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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
Talk America Inc. ) File No. EB-05-TC-004
Compliance with the Commission's ) NAL/Acct. No. 200732170004
Rules and Regulations Governing ) FRN: 0004319430
Truth-in-Billing
)
)
)
ORDER
Adopted: December 26, 2006 Released: December 29, 2006
By the Commission:
1. In this Order, we adopt the attached Consent Decree entered into
between the Federal Communications Commission (the "FCC" or
"Commission") and Talk America Inc. ("Talk America"). The Consent
Decree terminates a Truth-in-Billing investigation initiated by the
Enforcement Bureau of the FCC regarding Talk America's compliance with
section 201(b) of the Communications Act of 1934, as amended (the
"Act"), 47 U.S.C. S 201(b), section 64.2401(b) of the Commission's
rules, 47 C.F.R. S 64.2401(b), and the Commission's orders.
2. The Commission and Talk America have negotiated the terms of a Consent
Decree that would resolve these matters 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 investigation. We also conclude that, in the absence
of material new information not previously disclosed to the
Commission, the matters raised in the investigation do not raise any
substantial and material questions of fact regarding Talk America's
qualifications to be a Commission licensee.
4. Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, that the attached Consent
Decree IS ADOPTED.
5. IT IS FURTHER ORDERED that the above-captioned matter IS TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
Talk America Inc. ) File No. EB-05-TC-004
Compliance with the Commission's ) NAL/Acct. No. 200732170004
Rules and Regulations Governing ) FRN: 0004319430
Truth-in-Billing
)
)
)
CONSENT DECREE
I. INTRODUCTION
1. The Federal Communications Commission (the "FCC" or "Commission") and
Talk America Inc. ("Talk America" or "Company"), by their authorized
representatives, hereby enter into this Consent Decree for the purpose
of terminating the Enforcement Bureau's Truth-in-Billing investigation
regarding Talk America's compliance with section 201(b) of the
Communications Act of 1934, as amended (the "Act"), section 64.2401(b)
of the Commission's rules, and the Commission's orders.
II. BACKGROUND
2. On February 22, 2005, the Enforcement Bureau of the FCC ("Bureau") sent
a Letter of Inquiry ("February 22 LOI") to Talk America concerning
allegations that Talk America may have failed clearly and plainly to
describe certain charges appearing on customers' bills in violation of
section 201(b) of the Act, 47 U.S.C. S 201(b), and the Commission's
Truth-in-Billing rules, 47 CFR S 64.2401(b). The Bureau sent a follow-up
LOI to Talk America on July 26, 2005 ("July 26 LOI").
3. Talk America provided its written responses to the February 22 LOI on
March 14 and March 28, 2005. Talk America provided its written responses
to the July 26 LOI on August 19 and August 31, 2005. The parties met to
discuss settlement on September 27, 2005, and Talk America subsequently
submitted its settlement proposal. Talk America has been forthcoming with
its responses, and cooperative with the Bureau's investigation.
III. DEFINITIONS
4. For purposes of this Consent Decree, the following definitions shall
apply:
a. "Act" means the Communications Act of 1934, as amended.
b. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
c. "Commission" or "FCC" means the Federal Communications Commission.
d. "Effective Date" means the date on which the Commission releases the
Adopting Order.
e. "Investigation" means the investigation commenced by the Bureau's
Letter of Inquiry, dated February 22, 2005, to Talk America regarding
its possible noncompliance with section 201(b) of the Act, 47 U.S.C.
S 201(b), and section 64.2401(b) of the Commission's rules, 47 C.F.R
S 64.2401(b).
f. "Order" or "Adopting Order" means an Order of the Commission adopting
the terms and conditions of this Consent Decree without change,
addition, or modification, and formally terminating the
above-captioned Investigation.
g. "Parties" means Talk America and the Commission.
h. "Talk America" means Talk America Inc. 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.
IV. AGREEMENT
5. Talk America agrees that the Commission has jurisdiction over it and
the subject matters contained in this Consent Decree and the authority to
enter into and adopt this Consent Decree.
6. The Parties agree and acknowledge that this Consent Decree shall
constitute a final settlement of the investigation. In express reliance on
the covenants and representations contained herein, and to avoid the
potential expenditure of additional public resources, the Commission
agrees to terminate the investigation. In consideration for the
termination of this matter and in accordance with the terms of this
Consent Decree, Talk America agrees to the terms, conditions, and
procedures contained herein.
7. 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 Talk America
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, Talk America 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.
8. In consideration for the termination of the investigation in accordance
with the terms of this Consent Decree, Talk America 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 four hundred and
seventy thousand dollars ($470,000) within thirty (30) days after the
Effective Date. This voluntary payment does not constitute a fine or
penalty for, or admission of, the violation of any law. The payment must
be made by check or similar instrument, payable to the order of the
Federal Communications Commission. The payment must include the Acct. No.
and FRN No. referenced above. Payment by check or money order may be
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.
Please include your NAL/Acct. No. with your wire transfer remittance.
9. To resolve and terminate the investigation, and to ensure compliance
with the Commission's Truth-in-Billing rules, Talk America agrees to
implement the following Compliance Plan:
a. "Taxes" Section of Consumers' Bills
In order to comply with the Commission's requirements that the charges
described on its bills are not misleading, Talk America agrees that only
government-mandated taxes shall appear under any section of consumers'
bills labeled "Taxes," and accordingly, will make the following
modifications:
i. Talk America will remove the charge labeled "Fed USF Combined High Cost
and School Fund (Fed)," or any similarly labeled charge, from any section
containing the label, or partial label, "Taxes," on consumers' residential
bills.
ii. Talk America will remove the charge labeled "Interstate Network Charge
(Fed)," or any similarly labeled charge, from any section containing the
label, or partial label, "Taxes," on consumers' residential bills.
b. "Fees and Charges" Section of Consumers' Bills
In order to comply with the Commission's requirements that the charges
described on its bills are not misleading, Talk America agrees to clearly
label non-tax charges that appear under the "Fees and Charges" section of
consumers' bills, and accordingly, will make the following modifications:
i. Talk America will change the sections of consumers' residential bills
containing the label, or partial label, "Surcharges," to "Fees and
Charges" and include non-tax items in this section, including the "USF
Combined High Cost and School Fund (Fed)" and the "Interstate Network
Charge."
ii. Talk America will change the name of the "TSR Administrative Fee" to
the "Wholesale Carrier Charge" to avoid consumer confusion.
c. Glossary of Taxes and Fees Section of Consumers' Bills
Talk America will provide a brief, clear, non-misleading, plain language
description of the charges contained on its bills. To the extent these
descriptions are contained in the glossary section on the reverse sides of
consumers' residential bills, Talk America will make the following
modifications:
i. Talk America will add a description of the "Interstate Network Charge."
ii. Talk America will update the description of its "Universal Service
Fund (USF) Charge," so that it is apparent to the reasonable consumer that
the fee is not government mandated.
iii. Talk America will update the description of its "Wholesale Carrier
Charge" (formerly the "TSR Administrative Fee") to accurately reflect the
costs being recovered.
d. Website Descriptions of Taxes and Fees and Charges
Talk America will provide a brief, clear, non-misleading, plain language
description of the charges contained on its bills. To the extent these
descriptions are contained on its website, Talk America will make the
following modifications:
i. Talk America will divide its description of charges into separate
sections for "Taxes" and "Fees and Charges."
ii. Talk America will add a description of the "Interstate Network
Charge."
iii. Talk America will update the description of its "Universal Service
Fund (USF) Charge," so that it is apparent to the reasonable consumer that
the fee is not government mandated.
iv. Talk America will update the description of its "Wholesale Carrier
Charge" (formerly the "TSR Administrative Fee") to accurately reflect the
costs being recovered.
e. Compliance Monitoring and Review
i. Talk America will submit sample copies of its residential invoices and
website disclosures to the Commission on a quarterly basis for one year
from the Effective Date of this Consent Decree.
ii. Talk America will heighten its internal reviews to ensure that
placement and definitions of new line items on consumers' bills for
telecommunications services are reviewed by regulatory or legal staff for
compliance with section 201(b) of the Act, 47 U.S.C. S 201(b), section
64.2401(b) of the Commission's rules, 47 C.F.R S 64.2401(b), and the
Commission's orders.
iii. Talk America will file a report summarizing compliance with this Plan
within thirty (30) days after the one-year anniversary of the Effective
Date of this Consent Decree. Talk America will file a final report on
compliance with this Plan thirty (30) days prior to the termination date
of this Consent Decree. The reports shall address in detail Talk America's
compliance with each separate provision of the Compliance Plan as
described in paragraph 9 of this Consent Decree. Talk America must mail
its reports to the Chief, Telecommunications Consumers Division,
Enforcement Bureau, Federal Communications Commission, 445 12th Street,
S.W., Washington, D.C. 20554, and must include the file number listed
above. Talk America will also send an electronic copy of its reports to
other Telecommunications Consumers Division staff as directed by the
Division Chief.
f. Term of the Plan
Talk America will implement this Compliance Plan within sixty (60) days of
the Effective Date of this Consent Decree. The terms of this Compliance
Plan will expire two (2) years after the Effective Date of this Consent
Decree or upon the termination of the Truth-in-Billing requirements set
forth in sections 64.2401(b) of the Commission's rules, 47 C.F.R. S
64.2401(b), whichever is earlier.
10. The Commission agrees that, in the absence of new material evidence
related to these matters, it will not use the facts developed in these
matters 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 Talk America, including any
other enforcement action, nor will the Commission seek on its own motion
any administrative or other penalties from Talk America, concerning the
matters that were the subject of the investigation. The Commission also
agrees that it will not use the facts developed in these matters 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 Talk America with respect to Talk America's basic
qualifications, including its character 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, 47 U.S.C. S 208, 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 developed in that proceeding.
11. Talk America's decision to enter into this Consent Decree is expressly
contingent upon the Commission's issuance of an Adopting Order. Provided
the Commission issues an Adopting Order, Talk America 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 Adopting Order.
12. 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 Talk America nor the Commission shall contest the validity of the
Consent Decree or the Adopting Order, and Talk America 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.
13. 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.
14. By this Consent Decree, Talk America 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.
15. Talk America 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.
16. The Parties agree that if any provision of this Consent Decree is
inconsistent with any subsequent rule or order adopted by the Commission,
that provision will be superseded by such Commission rule or order.
17. The Parties agree that the requirements of this Consent Decree shall
expire two (2) years after the Effective Date or upon the termination of
the Truth-in-Billing requirements set forth in sections 64.2401(b) of the
Commission's rules, 47 C.F.R. S 64.2401(b), whichever is earlier.
18. This Consent Decree may be signed in counterparts.
For: Talk America Inc. For: Federal Communications Commission
__________ _______________________ __________ ______________________
Date (Talk America Signature) Date Marlene H. Dortch
Secretary
See Telecommunications Services for Individuals with Hearing and Speech
Disabilities, and the Americans with Disabilities Act of 1990, Order on
Reconsideration, Second Report and Order, and Further Notice of Proposed
Rulemaking, 8 FCC Rcd 1802, 1806, P 22 (1993) (stating that "In order to
provide universal telephone service to TRS users as mandated by the ADA,
carriers are required to recover interstate TRS costs as part of the cost
of interstate telephone services and not as a specifically identified
charge on end user's lines"); Federal-State Joint Board on Universal
Service, Report and Order, 12 FCC Rcd 8776, 9211, P 855 (1997) (stating
that "the universal service contribution is not a federally mandated
direct end-user surcharge"); Federal-State Joint Board on Universal
Service, Second Recommended Decision, 13 FCC Rcd 24744, 24771, P 70 (1998)
(stating that "We believe that inaccurately identifying or describing
charges on bills that recover universal service contributions may violate
section 201(b) of the Act").
47 U.S.C. S 154(i).
47 U.S.C. S 201(b); 47 C.F.R. S 64.2401(b); Telecommunications Services
for Individuals with Hearing and Speech Disabilities, and the Americans
with Disabilities Act of 1990, Order on Reconsideration, Second Report and
Order, and Further Notice of Proposed Rulemaking, 8 FCC Rcd 1802, 1806, P
22 (1993) (stating that "In order to provide universal telephone service
to TRS users as mandated by the ADA, carriers are required to recover
interstate TRS costs as part of the cost of interstate telephone services
and not as a specifically identified charge on end user's lines");
Federal-State Joint Board on Universal Service, Report and Order, 12 FCC
Rcd 8776, 9211 P 855 (1997) (stating that "the universal service
contribution is not a federally mandated direct end-user surcharge");
Federal-State Joint Board on Universal Service, Second Recommended
Decision, 13 FCC Rcd 24744, 24771 P 70 (1998) (stating that "We believe
that inaccurately identifying or describing charges on bills that recover
universal service contributions may violate section 201(b) of the Act").
Section 201(b) declares unlawful any unjust and unreasonable practices in
connection with the provision of communication service. See 47 USC 201(b).
Section 64.2401(b) states, "Charges contained on telephone bills must be
accompanied by a brief, clear, non-misleading, plain language description
of the service or services rendered. The description must be sufficiently
clear in presentation and specific enough in content so that customers can
accurately assess that the services for which they are billed correspond
to those that they have requested and received, and that the costs
assessed for those services conform to their understanding of the price
charged." 47 C.F.R. S 64.2401(b).
See Letter from Aloysius T. Lawn, IV, EVP-General Counsel, Talk America
Inc., dated March 14, 2005, to Colleen K. Heitkamp, Chief,
Telecommunications Consumers Division, Enforcement Bureau; Letter from
Aloysius T. Lawn, IV, EVP-General Counsel, Talk America, Inc., dated March
28, 2005 to Colleen K. Heitkamp, Chief, Telecommunications Consumers
Division, Enforcement Bureau.
See Letter from Aloysius T. Lawn, IV, EVP-General Counsel, Talk America
Inc., dated August 19, 2005, to Colleen Heitkamp, Chief,
Telecommunications Consumers Division, Enforcement Bureau; Letter from
Aloysius T. Lawn, IV, EVP-General Counsel, Talk America, Inc., dated
August 31, 2005 to Colleen K. Heitkamp, Chief, Telecommunications
Consumers Division, Enforcement Bureau.
See supra note 1.
Federal Communications Commission FCC 06-187
1
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Federal Communications Commission FCC 06-187