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Before the
Federal Communications Commission
Washington, D.C. 20554
In the matter of )
)
One Call Internet, Inc. )
)
) File No. EB-03-TC-072
) NAL/Acct. No. 200332170005
) FRN: 0003772910
Section 214 Transfer of Control )
of Domestic Interstate )
Transmission Lines Requirements )
)
ORDER
Adopted: December 10, 2003 Released:
December 12, 2003
By the Chief, Enforcement Bureau:
1. In this Order, we adopt a Consent Decree terminating an
investigation into possible violations by One Call Internet, Inc.
("OCI"), formerly known as One Call Communications, Inc. d/b/a
Opticom, of Section 214 the Communications Act of 1934, as
amended (the ``Act''), and Section 63.01 of the Commission's
rules regarding transfers of control for domestic interstate
transmission lines.1
2. The Commission and OCI have negotiated the terms of a
Consent Decree that would resolve this matter and terminate the
investigation. A copy of the Consent Decree is attached hereto
and incorporated by reference.
3. After reviewing the terms of the Consent Decree, we
find that the public interest would be served by approving the
Consent Decree and terminating the investigation.
4. Accordingly, IT IS ORDERED, pursuant to Sections 4(i)
and 4(j) of the Communications Act of 1934, as amended,2 that the
attached Consent Decree IS ADOPTED.
5. OCI shall make its voluntary contribution to the United
States Treasury by mailing a check or similar instrument, payable
to the order of the Federal Communications Commission, to the
Federal Communications Commission, Forfeiture Collection Section,
Finance Branch, P.O. Box 73482, Chicago, Illinois 60673-7482. The
payment should reference NAL/Acct. No. 200332170005 and FRN
0003772910.
6. IT IS FURTHER ORDERED that the Commission investigation
into the matter described herein is terminated.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
One Call Internet, Inc. )
) File No. EB-03-TC-072
) NAL/Acct. No. 200332170005
) FRN: 0003772910
Section 214 Transfer of Control )
of Domestic Interstate )
Transmission Lines Requirements )
CONSENT DECREE
I. INTRODUCTION
1. The Enforcement Bureau (the ``Bureau'') of the
Federal Communications Commission (the "FCC" or the
"Commission") and One Call Internet, Inc., (``OCI'')
formerly known as One Call Communications, Inc. (``One
Call'') d/b/a/ Opticom, by their authorized representative,
hereby enter into this Consent Decree to resolve an
investigation (the "Investigation") by the Bureau regarding
possible violations of Section 214 of the Act and Section
63.01 of the Commission's rules regarding transfers of
control for domestic interstate transmission lines.3 The
Investigation was initiated by a Letter of Inquiry to One
Call Communications, Inc.,4 and was undertaken pursuant to
Sections 4(i), 218, and 403 of the Act.5
2. On January 31, 2002, OCI (at that time operating
as One Call Communications, Inc.) entered into an agreement
to sell, subject to the necessary federal and state
regulatory approvals, its telecommunications business to
OCMC, Inc. (``OCMC''). OCMC was a newly formed entity
created by certain members of the One Call management team
and additional third party investors. Pending final
regulatory approvals, OCI and OCMC also entered into a
management agreement, whereby OCMC provided management
services to OCI in order to ensure continued service to
existing OCI telecommunications customers. From January 31,
2002, forward, OCMC obtained all rights in the trade name
One Call Communications, Inc. On February 8, 2002, One Call
changed its name to One Call Internet. In order to complete
the sale, OCI and OCMC filed a consolidated application to
assign/transfer control of OCI's domestic and international
214 authorizations.6 During the course of the
Investigation, several issues emerged regarding possible
violations of the Act and the Commission's rules regarding
this sale and the transfer of control.
II. DEFINITIONS
3. For the Purposes of this Consent Decree, the
following definitions shall apply:
(a) The "FCC" or the "Commission" means the
Federal Communications Commission and all Bureaus
and Offices of the Commission, including the
Enforcement Bureau.
(b) ``Bureau'' means the Enforcement Bureau of
the Federal Communications Commission.
(c) "OCI" or the "Company" means One Call
Internet, Inc., or any of these entities'
subsidiaries, affiliates, and successors.
(d) "Parties" means OCI and the Bureau.
(e) "Adopting Order" means an Order of the
Commission or the Bureau adopting the terms and
conditions of this Consent Decree.
(f) "Effective Date" means the date on which
the Commission or the Bureau adopts the Adopting
Order.
III. AGREEMENT
4. OCI represents and warrants that it is the
properly named party to this Consent Decree and has
sufficient funds available to meet fully all financial and
other obligations set forth herein. OCI further represents
and warrants that it has caused this Consent Decree to be
executed by its authorized representative, as a true act and
deed, as of the date affixed next to said representative's
signature. Said representative and OCI respectively affirm
and warrant that said representative is acting in his/her
capacity and within his/her authority as a corporate officer
of OCI, and on behalf of OCI and that by his/her signature
said representative is binding OCI to the terms and
conditions of this Consent Decree.
5. OCI agrees that the Bureau has jurisdiction over
it for the purposes of (but not limited to) this Consent
Decree and that the Bureau has jurisdiction over the subject
matters contained in this Consent Decree and the authority
to enter into and adopt this Consent Decree.
6. OCI will make a voluntary contribution to the
United States Treasury in the amount of eight thousand
dollars ($8,000) within 10 calendar days after the
Commission Order adopting this Consent Decree becomes final
to resolve the issues regarding possible violations of
Section 214 of the Act and Section 63.01 of the Commission's
rules regarding transfers of control for domestic interstate
transmission lines. OCI must make this payment by check,
wire transfer, or money order drawn to the order of the
Federal Communications Commission, and the check, wire
transfer, or money order should refer to ``NAL Acct. No.
200332170005.'' If OCI makes this payment by check or money
order, it must mail the check or money order to: Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois, 60673-7482.
If OCI makes this payment by wire transfer, it must wire
such payment in accordance with Commission procedures for
wire transfers.
7. In express reliance on the covenants and
representations contained herein, the Bureau agrees to
terminate the Investigation with respect to OCI, including,
without limitations, issues concerning compliance with
Section 214 of the Act, and Section 63.01 of the
Commission's rules.
8. OCI agrees and acknowledges that this Consent
Decree shall constitute a final settlement of the
Investigation. The Bureau agrees that, in the absence of
new material evidence, it will not, on its own motion,
initiate or recommend to the Commission any other
enforcement action against OCI including, without
limitations, actions alleging violations of Section 214 of
the Act and Section 63.01 of the Commission's rules
occurring prior to the Effective Date, nor will the Bureau,
on its own motion, seek or recommend to the Commission any
administrative or other penalties from OCI based on this
Investigation. Consistent with the foregoing, nothing in
this Consent Decree limits the Commission's authority to
consider and adjudicate any complaint that may be filed
pursuant to Section 208 of the Act, 47 U.S.C. § 208.
9. OCI waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal,
or stay, or to otherwise challenge or contest the validity
of this Consent Decree and the Order adopting this Consent
Decree, provided the Order adopts the Consent Decree without
change, addition, or modification.
10. OCI's agreement to enter into this Consent Decree
is expressly contingent upon the issuance of an Order by the
Bureau that is consistent with this Consent Decree, and
which adopts the Consent Decree without change, addition, or
modification.
11. In the event that this Consent Decree is rendered
invalid by any court of competent jurisdiction, it shall
become null and void and may not be used in any manner in
any legal proceeding.
12. OCI represents and warrants that neither OCI nor
any of its representatives, employees, agents or any other
person acting under, by, through, or on behalf of OCI,
directly or indirectly, or through any corporate or other
device, shall state, represent, or imply that the FCC, or
any other governmental unit or subdivision thereof, approved
or authorized any practice, act, or conduct of OCI as a
result of this Consent Decree, other than the standards and
actions set
forth in this Consent Decree.
13. By this Consent Decree, OCI does not waive or
alter its right to assert and seek protection from
disclosure of any privileged or otherwise confidential and
protected documents and information, or to seek appropriate
safeguards of confidentiality for any competitively
sensitive or proprietary information.
14. If either Party (or the United States on behalf of
the Commission) brings a judicial action to enforce the
terms of the Adopting Order, neither OCI nor the Commission
shall contest the validity of the Consent Decree or the
Adopting Order, and OCI and the Commission will waive any
statutory right to a trial de novo with respect to any
matter upon which the Adopting Order is based, and shall
consent to a judgment incorporating the terms of this
Consent Decree.
15. The Parties agree that this Consent Decree does
not constitute either an adjudication on the merits or a
factual or legal finding or determination regarding any
compliance or noncompliance with the requirements of the Act
and the Rules. The Parties agree that this Consent Decree
is for settlement purposes only and that by agreeing to this
Consent Decree, OCI does not admit or deny any liability for
violating Commission rules in connection with the matters
that are the subject of this Consent Decree.
16. OCI agrees that any violation of the Consent
Decree or the Adopting Order will constitute a separate
violation of a Commission order, entitling the Commission to
exercise any rights or remedies attendant to the enforcement
of a Commission order.
17. This Consent Decree may be signed in counterparts.
For the Enforcement Bureau For One Call
Internet, Inc.
By:_______________________________
By:____________________________
David H. Solomon Larry E.
Dunigan
Chief, Enforcement Bureau Chairman
Federal Communications Commission One Call
Internet, Inc.
__________________________________
_______________________________
Date Date
_________________________
1 47 U.S.C. § 214; 47 C.F.R. § 63.01.
2 47 U.S.C. §§ 154(i), 154(j).
3 47 U.S.C. § 214; 47 C.F.R. § 63.01
4 See letter from Colleen K. Heitkamp, Chief,
Telecommunications Consumers Division, Enforcement Bureau,
Federal Communications Commission to Joseph Pence, September
23, 2002.
5 47 U.S.C. §§ 154(i), 218, 403.
6 See One Call Communications, Inc. and OCMC, Inc.
Application to Assign Section 214 Authorizations and to
Transfer Control of Domestic 214 Authorization, filed July
24, 2002.