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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of
) File No. EB-06-TC-058
Alltel Corporation
) NAL/Acct. No. 2000632170002
Notice of Apparent
) FRN: 0012757787
Liability for Forfeiture
)
)
)
ORDER
Adopted: August 17, 2006 Released: August 18, 2006
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau and Alltel Corporation ("Alltel"). The
Consent Decree terminates a Notice of Apparent Liability for Forfeiture
("NAL") against Alltel for its apparent violation of section 222 of the
Act, and section 64.2009(e) of the Commission's rules.
2. The Enforcement Bureau and Alltel 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 NAL.
4. Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, and the authority delegated by
section 0.111 and 0.311 of the Commission's rules, that the attached
Consent Decree IS ADOPTED.
5. IT IS FURTHER ORDERED that the above-captioned NAL is terminated.
FEDERAL COMMUNICATIONS COMMISSION
__________________________
Kris A. Monteith
Chief, Enforcement Bureau
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
)
)
)
In the Matter of
) File No. EB-06-TC-058
Alltel Corporation
) NAL/Acct. No. 2000632170002
Notice of Apparent
) FRN: 0012757787
Liability for Forfeiture
)
)
)
CONSENT DECREE
I. INTRODUCTION
1. The Enforcement Bureau ("Bureau") of the Federal Communications
Commission (the "FCC" or "Commission") and Alltel Corporation ("Alltel"),
by their authorized representatives, hereby enter into this Consent Decree
for the purpose of terminating the Bureau's investigation into possible
noncompliance by Alltel with the requirements of section 222 of the
Communications Act of 1934, as amended (the "Act"), and section 64.2009(e)
of the Commission's rules.
2. The Commission has issued rules implementing section 222 of the Act.
The Commission requires carriers to establish and maintain a system
designed to ensure that carriers adequately protect their subscribers'
CPNI. Section 64.2009(e) is one such requirement. Pursuant to section
64.2009(e):
A telecommunications carrier must have an officer, as an agent of the
carrier, sign a compliance certificate on an annual basis stating that the
officer has personal knowledge that the company has established operating
procedures that are adequate to ensure compliance with the rules in this
subpart. The carrier must provide a statement accompanying the certificate
explaining how its operating procedures ensure that it is or is not in
compliance with the rules in this subpart.
II. BACKGROUND
3. Alltel, headquartered in Little Rock, Arkansas, is a provider of
wireless services and, until recently, wireline services. Alltel holds
numerous authorizations to provide telecommunications services from the
FCC.
4. The Bureau has been investigating the adequacy of procedures
implemented by telecommunications carriers to ensure confidentiality of
their subscribers' CPNI, based on concerns regarding the apparent
availability to third parties of sensitive, personal subscriber
information. As part of this inquiry to ascertain the adequacy of
procedures implemented by telecommunications carriers to ensure the
confidentiality of their subscribers' CPNI, the Bureau directed several
carriers, including Alltel, to submit their most recent certification
prepared in compliance with section 64.2009(e) of the Commission's rules.
5. On January 27, 2006, Alltel provided a two-page document executed by
in-house counsel
for Alltel that described generally how Alltel uses CPNI. The document,
however, did not indicate "that the officer has personal knowledge that
[Alltel] has established operating procedures that are adequate to ensure
compliance with the [CPNI] rules. . . ."
6. The Bureau alleged that Alltel's submission, on its face, did not
comply with section 64.2009(e) of the Commission's rules. Accordingly, on
January 30, 2006, the Bureau issued a Notice of Apparent Liability for
Forfeiture ("NAL") proposing a forfeiture of $100,000 for Alltel's
apparent violation of section 64.2009(e) of the Commission's rules by
failing to have an officer with personal knowledge execute an annual
certificate stating that the company has established operating procedures
adequate to ensure compliance with the Commission's rules governing
protection and use of CPNI.
7. Following the issuance of the NAL, Alltel filed with the Commission an
annual certificate executed by a Senior Vice President - Marketing
Strategies and Pricing stating that the Company had established operating
procedures adequate to ensure compliance with the Commission's rules
governing protection and use of CPNI. Alltel also provided information
regarding the Company's security measures that are in place to protect
consumer information.
III. DEFINITIONS
8. For purposes of this Consent Decree, the following definitions shall
apply:
a. "Act" means the Communications Act of 1934, as amended.
b. "Alltel" means Alltel Corporation and any of its affiliates, and/or
its successors.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Commission" means the Federal Communications Commission.
e. "CPNI" means customer proprietary network information as defined in
47 U.S.C. S 222.
f. "Effective date" means the date on which the Bureau releases the
Adopting Order.
g. "Investigation" means the investigation that resulted in the Bureau's
issuance of the NAL on January 30, 2006. The investigation does not
encompass other matters that were not the subject of the Bureau's
proposed forfeiture in the NAL.
h. "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.
i. "Parties" means Alltel and the Bureau.
IV. AGREEMENT
9. Alltel 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.
10. The Parties agree and acknowledge that this Consent Decree shall
constitute a final settlement of the Investigation between Alltel and the
Bureau. In express reliance on the covenants and representations contained
herein, 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, Alltel agrees to the terms, conditions and
procedures contained herein.
11. 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 Alltel 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, Alltel 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.
12. Alltel 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 $ 100,000.00 within thirty (30) calendar days after the
Effective Date of the Adopting Order. This voluntary payment does not
constitute a fine or penalty for, or admission of, a violation of any law.
The payment must be made by check or money order and mailed to Forfeiture
Collection Section, Finance Branch, Federal Communications Commission,
P.O. Box 358340, Pittsburgh, Pennsylvania 15251. Payment by overnight mail
may be sent to Mellon Client Service Center, 500 Ross Street, Room 670,
Pittsburgh, Pennsylvania 15262-0001, Attn: FCC Module Supervisor. Payment
by wire transfer may be made to: ABA Number 043000261, receiving bank
Mellon Bank, and account number 911-6229. Include your NAL/Acct. No. with
your wire transfer remittance.
13. In consideration for the termination of the Investigation in
accordance with the terms of this Consent Decree, Alltel commits to full
compliance with Section 64.2009(e) of the Commission's rules. Further,
Alltel agrees to submit to the Chief, Telecommunications Consumers
Division, Federal Communications Commission, 445 12^th Street, S.W.,
Washington, D.C. 20554, a copy of its most recent 64.2009(e) certification
each year for the next two years no later than the anniversary of the
Effective Date of this consent decree.
14. The Bureau agrees that 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 Alltel, including
any other enforcement
action, nor will the Bureau seek any administrative or other penalties
from Alltel 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 Alltel
with respect to Alltel's basic qualifications to be a Commission licensee
or authorized common carrier. Consistent with the foregoing, nothing in
this Consent Decree limits the Commission's authority to consider and
adjudicate any complaint that may be filed pursuant to section 208 of the
Act, and to take any action in response to such complaint. The
Commission's adjudication of any such complaint will be based solely on
the record established in that proceeding.
15. Alltel'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.
16. Provided the Bureau issues an Order adopting the Consent Decree
without change, addition or modification, Alltel 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.
17. 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 Alltel nor the Commission shall contest the validity of the
Consent Decree or the Adopting Order, and Alltel 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.
18. 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.
19. By this Consent Decree, Alltel 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.
20. Alltel 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.
21. 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 Alltel does not consent), that provision will be
superceded by such Commission rule or order.
22. The Parties agree that the requirements of this Consent Decree shall
expire twenty-four (24) months from the Effective Date.
23. This Consent Decree may be signed in counterparts.
For: Alltel Corporation
______________ ___________________
Date
For: Enforcement Bureau
Federal Communications Commission
______________ ____________________
Date Kris A. Monteith
Chief, Enforcement Bureau
47 U.S.C. S 222; 47 C.F.R. S 64.2009(e).
47 U.S.C. S 154(i).
47 C.F.R. S 0.111; 47 C.F.R. S 311.
Section 222 of the Communications Act, 47 U.S.C S 222, provides that:
"Every telecommunications carrier has a duty to protect the
confidentiality of proprietary information of, and relating to, other
telecommunications carriers, equipment manufacturers, and customers,
including telecommunication carriers reselling telecommunications services
provided by a telecommunications carrier."
47 U.S.C. S 222; 47 C.F.R. S64.2009(e).
^3 In the Matter of Implementation of the Telecommunications Act of 1996:
Telecommunications Carriers' Use of Customer Proprietary Network
Information and Other Customer Information and Implementation of the
Non-Accounting Safeguards of Sections 271 and 272 of the Communications
Act of 1934, as amended, CC Docket Nos. 96-115 and 96-149, FCC 98-27,
Order and Further Notice of Proposed Rulemaking, 13 FCC Rcd 8061 (1998)
("CPNI Order"). See also, In the Matter of Implementation of the
Telecommunications Act of 1996 Telecommunications Carriers' Use of
Customer Proprietary Network Information and Other Customer Information;
CC Docket No. 96-115, Implementation of the Non-Accounting Safeguards of
Sections 271 and 272 of the Communications Act of 1934, as amended, CC
Docket No. 96-149, FCC 99-223, Order on Reconsideration and Petitions for
Forbearance 14 FCC Rcd 14409 (1999), released September 3, 1999; see also
In the Matter of
Implementation of the Telecommunications Act of 1996: Telecommunications
Carriers' Use of Customer Proprietary Network Information and Other
Customer Information; CC Docket No. 96-115, Implementation of the
Non-Accounting Safeguards of Sections 271 and 272 of the Communications
Act of 1934, as amended, CC Docket No. 96-149, 2000 Biennial Regulatory
Review -- Review of Policies and Rules Concerning Unauthorized Changes of
Consumers' Long Distance Carriers, CC Docket No. 00-257, FCC 02-214, Third
Report and Order and Third Further Notice of Proposed Rulemaking, 17 FCC
Rcd 14860 (2002).
^4 Some companies, known as "data brokers," have advertised the
availability of wireless and wireline subscriber information. See, e.g.
http://www.epic.org/privacy/iei/.
^5 On July 17, 2006, Alltel completed its spin-off of its wireline
businesses which was merged into VALOR Communications Group, Inc.,
creating Windstream Corporation ("Windstream"). Neither Alltel nor any of
its affiliates have an ownership interest in Windstream, and thus, the
Bureau agrees that the terms and conditions of this Consent Decree are
limited to Alltel and do not apply to Windstream in any way.
^6 47 U.S.C. S 208.
Federal Communications Commission DA 06-1641
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Federal Communications Commission DA 06-1641