Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of ) File No. EB-03-IH-0707
)
Virgin Islands Telephone ) Acct. No. 200432080300
Corporation d/b/a Innovative )
Telephone, Innovative Long ) FRN Nos. 0004-5555-95,
Distance, Inc., and Vitelcom ) 0007-4521-54, and 0005-
Cellular, Inc. d/b/a ) 0870-20
Innovative Wireless
CONSENT DECREE
1. The Enforcement Bureau (the ``Bureau'') of the Federal
Communications Commission (``FCC'' or ``Commission'')
and Innovative Communications Corporation (``ICC''), by
their respective authorized representatives, hereby
enter into this Consent Decree for the purpose of
terminating the Bureau's investigation into whether
Virgin Islands Telephone Corporation d/b/a Innovative
Telephone, Innovative Long Distance, Inc., and Vitelcom
Cellular, Inc. d/b/a Innovative Wireless (collectively
``ICC Entities'') violated Sections 52.17, 54.706(a),
and 64.604 of the Commission's rules, 47 C.F.R. §§
52.17, 54.706(a), and 64.604, requiring carriers
providing interstate telecommunications services to
contribute to the Universal Service Fund (``USF''), the
Telecommunications Relay Service (``TRS'') Fund, and the
North American Numbering Plan Administration (``NANPA'')
Fund.
2. For purposes of this Consent Decree, the following
definitions shall apply:
(a) The ``Act'' means the Communications Act of 1934,
as amended, 47 U.S.C. §§ 151 et seq.
(b) ``Adopting Order'' or ``Order'' means an order of
the Commission or the Bureau adopting this Consent
Decree.
(c) The ``Bureau'' means the Enforcement Bureau of the
Federal Communications Commission.
(d) The ``Commission'' or ``FCC'' means the Federal
Communications Commission.
(e) ``Effective Date'' means the date on which the
Commission or the Bureau releases the Order.
(f) ``Investigation'' means the investigation
initiated by the Bureau's February 4, 2004 letter of
inquiry concerning possible violations of the Rules.
(g) ``Parties'' means ICC and the Bureau.
(h) ``Rules'' means the Commission's regulations set
forth in Title 47 of the Code of Federal
Regulations.
(i) ``ICC'' or the ``Company'' means Innovative
Communications Corporation and all parents,
subsidiaries, divisions, and affiliates, and each of
their respective officers, directors, employees,
agents, representatives, or any other person acting
or purporting to act on behalf of ICC, or its
successors or assigns, including but not limited to
Virgin Islands Telephone Corporation d/b/a
Innovative Telephone, Innovative Long Distance,
Inc., and Vitelcom Cellular, Inc. d/b/a Innovative
Wireless.
I. BACKGROUND
3. Pursuant to sections 52.17, 54.706(a), and 64.604 of
the Rules, carriers that provide interstate
telecommunications service are required to contribute to
the USF, TRS Fund, and the NANPA Fund. 47 C.F.R. §§
52.17, 54.706(a), and 64.604.
4. ICC offers local, long distance, and wireless voice and
data services to residential and business customers
through its subsidiaries Virgin Islands Telephone
Corporation, Innovative Long Distance, Inc., and
Innovative Wireless. On February 4, 2004, the Bureau
issued a letter of inquiry (``LOI'') initiating an
investigation regarding ICC's compliance with its
universal service, TRS, and NANPA contribution
obligations.1 On March 2, 2004, ICC submitted responses
to the LOI. Subsequent to this filing, the Bureau
requested additional information from ICC on May 5,
2004,2 for which ICC submitted responses on May 12,
2004.
5. Prior to and during the investigation, the ICC Entities
have made efforts to pay their USF debt by sending
additional payments in certain months. Since the
investigation began, ICC timely provided responses to
our inquiries and coordinated with Bureau staff in
providing the information requested. ICC is currently
up-to-date on all of its universal service, TRS, and
NANPA contribution obligations.
II. AGREEMENT
6. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau,
through the entry of the Order, which shall immediately
resolve and terminate the Investigation.
7. 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 or the Commission's rules and orders. The Parties
agree that this Consent Decree is for settlement
purposes only and that by agreeing to this Consent
Decree, ICC does not admit or deny liability for
violating any statute, regulation, or administrative
rule in connection with the matters that are the subject
of this Consent Decree.
8. ICC agrees that it has implemented or will implement,
within thirty (30) calendar days after the Bureau
releases the Order adopting this Consent Decree, an
internal compliance program (the ``Program'') to ensure
ICC's future compliance with the Commission's USF, TRS
Fund, and NANPA Fund contribution requirements. The
Program will include, at a minimum, the following
components:
(a) Compliance Manual. The Company shall develop and update
as necessary a Compliance Manual for timely paying and
filing USF, TRS Fund, and NANPA Fund contributions. Company
personnel shall have ready access to the Compliance Manual
and are to follow the procedures contained in it. The
Compliance Manual will describe the universal service rules
and requirements as they apply to ICC. The Compliance
Manual will encourage personnel to contact the Company's
Legal Department, the Company's Chief Executive, and/or the
Company's Chief Financial Officer with any questions or
concerns that arise.
(b) Compliance Training Program. The Company shall
establish an FCC compliance-training program for employees
who are involved in the payment of USF, TRS Fund, and NANPA
Fund contributions. Training will be conducted (i) at least
annually to ensure compliance with the Commission's
regulations governing payment of USF, TRS Fund, and NANPA
Fund contributions and (ii) for any new employee, who will
be involved with the payment of USF, TRS Fund, and NANPA
Fund contributions, within the first thirty (30) days of
employment.
(c) Designated Contact. The Company will designate one
employee as the point of contact for all regulatory
compliance matters associated with the payment of USF, TRS
Fund, and NANPA Fund contributions.
(d) Review and Monitoring. The Company will review the
Program annually to ensure that it is maintained in a proper
manner and continues to address the objectives set forth
herein.
9. ICC agrees to make a voluntary contribution to the U.S.
Treasury in the amount of forty-five thousand dollars
($45,000.00) within 10 days after the Order becomes a
Final Order. ICC must make this payment by check, wire
transfer, or money order drawn to the order of the
Federal Communications Commission. The check, wire
transfer, or money order shall reference ``Acct. No.
200432080300'' and FRN Nos. 0004-5555-95, 0007-4521-54,
and 0005-0870-20. If ICC makes this payment by check or
money order, it must mail the check or money order to:
the Forfeiture Collection Section, Finance Branch,
Federal Communications Commission, P.O. Box 73482,
Chicago, Illinois, 60673-7482. If ICC makes this
payment by wire transfer, it must wire such payment in
accordance with Commission procedures for wire
transfers.
10. ICC agrees to make timely payment, through the ICC
Entities, to the universal service fund of its monthly
contribution amount and late payment fees, if any, as
required by the Commission's rules. ICC also agrees to
make timely payment, through the ICC Entities, to the
TRS fund and NANPA fund, of its assessed contribution
amounts, as required by the Commission's rules.
11. The Parties agree that this Consent Decree shall become
effective on the Effective Date and shall expire two (2)
years after the Effective Date. On the Effective Date,
the Order and this Consent Decree shall have the same
force and effect as any other order of the Commission.
Any material violation of any term of this Consent
Decree shall constitute a violation of a Commission
order entitling the Commission to exercise any rights
and remedies attendant to the enforcement of a
Commission order.
12. This Consent Decree and Order may be extended by the
Bureau upon a final, non-appealable judicial or
administrative ruling that ICC has materially failed to
comply with the terms of this Consent Decree.
13. ICC acknowledges that the Bureau has jurisdiction over
it and this matter, and has the authority to enter into,
and adopt, this Consent Decree.
14. ICC waives any and all rights it may have to seek
administrative or judicial reconsideration, review,
appeal, stay, or to otherwise challenge or contest the
validity of this Consent Decree and the Order, provided
the Order adopts this Consent Decree without change,
addition, or modification.
15. The Parties agree that if ICC, the Commission, or the
United States on behalf of the Commission brings a
judicial action to enforce the terms of the Order
adopting this Consent Decree, neither ICC nor the
Commission shall contest the validity of the Consent
Decree or the Order, and ICC will waive any statutory
right to a trial de novo regarding the terms or validity
of the Consent Decree. ICC, however, may present
evidence that it has not violated the Consent Decree.
16. ICC agrees to waive any claims it may otherwise have
under the Equal Access to Justice Act, Title 5 U.S.C. §
504 and 47 C.F.R. §§ 1.1501 et seq.
17. In express reliance on the covenants and
representations in this Consent Decree, the Bureau
agrees to terminate the Investigation without any
finding of liability on the part of ICC. This Consent
Decree shall constitute a final settlement between the
Parties of the Investigation.
18. The Bureau agrees that, in the absence of material new
evidence related to the matters that were the subject of
the Investigation, it will not institute, on its own
motion, any new proceeding, formal or informal, or take
any action on its own motion against ICC for possible
past violations of the contribution rules of the
Commission in connection with the universal service and
other reporting and contribution requirements. The
Bureau also agrees that, in the absence of material new
evidence related to these matters, it will not use the
facts developed in the Investigation through the
Effective Date, or the existence of this Consent Decree,
to institute on its own motion any new proceeding,
formal or informal, or to take any action on its own
motion, against ICC concerning the matters that were the
subject of the Investigation. The Bureau further agrees
that, in the absence of material new evidence related to
these matters, it will not use the facts developed in
this Investigation through the Effective Date, or the
existence of this Consent Decree, to institute on its
own motion any proceeding, formal or informal, or take
any action on its own motion, against ICC with respect
to its basic qualifications, including its character
qualifications, to be a Commission licensee or with
respect to compliance with the Commission's rules and
policies.
19. Nothing in this Consent Decree shall prevent the
Commission from adjudicating complaints filed against
the Company pursuant to Section 208 of the Act, 47
U.S.C. § 208. Similarly, nothing in this Consent Decree
is dispositive with respect to the rights of any third
party or complainant who has filed or may file a
complaint against the Company pursuant to Section 208 of
the Act, 47 U.S.C. § 208. If any such complaint is
made, the adjudication of that complaint will be based
solely on the record developed in that proceeding and
the Bureau shall not use any facts developed through the
Investigation in any such proceeding. Moreover, the
existence of the Consent Decree and the Order shall not
be submitted in any proceeding, legal or otherwise,
other than to enforce this Consent Decree and Order, as
evidence of any act or omission by ICC, and shall not be
deemed an admission or denial by ICC of any fact
introduced therein.
20. Nothing in this Consent Decree shall preclude ICC from
petitioning the Commission for relief as to future
obligations under Section 254 of the Act and the
Commission's Rules.
21. The Parties agree that the effectiveness of this
Consent Decree is expressly contingent upon the Bureau's
issuance of the Order adopting the Consent Decree
without change, addition, or modification.
22. In the event that this Consent Decree is rendered
invalid by any court of competent jurisdiction, it shall
be null and void and may not be used in any manner in
any legal proceeding.
23. The Parties agree that if any provision of the Consent
Decree conflicts with any subsequent rule or order
adopted by the Commission (except an order specifically
intended to revise the terms of this Consent Decree to
which ICC does not consent) that provision will be
superseded by such Commission rule or order.
24. This Consent Decree may be signed in counterparts.
For the Enforcement Bureau
Federal Communications Commission
By: ________________________________ Date: ___________
David H. Solomon
Chief, Enforcement Bureau
For Innovative Communications Corporation
By: ________________________________ Date: ___________
Joe Minor
Chief Financial Officer
_________________________
1 See Letter from Hillary S. DeNigro, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau, to
Jeffrey J. Prosser, Chief Executive Officer, Innovative
Communications Corporation, dated February 4, 2004.
2 See Letter from Hillary DeNigro, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau, to
Gregory J. Vogt and Jeffrey J. Prosser, Chief Executive Officer,
Innovative Communications Corporation, dated May 5, 2004.