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1. Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
)
DIGITAL TELEPORT, INC. ) File No. EB-01-IH-0017f
OCN# 7102 ) NAL/Acct. No. 200132080037
) FRN 0005-6540-09
)
)
FORFEITURE ORDER
Adopted: June 7, 2002 Released: June 11, 2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
In this Forfeiture Order, we issue a monetary forfeiture against
Digital Teleport, Inc. (``Digital Teleport'') for willful
violation of 47 C.F.R. § 52.15(f). The noted violation involves
Digital Teleport's failure to report its number utilization and
forecast data. Based upon our review of the facts and
circumstances of this case, including Digital Teleport's response
to our Notice of Apparent Liability (``NAL''),1 we conclude that
Digital Teleport has justified a reduction of the proposed
forfeiture and that it is liable for a forfeiture in the amount
of $4,800.
II. BACKGROUND
On April 24, 2001, the Chief, Enforcement Bureau, acting pursuant
to delegated authority, issued the NAL to Digital Teleport,
proposing a $6,000 forfeiture. We issued the NAL because it
appeared that Digital Teleport had failed to report on its actual
and forecast number usage by filing FCC Form 502, the North
American Numbering Plan Numbering Resource Utilization/Forecast
(``NRUF'') Report that was due on September 15, 2000.2 Carriers
are required to file NRUF reports for each separate legal entity
represented by an Operating Company Number (``OCN'').3 It
appeared that Digital Teleport failed to file an NRUF report for
one OCN, which was referenced in our NAL. We therefore
determined that Digital Teleport had apparently violated section
52.15(f) of the Commission's rules, which 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.4
Digital Teleport responded to the NAL, and requests cancellation
or reduction of the forfeiture. Digital Teleport does not
contest the finding that it failed to comply with the reporting
requirements of section 52.15(f). However, Digital Teleport
asserts that the Bureau's method for determining the forfeiture
amount is flawed. Additionally, Digital Teleport argues that
there are mitigating circumstances that justify reduction of the
forfeiture amount. In this regard, Digital Teleport specifically
asserts that it has a history of past compliance with the
Commission's rules.
III. DISCUSSION
The NAL explicitly states that the proposed forfeiture was
assessed in accordance with applicable statutory provisions, the
Commission's rules and the Commission's Forfeiture Guidelines. 5
Section 503(b) of the Act requires that, in examining Digital
Teleport's response, we 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 other such matters as
justice may require.6 Although Digital Teleport has not justified
cancellation of the forfeiture, we find that a reduction of the
forfeiture amount is warranted.
Digital Teleport asserts that the Forfeiture Guidelines establish
a base amount of $3,000 for failure to file required forms, but
that we consistently assessed forfeitures of at least $6,000 for
failure to file an NRUF report. Digital Teleport bases this
assertion on review of a number of NALs contemporaneously issued
to other carriers, proposing forfeitures for failure to file the
September 15, 2000 NRUF report. Digital Teleport argues that the
Forfeiture Guidelines require that we assess a forfeiture in the
$3,000 base amount. We disagree.
Our NAL emphasized the critical importance of consistent and
accurate reporting of number utilization and forecast data.7 The
NAL explained that we imposed an upward adjustment based upon the
potential harm to the Commission's numbering administration and
optimization caused by non-compliance with section 52.15(f). The
amount of the upward adjustment took into account Digital
Teleport's inventory of numbering resources.8 Under Section
503(b)(2)(D) of the Act and the Forfeiture Guidelines, the Bureau
has broad flexibility to determine the appropriate forfeiture.9
In this regard, the upward adjustment creates an incentive for
carriers to report on their number utilization and forecast data
in addition to recognizing the potential harm to numbering
administration and optimization when carriers do not comply with
section 52.15(f).10 Thus, we find that the calculation of the
forfeiture penalty is reasonable and appropriate.
Digital Teleport also presents other factors in support of its
argument that a reduction of the forfeiture amount is justified.
Digital Teleport contends that its failure to comply with a new
filing requirement mitigates its degree of culpability. Digital
Teleport points out that the September 15, 2000 NRUF report was
the first report required under section 52.15(f), but that the
NAL cites Southern California Broadcasting Company, a case which
involved repeated violations of a rule in effect for ten years.
However, we cited Southern California Broadcasting only in order
to define the term ``willful'' as used in the Act. Digital
Teleport does not dispute that its actions were willful, and we
reject its argument that the forfeiture amount should be reduced
based on the recent adoption of the section 52.15 reporting
requirements. As explained above, our NAL emphasized the
critical importance of consistent and accurate reporting of
number utilization and forecast data, and we find no reason to
reduce the forfeiture penalty because this was the first
reporting period.11 Digital Teleport's argument that the NRUF
filing deadline occurred during a period when its regulatory
functions were being transitioned also does not justify a
reduction.
However, we have verified Digital Teleport's claim that it has an
overall history of compliance with the Commission's rules, which
warrants reduction of the forfeiture amount.12 We have reviewed
Digital Teleport's response in light of the statutory factors
set forth above, and conclude that Digital Teleport has not
justified cancellation of the proposed forfeiture but that its
overall record justifies a reduction of the forfeiture from
$6,000 to $4,800.
IV. ORDERING CLAUSES
Accordingly, IT IS ORDERED, pursuant to 47 U.S.C. § 503(b), and
47 C.F.R. § 0.111, 0.311 and 1.80, that Digital Teleport, Inc.
FORFEIT to the United States the sum of four thousand eight
hundred dollars ($4,800) for willfully violating the Commission's
rules that require U.S. carriers to report actual and forecast
number usage.
Payment of the forfeiture may be made by mailing a check or money
order, 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, within 30 days of the release of this
Forfeiture Order.13 The payment MUST INCLUDE the FCC
Registration Number (FRN) referenced above and should note the
NAL/Acct. No. referenced above. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for collection pursuant to 47 U.S.C. § 504.
A request for payment of the full amount of this Forfeiture Order
under an installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.14
IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall
be sent by Certified Mail/Return Receipt Requested, to Mark
Schroeder, Vice President, Digital Teleport, Inc., and Eric
Carter, Legal Counsel, Digital Teleport, Inc., 10740 Knall, Suite
230, Overland Park, Kansas 66211, and to its counsel, Russell M.
Blau and Ronald W. Del Sesto, Jr., Swidler Berlin Shereff
Friedman, LLP, 3000 K Street, N.W., Suite 300, Washington, DC
20007-5116.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 See Digital Teleport, Inc., 16 FCC Rcd 8610 (EB 2001).
2 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, 15 FCC Rcd 17005 (2000).
3 See 47 C.F.R. § 52.15(f)(3)(ii).
4 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, 16 FCC Rcd 306 (
2000)(``NRO Recon. Order'').
5 47 U.S.C. § 503(b); 47 C.F.R. § 1.80; 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).
6 47 C.F.R. § 503(b)(2)(D).
7 Id.
8 Digital Teleport, 16 FCC Rcd at 8612.
9 47 U.S.C. § 503(b)(2)(D). See Forfeiture Guidelines, 12 FCC
Rcd at 17100 (1997). See, e.g., SBC Communications Inc., 16 FCC
Rcd 12306 (2001).
10 See 47 C.F.R. § 1.80(b)(4) Note.
11 Id.
12 See, e.g., Page-Comm, 16 FCC Rcd 6842 (EB 2001).
13 See 47 C.F.R. § 1.80(h).
14 See 47 C.F.R. § 1.1914.