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1. Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
)
NET-TEL CORPORATION ) File No. EB-01-IH-0017k
) NAL/Acct. No. 200132080042
)
)
)
MEMORANDUM OPINION AND ORDER
Adopted: February 19, 2003 Released: February 21,
2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
In this Order, we cancel a monetary forfeiture in the amount of
$6,000 proposed against Net-Tel Corporation (``Net-Tel'') for its
apparent willful violation of 47 C.F.R. § 52.15(f), which
requires certain carriers to report number utilization and
forecast data.
II. BACKGROUND
On April 24, 2001, the Chief, Enforcement Bureau, acting pursuant
to delegated authority, issued a Notice of Apparent Liability for
Forfeiture (``NAL'') to Net-Tel, proposing a $6,000 forfeiture.1
We issued the NAL because it appeared that Net-Tel 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 report for each separate
legal entity represented by an Operating Company Number
(``OCN'').3 It appeared that Net-Tel failed to file an NRUF
report for seven OCNs, which were referenced in our NAL. We
therefore determined that Net-Tel 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
Wendell W. Webster, the Trustee appointed in Net-Tel's bankruptcy
(Trustee), filed a response to the NAL. The Trustee reports that
Net-Tel filed for Chapter 11 bankruptcy protection on September
28, 2000, and that this proceeding was converted to a liquidation
under Chapter 7 on October 23, 2000.5 In addition, the Trustee
reports that Net-Tel's operation was terminated on December 20,
2000, and that effective April 30, 2001, all of Net-Tel's
operating assets were sold. The Trustee asserts that
cancellation of the forfeiture based on Net-Tel's Chapter 7
bankruptcy is consistent with precedent and will serve the public
interest by protecting Net-Tel's creditors and the distribution
of estate assets.
III. DISCUSSION
The NAL states that the proposed forfeiture was assessed in
accordance with applicable statutory provisions, the Commission's
rules and the Commission's Forfeiture Guidelines.6 Section
503(b) of the Act requires that, in examining Net-Tel'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.7 We find that
rescission of the forfeiture is warranted in light of the Net-
Tel's Chapter 7 liquidation and the termination of its
operations.8 The appointment of the trustee removed Net-Tel from
any involvement in the dissolution of its business operations.
Moreover, the sale of Net-Tel's assets has been completed and
Net-Tel will no longer operate as a common carrier. Based upon
these circumstances, we find that it is in the public interest to
rescind the forfeiture against Net-Tel.9
However, we emphasize that our decision to rescind the forfeiture
in no way exonerates Net-Tel for its violation of section
52.15(f). The Commission has the discretion to evaluate each
case based upon the facts and circumstances presented and to
issue a forfeiture regardless of whether or not there is a
bankruptcy.10 Thus, a carrier's bankruptcy will not preclude
scrutiny of its compliance with the Act and the Commission's
rules, and we will take enforcement action where appropriate.
IV. ORDERING CLAUSES
Accordingly, IT IS ORDERED THAT, pursuant to 47 U.S.C. § 504(b),
and 47 C.F.R. § 1.80(f)(4), the Notice of Apparent Liability
issued to Net-Tel Corporation IS CANCELLED.
IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and
Order shall be sent by Certified Mail/Return Receipt Requested,
to Trustee Wendel W. Webster, c/o Linda Correia, Esq., Webster,
Fredrickson & Brackshaw, 1819 H Street, N.W., Suite 300,
Washington, DC 20006.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 See Net-Tel Corporation, 16 FCC Rcd 8635 (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). See also, NRO Order, 15
FCC Rcd at 7594; NRO Recon. Order, 15 FCC Rcd at 353-54.
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 Net-Tel filed for bankruptcy protection in the United States
Bankruptcy Court for the District of Columbia, Case No. 00-1771.
6 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).
7 47 U.S.C. § 503(b)(2)(D).
8 See, e.g., Dennis Elam, Trustee for Bakcor Broadcasting,
Inc., Debtor, 11 FCC Rcd 1137 (1996)(forfeiture rescinded after
bankruptcy trustee was appointed and the violator was no longer
associated with the subject stations); Interstate Savings, Inc.
d/b/a ISI Telecommunications, 12 FCC Rcd 2934 (CCB
1997)(forfeiture rescinded where trustee appointed in Chapter 7
liquidation removing violator from operating as a common carrier
and from involvement in dissolution or distribution of its
assets. Requiring trustee to pay the forfeiture would diminish
estate assets available to innocent creditors and serve no
public interest).
9 Interstate Savings, 12 FCC Rcd at 2936.
10 Coleman Enterprises, Inc., d/b/a Local Long Distance, 16 FCC
10016 (2001).