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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
BigZoo.com Corporation ) File No. EB-04-IH-0504
)
) NAL/Acct. No. 200532080020
)
Apparent Liability for ) FRN 0009726001
Forfeiture )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: December 20, 2004 Released: December
21, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find that BigZoo.com Corporation
(``BigZoo'') apparently violated a Commission order by
willfully and repeatedly failing to respond to a directive
of the Enforcement Bureau (``Bureau'') to provide certain
information and documents. Based on our review of the facts
and circumstances of this case, and for the reasons
discussed below, we find that BigZoo is apparently liable
for a monetary forfeiture in the amount of $20,000.
II. BACKGROUND
2. BigZoo offers prepaid long distance phone service.
To use its service, customers establish an account online,
then dial a local or toll-free access number followed by a
personal identification number, and then dial the telephone
number associated with the destination they wish to reach.1
3. In October 2004, the Universal Service
Administrative Company referred BigZoo to the Bureau for
action concerning its failure to fully and timely contribute
to the Universal Service Fund (``USF''). Thereafter, by
letter dated October 15, 2004, the Bureau initiated an
investigation into whether the company violated, among other
things, section 54.706 of the Commission's rules, which
requires entities that provide interstate telecommunications
to the public to contribute to USF.2 The Bureau sent the
LOI to BigZoo by certified mail/return receipt requested, by
email, and by facsimile.3 The LOI directed BigZoo to
provide certain specified documents and information within
twenty calendar days of the date of the letter, i.e., by
November 4, 2004.
4. On October 25, 2004, Mark Del Bianco, Esq.,
contacted Bureau staff, represented himself to be counsel
for BigZoo, and requested an extension of time to respond to
the LOI. Bureau staff granted Mr. Del Bianco an extension
until November 11, 2004.4
5. On November 9, 2004, Mr. Del Bianco again
contacted Bureau staff, and requested an additional
extension of time to respond to the LOI. Bureau staff again
granted an additional extension until November 19, 2004,
stating that ``especially because the Bureau has now given
BigZoo.com more than one month to reply to the LOI, please
be certain that the company's response is full and complete
in all respects when we receive it.''5
6. On November 23, 2004, having received no filing or
response of any kind from BigZoo, Bureau staff contacted Mr.
Del Bianco about the status of the company's response. Mr.
Del Bianco advised Bureau staff that he no longer
represented BigZoo.6
7. Later that same day, Bureau staff sent a letter to
BigZoo, reciting the above history, and reminding BigZoo
that its ``failure to respond fully to the October 15, 2004
LOI subjects it to potential enforcement action, including
forfeitures. Unless we receive a full response to the
Bureau's LOI within seven days of this letter, by December
1, 2004, we will commence such an enforcement action.''7
The Bureau sent the letter by certified mail/return receipt
requested, and by facsimile. Additionally, Bureau staff
repeatedly telephoned BigZoo between November 23, 2004, and
December 1, 2004, and left voicemail messages each time, but
received no response to those messages. To date, the Bureau
has not received any response of any kind from BigZoo.
III. DISCUSSION
III.A. Apparent Violation
8. 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 forfeiture
penalty.8 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.9
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 order or
rule.10
9. Sections 4(i), 4(j), 218, and 403 of the Act
afford the Commission broad authority to investigate the
entities it regulates. Section 4(i) authorizes the
Commission to ``issue such orders, not inconsistent with
this Act, as may be necessary in the execution of its
functions,'' and section 4(j) states that ``the Commission
may conduct its proceedings in such manner as will best
conduce to the proper dispatch of business and to the ends
of justice.'' Section 218 of the Act authorizes the
Commission to ``obtain from . . . carriers . . . full and
complete information necessary to enable the Commission to
perform the duties and carry out the objects for which it
was created.''11 Section 403 likewise grants the Commission
``full authority and power to institute an inquiry, on its
own motion . . . relating to the enforcement of any of the
provisions of this Act.''12
10. As indicated above, the Bureau directed BigZoo to
provide certain documents and information in order to enable
the Commission to perform its enforcement function and
evaluate allegations that BigZoo violated Commission rules.
Commission rules specifically require BigZoo to maintain
these documents and produce them upon the Commission's
request.13 BigZoo received the LOI, as evidenced by return
of the mail receipt to the Bureau, confirmation of the
facsimile transmission, and most importantly, BigZoo's
counsel's repeated requests for extensions of time to
respond. After its counsel withdrew, Bureau staff sent
correspondence to the company directly, by facsimile, email
and mail. BigZoo's failure to respond to the Bureau's LOI
constitutes a violation of a Commission order.14
III.B. Forfeiture Amount
11. Section 503(b)(2)(B) of the Act authorizes the
Commission to assess a forfeiture of up to $130,000 for each
violation or each day of a continuing violation, up to a
statutory maximum of $1,325,000 for a single act or failure
to act.15 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.''16
12. Section 1.80 of the Commission's rules and the
Commission's Forfeiture Policy Statement establish a base
forfeiture amount of $3,000 for failure to file required
forms or information, and $4,000 for failure to respond to a
Commission communication.17 We find that the lack of a
response to a Bureau LOI in the circumstances presented here
warrants a substantial increase to this base amount.
Misconduct of this type exhibits a disregard for the
Commission's authority that cannot be tolerated, and, more
importantly, threatens to compromise the Commission's
ability to adequately investigate violations of its rules.18
The Bureau must act swiftly to investigate potential
violations of the Communications Act or the Commission's
rules in order to take action within the one year period
specified in section 503(b)(6) of the Act.19 Prompt and
full responses to Bureau inquiry letters are, accordingly,
critical to the Commission's enforcement function.
13. Furthermore, BigZoo's conduct here is particularly
egregious. The company received the Bureau's LOI and
through counsel sought and obtained not one but two
extensions of time to respond. Nevertheless, the company
still has not filed a response of any kind to the LOI. We
therefore propose a forfeiture against BigZoo of $20,000 for
failing to respond to the Bureau's LOI.
14. We also direct BigZoo to respond fully to the
October 15, 2004, LOI within thirty days of the release of
this order. Failure to do so may constitute an additional
violation potentially subjecting BigZoo to further
penalties, including potentially higher monetary forfeitures
and/or the revocation of BigZoo's authorization to operate
as a common carrier pursuant to section 214 of the Act.20
IV. ORDERING CLAUSES
15. 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 section 1.80 of the
Commission's rules, 47 C.F.R. §1.80, BigZoo.com Corporation
is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE
in the amount of $20,000 for willfully and repeatedly
violating a Commission order.
16. 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, BigZoo.com Corporation 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.
17. Payment of the forfeiture may be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/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, 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.
18. IT IS FURTHER ORDERED, that pursuant to sections
4(i), 4(j), 218 and 403 of the of the Communications Act of
1934, as amended, 47 U.S.C. §§ 4(i), 4(j), 218 and 403, and
section 54.711 of the Commission's rules, 47 C.F.R. §
54.711, BigZoo.com Corporation shall fully respond to the
October 15, 2004, Letter of Inquiry sent by the FCC's
Enforcement Bureau within 30 days of the release of this
order.
19. 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., Suite 4-C330, Washington, D.C. 20554 and
must include the NAL/Acct. No. referenced above.
20. 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.
21. 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.
22. IT IS FURTHER ORDERED that the Secretary shall
send, by certified mail/return receipt requested, a copy of
this NOTICE OF APPARENT LIABILITY FOR FORFEITURE to Pantipa
Sarai, BigZoo.com Corporation, 55 South Lake Avenue, Suite
700, Pasadena, CA 91101.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 www.bigzoo.com/home/what.asp
2 Letter from Eric J. Bash, Assistant Chief, Investigations
& Hearings Division, Enforcement Bureau, FCC, to Pantipa
Sarai, BigZoo.com Corp. (Oct. 15, 2004) (``LOI'').
3 According to the certified mail's return receipts,
BigZoo's Washington, D.C. agent for service, Corporation
Service Company, received the LOI on October 20, 2004, and
BigZoo's corporate office, located in Pasadena, CA,
received the LOI on October 22, 2004.
4 Email from Eric J. Bash, Assistant Chief, Investigations
& Hearings Division, FCC, to Mark C. Del Bianco, Esq. (Oct.
27, 2004).
5 Email from Eric J. Bash, Assistant Chief, Investigations
& Hearings Division, FCC, to Mark C. Del Bianco, Esq. (Nov.
9, 2004).
6 Letter from Mark C. Del Bianco to Eric J. Bash, Assistant
Chief, Investigations & Hearings Division, FCC (Nov. 23,
2004).
7 Letter from Hillary S. DeNigro, Deputy Chief,
Investigations & Hearings Division, FCC to Pantipa Sarai,
BigZoo.com Corp. (Nov. 23, 2004).
8 47 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, 4387-88, ¶ 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, 1362, ¶ 10 (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. Southern California Broadcasting, 6 FCC
Rcd at 4388, ¶ 5; Callais Cablevision, 16 FCC Rcd at 1362,
¶ 9.
9 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
10 See, e.g., SBC Communications, Inc., Forfeiture Order,
17 FCC Rcd 7589, 7591, ¶ 4 (2002) (``SBC Forfeiture
Order'').
11 47 U.S.C. § 218.
12 47 U.S.C. § 403. Section 403 provides, in part: ``The
Commission shall have full authority and power at any time
to institute an inquiry, on its own motion, in any case and
as to any matter or thing concerning which complaint is
authorized to be made, to or before the Commission by any
provision of this Act, or concerning which any question may
arise under any of the provisions of this Act.'' See also
47 U.S.C. § 154(i), (j).
13 47 C.F.R. § 54.711 in the USF section of our rules
requires contributors to ``maintain records and
documentation to justify information reported in the
Telecommunications Reporting Worksheet for three years and
[to] provide such records and documentation to the
Commission or the Administrator upon request.''
14 See, e.g., SBC Forfeiture Order, 17 FCC Rcd at 7600, ¶
28; Globcom, Inc., Notice of Apparent Liability for
Forfeiture and Order, 18 FCC Rcd, 19893, 19898 n. 36
(2003); American Family Association, Licensee of Station
KBMP(FM), Enterprise, Kansas, Notice of Apparent Liability
for Forfeiture, 19 FCC Rcd 14072 (Enf. Bur. rel. July 28,
2004); World Communications Satellite Systems, Inc., Notice
of Apparent Liability for Forfeiture, 18 FCC Rcd 18545
(Enf. Bur. rel. Sept. 9, 2003) (``WCSS Forfeiture Order'');
Donald W. Kaminski, Jr., Notice of Apparent Liability for
Forfeiture, 16 FCC Rcd 10707 (Enf. Bur. rel. May 14, 2001).
15 47 U.S.C. § 503(b)(2)(B). See also 47 C.F.R. §
1.80(b)(2); Amendment of Section 1.80(b) of the
Commission's Rules, Adjustment of Forfeiture Maxima to
Reflect Inflation, Order, 19 FCC Rcd 10945 (2004).
16 47 U.S.C. § 503(b)(2)(D).
17 47 C.F.R. § 1.80; Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, Report and Order, 12
FCC Rcd 17087, 17114 (1997) (``Forfeiture Policy
Statement''); recon. denied 15 FCC Rcd 303 (1999).
18 See, e.g., SBC Forfeiture Order, 17 FCC Rcd at 7600, ¶
28 (fining SBC $100,000 for violating an order to submit a
sworn statement with its response to a Bureau LOI); WCSS
Forfeiture Order, 18 FCC Rcd 18545 ($10,000 forfeiture for
submitting a jurisdictional objection in lieu of a response
to a Bureau Letter of Inquiry).
19 47 U.S.C § 503(b)(6).
20 See NOS Communications, Inc., Affinity Network, Inc.,
and NOSVA Limited Partnership, Order to Show Cause, Notice
of Opportunity for Hearing, 18 FCC Rcd 6952 (2003).