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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: August 10, 2007 Released: August 10, 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 section 64.2009(e) of the Commission's
rules by failing to have a corporate 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 Customer Proprietary Network
Information ("CPNI"). Protection of CPNI is a fundamental obligation of
all telecommunications carriers as provided by section 222 of the
Communications Act of 1934, as amended ("Communications Act" or "Act").
Based upon our review of the facts and circumstances surrounding this
apparent violation, and in particular the serious consequences that may
flow from inadequate concern for and protection of CPNI, we propose a
monetary forfeiture of $100,000 against Connect for its apparent failure
to comply with section 64.2009(e) of the Commission's rules.
II. BACKGROUND
2. The Enforcement Bureau ("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 certain landline toll
calls.
3. As part of our inquiry into these issues, the Bureau sent a Letter of
Inquiry ("LOI") to Connect on December 8, 2006, directing it to produce
the compliance certificates for the previous five (5) years that it had
prepared pursuant to section 64.2009(e) of the Commission's rules. On
March 30, 3007, the Commission issued a Notice of Apparent Liability for
Forfeiture ("NAL") against Connect in the amount of $4,000 for its
apparent failure to respond to a directive of the Enforcement Bureau. On
April 27, 2007, Connect submitted several documents in response to the
NAL. The documents submitted by Connect do not satisfy the requirements
set forth in 64.2009(e) of the Commission's rules. Accordingly, we issue
this proposed forfeiture.
III. Discussion
A. Apparent Violation
4. 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.
5. The Bureau's December 8, 2006 LOI directed Connect to produce the
company's compliance certificates for the previous five (5) years that it
had prepared in compliance with section 64.2009(e) of the Commission's
rules. On April 27, 2007, Connect submitted its response. The response
consists of a letter from Connect's President, which details, among other
things, the Company's CPNI policies and practices. Also included was
Connect's employee handbook, an ethics document prepared by the Assistant
to the President, which includes "cautionary language regarding customer
information ... and the requirement for new employees to sign the document
in front of a Supervisor," and a sworn statement from the Assistant
stating that she prepared said document. The documents, however, do not
contain a statement by an officer "that the officer has personal knowledge
that [Connect] has established operating procedures that are adequate to
ensure compliance with the [CPNI] rules. . . ." Accordingly, Connect's
submission, on its face, does not comply with section 64.2009(e) of the
Commission's rules. Further, Connect has not provided any additional
information in response to our request demonstrating that it has otherwise
complied with the Commission's CPNI rules by preparing and maintaining a
certificate that satisfies the requirements of section 64.2009(e).
6. We conclude that Connect has apparently failed to comply with the
requirement that it have an officer certify on an annual basis that the
officer has personal knowledge that Connect has established operating
procedures adequate to ensure compliance with the Commission's CPNI rules.
For this apparent violation, we propose a forfeiture.
B. Forfeiture Amount
7. Section 503(b) of the Communications Act authorizes the Commission to
assess a forfeiture of up to $130,000 for each violation of the Act or of
any rule, regulation, or order issued by the Commission under the Act. The
Commission may assess this penalty if it determines that the carrier's
noncompliance is "willful or repeated." For a violation to be willful, it
need not be intentional. In exercising our forfeiture authority, we are
required to 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." In addition, the Commission has
established guidelines for forfeiture amounts and, where there is no
specific base amount for a violation, retained discretion to set an amount
on a case-by-case basis.
8. The Commission's forfeiture guidelines do not address the specific
violation at issue in this proceeding. In determining the proper
forfeiture amount in this case, however, we are guided by the principle
that there may be no more important obligation on a carrier's part than
protection of its subscribers' proprietary information. Consumers are
increasingly concerned about the security of their sensitive, personal
data that they must entrust to their various service providers, whether
they are financial institutions or telephone companies. Given the
increasing concern about the security of this data, and evidence that the
data appears to be widely available to third parties, we must take
aggressive, substantial steps to ensure that carriers implement necessary
and adequate measures to protect their subscribers' CPNI as required by
the Commission's existing CPNI rules. Additionally, in three recent
actions, the Commission has issued Notices of Apparent Liability for
Forfeiture in the amount of $100,000 against carriers for failure to
maintain certifications in compliance with section 64.2009(e) of the
Commission's rules. In this case, Connect has apparently failed to
implement necessary and adequate measures, as required, to protect the
subscribers' CPNI data entrusted to it, as evidenced by the apparent
insufficiency of the required compliance certification. Based on all the
facts and circumstances present in this case, we believe the proposed
forfeiture of $100,000 is warranted.
9. Connect will have the 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. For example,
Connect may present evidence that it has compelling financial arguments to
reduce the proposed forfeiture or that it has maintained a history of
overall compliance. To support a claim of inability to pay, the petitioner
must submit: (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. The
Commission will fully consider any such arguments made by Connect in its
response to this NAL.
V. CONCLUSION AND ordering clauses
10. We have determined that Connect Paging, Inc. d/b/a Get A Phone has
apparently violated Section 64.2009(e) of the Commission's rules by
failing to prepare and maintain a certification in compliance with the
rule. We find Connect apparently liable for $100,000.
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 one hundred thousand dollars
($100,000) for willfully or repeatedly violating Section 64.2009 of the
Commission's rules, by failing to prepare and maintain a certificate that
complies with 64.2009(e).
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 Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box 358340,
Pittsburgh, PA 15251. Payment by overnight mail may be sent to Mellon
Client Service Center, 500 Ross Street, Room 670, Pittsburgh, PA
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. Requests for payment of the full amount of this NAL under an
installment plan should be sent to Chief, Credit and Management Center,
445 12th Street, S.W., Washington, D.C. 20554.
14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by
Certified Mail, Return Receipt Requested to Connect Paging, Inc. d/b/a Get
A Phone, 112 E. Seminary Drive, Suite B, Fort Worth, Texas 76115.
FEDERAL COMMUNICATIONS COMMISSION
Kris A. Monteith
Chief, Enforcement Bureau
See 47 C.F.R. S: 64.2009(e).
CPNI is defined as information that relates to the quantity, technical
configuration, type, destination, location, and amount of use of a
telecommunications service subscribed to by any customer of a
telecommunications carrier, and that is made available to the carrier by
the customer solely by virtue of the customer-carrier relationship. See 47
U.S.C. S: 222(h)(1)(A); 47 C.F.R. S: 64.2003(d).
See, e.g. http://www.epic.org/privacy/iei/.
See id.
Letter from Marcy Greene, Deputy Division Chief, Telecommunications
Division, Enforcement Bureau, Federal Communications Commission, to Byron
Young, President, Connect Paging, Inc. d/b/a Get a Phone (December 8,
2006) ("December 8 LOI).
Connect Paging, Inc., d/b/a Get a Phone, Notice of Apparent Liability for
Forfeiture, DA 07-1420 (rel. March 30, 2007) ("NAL").
Section 222 of the Communications 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).
47 C.F.R. S:64.2009(e); see also supra note 5, at 2.
See Letter from Byron T. Young, President, Connect Paging, Inc. d/b/a Get
a Phone, to Mary Greene, Deputy Division Chief, Telecommunications
Consumers Division, Enforcement Bureau (April 27, 2007) ("April 27
response").
Id.
Id.
Section 503(b)(2)(B) provides for forfeitures against common carriers of
up to $130,000 for each violation or each day of a continuing violation up
to a maximum of $1,325,000 for each continuing violation. 47 U.S.C. S:
503(b)(2)(B). See Amendment of Section 1.80 of the Commission's Rules and
Adjustment of Forfeiture Maxima to Reflect Inflation, 15 FCC Rcd 18221
(2000); Amendment of Section 1.80 of the Commission's Rules and Adjustment
of Forfeiture Maxima to Reflect Inflation, 19 FCC Rcd 10945 (2004)
(increasing maximum forfeiture amounts to account for inflation).
47 U.S.C. S: 503(b)(1)(B) (the Commission has authority under this section
of the Act to assess a forfeiture penalty against a common carrier if the
Commission determines that the carrier has "willfully or repeatedly"
failed to comply with the provisions of the Act or with any rule,
regulation, or order issued by the Commission under the Act); see also 47
U.S.C. S: 503(b)(4)(A) (providing that the Commission must assess such
penalties through the use of a written notice of apparent liability or
notice of opportunity for hearing). Here, as described above, Connect's
actions were willful as it apparently failed to prepare the required
compliance certification.
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
See 47 U.S.C. S: 503(b)(2)(D); see also The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Commission's Rules, 12 FCC
Rcd 17087 (1997) ("Forfeiture Policy Statement"); recon. denied, 15 FCC
Rcd 303 (1999).
Forfeiture Policy Statement, 12 FCC Rcd 17098-99, P: 22.
AT&T, Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 751
(Enf. Bur. rel. Jan. 30, 2006); Alltel Corp., Notice of Apparent Liability
for Forfeiture, 21 FCC Rcd 746 (Enf. Bur. rel. Jan 30, 2006); Cbeyond
Communications LLC, Notice of Apparent Liability for Forfeiture, 21 FCC
Rcd 4316 (Enf. Bur. rel. April 21, 2006).
47 U.S.C. S: 503(b)(4)(A).
47 U.S.C. S: 503(b)(4)(C); 47 C.F.R. S: 1.80(f)(3).
47 C.F.R. S: 1.80(b)(4) (discussing factors the Commission or its designee
will consider in deciding appropriate forfeiture amount).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80(f)(4).
47 C.F.R. S:S: 0.111, 0.311.
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(continued....)
Federal Communications Commission DA 07-3582
4
Federal Communications Commission DA 07-3582