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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Qwest Corporation )
) File No. EB-03-TC-126
) NAL/Acct. No. 200532170003
Compliance with the ) FRN: 0003605953
Commission's )
Rules and Regulations Governing )
Advertising the Availability of )
Lifeline and
Link-Up
ORDER
Adopted: November 17, 2004
Released: November 22, 2004
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree
entered into between the Enforcement Bureau and Qwest
Corporation, Inc. (``Qwest''). The Consent Decree terminates an
investigation initiated by the Enforcement Bureau regarding
whether Qwest was in compliance with section 214(e)(1)(B) of the
Communications Act of 1934, as amended (the ``Act''), and
sections 54.405(b) and 54.411(d) of the Commission's rules,1 as
it relates to the duty to publicize Lifeline and Link-Up programs
to low-income residents on tribal lands.
2. The Enforcement Bureau and Qwest have negotiated the
terms of a Consent Decree that would resolve this matter and
terminate the investigation. 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 adopting the
Consent Decree and terminating the investigation. We also
conclude that, in the absence of material new information not
previously disclosed to the Bureau, the matters raised in the
investigation do not raise any substantial and material questions
of fact regarding Qwest's qualifications to be a Commission
licensee.
4. Accordingly, IT IS ORDERED, pursuant to Section 4(i) of
the Communications Act of 1934, as amended,2 that the attached
Consent Decree IS ADOPTED.
5. IT IS FURTHER ORDERED that the above-captioned
investigation into the matters described herein is terminated.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
)
Qwest Corporation ) File No. EB-03-TC-126
) NAL/Acct. No.
200532170003
Compliance with the Commission's) FRN: 0003605953
Rules and Regulations Governing )
Advertising the Availability of Lifeline and )
Link-Up )
CONSENT DECREE
I. INTRODUCTION
6. The Enforcement Bureau (``Bureau'') of the Federal
Communications Commission (the ``FCC'' or ``Commission'') and
Qwest Corporation (``Qwest''), by their authorized
representatives, hereby enter into this Consent Decree for the
purpose of terminating the Bureau's investigation (the
``Investigation'') regarding whether Qwest was in compliance with
section 214(e)(1)(B) of the Communications Act of 1934, as
amended (the ``Act''), and sections 54.405(b) and 54.411(d) of
the Commission's rules,3 as it relates to the duty to publicize
Lifeline and Link-Up programs to low-income residents on tribal
lands.
II. BACKGROUND
2. Qwest is an eligible telecommunications carrier
(``ETC''), i.e., a telephone company eligible to receive
universal service support under section 214 of the Act.4 Qwest
serves numerous tribal lands in the 14-state area in which it
operates as an incumbent Local Exchange Carrier.
3. Based on concerns raised informally with the Bureau by
tribal leaders, the Bureau sent a Letter of Inquiry (``LOI'') to
Qwest on October 7, 20035 stating that it was investigating
whether Qwest was satisfying its obligations under sections
54.405(b) and 54.411(d) of the Commission's rules to publicize
the availability of Lifeline and Link-Up services to low-income
residents on tribal lands ``in a manner reasonably designed to
reach those likely to qualify'' for those services. The Bureau
sent a supplemental LOI on April 6, 2004.6 The LOIs directed
Qwest to describe any action it had taken over the previous year
to satisfy sections 54.405(b) and 54.411(d) of the Commission's
rules and to support its responses with pertinent documentation
and affidavits.
4. During the course of the Investigation, Qwest provided
written responses to the LOIs on November 14, 2003, April 27,
2004, and August 20, 2004. Qwest stated that it provides
Lifeline and Link-Up services to low-income residents on tribal
lands in 12 states within its 14-state incumbent region. Qwest
asserted that it conducted outreach to low-income residents on
tribal lands within its region and provided some evidence to
support its contention.
III. DEFINITIONS
5. For purposes of this Consent Decree, the following
definitions shall apply:
1.a. ``Act'' means the Communications Act of 1934,
as amended.
1.b. ``Bureau'' means the Enforcement Bureau of
the Federal Communications Commission.
1.c. ``Commission'' means the Federal
Communications Commission.
1.d. ``Effective Date'' means the date on which
the Bureau releases the Adopting Order.
1.e. ``Investigation'' means the investigation
commenced by the Bureau's Letter of Inquiry, dated
October 7, 2003,7 to Qwest regarding Qwest's
possible noncompliance with the requirements
contained in section 214 of the Act and sections
54.405(b) and 54.411(d) of the Commission's rules
during the period from January 1, 2001 through April
6, 2004.
1.f. ``Order'' or ``Adopting Order'' means an
Order of the Bureau adopting the terms and
conditions of this Consent Decree without change,
addition, or modification, and formally terminating
the above-captioned Investigation.
1.g. ``Parties'' means Qwest and the Bureau.
1.h. ``Qwest'' means Qwest Corporation and any
telecommunications carrier subsidiary, successor, or
telecommunications carrier controlled by Qwest
Corporation.
IV.AGREEMENT
6. Qwest agrees that the Bureau has jurisdiction over it
and the subject matter contained in this Consent Decree
and the authority to enter into and adopt this Consent
Decree.
7. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement of the Investigation
between Qwest and the Bureau. In express reliance on the
covenants and representations contained herein, and in order to
avoid the potential expenditure of additional public resources,
the Bureau agrees to terminate the Investigation. In
consideration for the termination of this Investigation and in
accordance with the terms of this Consent Decree, Qwest agrees to
the terms, conditions, and procedures contained herein.
8. 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 by Qwest with the requirements of the Act or the
Commission's rules or orders. The Parties agree that this
Consent Decree is for settlement purposes only and that by
agreeing to this Consent Decree, Qwest does not admit or deny any
noncompliance, violation, or liability associated with or arising
from its actions or omissions involving the Act or the
Commission's rules that are the subject of this Consent Decree.
9. In consideration for the termination of the
Investigation in accordance with the terms of this Consent
Decree, Qwest agrees to make a voluntary contribution to the
United States Treasury, without further protest or recourse to a
trial de novo, in the amount of $250,000 within ten (10) business
days after the Effective Date. The payment must be made by check
or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the Acct.
No. and FRN No. referenced above. Payment by check or money
order may be mailed to Forfeiture Collection Section, Finance
Branch, Federal Communications Commission, P.O. Box 73482,
Chicago, IL, 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.
10. Further, Qwest agrees to implement a Lifeline and Link-
Up Outreach Program to low-income residents on tribal lands
consisting of the components delineated below. Qwest agrees that
it will spend a minimum of $200,000 to develop and implement this
Program during the term of this Consent Decree.
a) Qwest will send a representative to at least
four regional Native American gatherings, such as
conferences, Pow Wows, and workshops, with tribal
participants from its service area to discuss the
Lifeline and Link-Up programs. Qwest will make
reasonable efforts to advertise the availability
of Lifeline and Link-Up in the
workshop/conference's written materials and will
establish a booth at each workshop/conference
where interested persons can speak directly with a
Qwest representative to ask questions about the
Lifeline and Link-Up programs and obtain
enrollment brochures written in plain English.
Qwest will also provide the name and number of a
Qwest representative who will be available to
answer additional questions.
b) Not later than 60 days after the Effective
Date, members of the Core Project Team (i.e.,
representatives from Qwest's Product, Compliance,
Public Policy, Network, and Legal organizations
working on tribal Lifeline and Link-Up outreach)
will meet with members of Voice of Many Feathers,
a Qwest-sponsored resource group comprised of
Qwest employees, many of whom are Native
Americans, to discuss ways to improve Qwest's
tribal outreach. Where feasible, Qwest will
endeavor to utilize members of Voice of Many
Feathers to provide assistance to low-income
residents on tribal lands in understanding the
Lifeline and Link-Up programs where cultural and
linguistic differences (e.g., disability, language
spoken other than English, unable to understand
written English), require some form of translation
in order to fully understand the discount
programs.
c) Not later than 90 days after the Effective
Date, Qwest will make good faith efforts to
identify and contact an appropriate tribal liaison
for each tribe Qwest serves. Such good faith
efforts will include, as necessary, contact with
the tribe via letter, telephone, social service
agencies, and regional Native American gatherings.
Tribal liaisons will assist Qwest in determining
the best approach to publicizing the availability
of Lifeline and Link-Up services. Where a Qwest
employee of Voice of Many Feathers is a member of
or affiliated with a specific tribe, Qwest may
designate the Voice of Many Feathers member as a
tribal liaison if he/she is deemed an appropriate
liaison by the specific tribe.
d) Not later than five months after the
Effective Date, Qwest will have developed and
submitted to the Bureau a Lifeline and Link-Up
Outreach Plan for each tribe Qwest serves. Each
Outreach Plan shall be designed to reach the
greatest number of low-income residents of that
specific tribe. Qwest will make a good faith
effort to work in conjunction with each tribal
liaison to develop the Outreach Plan. Such good
faith efforts will include, as necessary, contact
with the tribe via letter, telephone, social
service agencies, and regional Native American
gatherings. To the extent these efforts do not
result in the participation of the tribe in the
creation of an Outreach Plan for that tribe, Qwest
will develop a plan for that tribe that does not
depend on Tribal involvement.
Where Qwest serves a ``limited portion'' of a
tribal land, as defined below, Qwest will attempt
to establish contact with a representative from
that tribe but Qwest's Outreach Plan for such
tribal lands may be limited to distribution of
tribal Lifeline and Link-Up brochures to a
representative of the tribe. For purposes of this
paragraph, Qwest will be considered to serve a
``limited portion'' of a tribe if: (1) Qwest
serves less than 10% of the geographic area of the
tribal land on which the tribe resides; and (2)
the area Qwest serves is predominately
uninhabited, rather than inhabited, the area does
not contain clusters of living units, and the area
does not contain a concentration of governmental
or business enterprises. Currently, Qwest serves
a limited portion of approximately 14 tribal lands
out of the more than 70 tribal lands that Qwest
serves in total.
Not later than six months after the Effective
Date, Qwest will begin implementing each Outreach
Plan. Qwest will work closely with each tribal
liaison that it has identified to develop and
implement the Outreach Plans, which shall include
at least some of the following measures: use of
enrollment brochures in plain English; language
interpreters to speak directly with tribal
residents of tribal lands with sizable non-English
speaking populations; door-to-door contact with
tribal residents to orally explain the Lifeline
and Link-Up programs; distribution of information
through schools and social service organizations;
use of trained technicians to distribute brochures
where the tribal liaison deems it appropriate;
public service announcements; written
advertisements in local tribal publications; and
other means of increasing participation in the
Lifeline and Link-Up programs. Any written or
oral information will be presented in either plain
English or in the appropriate tribal language.
When Qwest uses trained technicians, public
service announcements or broadcast advertising, or
written advertisements, it will follow the
procedures below.
i) Technician Training: Working with the Core
Project Team, the Qwest manager responsible
for Lifeline and Link-Up on tribal lands will
conduct training sessions with Qwest Local
Network Technicians whose work areas include
a tribal land. Such training will include,
but not be limited to, the benefits of and
eligibility for Lifeline and Link-Up. The
technicians will be given Qwest enrollment
brochures on Lifeline and Link-Up written in
plain English for distribution to customers
on all repair and installation calls. Where
the technician does not speak to a customer,
the technician will leave enrollment
brochures on the customer's door. Newly
assigned technicians will undergo the same
Lifeline and Link-Up training from a Qwest
manager knowledgeable regarding the Lifeline
and Link-Up programs. In all instances,
technicians will receive follow-up training
every 12 months.
ii) Public Service Announcements or Broadcast
Advertising: Qwest will distribute public
service announcements (``PSAs'') or
advertisements to radio stations specifically
describing the availability of Lifeline and
Link-Up discounts for low-income residents on
tribal lands. Qwest will focus on
distribution to radio stations in its region
that serve residents on tribal lands. Where
necessary, Qwest will provide funding to
ensure that the PSAs and advertisements reach
the broadest tribal audience that Qwest
serves. The PSAs and advertisements shall
include a Qwest customer service contact
telephone number staffed by Qwest customer
service representatives trained on Lifeline
and Link-Up programs who will offer to send
Lifeline and Link-Up brochures by mail.
iii) Written Advertising: Qwest will develop
written advertisements that describe the
potential benefits of and qualifications for
the Lifeline and Link-Up programs to low-
income residents on tribal lands. The
advertisements shall include a Qwest customer
service contact telephone number staffed with
Qwest customer service representatives
trained on Lifeline and Link-Up programs who
will offer to send Lifeline and Link-Up
brochures by mail. Qwest will focus on
distribution to print media in its region
that serve residents on tribal lands. Qwest
will provide funding to ensure that the
written advertisements reach the broadest
audience in the majority of tribal lands that
Qwest serves.
(e) Qwest will submit a written report to the
Bureau describing its compliance with this Consent
Decree three, six, twelve, and eighteen months
after the Effective Date. The reports shall
address in detail Qwest's compliance with each
separate term and provision of this Consent
Decree, estimates of the total cost of developing
and implementing the tribe-specific Outreach Plans
required in Paragraph 10(d) above, and the amount
spent to date. Qwest must mail its reports to
Colleen Heitkamp, Chief, Telecommunications
Consumers Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W.
Room 4-C244, Washington, D.C. 20554, and must
include the file number listed above. Qwest will
also send an electronic copy of its reports to
Mark Stone, Deputy Chief, Telecommunications
Consumers Division, at Mark.Stone@fcc.gov and
Cynthia Bryant, Attorney, Telecommunications
Consumers Division, at Cynthia.Bryant@fcc.gov.
(f) No later than 30 days after the expiration of
this Consent Decree, Qwest will certify to the
Bureau that it has spent a minimum of $200,000 to
develop and implement this Outreach Program.
Nothing in this Consent Decree is intended or
designed to limit or restrict the funds or
resources Qwest uses to develop and implement this
Outreach Program.
(g) Qwest will maintain and make available to the
Bureau, within 14 days of receipt of any specific
request from the Bureau, business records
documenting its compliance with the terms and
provisions of this Consent Decree.
11. The Bureau agrees that, in the absence of new material
evidence related to this matter, it will not use the facts
developed in this Investigation through the Effective Date or the
existence of this Consent Decree to initiate, on its own motion,
any new proceeding, formal or informal, or take any action on its
own motion against Qwest, including any other enforcement action,
nor will the Bureau seek on its own motion any administrative or
other penalties from Qwest concerning the matters that were the
subject of the Investigation. The Bureau also agrees that it
will not use the facts developed in the Investigation through the
Effective Date or the existence of this Consent Decree to
initiate, on its own motion, any proceeding, formal or informal,
or take any action on its own motion against Qwest with respect
to Qwest's basic qualifications to be a Commission licensee.
Consistent with the foregoing, nothing in this Consent Decree
limits the Commission's authority to consider and adjudicate any
formal 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.
12. Qwest'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 or modification.
13. Provided the Bureau issues an Order adopting the
Consent Decree without change, addition or modification, Qwest
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.
14. In the event that this Consent Decree is rendered
invalid by a court of competent jurisdiction, it shall become
null and void and may not be used in any manner in any legal
proceeding.
15. By this Consent Decree, Qwest neither waives nor alters
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.
16. Qwest agrees that any violation of the Order or of this
Consent Decree shall constitute a separate violation of a
Commission order, entitling the Commission to exercise any rights
and remedies attendant to the enforcement of a Commission order.
17. The Parties agree that if any provision of this 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 Qwest does not consent),
that provision will be superceded by such Commission rule or
order.
18. The Parties agree that the requirements of this Consent
Decree shall expire eighteen (18) months from the Effective Date. 19. This Consent Decree may be signed in counterparts.
For: Qwest Corporation
_________________ ___________________________________________
Date (Qwest Signature)
For: Enforcement Bureau
Federal Communications Commission
_________________ ___________________________________________
Date David H. Solomon
Chief, Enforcement Bureau
_________________________
147 U.S.C. § 214(e)(1)(B); 47 C.F.R. §§ 54.405(b), 54.411(d).
2 47 U.S.C. § 154(i).
347 U.S.C. § 214(e)(1)(B); 47 C.F.R. §§ 54.405(b), 54.411(d).
447 U.S.C. § 214.
5See Letter of Inquiry from Colleen Heitkamp, Chief,
Telecommunications Commission Division, Enforcement Bureau, to
Qwest Communications, Inc. (October 7, 2003) (``October 7, 2003
LOI'').
6See Letter of Inquiry from Colleen Heitkamp, Chief,
Telecommunication Commission, Enforcement Bureau, to Qwest
Communications, Inc. (April 6, 2004).
7 See October 7, 2003 LOI.