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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
AT&T Corporation )
) File Nos. EB-03-TC-020
) EB-03-TC-
) 141
Apparent Liability for )
Forfeiture ) NAL/Acct. No. 200332170008
) FRN: 0006380976
ORDER
Adopted: July 8, 2004
Released: July 9, 2004
By the Commission:
1. In this Order, we adopt a Consent Decree terminating
two investigations by the Commission, one of which led to a
Notice of Apparent Liability,1 regarding potential non-compliance
by AT&T Corporation (``AT&T'') with the Do-Not-Call Requirements
contained in Section 227 of the Communications Act of 1934, as
amended (the ``Act'') and Section 64.1200 of the Commission's
rules.2
2. The Commission and AT&T have negotiated the terms of a
Consent Decree that would resolve these matters and terminate the
investigations. 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 approving the
Consent Decree and terminating the investigations.
4. Accordingly, IT IS ORDERED, pursuant to Sections 4(i),
4(j), and 503(b) of the Communications Act of 1934, as amended,3
that the attached Consent Decree IS ADOPTED.
5. AT&T shall make its voluntary contribution to the
United States Treasury by mailing a check, wire transfer, or
money order, payable to the order of the Federal Communications
Commission, to the Federal Communications Commission, Forfeiture
Collection Section, Finance Branch, P.O. Box 73482, Chicago,
Illinois 60673-7482. The payment should reference NAL/Acct. No.
200332170008 and FRN 0006380976.
6. IT IS FURTHER ORDERED that the above-captioned
Commission investigations into the matters described herein are
terminated and the NAL is canceled.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
AT&T Corporation ) File No. EB-03-TC-020
) File No. EB-03-TC-141
)
Apparent Liability for ) NAL/Acct. No. 200332170008
Forfeiture ) FRN: 0006380976
)
)
CONSENT DECREE
I. INTRODUCTION
1. The Federal Communications Commission (the ``FCC'' or
the ``Commission'') and AT&T Corporation (``AT&T''), by their
authorized representative, hereby enter into this Consent Decree
to resolve two investigations (one of which involved a Notice of
Apparent Liability (``NAL''))4 (together, the ``Investigations'')
by the Commission regarding potential non-compliance with the Do-
Not-Call requirements contained in Section 227 of the
Communications Act of 1934, as amended (the ``Act''), and Section
64.1200 of the Commission's rules.5 The Investigations were
undertaken pursuant to Sections 4(i) and 403 of the Act.6
2. In 1991, Congress enacted the Telephone Consumer
Protection Act (``TCPA'') to protect consumers from unwanted and
unsolicited telemarketing, among other things.7 The Commission
in 1992 adopted section 64.1200(e) of the rules to require that
any entity engaged in telephone solicitation maintain a Do-Not-
Call list to record residential telephone subscribers' requests
not to receive future solicitations from that entity.8 In July
2003, the Commission adopted new rules that supplement the
company-specific Do-Not-Call requirements with a National Do-Not-
Call Registry that is maintained by the Federal Trade
Commission.9 Those amendments to the FCC rules took effect
October 1, 2003.
3. On April 1, 2003, the Enforcement Bureau of the
Commission initiated an inquiry into AT&T's compliance with the
company-specific Do-Not-Call rules then in effect.10 The inquiry
sought information concerning AT&T's telemarketing procedures,
its monitoring of Do-Not-Call requests, and its customer records.
Based on that inquiry, and its review of residential customers'
complaints, on November 3, 2003 the Commission released a NAL
finding AT&T apparently liable for violations of the TCPA and the
Commission's rule and proposing a forfeiture of $780,000.11
4. AT&T filed an Opposition to the NAL, in which it denied
having placed telemarketing calls to some of the named
subscribers but admitted having placed such calls in error to
many of the complaining customers. AT&T contended that such
inadvertent errors do not provide a basis for liability under the
TCPA and section 64.1200 of the Commission's rules. AT&T also
contended that no forfeiture should be assessed under Section 503
of the Act for such inadvertent errors because it had not
``willfully'' or ``repeatedly'' failed to comply with the Act and
the Commission's regulations.12
5. On December 5, 2003, the Bureau initiated an inquiry
into AT&T's compliance with the Commission's amended rules with
respect to the National Do-Not-Call Registry and requested that
AT&T provide certain information.13 AT&T submitted responses to
the Bureau's request for such information.14 On March 19, 2004,
the Bureau sent a second letter of inquiry in this matter to
AT&T, seeking further information about the company's compliance
with Commission rules.15 AT&T has not yet filed a response to
this second letter.
6. On February 24, 2004, AT&T filed a Complaint for
Injunctive Relief in United States District Court for the
District of Columbia, seeking judicial enforcement of requests it
had previously made to the Commission under the Freedom of
Information Act (``FOIA'') which it claimed were related to the
NAL.16
II. DEFINITIONS
7. For the Purposes of this Consent Decree, the following
definitions shall apply:
(a) The ``FCC'' or the ``Commission'' means the Federal
Communications Commission and all bureaus and offices of the
Commission, including the Enforcement Bureau.
(b) ``Bureau'' means the Enforcement Bureau of the Federal
Communications Commission.
(c) ``AT&T'' or the ``Company'' means AT&T Corporation, and
any affiliate, d/b/a, predecessor-in-interest, parent
companies and any direct or indirect subsidiaries of such
parent companies, or other affiliated companies or
businesses, and their successors and assigns.
(d) ``Parties'' means AT&T and the Federal Communications
Commission.
(e) ``Communications Act'' or ``Act'' means the
Communications Act of 1934, as amended, 47 U.S.C. § 151 et
seq.
(f) ``Adopting Order'' means an Order of the Commission
adopting the terms and conditions of this Consent Decree
without change, addition or modification.
(g) ``Effective Date'' means the date on which the
Commission adopts the Adopting Order.
(h) ``Notice of Apparent Liability'' or ``NAL'' means the
Notice of Apparent Liability for Forfeiture released on
November 3, 2003, AT&T Corporation, Notice of Apparent
Liability for Forfeiture, 18 FCC Rcd 23398 (2003).
(i) ``Investigations'' means the NAL and the Bureau's
letters of inquiry in File Nos. EB-03-TC-020 and EB-03-TC-
141, together with all other Do-Not-Call complaints against
AT&T received by the Commission prior to the Effective Date.
III. AGREEMENT
8. AT&T 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. AT&T 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 AT&T respectively affirm and warrant that said
representative is acting in his/her capacity and within his/her
authority as a corporate officer of AT&T, and on behalf of AT&T
and that by his/her signature said representative is binding AT&T
to the terms and conditions of this Consent Decree.
9. AT&T agrees that the Commission has jurisdiction over
it and the matters contained in this Consent Decree and the
authority to enter into and adopt this Consent Decree.
10. AT&T will make a voluntary contribution to the United
States Treasury in the amount of four hundred ninety thousand
dollars ($490,000) within 14 calendar days after the Commission
Order adopting this Consent Decree becomes final. AT&T must make
this payment by check, wire transfer, or money order drawn to the
order of the Federal Communications Commission, and the check,
wire transfer, or money order should refer to ``NAL Acct. No.
200332170008.'' If AT&T makes this payment by check or money
order, it must mail the check or money order to: Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois, 60673-7482. If
AT&T makes this payment by wire transfer, it must wire such
payment in accordance with Commission procedures for wire
transfers.
11. For purposes of settling the matters set forth herein,
AT&T agrees to take the actions described below:
(a) For at least two (2) years from the Effective Date,
AT&T will perform quality control monitoring of the
compliance by its telemarketing representatives and those of
AT&T's vendors with the obligation to accept Do-Not-Call
requests by residential customers and appropriately transmit
them for implementation on the AT&T Do-Not-Call list.
(b) In connection with subparagraph (a), AT&T will monitor
at least 40,000 telemarketing calls per month, which number
shall increase or decrease proportionately to the extent
that AT&T's number of monthly telemarketing calls increases
or decreases from its current monthly telemarketing volume.
(c) To the extent that such monitoring may disclose that
its telemarketing representatives (or those of its vendors)
have failed accurately to record and/or appropriately to
transmit for implementation a Do-Not-Call request made by
any customer, AT&T will promptly correct its Do-Not-Call
list to reflect that request.
(d) AT&T will take appropriate disciplinary action and/or
require supplemental training in the event that its quality
control monitoring or any other source establishes that any
telemarketing representative has failed to follow legal
obligations or AT&T policies with respect to Do-Not-Call
requests. In the case of a knowing and intentional failure
by a telemarketing representative employed by one of its
vendors, AT&T will direct its vendor to ensure that the
representative no longer performs telemarketing on AT&T's
behalf. In the case of a knowing and intentional failure by
an AT&T employee, AT&T will also take disciplinary action to
the extent permitted under collective bargaining agreements
and applicable law.
(e) Before a telemarketing representative employed by AT&T
or by an AT&T telemarketing vendor makes telephone
solicitations to residential telephone subscribers on behalf
of AT&T, the representative will receive thorough Do-Not-
Call training. Such training will include educating the
representatives concerning state and federal Do-Not-Call
rules, including the requirements of the TCPA and associated
federal rules currently in effect.
(f) AT&T will retain the results of such monitoring, and
any remedial action taken, for at least four (4) years from
the Effective Date and shall make such results available to
the Commission within twenty (20) days after the Commission
submits a request for such results to AT&T.
Nothing in this Compliance Plan shall alter AT&T's obligation to
otherwise comply with the Act and with the Commission's rules and
orders.
12. In express reliance on the covenants and
representations contained herein, the Commission agrees to
terminate the Investigations concerning compliance with Section
227 of the Act and Section 64.1200(c) of the Commission's rules
and resolve the Investigations, including the NAL. By this
Consent Decree, the Notice of Apparent Liability is cancelled,
the apparent findings in the NAL are withdrawn, and the NAL has
no legal force or effect.
13. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement of the Investigations.
The Commission agrees that, in the absence of new material
evidence related to this matter, it will not use the facts
developed in the Investigations or the existence of this Consent
Decree, on its own motion, to initiate any new proceedings,
formal or informal, or take any actions, including any other
enforcement action, against AT&T, nor will the Commission, on its
own motion, seek any administrative or other penalties from AT&T
based on these Investigations. 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.
14. AT&T agrees to file within five (5) business days of
the Effective Date a notice to dismiss with prejudice the
complaint for injunctive and other relief captioned AT&T Corp. v.
Federal Communications Commission, Case Number 1:04CV00249,
pending in the United States District Court for the District of
Columbia. The parties also agree to cooperate in any further
action to obtain dismissal of the complaint in accordance with
the notice required by this paragraph.
15. AT&T 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,
provided the Order adopts the Consent Decree without change,
addition, or modification.
16. AT&T's decision to enter into this Consent Decree is
expressly contingent upon the issuance of an Adopting Order by
the Commission that is consistent with this Consent Decree, and
which adopts the Consent Decree without change, addition, or
modification.
17. AT&T represents and warrants that it shall not effect
any change in its form of doing business or its organizational
identity or participate directly or indirectly in any activity to
form a separate entity or corporation that engages in acts
prohibited in this Consent Decree or for any other purpose which
would otherwise circumvent any part of this Consent Decree or the
obligations of this Consent Decree.
18. 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.
19. The Parties also agree that if any provision of this
Consent Decree conflicts with any subsequent rule or order
adopted by the Commission, where compliance with the provision
would result in a violation of the subsequent rule or order, that
provision will be superseded by such Commission rule or order.
20. By this Consent Decree, AT&T does not waive or alter
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. The
status of materials prepared for, reviews made and discussions
held in the preparation for and implementation of AT&T's
compliance efforts under this Consent Decree, which would
otherwise be privileged or confidential, are not altered by the
execution or implementation of the terms of this Consent Decree,
and no waiver of such privileges is made by this Consent Decree.
21. 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 AT&T nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and AT&T
and the Commission will waive any statutory right to a trial de
novo with respect to the issuance of the Adopting Order and shall
consent to a judgment incorporating the terms of this Consent
Decree.
22. The Parties agree that this Consent Decree does not
constitute either an adjudication on the merits or a factual or
legal finding regarding any compliance or noncompliance with the
requirements of the Act and the Commission's Rules. The Parties
agree that this Consent Decree is for settlement purposes only
and that by agreeing to this Consent Decree, AT&T does not admit
or deny any wrongdoing, non-compliance, or violation of the Act
or the Commission rules in connection with the matters that are
the subject of this Consent Decree.
23. AT&T agrees that 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 attendant to the enforcement of a Commission order.
24. The Parties agree that the requirements of this Consent
Decree shall expire thirty-six (36) months from the Effective
Date.
25. This Consent Decree may be signed in counterparts.
For the Federal Communications Commission For AT&T Corporation
By:______________________________ By:
__________________________
Marlene H. Dortch
Secretary
______________________________
__________________________
Date Date
_________________________
1 AT&T Corporation, Notice of Apparent Liability for Forfeiture,
18 FCC Rcd 23398 (2003) (NAL).
2 47 U.S.C. § 227; 47 C.F.R. § 64.1200.
3 47 U.S.C. §§ 154(i), 154(j), 503(b).
4 AT&T Corporation, Notice of Apparent Liability for
Forfeiture, 18 FCC Rcd 23398 (2003).
5 47 U.S.C. § 227; 47 C.F.R. § 64.1200.
6 47 U.S.C. §§ 154(i), 403.
7 The TCPA, Pub. L. No. 102-243, 105 Stat. 2394 (1991), is
codified at 47 U.S.C. § 227.
8 Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, CC Docket No. 92-90, Report and Order, 7
FCC Rcd 8752 (1992).
9 Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, CG Docket No. 02-278, Report and Order,
18 FCC Rcd 14014 (2003) (TCPA Revisions Report and Order).
10 Letter from Colleen K. Heitkamp, Chief, Telecommunications
Consumers Division, Enforcement Bureau, FCC, to Michael F. Del
Casino, Regulatory Division Manager, AT&T (Apr. 1, 2003); Letter
from Colleen K. Heitkamp, Chief, Telecommunications Consumers
Division, Enforcement Bureau, FCC, to Michael F. Del Casino,
Regulatory Division Manager, AT&T (Apr. 10, 2003); Letter from
Colleen K. Heitkamp, Chief, Telecommunications Consumers
Division, Enforcement Bureau, FCC, to Michael F. Del Casino,
Regulatory Division Manager, AT&T (Apr. 29, 2003); Letter from
Colleen K. Heitkamp, Chief, Telecommunications Consumers
Division, Enforcement Bureau, FCC, to Michael F. Del Casino,
Regulatory Division Manager, AT&T (June 2, 2003); Letter from
Colleen K. Heitkamp, Chief, Telecommunications Consumers
Division, Enforcement Bureau, FCC, to Michael F. Del Casino,
Regulatory Division Manager, AT&T (Aug. 15, 2003).
11 The NAL alleged violations of the company-specific Do-Not-Call
requirements, not the Commission's rules with respect to the
National Do-Not-Call Registry.
12 AT&T Opposition, filed December 17, 2003.
13 See Letter from Kurt Schroeder, Deputy Chief,
Telecommunications Consumers Division, Enforcement Bureau, FCC to
Michael Del Casino, Regulatory Division Manager, AT&T
Corporation, dated December 5, 2003.
14 See Letter from Michael C. Lamb, Chief Counsel - AT&T Consumer
Marketing and Sales, to Kurt Schroeder, Deputy Chief,
Telecommunications Consumers Division, Enforcement Bureau, FCC
dated February 2, 2004; Letter from Dermot Bree, Senior Attorney
- AT&T Small Business Marketing and Sales, to Kurt Schroeder,
Deputy Chief, Telecommunications Consumers Division, Enforcement
Bureau, FCC dated February 6, 2004.
15 See Letter from Kurt Schroeder, Deputy Chief,
Telecommunications Consumers Division, Enforcement Bureau, FCC to
Michael Del Casino, Regulatory Division Manager, AT&T
Corporation, dated March 19, 2004.
16 AT&T Corp. v. FCC, Case No. 1:04CVV00249 (D.D.C., filed Feb.
17, 2004).