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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
File No. EB-04-IH-0454
In the Matter of )
NAL/Acct. No. 200532080141
OCMC, Inc. )
FRN No. 0006176879
)
)
)
ORDER OF FORFEITURE
Adopted: September 14, 2006 Released: September 15, 2006
By the Commission:
I. INTRODUCTION
1. In this Order of Forfeiture, we assess a monetary forfeiture of
$1,133,761 against OCMC, Inc. ("OCMC") for willful and repeated
violations of the Communications Act of 1934, as amended (the "Act"),
and our rules. For the reasons set forth below, we find that OCMC
willfully and repeatedly violated the Act and Commission rules by
failing to contribute to the Universal Service Fund ("USF").
II. BACKGROUND
2. The facts and circumstances surrounding this case are set forth in the
Notice of Apparent Liability and Order ("OCMC NAL") previously issued
by the Commission, and need not be reiterated here at length. OCMC is
an operator service provider ("OSP"), interexchange carrier and toll
reseller. As an OSP and reseller of interstate and international
long-distance services, OCMC is subject to the obligations of section
254 of the Act and section 54.706(b) of our rules. Section 254(d) of
the Act requires that "[e]very telecommunications carrier that
provides interstate telecommunications services shall contribute, on
an equitable and non-discriminatory basis, to the specific,
predictable, and sufficient mechanisms established by the Commission
to preserve and advance universal service." Section 54.706 of the
Commission's rules requires all telecommunications carriers that
provide interstate telecommunications services, and certain other
providers of interstate telecommunications, to contribute to the USF
based on their projected collected end-user telecommunications
revenues, and on a contribution factor determined quarterly by the
Commission.
3. The Universal Service Administrative Company ("USAC") administers the
universal service support mechanisms and performs billing and
collection functions. The Commission requires carriers to provide
revenue information to USAC on FCC Form 499 ("Telecommunications
Reporting Worksheet") on a quarterly and annual basis, and USAC uses
that information to determine the amount of each carrier's universal
service contributions on a quarterly basis, with a yearly true-up
using the Annual Worksheet. USAC bills carriers, including OCMC, each
month based on their quarterly contribution amount.
4. On September 16, 2004, USAC referred OCMC to the Enforcement Bureau
("Bureau") for investigation concerning OCMC's possible failure to
contribute fully and on a timely basis to the USF. Thereafter, by
letter dated September 28, 2004, the Bureau initiated an investigation
into whether the company violated section 54.706 of the Commission's
rules, which requires entities that provide interstate
telecommunications to the public to contribute to the USF. The LOI
directed OCMC to provide specified documents and information. OCMC
responded on October 18, 2004. A supplemental LOI was issued on
December 16, 2004, and OCMC responded on December 21, 2004.
5. The Commission released the OCMC NAL on August 12, 2005. We concluded
in the OCMC NAL that OCMC apparently violated section 254(d) of the
Act and section 54.706(a) of our rules by willfully and repeatedly
failing to contribute fully and on a timely basis to the USF. At that
time the Administrator's invoices showed that OCMC owed $2,047,521 in
universal service-related charges, fees, and adjustments. We proposed
a forfeiture of $1,133,761 against OCMC for apparent willful and
repeated failures to pay contributions to the USF.
6. OCMC filed its response to the OCMC NAL on September 12, 2005. OCMC
does not dispute our conclusions as to its violations, but instead
argues for a reduction of the proposed forfeiture amount for those
violations. OCMC contends that the proposed forfeiture amount is
inequitable and contrary to Commission precedent. OCMC also argues
that given its current financial condition as set forth in financial
statements and recently revised Worksheets, as well as its "good faith
compliance" before we issued the LOI, a downward adjustment of the
forfeiture amount is warranted.
7. Under section 503(b)(1)(B) 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. 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 no such
forfeiture penalty should be imposed. The Commission will then issue a
forfeiture if it finds by a preponderance of the evidence that the
person has violated the Act or a Commission order or rule.
8. Section 503(b)(2)(B) of the Act authorizes the Commission to assess a
forfeiture of up to $120,000 for each violation or each day of a
continuing violation, up to a statutory maximum of $1.2 million for a
single act or failure to act for violations occurring before September
7, 2004, and up to $130,000 for each violation or each day of a
continuing violation, up to a statutory maximum of $1.325 million for
a single act or failure to act for violations occurring on or after
September 7, 2004. 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."
III. DISCUSSION
9. As discussed below, we find by a preponderance of the evidence that
OCMC has willfully and repeatedly violated section 254(d) of the Act
and section 54.706(a) of the Commission's rules by failing to
contribute fully and timely to the USF. OCMC does not dispute that it
failed to satisfy its payment obligations as set forth in the OCMC
NAL. Consequently, we find that OCMC willfully and repeatedly violated
our rules by failing to make any USF contribution in two of the twelve
months preceding the issuance of the NAL, and by making only partial
payments in seven of the twelve months preceding the issuance of the
NAL.
10. In the OCMC NAL, we proposed a forfeiture of $1,133,761 for OCMC's
apparent willful and repeated violations of section 254(d) of the Act
and sections 54.706(a) of the Commission's rules. We calculated this
amount as follows. For OCMC's apparent failure to pay universal
service contributions, we applied a base forfeiture amount of $20,000
for each of two months of nonpayment. For OCMC's apparent submission
of partial payment contributions, we applied a base forfeiture amount
of $10,000 for each of seven months of partial payments. We then added
one-half of the more than $2 million of total unpaid universal service
contributions ($1,023,761) to the base forfeiture of $110,000, for a
proposed forfeiture of $1,133,761. As explained below, we reject
OCMC's various arguments to reduce the forfeiture. We therefore impose
the forfeiture of $1,133,761 proposed in the NAL.
11. As explained below, we reject OCMC's arguments to reduce the
forfeiture proposed in the OCMC NAL. We conclude that, contrary to
OCMC's claims, the OCMC NAL conforms to our precedent and is
equitable. We also conclude that neither OCMC's purported efforts to
pay down part of its outstanding USF balance before we issued the LOI
nor its revised Worksheets justify a downward adjustment of the
forfeiture. Indeed, while it is true that OCMC has revised its
Worksheets since the NAL was issued, its revisions have increased its
revenue for 2004, such that OCMC actually owed more to the USF at the
time of the NAL than the amount referenced therein.
A. The Proposed Forfeiture Amount Is Consistent with Precedent
12. We reject OCMC's argument that an upward adjustment of one-half of its
unpaid USF contributions is "inequitable" and "contrary to precedent."
As support for its argument, OCMC reviews other NALs involving USF
contribution violations that used the same theory for upward
adjustments, and states that "[t]he violations in those cases
demonstrate a flaunting of Commission rules and disregard of
requirements that contrasts dramatically with OCMC's conduct," in that
the carriers that were the subject of those NALs had other violations
beyond the failure to contribute to USF.
13. OCMC's position fails to recognize, however, that in the cases it
cites, the Commission also proposed forfeitures for each of the other
violations. In other words, while it is true that each of the carriers
OCMC references did, in fact, appear to violate additional rules, it
is not true, as OCMC implies, that the only additional penalty these
carriers faced was an upward adjustment for their failures to
contribute to the USF. Rather, we assessed forfeitures for each of
these carriers' additional violations, some in the hundreds of
thousands of dollars. For example, in addition to the forfeiture we
proposed for one carrier's failure to contribute to the USF, we also
proposed a forfeiture against the carrier of $100,000 for its failure
to register with the Commission as required by section 64.1195 of our
rules; $250,000 for its failure to file five Telecommunications
Reporting Worksheets with the Commission; $10,000 for its failure to
contribute to the Telecommunications Relay Service fund, plus an
upward adjustment of one-half of its unpaid contributions to that
fund; $10,000 for failure to contributing to the North American
Numbering Plan Administration fund; and $10,000 for failure to pay
regulatory fees. In short, in all of the NALs that OCMC references, we
proposed separate penalties for each of the carrier's additional
violations.
14. The precedent OCMC cites confirms, instead, that we are treating OCMC
the same as other carriers that committed the same violation--failure
to contribute to USF. Our approach to the upward adjustment to the
forfeiture for the failure to contribute to USF in each of these cases
was the same and was based on one-half of the carrier's outstanding
obligations to the fund. As a result, our approach to OCMC's upward
adjustment for failure to contribute to USF is equitable when compared
to other instances when we have imposed forfeitures for such
violations and fully consistent with precedent.
B. The Forfeiture Amount Is Equitable Given OCMC's Revenues
15. We also reject OCMC's argument that it does not have substantial
revenues, and as a result, an upward adjustment of one-half of its
unpaid USF balance is unnecessary to deter the company from future USF
violations. As an initial matter, OCMC's objection to our
characterization of its revenues as "substantial" in the NAL is
unavailing. The company's response to the NAL, and its Worksheets,
indicate that its gross revenues are in the tens of millions of
dollars, and have been for several years. As a result, we reject
OCMC's claims that "[t]he Commission erroneously assumes that OCMC is
a company with `substantial revenues,'" and that "the NAL fails to
explain the basis for the Commission's conclusion that OCMC is a
company with substantial revenues."
16. To the extent that OCMC argues that its profitability is too
insubstantial to justify an upward adjustment of one-half of its
unpaid USF balance, its argument appears to be a challenge to our
general theory for upward adjustments for USF violations, at least as
applied to the company. Our approach to the upward adjustment is tied
specifically to the impact of a company's failure to pay USF
contributions and therefore necessarily changes with the amount of a
carrier's outstanding obligations to the fund, meaning that we assess
a higher forfeiture amount against carriers that owe more to the fund
than to carriers that owe less. As the Commission has stated
repeatedly in cases involving failures to contribute to USF, we
believe that this approach is appropriate because "a delinquent
carrier's culpability and the consequential damage it causes to the
goal of universal service may vary with the size of the contribution
it fails to make." Moreover, at the time we established our current
methodology for basing the upward adjustment for USF violations on
one-half of a carrier's total overdue obligations, we explained that
"the time has come to implement a substantially greater forfeiture
amount in order to deter carriers from violating our universal service
and reporting rules." Thus, OCMC's upward adjustment is over $1
million simply because the company owed more than $2 million to USF,
meaning that the company's misconduct deprived this
Congressionally-sanctioned fund of this significant amount. Our theory
for upward adjustments generally, and as applied to OCMC specifically,
is fully consistent with the mandate of section 503(b)(2)(D) that
"[i]n determining the amount of such a forfeiture penalty, the
Commission or its designee shall take into account 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."
C. Pre-LOI Efforts by OCMC Did Not Constitute Good Faith Compliance with
Our Rules
17. We also reject OCMC's allegation that we should adjust the proposed
forfeiture downward because the company demonstrated good faith by
paying down its overdue universal service contributions prior to the
LOI. Initially, we note that our forfeiture methodology already takes
into account any effort by OCMC to pay down its balance before we
issued the LOI, because the upward adjustment is dependent on the
amount of the outstanding USF balance. Where a carrier such as OCMC
pays down that balance through pre-enforcement action efforts, the
forfeiture is proportionately diminished.
18. Secondly, as noted in the OCMC NAL, the record is clear that between
September 2003 and the date of the NAL, OCMC failed to make any
monthly payment whatsoever to USAC on eight occasions, and made
contributions that were insufficient to satisfy the total amount of
its outstanding USF balance on twelve occasions, including eight
instances where its payments were not sufficient to cover even its
current month's charges. As a result of this misconduct, OCMC has
consistently maintained balances with USAC that exceed $1 million.
Thus, regardless of OCMC's purported pre-LOI efforts, large gaps
remain in OCMC's compliance. The excessively high balances maintained
by OCMC demonstrate that the forfeiture should not be reduced.
19. Finally, in responses to the Bureau's inquiries, OCMC provided
information concerning a billing dispute with USAC as grounds for its
contribution failures. OCMC implied that it withheld certain monthly
contributions and submitted other insufficient monthly contributions
because USAC's invoices did not reflect OCMC's view of the proper
resolution of that dispute. In January 2004, OCMC disputed a USAC
invoice, maintaining it was owed $310,703 in credits as a result of
the true-up of its 2002 revenues. OCMC, in subsequent correspondence
to USAC in August 2004, admitted that the amount in dispute was, in
fact, properly credited to OCMC's account in 2003. Thus, OCMC's
billing dispute does not warrant a reduction in the forfeiture.
D. OCMC Has Not Demonstrated It Is Unable to Pay the Forfeiture Amount
20. OCMC also has not demonstrated an inability to pay the forfeiture.
OCMC claims that the company lost money overall from 2003 through
2004, providing audited financial statements for those years as
support, and states that it currently lacks sufficient resources to
pay the proposed forfeiture, providing financial statements current as
of July 2005 as support. Although ability to pay is a statutory factor
that we must consider in setting a forfeiture amount, the Commission
has repeatedly held that a carrier's gross revenues are the best
indicator of its ability to pay a forfeiture. The financial
information supplied by OCMC in support of its claim, including its
2002-2004 financial statements and year-to-date 2005 financials, shows
that OCMC's gross revenues are far in excess of the forfeiture amount,
and that the forfeiture amount represents a smaller percentage of
OCMC's gross revenues than that deemed not to be excessive by the
Commission in other cases. OCMC has not produced any evidence, through
affidavits or otherwise, that it will not be able to pay the total
forfeiture.
E. The Forfeiture Should Not Be Adjusted Downward Due to OCMC's Revised
Worksheets
21. Finally, we reject OCMC's argument that we should adjust downward the
forfeiture proposed in the NAL as a result of "clerical errors" in the
Worksheets the company filed in 2005. OCMC revised its annual
Worksheet at about the same time that it responded to the NAL, and
claimed that the balances USAC would recalculate from these revisions
"will be significantly lower than the more than $2 million balance
identified in the NAL," such that "any penalty assessed by the
Commission for partial or non-payment of USF contributions should be
based on the actual, lower balance owed, rather than an artificially
inflated amount resulting from clerical error." In fact, although OCMC
did revise its annual Worksheet for 2005 at about the same time it
filed its response to the NAL, USAC has indicated to Commission staff
that it identified problems with that submission, and as a result, the
company revised its Worksheet a second time. The net effect of these
revisions is that OCMC has increased its reported revenue for calendar
year 2004, such that the amount of the company's outstanding balance
at the time of the NAL was actually higher than the amount discussed
therein. While we agree with OCMC that we should base our forfeiture
on its actual USF balance, that approach does not result in decreasing
the company's forfeiture. As a result, the forfeiture will not be
reduced due to OCMC's revisions to its Worksheets.
IV. CONCLUSION
22. OCMC withheld payments to the Congressionally-mandated universal
service program, thereby depriving the program of essential funding
for an extended period of time and totaling millions of dollars in
withheld contributions. In light of the seriousness, duration and
scope of the apparent violations, we find that the forfeiture of
$1,133,761 proposed in the OCMC NAL is warranted.
V. ORDERING CLAUSES
23. 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. S 1.80, that OCMC, Inc. SHALL
FORFEIT to the United States government the sum of $1,133,761 for
willfully and repeatedly violating the Act and the Commission's rules.
24. Payment of the forfeiture shall be made in the manner provided for in
section 1.80 of the Commission's rules within 30 days of the release of
this Order. If the forfeiture is not paid within the period specified, the
case may be referred to the Department of Justice for collection pursuant
to Section 504(a) of the Act. 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. Requests for full payment under an
installment plan should be sent to: Associate Managing Director -
Financial Operations, 445 12th St, SW, Room 1A625, Washington, DC 20554.
25. IT IS FURTHER ORDERED that copies of this ORDER OF FORFEITURE shall be
sent by certified mail, return receipt requested, to Ann C. Bernard,
General Counsel, OCMC, Inc., 801 Congressional Boulevard, Suite 100,
Carmel, IN 46032.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
47 U.S.C. S 254.
47 C.F.R. S 54.706(a).
See OCMC, Inc., Notice of Apparent Liability for Forfeiture and Order, 20
FCC Rcd 14160 (2005) ("OCMC NAL").
OCMC's 2005 FCC Form 499-A Telecommunications Reporting Worksheet; see
also Letter from Ann Bernard, OCMC, Inc., General Counsel, to Christopher
Shields, Investigations and Hearings Division, Enforcement Bureau, FCC
(October 18, 2004) ("LOI Response").
The Commission's rules specifically include OSPs and resellers of
interstate services in the definition of providers of interstate
telecommunications services that must contribute to the fund. See 47
C.F.R. S 54.706(a)(3), (16).
47 U.S.C. S 254(d).
47 C.F.R. SS 54.706, 54.709.
See Changes to the Board of Directors of the National Exchange Carrier
Association, Inc., Report and Order and Second Order on Reconsideration,
12 FCC Rcd 18400, 18415, P 25 (1997) ("NECA Changes Order"); 47 C.F.R.
S\00154.702(b).
47 C.F.R. S 54.711.
See 47 C.F.R. S 54.709(a).
See, e.g., Federal-State Joint Board on Universal Service, Sixteenth Order
on Reconsideration (in CC Docket No. 96-45), Eighth Report and Order (in
CC Docket No. 96-45), and Sixth Report and Order (in CC Docket No.
96-262), 15 FCC Rcd 1679, 1687, P 18 (1999); Federal-State Board on
Universal Service, Further Notice of Proposed Rulemaking and Order, 15 FCC
Rcd 19947, 19954, P 17 (2000); Federal-State Joint Board on Universal
Service, 1998 Biennial Regulatory Review - Streamlined Contributor
Reporting Requirements Associated with Administration of
Telecommunications Relay Services, North American Numbering Plan, Local
Number Portability, and Universal Service Support Mechanisms,
Telecommunications Services for Individuals with Hearing and Speech
Disabilities, and the Americans with Disabilities Act of 1990,
Administration of the North American Numbering Plan and North American
Numbering Plan Cost Recovery Contribution Factor and Fund Size, Number
Resource Optimization, Telephone Number Portability, Truth-in-Billing and
Billing Format, Report and Order and Second Further Notice of Proposed
Rulemaking, 17 FCC Rcd 24952, 24971-72, P 35 (2002); Changes to the Board
of Directors of the National Exchange Carrier Association, Inc.,
Federal-State Board on Universal Service, Second Order on Reconsideration
(in CC Docket No. 97-21), 12 FCC Rcd 22423, 22425, P 3 (1997). Carriers
must pay by the date shown on the invoice from the Administrator. 47
C.F.R. S 54.711(a) ("The Commission shall announce by Public Notice
published in the Federal Register and on its website the manner of payment
and the dates by which payments must be made."). See, e.g., Proposed Third
Quarter 2003 Contribution Factor, Public Notice, 18 FCC Rcd 11442
(Wireline Comp. Bur. 2003) ("Contribution payments are due on the date
shown on the administrator invoice.").
Letter from Hillary S. DeNigro, Deputy Chief, Investigations & Hearings
Division, Enforcement Bureau, FCC, to Robert Young, OCMC, Inc. (Sept. 28,
2004) ("LOI").
See LOI Response.
Letter from Hillary S. DeNigro, Deputy Chief, Investigations & Hearings
Division, Enforcement Bureau, FCC, to Robert Young, OCMC, Inc. (Dec. 16,
2004) ("Supplemental LOI").
Letter from Ann Bernard, OCMC, Inc., General Counsel, to Christopher
Shields, Investigations and Hearings Division, Enforcement Bureau, FCC
(December 20, 2004) ("Supplemental LOI Response").
See 47 U.S.C. S 254; 47 C.F.R. S 54.706(a).
OCMC NAL, 20 FCC Rcd at 14165-66, PP 14-19.
Response to Notice of Apparent Liability, submitted by Ann C. Bernard,
General Counsel, OCMC, Inc., dated Sept. 12, 2005 ("NAL Response").
47 U.S.C. S 503(b)(1)(B).
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 (2001)
(issuing a Notice of Apparent Liability for, inter alia, a cable
television operator's repeated signal leakage) ("Callais Cablevision,
Inc.")
Callais Cablevision, Inc., 16 FCC Rcd at 1362, P 9; Southern California
Broadcasting Co., 6 FCC Rcd at 4388, P 5.
47 U.S.C. S 503(b); 47 C.F.R. S 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591, P 4 (2002) (forfeiture paid).
47 U.S.C. S 503(b)(2)(B); see also 47 C.F.R. S 1.80(b)(2). The Commission
recently amended its rules to increase the maximum penalties to account
for inflation since the last adjustment of the penalty rates. See
Amendment of Section 1.80(b) of the Commission's Rules and Adjustment of
Forfeiture Maxima to Reflect Inflation, Order, 19 FCC Rcd 10945 (2004).
47 U.S.C. S 503(b)(2)(D); see The Commission's Forfeiture Policy Statement
and Amendment of Section 1.80 of the Commission's Rules, Report and Order,
12 FCC Rcd 17087, 17100, P 27 (1997), recon. denied, 15 FCC Rcd 303
(1999); 47 C.F.R. S 1.80(b).
See 47 U.S.C. S 254; 47 C.F.R. S 54.706(a).
NAL Response at 3.
OCMC NAL, 20 FCC Rcd at 14163-64, PP 8-13.
OCMC NAL, 20 FCC Rcd at 14165-66, PP 14-19.
As set forth in the OCMC NAL, the two violations for non-payment of USF
obligations occurred on March 15 and June 15, 2005. OCMC NAL 20 FCC Rcd at
14164, P 17.
As set forth in the OCMC NAL, the seven violations for partial payment of
USF obligations occurred on August 13, September 15, October 15, and
November 15, 2004, and February 15, April 15, and May 13, 2005. OCMC NAL
at 14166, P 18.
Under section 503(b)(6) of the Act, 47 U.S.C. S 503(b)(6), we have a
one-year statute of limitations for non-broadcast forfeiture actions; see
also 47 C.F.R. S 1.80(c)(3).
NAL Response at 6.
OCMC cites to four NALs we released in July and August 2005: Telecom
Management, Inc., Notice of Apparent Liability for Forfeiture and Order,
20 FCC Rcd 14151 (2005); Carrera Communications, LP, Notice of Apparent
Liability for Forfeiture and Order, 13 FCC Rcd 13307 (2005); InPhonic,
Inc., Notice of Apparent Liability for Forfeiture and Order, 20 FCC Rcd
13277 (2005); Teletronics, Inc., Notice of Apparent Liability for
Forfeiture and Order, 20 FCC Rcd 13291 (2005) ("Teletronics").
NAL Response at 7.
See Teletronics.
NAL Response at 5-6.
Id. at 8.
Id. at 9.
Matrix Telecom, Inc., Notice of Apparent Liability for Forfeiture, 15 FCC
Rcd 13544, 13546-47, P 8 (2000); see also Globcom, Inc., Notice of
Apparent Liability for Forfeiture and Order, 18 FCC Rcd 19893, 19904, P 27
(2003) ("Globcom").
Globcom at 19903, P 25 (2003).
47 U.S.C. S 503(b)(2)(D).
NAL Response at 11-12.
OCMC NAL, 20 FCC Rcd at 14163, P 9.
Supplemental LOI Response, Attachment dated Feb. 10, 2004 (reading, in
part, as follows: "This is to dispute, and request to review the records
documenting, the $310,703.48 demanded in your letter dated January 22,
2004.").
Supplemental LOI Response, Attachment dated Aug. 5, 2004 (reading, in
part: "Thanks you for your reply. The amount, originally in dispute, has
been satisfied. As per your mention of the credits.").
See NAL Response at 12 and Exhibit A.
See NAL Response at 12 and Exhibit C.
"In determining the amount of . . . a forfeiture penalty, the Commission
or its designee shall take into account . . . ability to pay." 47 U.S.C. S
503(b)(2)(D).
See, e.g., Hoosier Broadcasting Corporation, Memorandum Opinion and Order,
15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross revenues);
Coleman Enterprises d/b/a Local Long Distance, Inc., Order on
Reconsideration, 16 FCC Rcd 10,016 (2001) (forfeiture not deemed excessive
where it represented approximately 7.9 percent of the violator's gross
revenues); PJB Communications of Virginia, Inc., Memorandum Opinion and
Order, 7 FCC Rcd 2088, 2089, P 8 (1992) (forfeiture not deemed excessive
where it represented approximately 2.02 percent of the violator's gross
revenues).
See Webnet Communications, Inc., Order of Forfeiture, 18 FCC Rcd 6870,
6878, P 16 (2003); America's Tele-Network Corporation, Order of
Forfeiture, 16 FCC Rcd 22350, 22356-56, P 16 (2001).
NAL Response at 12.
Id. at 12-13.
47 U.S.C S 504(a).
See 47 U.S.C S 1.1914.
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