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                                  +Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                         )                               
                                                                         
                                         )                               
                                                                         
                                         )                               
     In the Matter of                                                    
                                         )   File No. EB-04-IH-0517      
     Unicom Communications, L.L.C.                                       
                                         )   NAL/Acct. No. 200632080154  
     Apparent Liability for Forfeiture                                   
                                         )                               
                                                                         
                                         )                               
                                                                         
                                         )                               


                          NOTICE OF APPARENT LIABILITY

                                FOR FORFEITURE

   Adopted:  April 26,   2006   Released:  April 27, 2006

   By the Chief, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       that Unicom Communications, L.L.C. ("Unicom") 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 Unicom is apparently liable for a monetary forfeiture in the
       amount of $20,000.

   II. BACKGROUND

    2. Unicom is a division of Smoky Mountains Systems, Inc., a North
       Carolina firm offering a variety of regulated and non-regulated
       telecommunications services. Unicom itself is a local and long
       distance carrier providing interstate telecommunications service in
       North Carolina and Florida.

    3. On March 30, 2004, the Bureau's audit staff sent a letter to Unicom
       requesting information pertaining to its compliance with section
       64.1195 of the Commission's rules, which requires all
       telecommunications carriers that provide interstate telecommunications
       services to register with the Commission. The purpose of this
       requirement is to assist the Commission in monitoring the entry and
       operation of interstate telecommunications carriers to ensure that,
       among other things, they do not engage in fraud or evade oversight.
       After receiving an inadequate response and still finding no evidence
       that Unicom had registered, the Bureau, on October 28, 2004, issued a
       letter of inquiry ("LOI") to Unicom. The October 28, 2004 LOI directed
       Unicom to, among other things, submit a sworn written response to a
       series of questions relating to its apparent failure to satisfy its
       registration requirement, as well as certain filing and payment
       obligations relating to, among others, the Universal Service Fund,
       from 2002 to the date of the LOI.

    4. After being granted an extension of the time to respond, Unicom filed
       two separate responses to the October 28, 2004 LOI on December 7 and
       9, 2004. The responses were deficient in both form and content.
       Specifically, Unicom produced only three documents in response to
       several multipart and multiyear document requests, provided no
       explanation or support as the LOI instructions required demonstrating
       how the documents were responsive to the Bureau's inquiries, and
       provided no response of any kind to 11 of 14 of the inquiries.

    5. After telephone discussions and email correspondence from Bureau staff
       to Unicom during late December 2004 and January 2005 failed to elicit
       complete responses, the Bureau sent a letter to Unicom on March 11,
       2005. The March 11, 2005 Letter described specific inadequacies in
       Unicom's prior response and warned that failure to respond fully to
       the Bureau's inquiries could by itself subject Unicom to potential
       enforcement action. Unicom responded by facsimile transmission on
       March 15, 2005 providing a single document that did not answer the
       Bureau's inquiries.

    1. After receiving no further information, on June 28, 2005, the Bureau
       issued another letter to Unicom. The June 28, 2005 Letter noted the
       previous inadequacies in both informational and documentary responses.
       It also reminded Unicom that it had been directed to answer the
       inquiries pursuant to certain directions, and to submit a sworn
       affidavit subject to penalty of perjury, as required by Commission
       rules. Furthermore, the June 28, 2005 Letter directed Unicom to
       provide complete responses to all unanswered inquiries, supported by a
       sworn affidavit, by July 18, 2005, and again warned that failure to
       respond fully to the October 28, 2004 LOI could by itself subject
       Unicom to potential enforcement action. Although Unicom's receipt of
       this letter is evidenced by return of the certified mail receipt and
       confirmation of the facsimile transmission, the Bureau has received no
       further response whatsoever from Unicom to the date of this NAL.

   III. DISCUSSION

   A.  Apparent Violation

    6. Under section 503(b)(1) of the Communications Act of 1934, as amended
       (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. 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. The legislative history to section 312(f)(1) of the
       Act clarifies that this definition of willful applies to both sections
       312 and 503(b) of the Act, and the Commission has so interpreted the
       term in the section 503(b) context. The Commission may also assess a
       forfeiture for violations that are merely repeated, and not willful.
       "Repeated" means that the act was committed or omitted more than once,
       or lasts more than one day. 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 such forfeiture penalty should not be imposed.
       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.

    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 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."

    8. We find that Unicom apparently violated Commission orders by failing,
       after multiple opportunities, to respond fully to the October 28, 2004
       LOI. Section 218 of the Act specifically 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." Sections 4(i), 4(j), and 403 of
       the Act unequivocally grant the Commission the power to direct
       responses to inquiries in order to execute its functions. As indicated
       above, the Bureau directed Unicom to provide certain documents and
       information in order to enable the Commission to perform its
       enforcement function and evaluate allegations that Unicom violated
       Commission rules. Commission rules specifically require Unicom to
       maintain these documents and produce them upon the Commission's
       request. Unicom repeatedly failed to provide sufficient explanation
       and documentation in response to both the October 28, 2004 LOI and the
       March 11, 2005 Letter. Moreover, Unicom was completely unresponsive to
       the June 28, 2005 Letter, although the return of the certified mail
       receipt and confirmation of facsimile establish that Unicom received
       this letter. The June 28, 2005 Letter reiterated the previous
       inquiries, specifically instructed Unicom on the proper format for its
       responses, and again warned of the enforcement consequences of failing
       to respond. In addition, during the period December 2004 to January
       2005, Bureau staff attempted to elicit responses through telephone
       discussions and email correspondence. Unicom's willful and repeated
       failures adequately to respond to the Bureau's inquiries constitute a
       violation of a Commission order.

   B.  Forfeiture Amount

    9. Section 503(b)(1) of the Act provides that any person that willfully
       or repeatedly fails 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. 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. 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."

   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. Unicom's failures to respond
       occurred despite multiple attempts by Bureau staff to call Unicom's
       attention to the importance of responding to LOIs. We find that these
       failures to respond to a Bureau LOI in the circumstances presented
       here warrant a substantial increase to this base amount. Unicom
       received three written communications from the Bureau, and to date has
       produced only four unauthenticated, unexplained documents, and has
       failed to provide a response of any kind to most of the Bureau's
       inquiries. 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
       investigate adequately 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 -- registration and contributions to universal service.
       Prompt and full responses to Bureau inquiry letters are critical to
       the Commission's enforcement function. We therefore propose a
       forfeiture against Unicom of $20,000 for failing to respond to the
       Bureau's LOI. This forfeiture amount is consistent with recent
       precedent in similar cases where companies failed to provide responses
       to LOIs concerning compliance with the Commission's universal service
       and registration rules, despite evidence that the LOIs had been
       received.

   11. We also direct Unicom to respond fully to the October 28, 2004 LOI
       within thirty days of the release of this order. Failure to do so may
       constitute an additional violation potentially subjecting Unicom to
       further penalties, including potentially higher monetary forfeitures
       and/or the revocation of Unicom's authorization and the authorization
       of its principals to operate common carrier services pursuant to
       section 214 of the Act without prior consent of the Commission. In
       addition, to the extent Unicom's responses to the LOIs evidence
       noncompliance with the Commission's registration and other rules, the
       Bureau will not hesitate to propose additional enforcement action.

   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. S 503(b), and
       section 1.80 of the Commission's rules, 47 C.F.R. S1.80, Unicom
       Communications, L.L.C. 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. S 1.80, within thirty days of the
       release date of this NOTICE OF APPARENT LIABILITY FOR FORFEITURE,
       Unicom Communications, L.L.C. 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. SS
       4(i), 4(j), 218 and 403, and section 54.711 of the Commission's rules,
       47 C.F.R. S 54.711, Unicom Communications, L.L.C. shall fully respond
       to the October 28, 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 12^th Street, S.W., Suite 4-C330,
       Washington, D.C. 20554 and must include the NAL/Acct. No. referenced
       above.

   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 12^th Street,
       S.W., Washington, D.C. 20554.

   19. IT IS FURTHER ORDERED that a copy of this NOTICE OF APPARENT LIABILITY

   FOR FORFEITURE shall be sent, by certified mail/return receipt requested,
   to Mr. Charles D. D'Ascoli, Managing Partner, Unicom Communications,
   L.L.C., 17 Smoky Mountain Drive, Franklin, North Carolina 28734.

   FEDERAL COMMUNICATIONS COMMISSION

   Kris Anne Monteith

   Chief, Enforcement Bureau

   See [1]www.unicomcommunications.com (March 22, 2006).

   See Letter from Hugh L. Boyle, Chief Auditor, Investigations and Hearings
   Division, Enforcement Bureau, FCC, to Unicom Communications, L.L.C., dated
   March 30, 2004.

   See 47 C.F.R. S 64.1195(a).

   Implementation of the Subscriber Carrier Selection Provisions of the
   Telecommunications Act of 1996, Third Report and Order and Second Order on
   Reconsideration, 15 FCC Rcd 15996, 16024, P 59 (2000).

   See Letter from Hillary DeNigro, Deputy Chief, Investigations and Hearings
   Division, Enforcement Bureau, FCC, to Charles D. D'Ascoli, Managing
   Partner, Unicom Communications, L.L.C., dated October 28, 2004 ("October
   28, 2004 LOI").

   See Letter from Hillary DeNigro, Deputy Chief, Investigations and Hearings
   Division, Enforcement Bureau, to Charles D. D'Ascoli, Managing Partner,
   Unicom Communications, L.L.C., dated December 2, 2004, extending the due
   date from November 17, 2004 to December 8, 2004.

   The three documents included a single incorporation renewal in North
   Carolina for 2004, a balance sheet for 2002, and a federal tax return for
   2002. After telephone consultation with Bureau staff regarding the
   Bureau's request for information on the company's gross end user
   interstate telecommunications service revenues, Unicom produced partial
   accounting statements purporting to show these revenues in North Carolina
   and Florida for 2002 and 2003, respectively. The documents did not provide
   the information requested.

   See Letter from Hillary DeNigro, Deputy Chief, Investigations and Hearings
   Division, Enforcement Bureau, FCC, to Charles D. D'Ascoli, Managing
   Partner, Unicom Communications, L.L.C., dated March 11, 2005 ("March 11,
   2005 Letter").

   On March, 15, 2005, Unicom provided a document that purported to be a copy
   of a Form 499-A, applicable to 2002. Form 499-A, also known as
   "Telecommunications Reporting Worksheet," is the form on which carriers
   must submit annual revenue information to the Universal Service
   Administrative Company ("USAC") to enable administrators of various funds
   to determine and collect the statutorily mandated assessments. Unicom's
   submission of this purported 2002 form to the Bureau on March 15, 2005 was
   apparently intended to appear responsive to a portion of the October 28,
   2004 LOI. Subsequent investigation showed, however, that Unicom never
   actually filed this worksheet with USAC.

   See Letter from Hillary DeNigro, Deputy Chief, Investigations and Hearings
   Division, Enforcement Bureau, FCC, to Charles D. D'Ascoli, Managing
   Partner, Unicom Communications, L.L.C., dated June 28, 2005 ("June 28,
   2005 Letter").

   47 C.F.R. S 1.16.

   47 U.S.C. S 503(b)(1)(B); 47 C.F.R. S 1.80(a)(1); see also 47 U.S.C. S
   503(b)(1)(D) (forfeitures for violation of 14 U.S.C. S 1464).

   47 U.S.C. S 312(f)(1).

   H.R. Rep. No. 97-765, 97^th Cong. 2d Sess. 51 (1982).

   See, e.g., Application for Review of Southern California Broadcasting Co.,
   Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388, P 5 (1991) ("Southern
   California Broadcasting Co.").

   See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of
   Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362, P 10
   (2001) ("Callais Cablevision") (issuing a Notice of Apparent Liability
   for, inter alia, a cable television operator's repeated signal leakage).

   Southern California Broadcasting Co., 6 FCC Rcd at 4388, P 5; Callais
   Cablevision, Inc., 16 FCC Rcd at 1362, P 9.

   47 U.S.C. S 503(b); 47 C.F.R. S 1.80(f).

   See, e.g., SBC Communications, Inc.,  17 FCC Rcd 7589, 7591, P 4 (2002).

   47 U.S.C. SS 4(i), 4(j), 218, 403.

   47 U.S.C. SS 4(i), 4(j).

   47 U.S.C. S 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. S 4(i), (j).

   47 U.S.C. S 218.

   47 U.S.C. SS 4(i), (j), and 403.

   See supra at note 5.

   See 47 C.F.R. S 54.711, which 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." Id.

   See supra at notes 7, 9.

   See supra at note 10.

   See, e.g., SBC Forfeiture Order, 17 FCC Rcd at 7599-7600, PP 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, P 11, n. 36 (2003) (delayed response to an LOI
   considered dilatory behavior, which may result in sanctions in the
   future); BigZoo.Com Corporation, Order of Forfeiture, 20 FCC Rcd 3954,
   3955, PP 5-6 (Enf. Bur. 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, 14076-77, PP 12, 15 (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, 18546-49, PP 4-12 (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, 10708, PP 4-5 (2001)
   ($4,000 forfeiture after individual refused to respond to an LOI).

   47 U.S.C. S 503(b)(1).

   47 U.S.C. S 503(b)(2)(B); see also 47 C.F.R. S 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).

   47 U.S.C. S 503(b)(2)(D).

   47 C.F.R. S 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).

   See supra at notes 8, 10. In addition, Bureau Staff had multiple telephone
   discussions and email correspondence with Unicom during late December 2004
   and January 2005 in order to elicit complete responses. See supra at P 5.

   Blackstone Calling Card, Inc., Notice of Apparent Liability for
   Forfeiture, DA 05-3192 (Enf. Bur., rel. Dec. 19, 2005) ($20,000 forfeiture
   for failure of an entity to provide adequate response to a USF LOI,
   notwithstanding evidence that the LOI was received); BigZoo, 20 FCC Rcd
   3954  (same); QuickLink Telecom, Inc., Order of Forfeiture, 20 FCC Rcd
   14464 (Enf. Bur. 2005) (same).

   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).

   Federal Communications Commission DA 06-933

   5

   1

                                  Federal Communications Commission FCC 99-xx

References

   Visible links
   1. http://www.unicomcommunications.com/