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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
) File No. EB-06-TC-4731
Connect Paging, Inc. d/b/a Get A
Phone ) NAL/Acct. No. 200732170054
Apparent Liability for Forfeiture ) FRN: 0013394028
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 30, 2007 Released: March 30, 2007
By the Chief, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Connect Paging, Inc. d/b/a Get A Phone ("Connect") apparently
willfully or repeatedly violated a Commission order by failing to
respond to a directive of the Enforcement Bureau ("Bureau") to provide
certain information and documents related to the Bureau's
investigations into carrier protection of customer proprietary network
information ("CPNI"). Based upon our review of the facts and
circumstances surrounding this apparent violation, we find that
Connect is apparently liable for a forfeiture in the amount of $4,000.
II. BACKGROUND
2. 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. For example, some companies, known as "data brokers,"
have advertised the availability of records of wireless subscribers'
incoming and outgoing telephone calls for a fee. Data brokers have
also advertised the availability of call information that relates to
certain landline toll calls.
3. Section 222 imposes the general duty on all telecommunications
carriers to protect the confidentiality of their subscribers'
proprietary information. The Commission has issued rules implementing
section 222 of the Act. The Commission required carriers to establish
and maintain a system designed to ensure that carriers adequately
protected 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.
4. As part of our inquiry into these issues, the Bureau sent a Letter of
Inquiry ("LOI") to Connect dated December 8, 2006, directing it to
produce the company's compliance certificates for the previous five
(5) years that it had prepared pursuant to section 64.2009(e) of the
Commission's rules. Connect, however, failed to respond to the
Bureau's LOI.
III. Discussion
A. Apparent Violation
5. 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
also may 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
willfully or repeatedly violated the Act or a Commission order or
rule.
6. 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 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."
Section 403 of the Act grants the Commission "full authority and power
at any time to institute an inquiry, on its own motion . . . relating
to the enforcement of any of the provisions of this Act."
7. We find that Connect apparently violated a Commission order by failing
to respond to the Bureau's LOI. As indicated above, the Bureau
directed Connect to provide, by December 19, 2006, certain documents
and information to enable the Commission to perform its enforcement
function and determine whether Connect was in compliance with
Commission rules. There is compelling evidence that Connect received
the LOI, as demonstrated by: 1) confirmation of the facsimile
transmissions sent to Connect and its agents on December 8, 2006; and
2) the U.S. certified mail return receipt executed by Sandra Salinas
on December 27, 2006. Nevertheless, Connect has not responded to the
Bureau's inquiry letter. We conclude that Connect's continuing failure
to respond to the Bureau's LOI constitutes an apparent willful and
repeated violation of a Commission order.
A. Forfeiture Amount
8. 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. 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. Connect's
failure to respond warrants the base forfeiture amount of $4,000.
9. Connect will have an opportunity to submit further evidence and
arguments in response to this NAL to show that no forfeiture should be
imposed or that some lesser amount should be assessed.
IV. CONCLUSION and ORDERING CLAUSES
10. We conclude that Connect Paging, Inc. d/b/a Get A Phone apparently
willfully or repeatedly violated a Commission order by failing to
provide the information and documents the Bureau directed it to
provide. Accordingly, a proposed forfeiture is warranted against
Connect Paging, Inc. d/b/a Get A Phone for its apparent willful or
repeated violations of our directive.
11. ACCORDINGLY, IT IS ORDERED THAT, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, Section 1.80(f)(4) of the
Commission's rules, and authority delegated by Sections 0.111 and
0.311 of the Commission's rules, CONNECT PAGING, INC. D/B/A GET A
PHONE IS LIABLE FOR A MONETARY FORFEITURE in the amount of four
thousand dollars ($4,000) for willfully or repeatedly failing to
respond fully to the Bureau's Letter of Inquiry.
12. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the
Commission's Rules, within thirty days of the release date of this
NOTICE OF APPARENT LIABILITY, CONNECT PAGING, INC. D/B/A GET A PHONE
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
13. 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 payment of the full
amount of this NAL under an installment plan should be sent to Chief,
Credit and Management Center, 445 12^th Street, S.W., Washington, D.C.
20554.
14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by first class mail and certified mail
return receipt requested to CONNECT PAGING, INC. D/B/A GET A PHONE to
its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Kris A. Monteith
Chief, Enforcement Bureau
47 U.S.C. S 503(b)(1). The Commission has the authority under this section
of the Communications Act of 1934, as amended (the "Act") to assess a
forfeiture against any person who has "willfully or repeatedly failed to
comply with any of the provisions of this Act or of any rule, regulation,
or order issued by the Commission under this Act ...." See also 47 U.S.C.
S 503(b)(5) (stating that the Commission has the authority under this
section of the Act to assess a forfeiture penalty against any person who
is not a common carrier so long as (A) such person is first issued a
citation of the violation charged; (B) is given a reasonable opportunity
for a personal interview with an official of the Commission, at the field
office of the Commission nearest to the person's place of residence; and
(C) subsequently engages in conduct of the type described in the
citation).
See, e.g. http://www.epic.org/privacy/iei/.
See id.
Section 222 of the Act 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.
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, 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 and Implementation of the Non-Accounting Safeguards
of Sections 271 and 272 of the Communications Act of 1934, as amended,
Order on Reconsideration and Petitions for Forbearance, 14 FCC Rcd 14409
(1999); 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; 2000 Biennial Regulatory Review -- Review of
Policies and Rules Concerning Unauthorized Changes of Consumers' Long
Distance Carriers, Third Report and Order and Third Further Notice of
Proposed Rulemaking, 17 FCC Rcd 14860 (2002).
47 C.F.R. S 64.2009(e).
Letter from Marcy Greene, Deputy Division Chief, Telecommunications
Consumers Division, Enforcement Bureau, to Byron Young, President, Connect
Paging, Inc. d/b/a Get A Phone (December 8, 2006) ("Dec. 8 LOI").
47 U.S.C. S 503(b)(1)(B) and 47 C.F.R. S 1.80(a)(1).
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 (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, 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., Forfeiture Order, 17 FCC Rcd 7589,
7591 (2002) ("SBC Forfeiture Order").
47 U.S.C. SS 154(i), (j), 218, & 403.
47 U.S.C. S 154(i), (j).
47 U.S.C. S 218.
47 U.S.C. S 403; see also 47 U.S.C. S 154(i), (j).
47 U.S.C. S 503(b)(1)(B); 47 C.F.R. S 1.80(a)(2).
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 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).
47 U.S.C. S 503(b)(b)(4)(C); 47 C.F.R. S 1.80(f)(3).
47 U.S.C. S 503(b).
47 U.S.C. S 1.80(f)(4).
47 C.F.R. SS 0.111, 0.311.
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Federal Communications Commission DA 07-1420
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Federal Communications Commission DA 07-1420