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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
QuickLink Telecom, Inc. ) File No. EB-04-IH-0503
)
) NAL/Acct. No. 200532080136
)
Apparent Liability for ) FRN 0009268061
Forfeiture )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: July 1, 2005 Released: July 5,
2005
By the Acting Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find that QuickLink Telecom, Inc.
(``QuickLink'') 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 QuickLink is apparently liable
for a monetary forfeiture in the amount of $20,000.
II. BACKGROUND
2. QuickLink characterizes itself as a ``toll
reseller.''1 It routes voice and data from around the
world through its gateway facilities in the U.S. and
Europe.2
3. In October 2004, the Universal Service
Administrative Company (``USAC'') referred QuickLink to the
Bureau for action concerning its failure to contribute to
the universal service fund (``USF'') and its failure to file
Telecommunications Reporting Worksheets. According to
USAC's records, QuickLink has filed only one Worksheet, and
made only one contribution to USF since 2003.
4. Following USAC's referral, the Bureau sent
QuickLink a Letter of Inquiry (``LOI'') to obtain
information concerning whether the company violated section
54.706 of the Commission's rules,3 involving the requirement
to contribute to USF.4 The Bureau sent the LOI to
QuickLink's registered office in Jamaica, New York, by
certified mail/return receipt requested, facsimile and
email.5 The Bureau also sent the LOI to QuickLink's
registered agent by certified mail/return receipt requested.
The LOI directed QuickLink to provide certain specified
documents and information within twenty calendar days of the
date of the letter, i.e., by November 5, 2004. Because USF
contributions are based on the information contained in the
Telecommunications Reporting Worksheets, and because
contributions to the North American Numbering Plan
(``NANP'') and the Telecommunications Relay Service Fund
(``TRS Fund'') are also based on such filings, the LOI also
initiated an investigation into whether the company violated
the Commission's rules requiring these filings.6
5. As of November 6, 2004, the Bureau had not
received communication of any kind from QuickLink. Bureau
staff made several additional attempts to reach the company,
and ultimately spoke to a man answering the telephone at
QuickLink's office and representing himself as Muhammad Ali
on December 14, 2004. Mr. Ali confirmed QuickLink's
business address, that the named addressee on the letter,
Amar Siddigui, was involved with the company, and that the
company had received invoices from USAC. He made no
representations concerning the company's response to the
LOI. Later that day, Bureau staff sent a letter to
QuickLink, reciting the above history, and reminding
QuickLink 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 QuickLink
between December 14, 2004, and December 20, 2004, but were
told that QuickLink's president was out of the country at
present. To date, the Bureau has not received any response
to the LOI from QuickLink.
III. DISCUSSION
III.A. Apparent Violation
6. 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 To impose such a forfeiture penalty, the
Commission must issue a notice of apparent liability 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
7. 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
8. As indicated above, the Bureau directed QuickLink
to provide certain documents and information to enable the
Commission to perform its enforcement function and evaluate
allegations that QuickLink violated Commission rules.
Commission rules specifically require QuickLink to maintain
these documents and produce them upon the Commission's
request.13 QuickLink received the LOI as evidenced by the
return of the mail receipt to the Bureau and confirmation of
the facsimile transmission.14 As noted above, Bureau staff
also contacted a QuickLink employee by telephone and sent a
follow-up letter. We conclude that QuickLink's failure to
respond to the Bureau's LOI constitutes an apparent willful
violation of a Commission order.15
III.B. Forfeiture Amount
9. 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.16 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.''17
10. 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.18 QuickLink's failure to respond
occurred in the face of numerous attempts by Bureau staff to
call QuickLink's attention to the importance of responding
to the LOI. 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. In this
case, such misconduct inhibits our ability adequately to
detect and deter potential rule violations in an area of
critical importance to the Commission, contributions to the
universal service fund. Prompt and full responses to Bureau
inquiry letters are critical to the Commission's enforcement
function. We therefore propose a forfeiture against
QuickLink of $20,000 for failing to respond to the Bureau's
LOI. This forfeiture amount is consistent with recent
precedent in a similar case where a company failed to
provide any response to an LOI inquiry concerning compliance
with USF rules despite evidence that the LOI had been
received.19
11. We also direct QuickLink 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 QuickLink to further
penalties, including potentially higher monetary forfeitures
and/or the revocation of QuickLink's authorization to
operate as a common carrier pursuant to section 214 of the
Act.20
IV. ORDERING CLAUSES
12. 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, QuickLink Telecom,
Inc., is hereby NOTIFIED of its APPARENT LIABILITY FOR
FORFEITURE in the amount of $20,000 for willfully and
repeatedly violating a Commission order.
13. 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, QuickLink Telecom, Inc., 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.
14. Payment of the forfeiture must 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 Federal Communications
Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon Bank /LB
358340, 500 Ross Street, Room 1540670, Pittsburgh, PA 15251.
Payment by wire transfer may be made to ABA Number
043000261, receiving bank Mellon Bank, and account number
911-6106.
15. 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, QuickLink Telecom, Inc., 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.
16. 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. E-mail
address: william.davenport@fcc.gov.
17. 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.
18. 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.
19. IT IS FURTHER ORDERED THAT a copy of this NOTICE
OF APPARENT LIABILITY shall be sent, by certified
mail/return receipt requested to Amar Siddigui, QuickLink
Telecom, Inc., 169-26 Hillside Avenue, Jamaica, NY 11432.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Acting Chief, Enforcement Bureau
_________________________
1 2003 FCC Form 499-A at 5.
2 http://www.qltel.net/contact.htm
3 47 C.F.R. § 54.706.
4 Letter from Eric J. Bash, Assistant Chief, Investigations
& Hearings Division, Enforcement Bureau, FCC, to Amar
Siddigui, QuickLink Telecom, Inc. (Oct. 15, 2004).
5 The certified mail's return receipt indicates the LOI was
received by QuickLink's corporate office, located in
Jamaica, Queens, NY, on November 1, 2004. The Bureau's
facsimile machine generated a confirmation sheet indicating
that the document was successfully transmitted to
QuickLink. The email, sent to the email address listed by
QuickLink in its 2003 FCC Form 499-A, bounced back to the
FCC as `undeliverable.' The Bureau also sent a copy of the
LOI to Roger Eddleman in Falls Church, VA, who is listed on
QuickLink's 2003 FCC 499-A as an agent for service of
process. According to the certified mail receipt, Mr.
Eddleman received the document on October 21, 2004.
Thereafter, he contacted the Bureau and said he was not
QuickLink's agent for service.
6 Id.
7 Letter from Hillary S. DeNigro, Deputy Chief,
Investigations & Hearings Division, FCC to Amar Siddigui,
QuickLink Telecom, Inc. (Dec. 14, 2004) (``LOI Follow-
up'').
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 n. 4, supra.
15 See, e.g., SBC Forfeiture Order, 17 FCC Rcd at 7599-
7600, ¶¶ 23-28 (2002) ($100,000 forfeiture for egregious
and intentional misconduct, amount set high enough to serve
as a deterrent in view of SBC's ability to pay); Globcom,
Inc., Notice of Apparent Liability for Forfeiture and
Order, 18 FCC Rcd, 19893, 19898 n. 36 (2003) (delayed
response to an LOI considered dilatory behavior, which may
result in sanctions in the future); BigZoo.Com Corporation,
Order, DA 05-449 (Enf. Bur., rel. Feb. 23, 2005)
(``BigZoo'') ($20,000 forfeiture for failure of an entity
to provide any response to a USF LOI, notwithstanding
evidence that the LOI was received); American Family
Association, Licensee of Station KBMP(FM), Enterprise,
Kansas, Notice of Apparent Liability for Forfeiture, 19 FCC
Rcd 14072 (2004) ($3,000 forfeiture for a partial response
to an LOI); World Communications Satellite Systems, Inc.,
Notice of Apparent Liability for Forfeiture, 18 FCC Rcd
18545 (2003) ($10,000 forfeiture for a non-responsive reply
to an LOI); Donald W. Kaminski, Jr., Notice of Apparent
Liability for Forfeiture, 16 FCC Rcd 10707 (2001) ($4,000
forfeiture after individual refused to respond to an LOI).
16 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).
17 47 U.S.C. § 503(b)(2)(D).
18 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).
19 See BigZoo, DA 05-449 at ¶ 5.
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).