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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-04-IH-0016
)
Manhattan ) Acct. No. 200432080303
) )
N) FRN No. 0004-3651-44
A L A c c o u n t N o .
Telecommunications
)
F R N N o . 0 0 0 4 - 3 6 5 1 - 4 4
Corporation
ORDER
Adopted: September 23, 2004 Released: September
24, 2004
By the Chief, Enforcement Bureau:
1. The Enforcement Bureau (``Bureau'') has been conducting
an investigation into possible violations by Manhattan
Telecommunications Corporation, a wholly owned subsidiary of
Metropolitan Telecommunications Holding Company
(``Company''), of section 254 of the Communications Act of
1934, as amended,1 and sections 54.706 and 64.6042 and
related provisions of the Commission's rules concerning
reporting and contribution requirements for the universal
service and telecommunications relay service funds.3
2. The Bureau and Company have negotiated the terms of a
Consent Decree that would terminate the Bureau's
investigation. A copy of the Consent Decree is attached
hereto and incorporated by reference.
3. We have reviewed the terms of the Consent Decree and
evaluated the facts before us. We believe that the public
interest would be served by approving the Consent Decree and
terminating the investigation.
4. Based on the record before us, and in the absence of
material new evidence relating to this matter, we conclude
that there are no substantial or material questions of fact
as to whether Company possesses the basic qualifications,
including those related to character, to hold or obtain any
Commission license or authorization.
5. Accordingly, IT IS ORDERED, pursuant to section 4(i) of the
Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
the authority delegated by sections 0.111 and 0.311 of the
Commission's rules, 47 C.F.R. §§ 0.111, 0.311, that the attached
Consent Decree IS ADOPTED.
6. IT IS FURTHER ORDERED that the above captioned investigation
is TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of ) File No. EB-04-IH-0016
)
Manhattan ) Acct. No. 200432080303
) )
N) FRN No. 0004-3651-44
A
L
A
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n
t
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.
Telecommunications
)
F
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0
0
0
4
-
3
6
5
1
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4
4
Corporation
CONSENT DECREE
1. The Enforcement Bureau (``Bureau'') of the Federal
Communications Commission (``Commission'') and
Manhattan Telecommunications Corporation, a wholly
owned subsidiary of Metropolitan Telecommunications
Holding Company (``Company''), hereby enter into this
Consent Decree for the purpose of terminating the
Bureau's investigation into whether Company violated
the universal service reporting and contribution
requirements of section 254 of the Communications Act
of 1934, as amended (the ``Act'')4 and sections 54.706
and 64.604 of the Commission's rules.5
2. For the purposes of this Consent Decree, the
following definitions shall apply:
2)a. ``Commission'' means the Federal
Communications Commission.
2)b. ``Bureau'' means the Enforcement Bureau of
the Federal Communications Commission.
2)c. ``Company'' means Manhattan
Telecommunications Corporation, a wholly owned
subsidiary of Metropolitan Telecommunications
Holding Company, and any affiliate, d/b/a,
predecessor-in-interest, parent companies, any
wholly or partially owned subsidiary, or other
affiliated companies or businesses and their
successors and assigns.
2)d. ``Parties'' means Company and the
Bureau.
2)e. ``Order'' or ``Adopting Order'' means an
Order of the Commission or the Bureau adopting
the terms of this Consent Decree without change,
addition, deletion, or modification.
2)f. ``Effective Date'' means the date on which
the Commission or the Bureau releases the
Adopting Order.
2)g. ``Investigation'' means the investigation
commenced by the Bureau's February 11, 2004
Letter of Inquiry6 regarding whether Company
violated the universal service reporting and
contribution requirements of section 254 of the
Act and sections 54.706 and 64.604 of the
Commission's rules.
I. BACKGROUND
3. Pursuant to section 254(d) of the Act and sections
54.706 and 64.604 of the Commission's rules,
telecommunications carriers that provide interstate
telecommunications services are required to file annual
and quarterly Telecommunications Reporting Worksheets
(FCC Forms 499-A and 499-Q) and contribute to the
Universal Service Fund and the Telecommunications Relay
Service Fund.7 Company is a reseller of interstate and
international long-distance services and subject to the
requirements of those sections.
II. AGREEMENT
4. The Parties agree that the provisions of this
Consent Decree shall be subject to final approval by
the Bureau, through entry of the Order, which shall
immediately resolve and terminate the Investigation.
5. 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.
6. Company agrees that it will make a voluntary
contribution to the United States Treasury in the
amount of $60,000, in three equal installments of
$20,000 each paid over a three month period, with the
first payment due 30 days after the Effective Date and
each of the two successive payment due 30 days after
the previous payment. The payments must be made by
check or similar instrument, payable to the order of
the Federal Communications Commission. The payment
must include ``Acct. No. 200432080303'' and ``FRN No.
0004-3651-44.'' Payment by check or money order must
be mailed to Forfeiture Collection Section, Finance
Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois, 60673-7482. Payment by
overnight mail may be sent to Bank One/LB 73482, 525
West Monroe, 8th Floor Mailroom, Chicago, IL 60661.
Payment by wire transfer may be made to ABA Number
071000013, receiving bank Bank One, and account number
1165259.
7. For purposes of settling the matters set forth
herein, Company agrees to implement a compliance
program related to future compliance with the Act, the
Commission's rules, and the Commission's orders. The
program will include, at a minimum, the following
components:
(a) Compliance Manual. The Company shall develop and
update as necessary a Compliance Manual. 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 and Telecommunications
Relay Service Fund contribution requirements as they
apply to Company. The Compliance Manual will encourage
personnel to contact the Company's Legal Department,
the Company's Chief Executive and/or Chief Financial
Officer with any questions or concerns that arise.
(b) Compliance Training Program. The Company will
establish an FCC compliance training program for
employees who engage in activities subject to FCC
regulation. Training sessions will be conducted at
least annually to ensure compliance with the Act and
the FCC's regulations and policies and, for new
employees, within the first 30 days of employment.
(c) Designated Contact. The Company will designate
one employee as the point of contact for all regulatory
compliance matters.
(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 therein.
8. Company agrees to make timely contributions of its
Universal Service Fund contribution amounts and its
Telecommunications Relay Service Fund contribution
amounts, together with late payment fees, if any, as
required by the Commission's rules.
9. The Bureau agrees that it will not use the facts
developed in this Investigation through the Effective
Date of the Consent Decree or the existence of this
Consent Decree to institute, on its own motion, any new
proceeding, formal or informal, or take any action on
its own motion against Company concerning the matters
that were the subject of the Investigation. The Bureau
also agrees that it will not use the facts developed in
this Investigation through the Effective Date of this
Consent Decree 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 Company with respect to Company's basic
qualifications, including its character qualifications,
to be a Commission licensee or authorized common
carrier.
10. Nothing in this Consent Decree shall prevent the
Commission or its delegated authority from acting under
section 208 of the Act to adjudicate matters arising
under the Act that may involve the Company or any of
its affiliates; provided, however, that such
adjudication shall be based solely on the record
developed in such section 208 proceeding. Except as
expressly provided in this Consent Decree, nothing
herein shall prevent the Commission from investigating
allegations arising under the Act, the Commission's
rules, or this Order that may involve the Company or
any of its affiliates.
11. Company 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 Degree and the
Order adopting this Consent Decree, provided the Bureau
issues an Order adopting the Consent Decree without
change, addition, modification, or deletion. Company
shall retain the right to challenge Commission
interpretation of the Consent Decree or any terms
contained herein.
12. Company's decision to enter into this Consent
Decree is expressly contingent upon the Bureau's
issuance of an Order that is consistent with this
Consent Decree, and which adopts the Consent Decree
without change, addition, modification, or deletion.
13. Company 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. Company 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 Company
respectively affirm and warrant that said
representative is acting in his/her capacity and within
his/her authority as a corporate officer on behalf of
Company or, if not a corporate officer, is duly
authorized to act on behalf of Company with respect to
this Consent Decree and that by his/her signature said
representative is binding Company to the terms and
conditions of this Consent Decree. Company 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.
14. 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.
15. If either Party (or the United States on behalf of
the Commission) brings a judicial action to enforce the
terms of the Adopting Order, neither Company nor the
Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Company shall waive
any statutory right to a trial de novo. Company shall
retain the right to challenge Commission interpretation
of the Consent Decree or any terms contained herein.
16. 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 authorized by law
attendant to the enforcement of a Commission order.
17. The Parties also 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 Company does not consent) that
provision will be superseded by such Commission rule or
order.
18. Company hereby agrees to waive any claims it may
otherwise have under the Equal Access to Justice Act, 5
U.S.C. § 504 and 47 C.F.R. § 1.1501 et seq., relating
to the matters addressed in this Consent Decree.
19. This Consent Decree may be signed in counterparts.
________________________________
David H. Solomon
Chief, Enforcement Bureau
Federal Communications
Commission
________________________________
Date
________________________________
[Name]
[Title]
Manhattan Telecommunications
Corporation
________________________________
Date
_________________________
1 47 U.S.C. § 254.
2 47 C.F.R. §§ 54.706, 64.604.
3 See Letter from Hillary S. DeNigro, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau, FCC to
Frank Lazzara, Chief Financial Officer, Manhattan
Telecommunications Corp. (Feb. 11, 2004) (``LOI'').
4 47 U.S.C. § 254.
5 47 C.F.R §§ 54.706 and 64.604.
6 See Letter from Hillary S. DeNigro, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau,
FCC to Frank Lazzara, Chief Financial Officer, Manhattan
Telecommunications Corp. (Feb. 11, 2004) (``LOI'').
7 47 U.S.C. § 254(d); 47 C.F.R. §§ 54.706 and 64.604.