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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
CenturyTel, Inc., CenturyTel ) File No. EB-04-IH-
0012
of Washington, Inc., CenturyTel of ) NAL Account No.
200432080136
Cowiche, Inc., and CenturyTel of )
Inter Island, Inc. )
)
Apparent Liability for Forfeiture ) FRN No. 0004-
3651-44
NOTICE OF APPARENT LIABILITY
FOR FORFEITURE
Adopted: May 11, 2004 Released:
May 13, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that CenturyTel, Inc., CenturyTel of
Washington, Inc., CenturyTel of Cowiche, Inc., and CenturyTel of
Inter Island, Inc. (collectively, ``CenturyTel''), during the
period November 24, 2003 to April 14, 2004, apparently violated
section 52.26(a) of the Commission's rules by willfully and
repeatedly failing to route calls from CenturyTel's customers in
Washington to wireless customers with ported numbers.1 Based on
our review of the facts and circumstances of this case, and for
the reasons discussed below, we find that CenturyTel is
apparently liable for a monetary forfeiture in the amount of one
hundred thousand dollars ($100,000).
II. BACKGROUND
2. Number portability is, ``the ability of users of
telecommunications services to retain, at the same location,
existing telephone numbers without impairment of quality,
reliability, or convenience when switching from one
telecommunications carrier to another.''2 Under the
Communications Act of 1934, as amended, (the ``Act''), all
telecommunications carriers have a duty to provide, to the extent
technically feasible, number portability in accordance with
requirements prescribed by the Commission.3
3. In 1996, the Commission required all local exchange
carriers (``LECs'') to begin a phased deployment of local number
portability (``LNP'') within the 100 largest metropolitan
statistical areas (``MSAs''). 4 The Commission explained that
``the ability of end users to retain their telephone numbers when
changing service providers gives customers flexibility in the
quality, price, and variety of telecommunications services they
can choose to purchase.''5 On reconsideration, the Commission
clarified that LECs need only provide number portability within
the 100 largest MSAs for switches in which another carrier made a
specific, bona fide, number portability request.6 Additionally,
the Commission extended the number portability requirement to
commercial mobile radio service (``CMRS'') providers.7 CMRS
carriers were required to have the capability to query number
portability databases in order to deliver calls from their
networks to ported numbers anywhere in the country by December
31, 1998.8 Three categories of CMRS providers - cellular,
broadband personal communications service, and covered
specialized mobile radio providers - were directed to offer
number portability by June 30, 1999.9 After several extensions,
the Commission established November 24, 2003 as the deadline for
wireless-to-wireless number portability for the top 100 MSAs.10
4. Regardless of the status of a carrier's obligation to
provide number portability, all carriers have the duty to route
calls to ported numbers. In other words, carriers must ensure
that their call routing procedures do not result in dropped calls
to ported numbers. In this regard, the Commission stated
clearly:
We emphasize that a carrier operating a non-
portability-capable switch must still properly route
calls originated by customers served by that switch to
ported numbers. When the switch operated by the
carrier designated to perform the number portability
database query is non-portability-capable, that carrier
could either send it to a portability-capable switch
operated by that carrier to do the database query, or
enter into an arrangement with another carrier to do
the query.11
5. Furthermore, in adopting, with some modification,
recommendations of the North American Numbering Council
(``NANC'') as set forth in a Working Group Report,12 the
Commission clearly imposed requirements on the carrier
immediately preceding the terminating carrier, designated the
``N-1 carrier,'' to ensure that number portability databases are
queried and thus that calls are properly routed.13 Currently,
call routing is accomplished by use of Location Routing Numbers
(``LRNs'').14 Under the LRN method, a unique ten-digit number is
assigned to each central office switch.15 The routing
information for end users who have ported their telephone numbers
to another carrier is stored in a database, with the LRNs of the
switches that serve the ported subscribers. Carriers routing
calls to customers with ported numbers query this database to
obtain the LRN that corresponds to the dialed number.16 This
query is performed for all calls to switches from which at least
one number has been ported.17 In adopting the Working Group
Report, the Commission noted that if the N-1 carrier does not
perform the database query, but instead relies on another entity
to perform the query, the other entity may charge the N-1 carrier
in accordance with long-term number portability cost allocation
and recovery guidelines.18
6. CenturyTel provides local exchange service in 22 states
in rural markets and small-to-mid-sized cities. CenturyTel also
offers long distance service, Internet access, and data
services.19 After receiving information that, post-
implementation of wireless-to-wireless number portability,
CenturyTel may not have been routing calls from CenturyTel
customers in Washington to wireless customers with ported
numbers, the Enforcement Bureau (``Bureau'') issued a Letter of
Inquiry to CenturyTel requesting information on this issue.20
III. DISCUSSION
7. Under section 503(b)(1) of the Act, any person who is
determined by the Commission to have willfully or repeatedly
failed to comply with any provision of the Act or any rule,
regulation, or order issued by the Commission shall be liable to
the United States for a monetary forfeiture penalty.21 In order
to impose such a forfeiture penalty, the Commission must issue a
notice of apparent liability, the notice must be received, and
the person against whom the notice has been issued must have an
opportunity to show, in writing, why no such forfeiture penalty
should be imposed.22 The Commission will then issue a forfeiture
if it finds by a preponderance of the evidence that the person
has willfully or repeatedly violated the Act or a Commission
rule.23
8. We find below that CenturyTel apparently failed to
properly route all calls to ported numbers for which CenturyTel
was the N-1 carrier. Based on the preponderance of evidence, we
therefore conclude that CenturyTel is apparently liable for a
forfeiture of one hundred thousand dollars ($100,000) for
apparently willfully and repeatedly violating Commission orders
and section 52.26(a) of the Commission's rules.
A. CenturyTel Apparently Has Willfully and Repeatedly
Failed to Route Calls to Wireless Customers Who Have
Ported Numbers
9. CenturyTel concedes that ``[u]nder the Commission's
rules, the carrier in the call routing path that immediately
precedes the terminating carrier is responsible for ensuring that
database queries are performed.''24 Further, CenturyTel
correctly states that ``the N-1 carrier is responsible for
ensuring that the database query is performed to effectuate
number portability.''25 According to CenturyTel, ``[f]or a local
call made by CenturyTel's customer to a wireless customer who has
a ported telephone number, CenturyTel's LNP-capable switch
performs the database query necessary to obtain the LRN that
corresponds to the dialed telephone number. Based on this
information, CenturyTel then routes the call to the wireless
carrier serving the ported number.''26
10. During the relevant period, however, not all of
CenturyTel's switches were LNP-capable. CenturyTel stated that
as of February 24, 2004, more than two months after the
Enforcement Bureau launched its investigation, it was not LNP-
capable in 20 switches in the state of Washington.27 According
to CenturyTel, those switches were not LNP-capable until April
14, 2004.28 CenturyTel takes the position that in those
instances where it was not LNP-capable, and it did not have a
direct trunk with the porting wireless carrier, 29 it discharged
its N-1 carrier duty by routing local calls to an incumbent LEC
to perform the database query.30 Where CenturyTel did not have
an LNP-capable switch and had a direct trunk with the porting
wireless provider, however, CenturyTel routed all local and
extended area service wireless calls to the porting wireless
carrier.31 Then, according to CenturyTel, ``[i]f the porting
wireless carrier does not perform a database query ... , the
CenturyTel customer receives an outgoing message indicating that
the wireless subscriber's number is not in service.''32
11. The record is undisputed that where CenturyTel did not
have LNP-capable switches and had a direct trunk with the porting
wireless provider, CenturyTel default routed all local wireless
calls to the porting wireless carrier.33 Unless this wireless
carrier performed the database query, the CenturyTel customer's
call was dropped. Therefore, CenturyTel's call routing practice
in Washington apparently violated the Commission's orders
regarding the routing of calls to ported numbers and section
52.26(a) of the Commission's rules.
12. CenturyTel argues that if a LEC, such as CenturyTel, is
not yet required to be LNP-capable, there is an ambiguity
regarding its obligation to perform (or have performed) database
queries and thus an ambiguity regarding its obligation to route
calls.34 According to CenturyTel, ``the Commission should deem
it unlawful for a porting wireless carrier to refuse to perform
database queries for calls received from a non-LNP-capable
carrier destined for a ported wireless number.''35
13. We disagree. The Commission's rules are clear
regarding the obligation to route calls and to query the number
portability database. Since the Second Report and Order in 1997,
the Commission has required the N-1 carrier to ensure that the
number portability database query is performed.36 No exception
exists for non-LNP-capable carriers. Our conclusion is supported
by the NANC Local Number Portability Administration Working Group
Report on Wireless Wireline Integration, relied on by CenturyTel
in response to the Bureau's LOI.37 This report specifically
states that where the N-1 carrier, either a LEC or an IXC, is not
LNP-capable, the N-1 carrier ``should arrange with [another
carrier] to terminate default routed calls.''38
14. In support of its position that the Commission's
requirements are ambiguous, CenturyTel relies on its own prior
requests for rule changes and third party statements made in ex
parte letters and NANC filings describing the number portability
requirements. The third party statements and filings, however,
do not support CenturyTel's position. They also demonstrate that
CenturyTel had knowledge of its call routing requirements.
15. First, CenturyTel's reliance on ex parte letters it
filed with the Commission last year in the Telephone Number
Portability docket to support its contention of ambiguity is
misplaced.39 In these ex parte letters, CenturyTel asked the
Commission to require a wireless customer's former wireless
service provider to perform the LNP database query and transit
the call to the new wireless service provider, without charge to
the LEC. 40 Notably, CenturyTel did not therein contend that the
rule was ambiguous. CenturyTel merely asked the Commission to
change the current rule to require the former ``N'' carrier,
instead of the N-1 carrier, to bear responsibility for the
database query in this particular situation. A request for a
change in the Commission's rules does not release CenturyTel from
complying with our rules. On the contrary, the letters
demonstrate that CenturyTel was aware that our rules require the
N-1 carrier either to perform the database query or to make
arrangements with another carrier to do so.
16. Similarly, we reject CenturyTel's argument that a
request for clarification filed by Alltel with NANC supports the
conclusion that our rules are ambiguous. 41 CenturyTel asserts
that Alltel ``raised with the [NANC] the issue of whether
wireless carriers should be obligated to perform default number
portability queries when the N-1 carrier fails to perform the
query.''42 CenturyTel misses the point of Alltel's filing.
Therein, Alltel explained that in many cases N-1 carriers fail to
perform the database query, misrouting calls to the ported
customer's original carrier where the call fails if the original
carrier does not perform the query. Importantly, Alltel
contended that default queries by the original carrier are not a
``long term solution'' and that ``[t]hese misrouted calls utilize
facilities of the [original carrier] needlessly at a cost that
will far exceed dip charges that can be billed back to the N-1
carrier who failed to perform the [number portability] query.''43
The Alltel request for clarification does not alter CenturyTel's
number portability or call routing obligations.
17. CenturyTel also argues that compliance with the rule is
infeasible because it would require traffic to be routed to a
third party tandem access provider to perform a database query
and that such routing violates the terms of CenturyTel's
interconnection agreements with wireless carriers.44
CenturyTel's feasibility argument is flawed because our rules do
not require CenturyTel to route traffic to third party tandem
access providers. Instead, CenturyTel is permitted to arrange
for the default wireless carrier that originally serviced the
ported telephone number to perform the query. Documents produced
by CenturyTel indicate that it has performed such database
queries when another carrier routed calls to a CenturyTel switch
by default. Specifically, CenturyTel's documents describe a
situation where a non-LNP-capable N-1 carrier in Missouri failed
to perform LNP queries for ported lines and instead routed calls
by default to CenturyTel's switch.45 CenturyTel performed the
database queries and properly routed these calls.46 According to
CenturyTel's document, the N-1 carrier was ``obligated to do''
these queries and CenturyTel intended to bill the N-1 carrier for
them.47 We find that CenturyTel's own practices demonstrate that
it is feasible to comply with the rule.48
18. CenturyTel contends that it is not ``technically
possible'' to perform the database query if the CenturyTel switch
is not LNP-capable49 and that it is not obligated as an N-1
carrier to negotiate new business arrangements with the tandem
provider.50 This position is unpersuasive. As stated above, our
rules expressly permit the N-1 carrier whose switches are not
LNP-capable to arrange for another carrier to perform the
database query. Moreover, nothing in our rules requires routing
to a tandem provider. Finally, during the pre-implementation
period as a result of the Commission's many specific
pronouncements regarding the requirements of local number
portability, CenturyTel had sufficient time and warning to
negotiate any necessary business arrangements in order to fulfill
its obligations.
19. The Commission has consistently held that the N-1
carrier has the obligation to ensure that the call routing query
is performed, that carriers are required to route calls to ported
numbers, and that compliance with this rule is technically
feasible for CenturyTel. Based on the record, we conclude that
CenturyTel has apparently willfully and repeatedly violated
Commission orders and section 52.26(a) of the Commission's rules
by failing to properly route calls to ported wireless numbers by
either performing the number portability database query or making
arrangements with another carrier to do so.
B. Proposed Forfeiture Amount
20. Section 503(b)(2)(B) of the Act authorizes the
Commission to assess a forfeiture of up to $120,000 for each
violation or each day of a continuing violation, up to a
statutory maximum of $1,200,000 for a single act or failure to
act.51 In determining the appropriate forfeiture amount, we
consider the factors enumerated in section 503(b)(2)(D) of the
Act, including ``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
such other matters as justice may require.''
21. As discussed above, the Commission has consistently
held that the N-1 carrier has the obligation to ensure that the
call routing query is performed and that all calls are properly
routed to ported numbers. The Commission specifically held in
its Second Report and Order that number portability is essential
to meaningful facilities-based competition in the provision of
local exchange service.52 If carriers, such as CenturyTel, fail
to ensure that the call routing query is performed and that calls
are properly routed to ported numbers, the competitive benefits
of number portability will be diminished. The Commission has
been implementing a phased deployment of local number portability
since 1996 and carriers, such as CenturyTel, have been on notice
since 1997 that, irrespective of whether their switches are LNP-
capable, they have obligations to route ported numbers.
CenturyTel's apparent failure to ensure proper call routing to
ported numbers is counterproductive to the Commission's pro-
competitive goals. Due to CenturyTel's apparently willful and
repeated violation of section 52.26(a) of the Commission's rules,
and the Commission's requirement to route calls properly, we find
that a proposed forfeiture is warranted.
22. The Commission has not established a base forfeiture
amount for failure to comply with section 52.26(a). We note,
however, that section 503(b)(2)(D)53 of the Act and the
Forfeiture Policy Statement54 allow the Commission considerable
flexibility in determining the appropriate forfeiture.55
Therefore, based on the reasons discussed above, including the
fact that the record contains evidence only of limited routing
failures in one state, we find that CenturyTel is apparently
liable in the amount of one hundred thousand dollars ($100,000).
IV. ORDERING CLAUSES
23. ACCORDINGLY, IT IS ORDERED THAT, pursuant to section
503(b) of the Communications Act of 1934, as amended, 47 U.S.C. §
503(b), and sections 0.111, 0.311, and 1.80 of the Commission's
rules, 47 C.F.R. §§ 0.111, 0.311, and 1.80, CenturyTel, Inc.,
CenturyTel of Washington, Inc., CenturyTel of Cowiche, Inc., and
CenturyTel of Inter Island, Inc. are hereby NOTIFIED of their
APPARENT LIABILITY FOR FORFEITURE in the amount of one hundred
thousand dollars ($100,000) for willfully and repeatedly
violating Commission orders and section 52.26(a) of the
Commission's rules, 47 C.F.R. § 52.26(a).
24. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of
the Commission's rules, 47 C.F.R. § 1.80, within thirty days of
the release date of this NOTICE OF APPARENT LIABILITY FOR
FORFEITURE, CenturyTel, Inc., CenturyTel of Washington, Inc.,
CenturyTel of Cowiche, Inc., and CenturyTel of Inter Island, Inc.
SHALL PAY the full amount of the proposed forfeiture currently
outstanding on that date or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
25. Payment of the forfeiture may be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. Such remittance should be made to
Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment must include the NAL/Acct. No. and FRN
No. referenced above.
26. The response, if any, to this NOTICE OF APPARENT
LIABILITY FOR FORFEITURE must be mailed to William H. Davenport,
Chief, Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission, 445 12th Street, S.W., Room 3-
B443, Washington, D.C. 20554 and e-mailed to Mr. Davenport at
william.davenport@fcc.gov in Adobe PDF format. The response must
include the NAL/Acct. No. referenced above.
27. 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.
28. Requests for payment of the full amount of this NOTICE
OF APPARENT LIABILITY FOR FORFEITURE under an installment plan
should be sent to Chief, Revenue and Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.56
29. Under the Small Business Paperwork Relief Act of 2002,
Pub.L.No. 107-198, 116 Stat. 729 (June 28, 2002), the Commission
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 30 days of this
NAL, either in your response to the NAL or in a separate filing
to be sent to the Investigations and Hearings Division,
Enforcement Bureau, 445 12th Street, S.W., Washington, D.C.
20054. Your certification should indicate whether you, including
your parent entity and its subsidiaries, meet one of the
definitions set forth in the list in Attachment A of this NAL.
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 any questions
regarding any of the information contained in Attachment A,
please contact the Commission's Office of Communications Business
Opportunities at (202) 418-0990.
30. IT IS FURTHER ORDERED that the Enforcement Bureau shall
send, by certified mail/return receipt requested, a copy of this
NOTICE OF APPARENT LIABILITY FOR FORFEITURE to Glen F. Post, III,
Chief Executive Officer, CenturyTel, Inc., 100 CenturyTel Drive,
Monroe, LA 71203 and to Karen Brinkmann and Tonya Rutherford,
Latham and Watkins LLP, 555 Eleventh Street, N.W., Suite 1000,
Washington, D.C. 20004.
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 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)
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 47 C.F.R. § 52.26(a), incorporating by reference the North
American Numbering Council, Local Number Portability
Administration Selection Working Group Report (Apr. 25, 1997).
Call routing is discussed in Appendix D, ``Architecture &
Administrative Plan for Local Number Portability,'' § 7.8, N-1
Call Routing. This report is located at
www.fcc.gov/wcb/tapd/Nanc/wknggrp.doc.
2 47 U.S.C. § 153(30); 47 C.F.R. § 52.21(l).
3 47 U.S.C. § 251(a)(2).
4 Telephone Number Portability, First Report and Order and
Further Notice of Proposed Rulemaking, 11 FCC Rcd 8352 (1996)
(``First Report and Order''). MSAs, designated by the Bureau of
Census, follow geographic borders and are defined using
statistics that are widely recognized as indicative of
metropolitan character. See Policy and Rules Concerning Rates
for Dominant Carriers, Memorandum Opinion and Order, 12 FCC Rcd
8115, 8122, ¶ 17 n.26 (1997).
5 First Report and Order, 11 FCC Rcd 8368, ¶ 30.
6 Telephone Number Portability, First Memorandum Opinion and
Order on Reconsideration, 12 FCC Rcd 7236, 7273, ¶ 60 (1997)
(``First Reconsideration Order'').
7 See First Report and Order, 11 FCC Rcd at 8431-32, ¶¶ 152-53.
8 Id. at 8439, ¶ 165.
9 Id. at 8440, ¶ 166.
10 See Verizon Wireless`s Petition for Partial Forbearance from
the Commercial Mobile Radio Services Number Portability
Obligation, Memorandum Opinion and Order, 17 FCC Rcd 14972,
14981, ¶ 23 (2002). The Commission subsequently waived, until
May 24, 2004, the requirement that wireline carriers operating
outside the top 100 MSAs port numbers to wireless carriers that
do not have a point of interconnection or numbering resources in
the rate center where the customer's wireline number is
provisioned. See Telephone Number Portability, CTIA Petitions
for Declaratory Ruling on Wireline-Wireless Porting Issues,
Memorandum Opinion and Order and Further Notice of Proposed
Rulemaking, 18 FCC Rcd 23697, 23709, ¶ 29 (2004) (``Intermodal
Order''). The Commission also granted a waiver of the wireline-
to-wireless porting requirement, until May 24, 2004, for ``two
percent carriers'' that operate in the top 100 MSAs. Telephone
Number Portability, Order, 19 FCC Rcd 875 (2004).
11 First Reconsideration Order, 12 FCC Rcd at 7277, ¶ 69. The
issue of dropped calls to ported numbers was more recently raised
in a slightly different context in the Intermodal Order. There
the Commission observed, in response to comments filed by
CenturyTel, that the calls to a customer with a number ported
from a LEC to a CMRS carrier should not be dropped ``because the
Commission's rules require carriers to correctly route calls to
ported numbers.'' Intermodal Order, 18 FCC Rcd at 23711-12 n.92.
12 Telephone Number Portability, Second Report and Order, 12
FCC Rcd 12281, 12283-84, ¶ 3 (1997) (``Second Report and
Order''). In its First Report and Order, the Commission had
directed the NANC to make recommendations regarding specific
aspects of number portability implementation. First Report and
Order, 11 FCC Rcd at 8401, ¶ 93. The NANC Working Group Report
was incorporated by reference in section 52.26(a) of the
Commission's rules. See 47 C.F.R. § 52.26(a) (stating that the
``[l]ocal number portability administration shall comply with the
recommendations of the North American Numbering Council (NANC) as
set forth in the report to the Commission prepared by the NANC's
Local Number Portability Administration Selection Working Group,
dated April 25, 1997 (Working Group Report) and its appendices,
which are incorporated by reference pursuant to 5 U.S.C. § 552(a)
and 1 C.F.R. part 51.'').
13 Second Report and Order, 12 FCC Rcd at 12323-24, ¶¶ 73-74.
14 Id., 12 FCC Rcd at 12324, ¶ 75.
15 See id., 12 FCC Rcd at 12287-88, ¶ 8.
16 Id.
17 Id.
18 Id., 12 FCC Rcd at 12324, ¶ 75. The Commission permitted
incumbent LECs to recover their costs of providing LNP through a
tariffed five-year, levelized monthly end-user charge. See
Telephone Number Portability, Third Report and Order, 13 FCC Rcd
11701, 11776-79, ¶¶ 142-47 (1998) (``Third Report and Order''),
affirmed, Memorandum Opinion and Order on Reconsideration and
Order on Application for Review, 17 FCC Rcd 2578 (2002). See
also Telephone Number Portability, BellSouth Corporation Petition
for Declaratory Ruling and/or Waiver, Order, FCC 04-91 (rel. Apr.
13, 2004).
19 See www.centurytel.com.
20 See Letter of Inquiry from Hillary S. DeNigro, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau, FCC to
Glen F. Post, III, Chief Executive Officer, CenturyTel, Inc.
(Feb. 4, 2004) (``LOI'').
2147 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1); see also 47
U.S.C. § 503(b)(1)(D) (forfeitures for violation of 14 U.S.C. §
1464). Section 312(f)(1) of the Act defines willful as ``the
conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate'' the law. 47 U.S.C. §
312(f)(1). The legislative history to section 312(f)(1) of the
Act indicates that this definition of willful applies to both
sections 312 and 503(b) of the Act, H.R. Rep. No. 97-765, 97th
Cong. 2d Sess. 51 (1982), and the Commission has so interpreted
the term in the section 503(b) context. See, e.g., Application
for Review of Southern California Broadcasting Co., Memorandum
Opinion and Order, 6 FCC Rcd 4387, 4388, ¶ 5 (1991) (``Southern
California Broadcasting''). The Commission may also assess a
forfeiture for violations that are merely repeated, and not
willful. See, e.g., Callais Cablevision, Inc., Grand Isle,
Louisiana, Notice of Apparent Liability for Monetary Forfeiture,
16 FCC Rcd 1359 (2001) (``Callais Cablevision'') (issuing a
Notice of Apparent Liability for, inter alia, a cable television
operator's repeated signal leakage). ``Repeated'' means that the
act was committed or omitted more than once, or lasts more than
one day. Southern California Broadcasting, 6 FCC Rcd at 4388, ¶
5; Callais Cablevision., 16 FCC Rcd at 1362, ¶ 9.
2247 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
23See, e.g., SBC Communications, Inc., Apparent Liability for
Forfeiture, Forfeiture Order, 17 FCC Rcd 7589, 7591, ¶ 4 (2002).
24 See Letter from Karen Brinkmann and Tonya Rutherford, Latham
and Watkins LLP, counsel for CenturyTel to Mika Savir,
Investigations and Hearings Division, Enforcement Bureau, FCC, at
2 (Feb. 24, 2004) (``LOI Response'').
25 Id.
26 Id.
27 Id. at 4.
28 See Letter from Karen Brinkmann and Tonya Rutherford, Latham
and Watkins LLP, counsel for CenturyTel to Mika Savir,
Investigations and Hearings Division, Enforcement Bureau, FCC, at
1 (Apr. 14, 2004) (``April 14 LOI Response'').
29 The porting wireless carrier is the wireless carrier that
ported the number of one of its subscribers to another carrier
when that subscriber changed carriers.
30 LOI Response at 5. CenturyTel also routed wireless extended
area service calls to Qwest's tandem, if it did not have a direct
trunk to the wireless carrier. Id. at 4. For interLATA calls,
the N-1 carrier would generally be the calling party's
interexchange carrier (``IXC'').
31 LOI Response at 6.
32 Id.
33 Default routing occurs when the N-1 carrier or its
contracted entity fails to perform the LNP query and the call is
routed by default to the carrier that originally serviced the
telephone number. Second Report and Order, 12 FCC Rcd at 12324-
25, ¶ 76.
34 LOI Response at 6.
35 Id. at 7.
36 Second Report and Order, 12 FCC Rcd at 12324, ¶ 74.
37 Documents CT 0000010-32, CT 0000058. These documents were
provided in response to the request for CenturyTel's policies and
procedures for ensuring that CenturyTel's customers' calls can be
routed to ported numbers. See LOI Response at 7.
38 Document CT 0000030.
39 LOI Response at 6-7.
40 See, e.g., Letter from Gerard J. Duffy, Blooston,
Mordkofsky, Dickens, Duffy, and Prendergast, to Marlene F.
Dortch, Secretary, FCC, CC Docket No. 95-116 (filed Oct. 20,
2003) (``CenturyTel Oct. 20 Ex Parte Letter''); Letter from Mary
J. Sisak, Blooston, Mordkofsky, Dickens, Duffy, and Prendergast,
to Marlene H. Dortch, Secretary, FCC, CC Docket No. 95-116 (filed
Oct. 23, 2003); Letter from Michael T. McMenamin, Associate
Counsel, USTA, to Marlene F. Dortch, Secretary, FCC, CC Docket
No. 95-116 (filed Oct. 23, 2003); Letter from Michael T.
McMenamin, Associate Counsel, USTA, to Marlene Dortch, Secretary,
FCC, CC Docket No. 95-116 (filed Oct. 31, 2003). The CenturyTel
Oct. 20 Ex Parte Letter and attachments were included in the LOI
Response. See Documents CT 0000148-156. CenturyTel's request
was as follows:
When a Wireless Service Provider (WSP) ports a number
to another WSP within a CenturyTel Local rate center
and CenturyTel has direct connection to the porting
WSP, then the FCC must require the WSP to perform the
LNP database query and transiting to the alternative
WSP.
The costs associated with LNP query and transiting
should be the responsibility of the porting WSP.
This obligation must be required of the porting WSP
until such time that CenturyTel is required to provide
LNP in CenturyTel's central office switch.
See, e.g., CenturyTel Oct. 20 Ex Parte Letter at Attachment. See
also Document CT 0000153.
41 LOI Response at 6; Documents CT 0000165-66.
42 LOI Response at 6.
43 Documents CT 0000165-66 (Problem Identification and
Description form submitted by Alltel to NANC-LNPA Working Group
(Jan. 23, 2004)).
44 See April 14 LOI Response at 2.
45 See Document CT 0000158.
46 Id.
47 Id. (emphasis added).
48 We note that billing for database queries on default routed
calls is discussed in the Second Report and Order, 12 FCC Rcd at
12326, ¶ 78.
49 April 14 LOI Response at 2.
50 Id. at 3.
5147 U.S.C. § 503(b)(2)(B); see also 47 C.F.R. § 1.80(b)(2); see
also Amendment of Section 1.80(b) of the Commission's Rules,
Adjustment of Forfeiture Maxima to Reflect Inflation, Order, 15
FCC Rcd 18221 (2000).
52 Second Report and Order, 12 FCC Rcd at 12285, ¶ 4.
53 47 U.S.C. § 503(b)(2)(D).
54 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).
55 47 U.S.C. § 503(b)(2)(D); see also Forfeiture Policy
Statement, 12 FCC Rcd at 17100-01, ¶ 27; 47 C.F.R. § 1.80(b)(4).
56See 47 C.F.R. § 1.1914.