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                           Before the
                     Washington, D.C.  20554

In the Matter of                )
                                )       File No.  EB-00-TC-164
America's Tele-Network Corporation      )
                                )       NAL/Acct.             No. 
Apparent Liability for Forfeiture       )

                       ORDER OF FORFEITURE

   Adopted:  December 12, 2001;  Released:  December 17, 2001

By the Commission:  

                        I.   INTRODUCTION
          In this Order, we assess a forfeiture of $1,020,000 
against America's Tele?Network Corporation (``ATNC'') for willful 
or repeated violations of the Communications Act of 1934, as 
amended (the ``Act''),1 and our rules and orders.2  For the 
reasons set forth below, we find that ATNC willfully or 
repeatedly violated section 258 of the Act and the Commission's 
rules and orders by changing the preferred carriers for 16 
consumers' telephone lines without the consumers' authorization, 
a practice commonly referred to as ``slamming.''

                         II.  BACKGROUND

          The facts and circumstances surrounding this case are 
set forth in the Notice of Apparent Liability (``NAL'') 
previously issued by the Commission, and need not be reiterated 
at length.3  In 2000, the Commission received 263 consumer 
complaints alleging slamming by ATNC.  Commission staff 
investigated many of these allegations, requesting additional 
information from ATNC.  This proceeding is based on 17 apparent 
violations, represented by 16 consumer complaints.  Each of the 
16 complainants asserted that ATNC had converted his or her 
designated preferred carrier without authorization.

          Following an investigation of the above complaints, 
which included an opportunity for ATNC to respond to the 
allegations raised by complainants, the Commission issued the 
ATNC NAL.  There the Commission determined that ATNC had 
apparently failed to obtain the complainants' authorization 
before submitting preferred carrier change requests, in violation 
of section 258 of the Act and the Commission's rules and orders 
against slamming.  As a result, the Commission determined that 
ATNC was apparently liable for a proposed forfeiture of $40,000 
for each of the 17 violations, for a forfeiture of $680,000.  The 
Commission proposed increasing the fine by 50% based upon ATNC's 
apparent pattern of intentional and egregious misconduct, for a 
total proposed forfeiture of $1,020,000.4

                         III. DISCUSSION

          In its response to the ATNC NAL, ATNC does not deny 
that it submitted preferred carrier change orders to the 
complainants' local exchange carriers.  However, ATNC contests 
the Commission's determination of apparent liability and proposal 
of a forfeiture penalty, as well as the amount of the forfeiture.  
ATNC argues that it should not be found liable because the 
Commission rejected ATNC's verification process based on 
standards that were not previously defined, and that the 
Commission interpreted ATNC's verification script too narrowly.5  
ATNC also argues that that amount of the proposed forfeiture is 
excessive because 1) the Commission erred in determining ATNC's 
behavior to be apparently intentional and egregious; 2) the 
Commission did not take ATNC's remedial steps into consideration; 
and 3) the forfeiture amount is disproportionately higher than 
that imposed on other carriers.6  We find none of ATNC's 
arguments to be persuasive.

A.   ATNC is Liable for Slamming

          ATNC argues that the Commission based its finding of 
liability on an improper rejection of ATNC's verification script.  
ATNC first claims that the Commission engaged in ``hip pocket 
rulemaking'' by adopting a sample verification script from a 1991 
Notice of Proposed Rulemaking7 as a ``standard,'' without 
observing the notice and comment period required by the 
Administrative Procedure Act,8  and without taking into account 
the impact on small businesses required by the Regulatory 
Flexibility Act.9  We disagree.

          ATNC's argument is based on a misunderstanding of the 
Commission's use of the 1991 sample verification script in the 
NAL.10  The ATNC NAL did not adopt the 1991 sample script as a 
``standard'' by which ATNC's and all other verification scripts 
would be judged.  Instead, the ATNC NAL used the 1991 sample 
script merely as an example of what meets the standard 
established by Section 64.1150(d) of the Commission's rules, 
which requires that a verification must ``include clear and 
conspicuous confirmation that the subscriber has authorized a 
preferred carrier change.''11  In the ATNC NAL, the Commission 
recognized that the 1991 script has language that meets its 
verification standard:  for example, ``Did you . . . recently 
receive a call asking you to select [carrier name] as your long 
distance company?''  ``I'd like to confirm that you have selected 
[carrier name] to carry long distance calls.''12  By contrast, 
the language in ATNC's verification script at best presumes that 
the customer authorized a preferred carrier change during the 
sales portion of the call, and merely confirms that the customer 
has the authority to make a preferred carrier change:  

            Thank you for choosing America's Tele-Network 
       as your long distance and local provider. . . . At 
       the  tone,  please  say   your  name  and  address 
       clearly.  Spell  your name if necessary.   Are you 
       authorized  to  choose America's  Tele-Network  as 
       your  long   distance  and  local   long  distance 
       provider?   Please say  ``YES'' at  the tone.   To 
       confirm your  identity, at  the tone  please state 
       your Date  of Birth  or your mother's  maiden name 
       Your Welcome  package will  be sent to  you, which 
       will include any information you need.13

          As the Commission observed in the ATNC NAL, the script 
does not solicit a response from the consumer that he or she has, 
in fact, selected ATNC as a preferred carrier.14  Since ATNC's 
verification script does not solicit a clear and conspicuous 
confirmation of a preferred carrier change, we affirm the ATNC 
NAL and conclude that ATNC's script is grossly deficient in light 
of the standard prescribed in our rules.15

          ATNC also argues that, because the Commission did not 
previously define the factors by which a verification script 
would be sufficient under our the rules, the ATNC NAL engaged in 
``an ex post facto punishment [of ATNC] for failure to comply 
with an unannounced standard.''16  We disagree.  The standard in 
our rules for verifying a consumer's decision to change his or 
her preferred carrier is plain on its face:  a verification must 
``include clear and conspicuous confirmation that the subscriber 
has authorized a preferred carrier change.''17  The Commission 
stated in the ATNC NAL that ATNC's verification script did not 
solicit an ``unambiguous, definitive, direct response from the 
consumer that he or she is confirming a request that ATNC provide 
telephone service.''18  Contrary to ATNC's argument, this is not 
a new ``factor'' to determine if a verification script complies 
with the Commission's rules, but simply an application of the 
``clear and conspicuous'' standard to ATNC's verification script.  
ATNC's script simply failed to meet the standard already clearly 
defined in our rules.

          ATNC next claims that the Commission improperly 
scrutinized each sentence in ATNC's script, thus violating ATNC's 
First Amendment rights.  ATNC argues that if the Commission had 
looked at the verification script ``on the whole,'' it would have 
found that the script contained a clear and concise verification 
of a preferred carrier change.19  To the contrary, we believe 
that looking at ATNC's script ``on the whole'' reveals that the 
script assumes, without ever asking, that the subscriber has 
already chosen ATNC as his or her long distance provider.20  This 
falls far short of being ``clear and conspicuous'' that the 
subscriber is actually ``confirming a request that ATNC provide 
[long distance] service.''21

B.   The Amount of the Forfeiture is Proper

          As discussed in the ATNC NAL,22 our rules establish a 
standard forfeiture amount of $40,000 for violations of our rules 
and orders regarding unauthorized changes of preferred 
interexchange carriers. 23  Furthermore, based on the Act, our 
rules and guidelines allow an upward adjustment of the forfeiture 
amount based on the particular facts and circumstances of the 
violation(s).24  These include the egregiousness of the 
misconduct, ability or inability to pay, whether the violation 
was intentional, whether substantial harm resulted from the 
violations, history of compliance with Commission requirements, 
whether the violator realized substantial economic gain from the 
misconduct, and whether the violation is repeated or 

          We find that ATNC's deficient verification script 
deserves an upward adjustment of the forfeiture amount as part of 
ATNC's intentional failure to follow our verification rules.  As 
discussed above, the company's verification script falls grossly 
short of eliciting a clear and conspicuous confirmation that a 
consumer wants to switch his or her preferred carrier to ATNC.26  
ATNC provided this script to an independent third?party verifier 
who simply followed the script to the letter.  The consumer 
hearing the language from the script might not understand that by 
answering ``Yes'' to the authorization question, he or she had 
just confirmed consent to switch to ATNC.  As a result, any 
misrepresentation and/or miscommunication between the consumer 
and the telemarketer during the sales process would go undetected 
during the verification process.27  Also, ATNC offered no 
probative evidence to contradict the ATNC NAL's determination 
that the company apparently intentionally violated the 
verification rules.28  Accordingly, we affirm the ATNC NAL and 
conclude that ATNC intentionally failed to comply with our 
verification rules, thus justifying a substantial upward 
adjustment of the base forfeiture amount.

          ATNC also argues that it was improper for the 
Commission to increase the proposed forfeiture upward because the 
Commission has typically increased forfeitures only in cases 
involving forged Letters of Authorization (LOAs) or evidence of 
deceptive marketing practices.29  However, the fact that ATNC's 
case does not involve deceptive marketing practices or forged 
LOAs does not weaken the Commission's rationale for increasing 
the forfeiture consistent with factors set out in the statute, 
the Commission's rules, and the Forfeiture Policy Statement, 
i.e., that ATNC intentionally and egregiously failed to follow 
our verification rules.  We therefore reject ATNC's argument in 
this regard.

          In addition, ATNC claims that the Commission's finding 
that ATNC intentionally failed to verify the authorizations has 
no support in the record, particularly given the fact that ATNC 
obtained taped third party verifications.30  We do not agree that 
ATNC's taped ``authorizations'' reflect that ATNC made good faith 
efforts to comply with our rules.  On the contrary, the tapes 
ATNC provided to the Commission merely underscored the confusion 
inherent in its defective verification process.  As outlined in 
the ATNC NAL, none of the 13 tapes that ATNC submitted to 
Commission staff included the introduction thanking the customer 
for selecting ATNC.31  Also, two of the tapes indicate customer 
confusion regarding the question ``are you authorized to select'' 
ATNC. 32  Accordingly, we find that ATNC's taped 
``authorizations'' do not mitigate the intentional nature of 
ATNC's actions.

          ATNC further asserts that in situations similar to its 
case, where deficiencies were found in the verification process, 
the Commission did not increase the forfeiture.33  However, the 
facts of ATNC's case are different from the two cases it cites.  
Neither Minimum Rate Pricing, Inc.34 nor Long Distance Direct, 
Inc.35 involved a grossly deficient verification script like the 
one ATNC designed.  The MRP proceeding involved a carrier's 
failure to secure an LOA prior to changing a consumer's preferred 
long-distance carrier, as well as tariff provisions that enabled 
the carrier to engage in slamming.36  LDDI involved consumers 
being switched to an unauthorized long-distance carrier and 
incurring unauthorized charges after the consumers called The 
Psychic Friends Network (a joint marketing partner with the 
unauthorized long-distance carrier).37  Because the details of 
the violations in these two cases are different from those in 
ATNC's case, it is unreasonable to expect the Commission to 
handle the forfeitures in the same way.

          ATNC also argues that we should decrease the forfeiture 
because of the remedial steps it has taken to address its 
unauthorized preferred carrier changes, and because it ceased 
marketing activities as of October, 2000 to reassess its 
procedures.38  We disagree.  As the Commission has previously 
found,39 ATNC's remedial steps, such as training and monitoring 
telemarketing employees, and instituting a validation 
department,40 are not unusual for the industry.41  Furthermore, 
ATNC's cessation of telemarketing activities came months after 
the Consumer Information Bureau had forwarded over 200 informal 
consumer complaints to ATNC for its response.  Thus, as the 
Commission found in the Coleman Forfeiture, 42 we find no basis 
for reducing the forfeiture amount on these grounds.

          Finally, ATNC asserts that the ATNC NAL fails to take 
into account ATNC's gross revenues as representative of its 
ability to pay, as compared to larger carriers.43  In particular, 
ATNC asserts that the Commission proposes a much higher ``per-
slam'' forfeiture for ATNC than it proposed for AT&T and Qwest in 
other slamming cases.44  We disagree with ATNC's analysis.  
First, to the extent the Commission's investigation found more 
egregious violations by ATNC than other carriers, it would be 
unreasonable for us to change the total forfeiture amount just 
because it is disproportionate compared to other Commission 
orders.45  Furthermore, we observe that the proposed upward 
adjustment per egregious violation was actually greater in the 
AT&T NAL and Qwest NAL than in the ATNC NAL.  In both the AT&T 
NAL and Qwest NAL, the Commission proposed adjusting the 
forfeiture amount for the egregious violations (involving 
forgery) to $80,000 per violation (a 100% increase), and proposed 
the $40,000 base slamming forfeiture amount for the remaining 
violations.46  In the ATNC NAL, by comparison, the Commission 
proposed increasing the forfeiture amount for ATNC's egregious 
violations by only 50%, for a total forfeiture of $1,020,000 for 
17 violations, or $60,000 per violation.47  Hence, for ATNC's 
egregious violations, the Commission proposed a smaller 
forfeiture amount per violation than it proposed for AT&T and 
Qwest.  It just so happens that, unlike in the AT&T NAL and Qwest 
NAL, all of ATNC's violations were found to be egregious.  
Finally, although ATNC correctly asserts that smaller carriers' 
gross revenues should be taken into account in determining the 
total forfeiture amount,48 it has not produced any evidence that 
it will not be able to pay the total forfeiture proposed in the 
ATNC NAL.  Accordingly, we find no basis for reducing the total 
forfeiture amount.
                         IV.  CONCLUSION

          After reviewing the information filed by ATNC in its 
Response, we find that ATNC has failed to identify facts or 
circumstances to persuade us that there is any basis for 
reconsidering the ATNC NAL.  Further, ATNC has not shown any 
mitigating circumstances sufficient to warrant a reduction of the 
forfeiture penalty.

                      V.  ORDERING CLAUSES

          Accordingly, IT IS ORDERED pursuant to section 503(b) 
of the Act, 47 U.S.C. 503(b), and section 1.80(f)(4) of the 
Commission's rules, 47 C.F.R.  1.80(f)(4), that ATNC 
Communications, Inc. SHALL FORFEIT to the United States 
Government the sum of $1,020,000 for violating section 258 of the 
Act, 47 U.S.C.  258, as well as the Commission's rules and 
orders governing preferred carrier conversions.49

          IT IS FURTHER ORDERED that a copy of this Order of 
Forfeiture shall be sent by certified United States mail to 
America's Tele-Network Corporation, in care of Charles H. Helein, 
Esq., The Helein Law Group, P.C., 8180 Greensboro Drive, Suite 
700, McLean, Virginia 22102, and to John W. Little, President, 
America's Tele-Network Corporation, 720 Hembree Place, Roswell, 
Georgia 30076.


                         Magalie Roman Salas

1    Section 258 states in pertinent part that ``no 
telecommunications carrier shall submit . . . a change in a 
subscriber's selection of a provider of telephone exchange 
service or telephone toll service except in accordance with such 
verification procedures as the Commission shall prescribe.''  47 
U.S.C.  258.
2    47 C.F.R.  64.1100, 64.1150.  Sections 64.1100 and 64.1150 
are now codified at section 64.1120 of the Commission's rules.  
65 FR 47678, 47690 (2000).  Because the apparent violations 
occurred prior to November 28, 2000, the effective date of the 
revised rules, sections 64.1100 and 64.1150 were the applicable 
Commission rules in effect during the relevant time period.  See 
also Implementation of the Subscriber Carrier Selection Changes 
Provisions of the Telecommunications Act of 1996 and Policies and 
Rules Concerning Unauthorized Changes of Consumers' Long Distance 
Carriers, Second Report and Order and Further Notice of Proposed 
Rulemaking, 14 FCC Rcd 1508 (1998) (Section 258 Order); Further 
Notice of Proposed Rulemaking and Memorandum Opinion and Order on 
Reconsideration, 12 FCC Rcd 10674 (1997).

3    In the Matter of America's Tele-Network Corp., Notice of 
Apparent Liability for Forfeiture and Order, 16 FCC Rcd 5788 
(2001) (ATNC NAL).
4    ATNC NAL, 16 FCC Rcd at 5788-89.
5    Response at 2-7.
6    Response at 8-12.
7    See In the Matter of AT&T, Notice of Proposed Rulemaking, 6 
FCC Rcd 1689 (1991) (1991 NPRM).
8    Response at 2-5.
9    Response at 2-3, 4-5.
10   The 1991 sample verification script referenced in the ATNC 
NAL was part of a settlement proposal between AT&T and MCI.  The 
Commission tentatively concluded that the settlement proposal 
represented a reasonable method for resolving the problem of 
unauthorized changes in long distance providers.  1991 NPRM, 6 
FCC Rcd at 1691.  ATNC is correct that the Commission eventually 
adopted the verification procedures from the 1991 NPRM without 
specifically adopting the sample script as a standard. Response 
at 3-4.  See also In the Matter of Policies and Rules Concerning 
Changing Long Distance Carriers, Report and Order, 7 FCC Rcd 
1038, 1045 (1992).
11   47 C.F.R.  64.1150(d).
12   ATNC NAL, 16 FCC Rcd at 5795.
13   ATNC NAL, 16 FCC Rcd at 5794.  The full text of the script 
is contained in the ATNC NAL. Id.
14   ATNC NAL, 16 FCC Rcd at 5795-96.
15   ATNC NAL, 16 FCC Rcd at 5795-96.
16   Response at 5-6.
17   47 C.F.R.  64.1150(d).
18   ATNC NAL, 16 FCC Rcd at 5795-96.
19   Response at 6-7.
20   See, supra, text accompanying note 13.
21   See ATNC NAL, 16 FCC Rcd at 5795-96.
22   See ATNC NAL, 16 FCC Rcd at 5797-98.
23   47 CFR  1.80(b)(4).

24   See 47 U.S.C.  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, 17100-01 (1997) (Forfeiture 
Policy Statement); recon denied 15 FCC Rcd 303 (1999).  As 
provided by the Commission's rules, the Commission and its staff 
retain the discretion to issue a higher or lower forfeiture, as 
permitted by statute.  See 47 C.F.R.  1.80(b)(4).

25    See 47 C.F.R.  1.80(b)(4).

26   See, supra, text accompanying note 21.
27   At least one ATNC telemarketer claimed to be sending a 
consumer a $100 check, courtesy of AT&T, as compensation for over 
billing.  See ATNC NAL, 16 FCC Rcd at 5790.
28   See ATNC NAL, 16 FCC Rcd at 5798-99.
29   Response at 8-9.
30   Response at 10.
31   See, supra, text accompanying note 13.
32   ATNC NAL, 16 FCC Rcd at 5794.  The ATNC NAL gives more 
details on these and other points of customer confusion in ATNC's 
verification process.  Id.
33   Response at 9-10.
34   In the Matter of Minimum Rate Pricing, Inc., Notice of 
Apparent Liability, 12 FCC Rcd 17,638 (1997) (MRP NAL). See also, 
In the Matter of Minimum Rate Pricing, Inc., Order Adopting 
Consent Decree, 13 FCC Rcd 24,525 (1998).

35   In the Matter of Long Distance Direct, Inc., Memorandum 
Opinion and Order, 15 FCC Rcd 3297 (2000) (LDDI MO&O).
36   MRP NAL, 12 FCC Rcd at 17,644-45.
37   LDDI MO&O, 15 FCC Rcd at 3298-99.
38   Response at 10.
39   See In the Matter of Coleman Enterprises, Inc. d/b/a Local 
Long Distance, Inc., Order of Forfeiture, 15 FCC Rcd 24,385, 
24,388 (2000) (Coleman Forfeiture) (finding remedial steps to 
address unauthorized preferred carrier changes and cessation of 
telemarketing services insufficient to reduce forfeiture).
40   In addition, ATNC has revised its telemarketing scripts to 
eliminate possible confusion, and has terminated problem 
telemarketing employees.  Response at 10.
41   Coleman Forfeiture, 15 FCC Rcd at 24,388.
42   Coleman Forfeiture, 15 FCC Rcd at 24,388.
43   Response at 11.
44   Response at 11-12.  ATNC compares the proposed $1,020,000 
forfeiture against it for 17 unauthorized switches with a 
$640,000 proposed forfeiture against AT&T for 14 unauthorized 
switches, and a $2,080,000 proposed forfeiture against Qwest for 
30 unauthorized switches. See In the Matter of AT&T 
Communications, Inc., Notice of Apparent Liability, 16 FCC Rcd 
438 (2000) (AT&T NAL); In the Matter of Qwest Communications 
International, Notice of Apparent Liability, 14 FCC Rcd 18202 
(1999) (Qwest NAL).
45   See In the Matter of Amer-I-Net Services Corporation, Order 
of Forfeiture, 15 FCC Rcd 3118, 3122-23 (2000) (rejecting the 
argument that a forfeiture fine should be reduced because it is 
disproportionate compared to other Commission orders).
46   The proposed $640,000 total forfeiture against AT&T 
consisted of $80,000 for each of the 2 egregious violations, and 
$40,000 for each of the 12 remaining violations.  See AT&T NAL, 
16 FCC Rcd at 452.  The proposed $2,080,000 total forfeiture 
against Qwest consisted of $80,000 for each of the 22 egregious 
violations, and $40,000 for each of the 8 remaining violations.  
Qwest NAL, 14 FCC Rcd at 18215-16.
47   ATNC NAL, 16 FCC Rcd at 5798-99.
48   Response at 11-12.
49   The forfeiture amount should be paid by check or money order 
drawn to the order of the Federal Communications Commission.  
ATNC should include the reference ``NAL/Acct. No. 200132170016'' 
on America's Tele?Network Corporation's check or money order.  
Such remittance must be mailed to Forfeiture Collection Section, 
Finance Branch, Federal Communications Commission, P.O. Box. 
73482, Chicago, Illinois 60673-7482.  Requests for full payment 
under an installment plan should be sent to: Chief, Credit and 
Debt Management Center, 445 12th Street, S.W., Washington, D.C. 
20554.  See 47 C.F.R.  1.1914.