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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Arbros Communications, Inc. )
) File No. EB-02-TC-038
)
Apparent Liability for ) NAL/Acct. No. 200332170001
Forfeiture )
) FRN: 0003793205
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 4, 2003 Released: March 6, 2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''),1 we find that Arbros Communications, Inc.
(``Arbros'')2 apparently willfully or repeatedly violated section
214(a) of the Communications Act of 1934, as amended (the
``Act''),3 and sections 63.61, 63.71, and 63.505 of the
Commission's rules4 by discontinuing its domestic interstate
access service in California, Delaware, Maryland, Massachusetts,
New Jersey, New York, Pennsylvania, Virginia, and Washington,
D.C. as well as all of its interstate long distance service,
before receiving authorization to do so from the Commission. As
a result, Arbros's former customers apparently were without
service for up to seven weeks, causing significant disruption to
their businesses. Upon our review of the facts and circumstances
surrounding these apparent violations, we find that Arbros is
apparently liable for a forfeiture in the amount of $5000 for
each of ten discontinuance violations, for a total of $50,000.
II. BACKGROUND
2. Arbros is a non-dominant provider of resold local
exchange, resold exchange access, resold long distance, private
line, and data services in twelve states. According to Arbros,
late in 2001, it determined that continued provision of resold
service would not be in its best interest. Accordingly, in
October 2001, it decided to lay off about 80 percent of its
employees. Subsequently, it informally told the carriers whose
services it had resold (``upstream providers'') of its plans to
exit the business.5 After being contacted by the staff of the
Common Carrier Bureau (``CCB''), on March 1, Arbros filed an
application for discontinuance with the Commission, stating that
between February 12 and February 14, 2002, Arbros sent notices to
the affected customers stating that service would be discontinued
on March 4, 2002. The notice to Arbros's customers stated that
the FCC will normally authorize the proposed discontinuance of
service unless it is shown that the customers would be unable to
receive service or a reasonable substitute from another carrier
or that the public convenience and necessity is otherwise
affected. Arbros's application for discontinuance, however, was
filed too late to expect Commission action by the March 4 date
given in the customer notice, since the Commission's rules
provide that the authorization would (in the absence of action to
the contrary) be automatically granted only after a 31-day
period. In response to complaints from consumers who received
the notice and stated that Arbros could not be reached on the
telephone number set forth in the notice, Arbros filed a
supplemental application with a revised notice that was also sent
to its customers, stating that Arbros planned to disconnect
service on March 16, 2002, and that Arbros would request waiver
of the 31-day requirement.6 In fact, interstate exchange access
and long distance service to some customers was cut off without
Commission authorization during the third week of March 2002.7
Arbros asserts that this service termination was not its fault,
but was caused by its upstream providers cutting off service to
Arbros on February 27, 2002 and March 18, 2002. Arbros has not
determined whether it will declare bankruptcy, although it states
that it does have liquidity problems and billing disputes, and
has attempted to resolve issues with creditors as they arise.8
3. Our staff sent a letter of inquiry to Arbros on April
5, 2002 inquiring, among other things, about the number of
customers whose service was discontinued or reduced, whether they
received service from other providers, and the circumstances of
the discontinuances. Arbros filed a response on May 13, 2002,
requesting confidential treatment for the entire response. In
reply to a telephonic request by our staff, Arbros filed a letter
on September 5 identifying those portions of the May 13 response
for which it was requesting confidentiality.9
4. In its response, Arbros claimed that that there was no
discontinuance by Arbros. First, it stated that it believes that
none of its customers stopped receiving service because its
customers had already changed service providers. In support of
this belief, Arbros noted (1) that it informed its upstream
providers of the identity of its customers with the understanding
that these providers would be contacting customers regarding
migration and (2) it worked with customers to obtain other
service providers and advised all customers with current bills
that Arbros would continue to provide their service until
cutovers were completed.10 Second, Arbros stated that any
discontinuance that occurred resulted from the actions of its
upstream providers in terminating service.11
5. Arbros' upstream providers claimed that only 40 of the
306 Arbros customers migrated to their systems.12 Moreover,
several former Arbros customers have furnished declarations
stating that they were discontinued by Arbros and lost service
for varying periods of time.13 For example, Royall & Company
lost service for four weeks and Conard-Pyles Company lost service
for seven weeks.14 In several instances, declarants claimed that
Arbros gave them incorrect information or could not be reached to
arrange for migration to another service.15 Declarants claimed
that their companies were damaged due to the discontinuance by
loss of clients, reduction in cash flow, increase in
administrative costs and support time, lack of communications
with the company's branch office, and the need to travel to
branch offices or hire couriers to communicate with branch
offices.16 Further, one of the upstream providers claims that
(1) it never terminated service to Arbros, (2) Arbros never paid
its last invoice after notifying the upstream provider that it
would no longer supply long distance service, and (3) the
upstream provider generally offers only wholesale service, but
accommodated Arbros' customers to avoid elimination of service to
those customers who wished to migrate to it.17
II. DISCUSSION
A. Apparent Violations Evidenced in the Record
6. As explained below, Arbros's business practices
evidence apparent willful or repeated violations of section
214(a) of the Act and sections 63.61, 63.71, and 63.505 of the
Commission's rules.
7. Arbros's application for discontinuance authorization
and its response to our staff's inquiries establish that Arbros
did not meet its obligations as a common carrier to adequately
notify its customers of the discontinuance or obtain Commission
approval before it discontinued service, in apparent violation of
section 214(a) of the Act and sections 63.61, 63.71, and 63.505
of the Commission's rules. Section 214(a) has an essential role
in the Commission's efforts to protect consumers. Unless the
Commission has the ability to determine whether a discontinuance
of service is in the public interest, it cannot protect customers
from having essential services cut off without adequate warning,
or ensure that these customers have other viable alternatives.18
It appears that Arbros's customers were left without service for
periods of up to seven weeks.19 Apparently, less than 15 percent
of them migrated to the systems of Arbros's upstream providers.20
Moreover, Arbros's customers claim to have suffered damage due to
the discontinuance by loss of clients, reduction in cash flow,
increase in administrative costs and support time, lack of
communications, with their branch offices, and the need to travel
to branch offices or hire couriers to communicate with branch
offices.21 Such problems underscore the need to strictly enforce
section 214 and our rules regarding notice and prior
authorization of discontinuances here.
8. Under the Act and our rules, it is clear that a
telecommunications carrier must receive Commission authorization
and provide the required notice to its customers before it may
discontinue interstate service to those customers.22 Here,
however, Arbros apparently claims that a timely request for
authorization and the required notice to its customers was not
possible because its upstream providers abruptly terminated
service to Arbros and thereby caused the discontinuance of
service to Arbros's end-user customers.23 We find that the
record does not support Arbros's claim. The company states that
it decided in the fall of 2001, months before the actual
discontinuances, that it would cease providing resale service.24
Therefore, Arbros had ample time after its decision to leave the
market to file an application for discontinuance and provide
notice to its customers. Arbros claims that it was not at fault
for the unauthorized discontinuance because its suppliers cut off
service. The record shows, however, that the suppliers who cut
off service did so because Arbros failed to pay its bills. Thus,
it appears that Arbros ultimately was at fault for the service
cut-off. To the extent that Arbros may have disputed the amounts
owed to its suppliers, there is no evidence in the record that
Arbros ever attempted to pay its providers any disputed amounts,
subject to later determination, to permit it to avoid premature
discontinuance. Moreover, Arbros's claim that it discontinued
only because its suppliers cut off service has been
contradicted.25 We conclude that Arbros, not its upstream
providers, was apparently responsible for the unauthorized
discontinuance here.
9. In attempting to excuse its lapses, Arbros also relies
on the contention that some customers were able to avoid the loss
of service by obtaining service from other carriers, including
Arbros's upstream providers. While the issue of whether
customers would be able to receive substitute service from
another provider is relevant to the Commission's review of an
application for discontinuance,26 the ability of customers to
receive substitute service is not a defense when a carrier has
discontinued service without authorization. In any event, the
record establishes that Arbros's actions to migrate these
customers to other carriers were ineffective. Only 40 of
Arbros's 306 customers were switched to its upstream providers,
and several of the customers providing declarations have stated
that Arbros was impossible to reach or gave the customer
incorrect information, and that they were without service for up
to seven weeks.27 In view of the foregoing facts, it appears
that Arbros willfully or repeatedly discontinued service without
Commission authorization in violation of section 214(a) of the
Act and sections 63.61, 63.71, and 63.505 of the Commission's
rules.
.
B. Forfeiture Amount
10. The forfeiture guidelines establish a base forfeiture
amount of $5000 per violation for unauthorized discontinuance of
service to a community.28 Arbros discontinued exchange access
service in nine states and all of its interstate long distance
service. As we have done previously in this context, we will
treat Arbros's discontinuance of exchange access service in each
state as discontinuance to a community, and we will treat its
discontinuance of interstate long distance service as an
additional discontinuance of service to a community.29 Because
there were ten violations, i.e., unauthorized discontinuances of
long distance service and of exchange access service in these
nine communities, this results in a total proposed forfeiture of
$50,000.
III. CONCLUSION AND
ORDERING CLAUSES
11. We have determined that Arbros apparently committed ten
separate violations of section 214(a) of the Communications Act
and sections 63.61, 63.71, and 63.505 of the Commission's rules
by discontinuing service without Commission authorization, as
described above. We have further determined that Arbros is
apparently liable in the amount of $5000 for each of the
violations of section 214 of the Act and sections 63.61, 63.71,
and 63.505 of the Commission's rules.
12. Accordingly, IT IS ORDERED, pursuant to section 503(b)
of the Communications Act of 1934, as amended, 47 U.S.C. §
503(b), section 1.80 of the Commission's rules, 47 C.F.R. § 1.80,
and authority delegated by sections 0.111 and 0.311 of the
Commission's rules, 47 C.F.R. §§0.111, 0.311, that Arbros
Communications, Inc. IS HEREBY NOTIFIED of an Apparent Liability
for Forfeiture in the amount of $50,000 for willful or repeated
violations of section 214(a) of the Act30 and sections 63.61,
63.71, and 63.505 as described in the paragraphs above.31
13. IT IS FURTHER ORDERED, pursuant to section 1.80 of the
Commission's rules, 47 C.F.R. § 1.80, that within thirty (30)
days of the release of this Notice of Apparent Liability, Arbros
Communications, Inc. SHALL PAY the full amount of the proposed
forfeiture32 OR SHALL FILE a response showing why the proposed
forfeiture should not be imposed or should be reduced.
14. 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.
15. 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. 20554.33
16. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Telecommunications Consumers
Division. Your certification should indicate whether you,
including your parent entity and its subsidiaries, meet one of
the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (OCBO) set forth
in Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
17. IT IS FURTHER ORDERED that copies of this Notice of
Apparent Liability for Forfeiture SHALL BE SENT by certified mail
to E. Ashton Johnston, Esq., Piper Rudnick, 1200 Nineteenth
Street, N.W., Washington, D.C. 20036-2412; and to John
Balestrieri, President, Arbros Communications, Inc., 880 Eldridge
Landing Road, Linthicum, MD 21090.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
ATTACHMENT A
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned and
operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and operated
and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual Receipts
or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions for
calculating average annual receipts and average employment of
a firm can be found in
13 CFR 121.104 and 13 CFR 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual Receipts
or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts or
Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than $40M
in annual gross revenues for
three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for the
preceding three years (includes
affiliates and controlling
principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three calendar
years (includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual Receipts
or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after federal
income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for the
preceding three years (includes
affil iates and persons or
entities that hold interest in
such entity and their
affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and persons
or entities that hold interest
in such entity and their
affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual Receipts
or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for the
preceding three years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and persons
or entities that hold interest
in such entity and their
affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual Receipts
or Less
Hotels and Motels $6 Million in Annual Receipts or
Less
Tower Owners (See Lessee's Type of Business)
_________________________
1 See 47 U.S.C. § 503(b)(4)(A). The Commission has authority
under this section of the Act to assess a forfeiture penalty
against a common carrier if the Commission determines that the
carrier has ``willfully or repeatedly'' failed to comply with the
provisions of the Act or with any rule, regulation, or order
issued by the Commission under the Act. The section provides
that the Commission must assess such penalties through the use of
a written notice of apparent liability or notice of opportunity
for hearing.
2 Arbros is a Delaware Corporation. It appears that it is
held by Arcomm Holding Company (Arcomm). A majority of
Arcomm's shares are owned by Linsang Partners, LLC. Arbros
has the following affiliates: Arbros Communications Licensing
Company West, LLC; Arbros Communications Licensing Company
Canada, LLC; Arbros Communications N.E. LLC and its wholly
owned subsidiaries Arbros Communications Licensing Company,
Nutel Communications, Inc. d/b/a Arbros Communications
Licensing Company, N.E., and Arbros Communications Licensing
Company, Virginia; Arbros Communications S.E., LLC and its
wholly owned subsidiary Arbros Communications Licensing
Company, S.E. LLC; Arbros Communications Central, LLC and its
wholly owned subsidiary Arbros Communications Company Central
LLC; Arbros Communications Texas LLC and its wholly owned
subsidiary Arbros Communications Licensing Company Texas,
LLC; Arbros Communications California, LLC and its wholly
owned subsidiary Arbros Communications Licensing Company
California LLC; and Comm South Companies, Inc. and its wholly
owned subsidiaries Georgia Comm South, Inc., E-Z Tel, Inc.,
and Comm South Companies of Virginia, Inc. Its main office
is 880 Eldridge Landing Road, Linthicum, MD 21090. Its
President is John Balestrieri. Arbros has blanket operating
authority from the Commission under sections 63.01 and 63.02
of the Commission's rules, 47 C.F.R. §§ 63.01, 63.02.
3 47 U.S.C. § 214(a). This section provides in pertinent part
that ``[n]o carrier shall discontinue, reduce, or impair service
to a community, or part of a community, unless there shall first
have been obtained from the Commission a certificate that neither
the present nor future public convenience and necessity will be
adversely affected thereby; except that the Commission may, upon
appropriate request being made, authorize temporary or emergency
discontinuance, reduction, or impairment of service, or partial
discontinuance, reduction, or impairment of service....''
4 47 C.F.R. §§ 63.61, 63.71, 63.505.
5 Letter dated September 5, 2002, from E. Ashton Johnston,
counsel for Arbros, to Peter G. Wolfe, FCC (''Arbros Letter'').
6 Public Notice, ``Comments Invited on Arbros Communications,
Inc. and its Subsidiaries Joint Application to Discontinue
Domestic Telecommunications Services,'' DA 02-571 (Mar. 7, 2002).
7 Declaration of Karl Fischer on behalf of Traffic Planning &
Design (Sept. 4, 2002)(``Fischer Declaration''); Declaration of
Charles Tassin on behalf of Career Transition Center (Aug. 29,
2002) (``Tassin Declaration''); Declaration of Jim Smith on
behalf of Conard-Pyles Company (August 28, 2002)(``Smith
Declaration'').
8
Arbros Letter.
9 Because we only rely on the non-confidential material in
Arbros's response, we do not rule on Arbros's request for
confidentiality.
10 Arbros Letter.
11 Id.
12 Letters from upstream providers to Peter G. Wolfe, FCC (Aug. 7
and 20, 2002) (``Upstream Provider Letters'').
13
Declaration of Don Schindhelm on behalf of Applied Information
Technologies (Sept. 4, 2002)(Schindhelm Declaration); Fischer
Declaration; Tassin Declaration; Declaration of Rob Edwards on
behalf of Royall & Company (Aug. 27, 2002)(Edwards Declaration);
Smith Declaration.
14
Edwards Declaration; Smith Declaration.
15
Schindhelm Declaration; Fischer Declaration; Tassin Declaration;
Smith Declaration.
16
Schindhelm Declaration; Fischer Declaration; Tassin Declaration;
Smith Declaration.
17
Letter from upstream provider to Peter G. Wolfe (Aug. 20, 2002).
18 See Implementation of Section 402(b)(2)(A) of the
Telecommunications Act of 1996 and Petition for Forbearance of
the Independent Telephone & Telecommunications Alliance, Report
and Order in CC Docket No. 97-11 and Second Memorandum Opinion
and Order in AAD File No. 98-43, 14 FCC Rcd 11364, 11380-81
(1999).
19 Edwards Declaration; Smith Declaration.
20 Upstream provider letters.
21 Schindhelm Declaration; Fischer Declaration; Tassin
Declaration; Smith Declaration.
22 47 U.S.C. § 214(a); 47 C.F.R. §§ 63.61, 63.71, 63.505.
23 Arbros Letter.
24 Id.
25 Letter from Upstream Provider to Peter G. Wolfe (Aug. 20,
2002).
26 See 47 C.F.R. §63.71(a)(5).
27 Upstream Provider Letters; Schindhelm Declaration; Fischer
Declaration; Tassin Declaration; Smith Declaration.
28 47 C.F.R. § 1.80.
29 See BroadStreet Communications, Inc., 17 FCC Rcd at 7938, 1739
(EB, 2002).
30 47 U.S.C. § 214(a).
31 47 C.F.R. §§ 63.61, 63.71, 63.505.
32 The forfeiture amount should be paid by check or money order
drawn to the order of the Federal Communications Commission.
Reference should be made on Arbros Communications, Inc.'s check
or money order to ``NAL/Acct. No. 200332170001.'' Such
remittances must be mailed to Forfeiture Collection section,
Finance Branch, federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482.
33 47 C.F.R. § 1.1914.