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Federal Communications Commission FCC-03-317
2
Before the
Federal Communications Commission
Washington, D.C. 20554
In the matter of )
)
OCMC, Inc. d/b/a/ One Call )
Communications, Inc. d/b/a )
Opticom ) File No. EB-02-TC-003
) NAL/Acct. No. 200232170005
) FRN: 0003772910
)
Operator Service Provider )
Requirements
ORDER
Adopted: December 9, 2003 Released:
December 12, 2003
By the Commission:
1. In this Order, we adopt a Consent Decree terminating an
investigation into possible violations by OCMC, Inc. ("OCMC"),
d/b/a/ One Call Communications, Inc., d/b/a/ Opticom, of Section
226 of the Communications Act of 1934, as amended (the “Act”),
and the Commission’s rules governing operator service providers.1
2. The Commission and OCMC have negotiated the terms of a
Consent Decree that would resolve this matter and terminate the
investigation.2 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),
4(j), and 503(b) of the Communications Act of 1934, as amended,3
that the attached Consent Decree IS ADOPTED.
5. OCMC 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. 200232170005 and
FRN 0003772910.
6. IT IS FURTHER ORDERED that the Commission investigation
into the matter described herein is terminated.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dorch
Secretary
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
OCMC, Inc. d/b/a/ One Call )
Communications, Inc. d/b/a )
Opticom )
) File No. EB-02-TC-003
) NAL/Acct. No. 200232170005
) FRN: 0003772910
)
Operator Service Provider )
Requirements
CONSENT DECREE
I. INTRODUCTION
1. The Federal Communications Commission (the “FCC” or the
“Commission”) and OCMC, Inc., (“OCMC”) d/b/a One Call
Communications, Inc. d/b/a Opticom, by their authorized
representative, hereby enter into this Consent Decree to resolve
two investigations by the Commission: one (the “OSP
Investigation”) regarding possible non-compliance with the
operator service provider (“OSP”) requirements contained in
Sections 226(b)(1)(A) and (b)(1)(C)(i) of the Communications Act
of 1934, as amended (the “Act”), and Sections 64.703(a)(1),
(a)(3)(i) and (a)(4) of the Commission’s rules;4 and the other
regarding related matters raised in two letters of letters of
inquiry issued to OCMC (the “LOI Investigation”). Both
investigations were undertaken pursuant to Sections 4(i) and 403
of the Act.5
2. On September 23, 2002, the Commission, following an
investigation, issued a Notice of Apparent Liability (“NAL”).6
The NAL found that OCMC had apparently violated the Act and the
Commission’s rules regarding OSPs by failing to brand7 at the
origination point of operator service calls on 25 of 26 toll-free
access codes8 tested; failing to brand at the termination point
on 13 of these access codes; and failing to provide rate
information at the termination point on all 26 of the tested
access codes. Based upon these allegations, the NAL found that
OCMC was apparently liable for 38 separate violations of the
branding requirements in Section 226(b)(1)(A) of the Act and
Section 64.703(a)(1) of the Commission’s rules. The NAL also
found 26 separate apparent violations of the rate disclosure
requirements of Section 226(b)(1)(C)(i) of the Act and Sections
64.703(a)(3)(i) and (a)(4) of the Commission’s rules. As set
forth in the NAL, the investigation apparently showed potential
widespread violations of the Commission’s rules, which appeared
to be part of a deliberate scheme to take advantage of consumers’
dialing errors.9 On September 30, 2002, pursuant to several
conversations with counsel for OCMC, the Enforcement Bureau sent
a letter to counsel for OCMC memorializing that OCMC was a proper
party to the NAL, and issuing a Letter of Inquiry (“2002 LOI”) to
OCMC initiating the LOI Investigation.10 The 2002 LOI also dealt
with OCMC’s provisioning of operator services. OCMC filed its
Response to the Notice of Apparent Liability for Forfeiture on
October 30, 2002.
3. The Enforcement Bureau issued a follow-up LOI to OCMC and
One Call Internet, Inc. in the course of its LOI Investigation on
April 7, 2003 (“Supplemental LOI”). OCMC responded in full to
the 2002 LOI and the Supplemental LOI (collectively, “LOIs”).
II. DEFINITIONS
4. For 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) “OCMC” or the “Company” means OCMC, Inc., d/b/a One Call
Communications, Inc., d/b/a Opticom, or any of its subsidiaries,
affiliates, and successors.
(d) “Parties” means OCMC and the Federal Communications
Commission.
(e) “OSPs” means providers of operator services, as defined by
the Act and the Commission’s rules.11
(f) “Adopting Order” means an Order of the Commission adopting
the terms and conditions of this Consent Decree.
(g) “Effective Date” means the date on which the Commission
adopts the Adopting Order.
(h) Notice of Apparent Liability (“NAL”) means the NAL adopted
on September 23, 2002, One Call Communications, Inc., d/b/a
Opticom, Notice of Apparent Liability for Forfeiture, 17 FCC Rcd
18646 (2002).
III. AGREEMENT
5. OCMC represents and warrants that it is the properly named
party to this Consent Decree and is solvent and has sufficient
funds available to meet fully all financial and other obligations
set forth herein. OCMC 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
OCMC respectively affirm and warrant that said representative is
acting in his/her capacity and within his/her authority as a
corporate officer of OCMC, and on behalf of OCMC and that by
his/her signature said representative is binding OCMC to the
terms and conditions of this Consent Decree. OCMC also
represents that it has been represented by counsel of its choice
in connection with this Consent Decree and is fully satisfied
with the representation of counsel.
6. OCMC agrees that the Commission has jurisdiction over it and
the matters contained in this Consent Decree and the authority to
enter into and adopt this Consent Decree.
7. OCMC will make a voluntary contribution to the United States
Treasury in the amount of five hundred thousand dollars
($500,000) within 14 calendar days after the Commission Order
adopting this Consent Decree becomes final. OCMC 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.
200232170005.” If OCMC 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
OCMC makes this payment by wire transfer, it must wire such
payment in accordance with Commission procedures for wire
transfer.
8. OCMC agrees that it will voluntarily conduct a “Best
Practices Compliance Program” as set forth below, beginning no
later than 30 days after the Effective Date and will terminate
that program pursuant only to the terms set forth in paragraph 23
below. Under this program, OCMC will:
(a) Brand all calls to the toll-free access codes where OCMC is
the OSP, including calls made from non-aggregator locations.12
(b) Triple brand all collect calls to the toll-free access codes
where OCMC is the OSP, including calls made from non-aggregator
locations. “Triple brand” means that OCMC will brand collect
calls at the origination point of the call, brand again when the
called party is first contacted by OCMC on a collect call, and
then brand a third time with a termination brand.
(c) Automatically and affirmatively, by means of an automated
menu prompt or otherwise, offer to all callers rate information
on all calls made to the toll-free access codes where OCMC is the
OSP, so that consumers will not have to take the affirmative step
of requesting such information.
(d) Implement a training program for all of its operators
regarding the Best Practices Compliance Program. Newly hired
operators will be trained on the program immediately upon
employment with the Company. All operators will be given
refresher training on the program annually.
(e) Upon receiving knowledge of a specific consumer complaint to
OCMC, the FCC, or any state regulatory authority, explicitly
based upon the premise that the consumer misdialed one of the
following three toll-free access codes -- MCI’s 1-800-COLLECT (1-
800-265-5328), AT&T’s 1-800-CALLATT (1-800-225-5288), or
Verizon’s 1-800-CALLGTE (1-800-225-5483) (collectively, “Other
Access Codes”) -- and completed a telephone call using a toll-
free access code served by OCMC that differs from one of the
Other Access Codes by only one digit, OCMC agrees to adjust the
rate OCMC charged to the lowest rate, based on the date, time and
end points of the call, applicable to the Other Access Code that
the consumer intended to dial, to the extent that OCMC is able to
ascertain the access code that the consumer intended to dial.
This rate adjustment requirement will apply to any complaint in
which a consumer states he/she did not intend to use OCMC’s
services, does not recognize the OCMC and/or Opticom name, or
expresses the intention to have used a different OSP, as long as
the consumer dialed an access code, for which OCMC is the OSP,
that differs from one of the Other Access Codes by only one
digit.
(f) Undertake a consumer education program informing consumers
about their rights under Section 226 of the Act and Sections
64.703-708 of the Commission’s rules, including how to request
rate information when using toll-free access codes and how to
access the consumer’s carrier of choice. This includes attending
consumer education conferences around the country on a yearly
basis and distributing written information for consumers.
(g) In the case of agents controlling toll-free access codes,
inform all such agents with whom OCMC has contracted to be the
OSP of the provisions of the Best Practices Compliance Program.
This includes a written statement that the agent must sign
acknowledging that it understands and agrees to the terms of the
Best Practices Compliance Program.
(h) In the event that an agent controlling toll-free access
codes terminates its contract with OCMC and begins to take
service for its toll-free access codes from another OSP, OCMC
shall notify the Division Chief, Telecommunications Consumers
Division, Enforcement Bureau, of such change, including the
identification of the new OSP and a list of the toll-free access
codes serviced by the new OSP.
Nothing in this Best Practices Compliance Program shall alter
OCMC’s obligation to otherwise comply with the Act and with the
Commission’s rules and orders.
9. Within 60 days from the Effective Date, OCMC will provide a
formal report to the Bureau of its compliance with this Consent
Decree, including progress in implementing its Best Practices
Compliance Program. OCMC also agrees to send to the Bureau three
months thereafter, and once again on the first anniversary of the
Effective Date, or within 14 days upon request, a report
detailing its compliance efforts (“Compliance Report”) with
regard to this Consent Decree, including but not limited to, a
list of consumer complaints and/or requests to have an OCMC-
charged rate adjusted to a non-OCMC rate for calls initiated via
the toll-free access codes specified in paragraph 8(e) when OCMC
is the OSP. The Compliance Report will contain the date of the
call, the number allegedly misdialed by the consumer, the amount
charged by OCMC, the amount that would have been charged by the
OSP of the consumer’s choice, and the amount refunded (if any) by
OCMC.
10. In express reliance on the covenants and representations
contained herein, the Commission agrees to terminate the OSP
Investigation concerning compliance with Sections 226(b)(1)(A)
and (b)(1)(C)(i) of the Act, and Sections 64.703(a)(1), (a)(3)(i)
and (a)(4) of the Commission’s rules, resolve the NAL and to
terminate the LOI Investigation.
11. The Parties agree and acknowledge that this Consent Decree
shall constitute a final settlement of: (a) the OSP
Investigation; (b) any additional proceeding based on allegations
of non-compliance with the OSP requirements contained in Sections
226(b)(1)(A) and (b)(1)(C)(i) of the Act and Sections
64.703(a)(1), (a)(3)(i) and (a)(4) of the Commission’s rules
occurring on or before the Effective Date; (c) the LOI
Investigation; and (d) any additional proceeding based on
information provided in response to the 2002 LOI or the
Supplemental LOI regarding actions or conduct occurring on or
before the Effective Date.
12. The Commission agrees that, in the absence of new material
evidence, it will not, on its own motion, initiate any other
enforcement action against OCMC concerning the matters that were
the subject of the OSP Investigation occurring prior to the
Effective Date, or concerning possible past violations of
Sections 226(b)(1)(A) and (b)(1)(C)(i) of the Act and Sections
64.703(a)(1), (a)(3)(i) and (a)(4) of the Commission’s rules
occurring prior to the Effective Date, or seek on its own motion
any administrative or other penalties from OCMC based on the OSP
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, and to take any action in
response to such complaint.
13. The Commission agrees that it will not, on its own motion,
initiate any new proceeding, formal or informal, or take any
action on its own motion against OCMC concerning the matters that
were the subject of the LOI Investigation occurring prior to the
Effective Date, or concerning possible past violations occurring
on or before the Effective Date based on information provided in
response to the 2002 LOI or the Supplemental LOI, or seek on its
own motion any administrative or other penalties from OCMC based
on the LOI Investigation. OCMC 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. The FCC also agrees
that, in the absence of material new evidence related to such
matters, it will not institute, on its own motion, any new
proceeding, formal or informal, or take any action on its own
motion against OCMC with respect to its basic qualifications,
including the character qualifications, to be a Commission
licensee.
14. OCMC’s decision to enter into this Consent Decree is
expressly contingent upon the issuance of an Order by the
Commission that is consistent with this Consent Decree, and that
adopts the Consent Decree without change, addition, or
modification.
15. OCMC represents and warrants that it shall not effect any
change in its form of doing business or its organizational
identity or participate directly or indirectly in any activity to
form a separate entity or corporation that engages in acts
prohibited in this Consent Decree or for any other purpose which
would otherwise circumvent any part of this Consent Decree or the
obligations of this Consent Decree. OCMC agrees to notify the
Chief, Telecommunications Consumers Division, Enforcement Bureau,
Federal Communications Commission, Washington, D.C. 20554, at
least thirty (30) days prior to the effective date of any
material change in OCMC’s legal status or corporate structure
that may materially affect its obligations hereunder, including
but not limited to any merger, incorporation, dissolution,
assignment, or any other change that may materially affect OCMC’s
obligations under this Consent Decree. Nothing in this Consent
Decree shall be deemed to be an obligation by OCMC to disclose to
the Bureau “material inside information,” as that term is defined
in applicable securities laws and regulations.
16. 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.
17. OCMC represents and warrants that neither OCMC nor any of
its representatives, employees, agents or any other person acting
under, by, through, or on behalf of OCMC, 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 OCMC as a result of this Consent Decree, other than
the standards and actions set forth in this Consent Decree.
18. The Parties also agree that if any provision of the Consent
Decree conflicts with any subsequent rule or order adopted by the
Commission, where compliance with the provision would result in a
violation of the subsequent rule or order, that provision will be
superseded by such Commission rule or order.
19. By this Consent Decree, OCMC 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. The
status of materials prepared for, reviews made and discussions
held in the preparation for and implementation of OCMC’s
compliance efforts under this Consent Decree, which would
otherwise be privileged or confidential, are not altered by the
execution or implementation of the terms of this Consent Decree
and no waiver of such privileges is made by this Consent Decree.
20. If either Party (or United States on behalf of the
Commission) brings a judicial action to enforce the terms of the
Adopting Order, neither OCMC nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and OCMC
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.
21. 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
Commission’s Rules. The Parties agree that this Consent Decree
is for settlement purposes only and that by agreeing to this
Consent Decree, OCMC does not admit any noncompliance or
liability for violating Commission rules in connection with any
of the matters that are the subject of this Consent Decree.
22. OCMC 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.
23. OCMC agrees to continue the Best Practices Compliance
Program without a specific expiration date. OCMC can petition
the Enforcement Bureau no sooner than thirty-six (36) months from
the Effective Date regarding the appropriateness of terminating
the Best
Practices Compliance Program. The Parties agree that the
reporting requirements described in paragraph 9 of this Consent
Decree shall expire thirty-six (36) months from the Effective
Date.
24. This Consent Decree may be signed in counterparts.
For the Federal Communications Commission For OCMC, Inc.
By: ______________________________
By: ______________________________
Marlene H. Dortch Joseph A. Pence
Secretary President and CEO
OCMC, Inc.
__________________________________
______________________________
Date Date
_______________________________
1 47 U.S.C. §§ 226(b)(1)(A), (b)(1)(C)(i); 47 C.F.R. §§
64.703(a)(1), (a)(3)(i), (a)(4).
2 We note that One Call Internet, Inc., which was formerly known
as One Call Communications, Inc. and responded to the Notice of
Apparent Liability issued in this matter, is not a proper party
to this proceeding. See One Call Communications, Inc. d/b/a/
Opticom, Notice of Apparent Liability for Forfeiture, 17 FCC Rcd
18646 (2002) (“NAL”). See also letter from Steven A. Augustino,
Counsel to One Call Internet, Inc. to Colleen K. Heitkamp, Chief,
Telecommunications Consumers Division, Enforcement Bureau,
Federal Communications Commission, August 5, 2003, wherein OCI
and OCMC stipulate that OCMC is the proper party to the NAL.
3 47 U.S.C. §§ 154(i), 154(j), 503(b).
4 47 U.S.C. §§ 226(b)(1)(A), (b)(1)(C)(i); 47 C.F.R.
§ § 64.703(a)(1), (a)(3)(i) and (a)(4).
5 47 U.S.C. §§ 154(i), 403.
6 One Call Communications, Inc. d/b/a/ Opticom, Notice of
Apparent Liability for Forfeiture, 17 FCC Rcd 18646 (2002).
7 “Branding” occurs when an OSP “identif[ies] [itself], audibly
and distinctly, to the consumer.” 47 U.S.C. § 226(b0(1)(A); 47
C.F.R. § 64.703(a)(1).
8 “Access code” means “a sequence of numbers that, when dialed,
connect the caller to the provider of operator services
associated with that sequence.” 47 U.S.C. § 226(a)(1); 47 C.F.R.
§ 64.708(a).
9 These apparent dialing errors consisted of the use of toll-free
access codes that used a dialing pattern similar to MCI’s 1-800-
COLLECT, AT&T’s 1-800-CALLATT, or Verizon’s 1-800-CALLGTE. Using
toll-free access codes similar to these could result in consumers
misdialing one or more digits in attempting to use the toll-free
access codes cited above, and having the call be handled by OCMC
as the OSP, rather than by the OSP that the caller allegedly had
intended.
10 See Letter from Colleen K. Heitkamp, Chief, Telecommunications
Consumers Division, Enforcement Bureau, Federal Communications
Commission, to Cheryl A. Tritt, September 30, 2002.
11 See 47 U.S.C. § 226(a)(9); 47 C.F.R. § 64.708(i).
12 An “aggregator” is defined as any person that “in the ordinary
course of its operations, makes telephones available to the
public or to transient users of its premises, for interstate
telephone calls using a provider of operator services.” 47
U.S.C. § 226(a)(2), 47 C.F.R. § 64.708(b).