 Southern California Broadcasting Company, 6 FCC Rcd 4387
(1991).
9 47 U.S.C. § 503(b)(2)(D).
10 47 C.F.R. § 1.80(b)(4).
11 The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999)(``Forfeiture Guidelines'')(codified at 47 C.F.R. §
1.80(b)(4) Note).
12 Id.
13 NRO Order at 7593.
14 See NRO Order at 7678-7683.
15 See 47 C.F.R. § 1.47(h).