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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File No. EB-06-IH-0840
Cbeyond Communications, Inc.
) NAL/Acct. No. 200632080153
Notice of Apparent Liability for
Forfeiture ) FRN: 0003759602
)
)
ORDER
Adopted: October 5, 2007 Released: October 9, 2007
By the Chief, Enforcement Bureau:
1. In this Order, the Enforcement Bureau ("Bureau") of the Federal
Communications Commission ("FCC" or "Commission") adopts the attached
Consent Decree entered into between the Bureau and Cbeyond
Communications, Inc. ("Cbeyond"). The Consent Decree terminates a
Notice of Apparent Liability for Forfeiture ("NAL") against Cbeyond
for its apparent violation of section 222 of the Communications Act of
1934, as amended, ("the Act") and section 64.2009(e) of the
Commission's rules. In addition, the Consent decree terminates an
investigation into Cbeyond's compliance with section 64.2007(a)(3) of
the Commission's rules regarding customer proprietary network
information ("CPNI").
2. The Bureau and Cbeyond have negotiated the terms of a Consent Decree
that resolves this matter. A copy of the Consent Decree is attached
hereto and incorporated by reference.
3. Based on the record before the Bureau, and in the absence of material
new evidence relating to this matter, the Bureau concludes that there
are no substantial or material questions of fact as to whether Cbeyond
possesses the basic qualifications, including those related to
character, to hold or obtain any Commission license or authorization.
4. After reviewing the terms of the Consent Decree, the Bureau finds that
the public interest would be served by adopting the Consent Decree and
terminating the NAL and the investigation.
5. Accordingly, IT IS ORDERED, pursuant to Sections 4(i) and 503 of the
Communications Act of 1934, as amended, that the attached Consent
Decree IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned NAL is terminated.
FEDERAL COMMUNICATIONS COMMISSION
__________________________
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
)
)
In the Matter of
) File No. EB-06-IH-0840
Cbeyond Communications, Inc.
) NAL Acct. No. 200632080153
Notice of Apparent Liability for
Forfeiture ) FRN: 0003759602
)
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") of the Federal Communications
Commission (the "FCC" or "Commission") and Cbeyond, Inc. ("Cbeyond"),
by their authorized representatives, hereby enter into this Consent
Decree for the purpose of terminating the Bureau's investigation into
possible noncompliance by Cbeyond with the requirements of section 222
of the Communications Act of 1934, as amended (the "Act"), and
sections 64.2007(a) and 64.2009(e) of the Commission's rules.
2. For purposes of this Consent Decree, the following definitions shall
apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C. S:
151 et seq.
b. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
c. "Cbeyond" means Cbeyond, Inc., any of its affiliates and any
successors or assigns.
d. "CPNI" means customer proprietary network information as defined in 47
U.S.C. S: 222(h)(1).
e. "Commission" means the Federal Communications Commission.
f. "Effective date" means the date on which the Commission releases the
Adopting Order.
g. "Investigation" means the investigation commenced on February 1, 2006
by the Bureau letter of inquiry regarding Cbeyond's compliance with 47
U.S.C. S: 222 of the Act and 47 C.F.R. S:S: 64.2001-2009 that resulted
in the Bureau's issuance of the NAL on April 21, 2006.
h. "NAL" means the proceeding commenced on April 21, 2006 by the Bureau
Notice of Apparent Liability for Forfeiture against Cbeyond
Communications, Inc. for the apparent violation of section 64.2009(e)
of the Commission's rules, 47 C.F.R S: 64.2009(e).
i. "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 and NAL.
j. "Parties" means Cbeyond and the Bureau.
k. "Rules" means the Commission's regulations set forth in Title 47 of
the Code of Federal Regulations.
I. BACKGROUND
7. Section 222 of the Act requires telecommunications carriers to ensure
that CPNI is adequately protected from unauthorized disclosure. The
Commission's rules effectuated pursuant to section 222 protect the
privacy of CPNI collected and held by providers of communications
services. For example, section 64.2009(e) requires telecommunications
carriers to sign annually a certificate stating that it has
established adequate procedures to ensure compliance with the
Commission's CPNI rules. Carriers must also provide a statement
accompanying the certificate explaining how its operating procedures
ensure compliance with the Commission's CPNI rules. In addition,
section 64.2007(a)(3) of the Commission's rules requires a carrier to
obtain approval for the use of CPNI and to maintain records of any
such approval for one year.
8. Cbeyond is a competitive telecommunications carrier headquartered in
Atlanta, Georgia that provides competitive local and long distance
wireline and wireless services to small businesses. The Enforcement
Bureau has been investigating the adequacy of procedures implemented
by telecommunications carriers to ensure confidentiality of CPNI based
on concerns regarding the apparent availability to third parties of
sensitive, personal subscriber information.
9. As part of its inquiry to ascertain the adequacy of procedures
implemented by telecommunications carriers to ensure the
confidentiality of their subscribers' CPNI, the Bureau directed all
carriers by Public Notice to submit their most recent certification
prepared in compliance with section 64.2009(e) of the Commission's
rules. On February 6, 2006, Cbeyond failed to submit its CPNI
certification. Instead, Cbeyond submitted a statement that it "has
commenced a comprehensive internal review of its operating procedures
for CPNI compliance . . . [but]does not presently have documents
responsive to this request." The Bureau concluded that Cbeyond's
statement constituted an admission that Cbeyond was not in compliance
with section 64.2009(e) of the Commission's rules because the company
had not established operating procedures adequate to ensure compliance
with the Commission's CPNI rules and on April 21, 2006 issued a Notice
of Apparent Liability for Forfeiture ("NAL") proposing a forfeiture of
$100,000 for this apparent violation.
10. Following the NAL, Cbeyond filed with the Commission a certificate
executed by its Vice President for Regulatory and Legislative Affairs
stating that the Company had established operating procedures adequate
to ensure compliance with the Commission's rules governing protection
and use of CPNI. Cbeyond also provided information regarding the
Company's security measures to protect consumer information.
11. At the same time, the Bureau also was investigating allegations that
Cbeyond had obtained proprietary information from another carrier and
used that information in violation of section 222(b) of the Act and
section 64.2001 et seq. of the Commission's rules. The Bureau sent a
letter of inquiry to Cbeyond on February 1, 2006. Cbeyond responded to
the inquiry letter on February 13, 2006. In May 2006, Cbeyond and the
Bureau began discussions to settle the investigations and signed an
agreement tolling the existing statute of limitations and extending
the date on which Cbeyond was required to pay the forfeiture or submit
a response to the NAL.
II. AGREEMENT
12. The Parties agree and acknowledge that this Consent Decree shall
constitute a final settlement of the Investigation between Cbeyond and
the Bureau. In express reliance on the covenants and representations
contained herein, the Bureau agrees to terminate the Investigation and
the NAL. In consideration for the termination of this Investigation
and NAL and in accordance with the terms of this Consent Decree,
Cbeyond agrees to the terms, conditions and procedures contained
herein.
13. Cbeyond agrees that the Bureau has jurisdiction over it and the
matters contained in this Consent Decree and the authority to enter
into and adopt this Consent Decree.
14. Cbeyond 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 $200,000 within thirty (30) calendar days after the
Effective Date of the Adopting Order. The payment must be made by
check or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include "Acct. No.
200632080153" and "FRN No. 0003759602." 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
911-6229.
15. 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 Cbeyond
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, Cbeyond 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.
16. In consideration for the termination of the Investigation and NAL in
accordance with the terms of this Consent Decree, Cbeyond agrees to
submit to the Chief, Investigations & Hearings Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street, S.W.,
Washington, D.C. 20554, a copy of its most recent 64.2009(e)
certification each year for the next two years no later than the
anniversary of the Effective Date of this consent decree. In addition,
Cbeyond agrees to continue to comply with the following practices and
policies that it has already implemented:
a. Cbeyond shall obtain written authorization from the customer of
another carrier or provider of interconnected VoIP prior to accessing
that customer's Customer Service Records ("CSRs") stored on the
Operational Support Systems ("OSS") of such customer's service
provider. Cbeyond shall maintain such written prior authorization (in
hard-copy or via version-protected electronic copy) in a central
location for two years from the date of the access and will make these
records available to the FCC upon request.
b. Cbeyond shall periodically inspect its written forms for obtaining
prior approval as described in subparagraph a) to ensure that they are
being filled out completely and properly.
c. Cbeyond shall obtain a signed acknowledgement from each of its
employees who might have access to Cbeyond customer CPNI stating that
the employee understands Cbeyond's CPNI policy and that the employee
agrees to comply with the terms of the policy. Violation of the policy
will lead to disciplinary action up to and including termination.
d. Cbeyond shall obtain a signed acknowledgement of Cbeyond's policy for
obtaining access to the CPNI of other carriers or providers of
interconnected VoIP (the "CSR policy") from each of its employees who
might need to access CSRs stored in the OSS of other carriers or
interconnected VoIP providers. The acknowledgement shall state that
the employee understands Cbeyond's CSR policy and that the employee
agrees to comply with the terms of the policy. Violation of this
policy will lead to disciplinary action up to and including
termination.
e. Cbeyond shall conduct biannual CPNI policy and CSR policy training for
all relevant employees, and Cbeyond shall also conduct monthly
refresher training for its sales personnel to reinforce Cbeyond's CSR
policies.
f. Cbeyond shall place all terminals used for accessing CPNI in locations
that allow for close supervision.
g. Cbeyond shall utilize equipment and software that allows it to monitor
and log websites being visited by individual computers in its network;
Cbeyond shall analyze this information twice monthly to see if there
are unusual usage patterns that might suggest improper use of CPNI or
improper CSR access.
17. The Bureau agrees in the absence of new material evidence that it will
not use the facts developed in this Investigation 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 Cbeyond concerning the matters that
were the subject of the Investigation. The Bureau further agrees that
it will not use the facts developed in the Investigation 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 Cbeyond with respect to Cbeyond's basic
qualifications, including its character qualifications, to be a
Commission licensee or authorized common carrier, or with respect to
compliance with the Commission's rules and policies.
18. Nothing in this Consent Decree shall prevent the Commission or its
delegated authority from considering or adjudicating 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 formal complaint. The
Commission's adjudication of any such complaint will be based solely
on the record established in that proceeding. Except as expressly
provided in this Consent Decree, this Consent Decree shall not prevent
the Commission or its delegated authority from investigating new
evidence of noncompliance by Cbeyond of the Act, the Commission's
rules, or the Order.
19. Cbeyond 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, provided the Order adopts this Consent Decree without
change, addition, or modification.
20. Cbeyond's decision to enter into this Consent Decree is expressly
contingent upon the Bureau's issuance of an Order that is consistent
with this Consent Decree and adopts the Consent Decree without change,
addition or modification.
21. 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.
22. The Parties agree that if either Party (or the United States on behalf
of the Commission) brings a judicial action to enforce the terms of
the Order, neither Cbeyond nor the Commission shall contest the
validity of the Consent Decree or the Order, and Cbeyond and the
Commission will waive any statutory right to a trial de novo regarding
the terms or validity of the Consent Decree.
23. The parties agree that this Consent Decree shall become effective on
the Effective Date. Upon release, the Adopting Order and this Consent
Decree shall have the same force and effect as any other order of the
Commission. Any violation of any term 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.
24. The Parties agree that if any provision of this Consent Decree
conflicts with any subsequent rule or order adopted by the Commission
(except an order specifically intended to revise the terms of this
Consent Decree to which Cbeyond does not consent), that provision will
be superseded by such Commission rule or order.
25. Cbeyond agrees that the provisions of this Consent Decree shall be
binding on its successors and assigns.
26. Cbeyond agrees to waive any claims it may otherwise have under the
Equal Access to Justice Act, 5 U.S.C. S: 504 and 47 C.F.R. S: 1.1501
et seq., relating to the matters addressed in this Consent Decree.
27. Cbeyond and the Bureau each represents and warrants to the other that
it has full power and authority to enter into this Consent Decree.
28. By this Consent Decree, Cbeyond 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.
29. Cbeyond 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.
30. The Parties agree that the requirements of this Consent Decree shall
expire twenty-four (24) months from the Effective Date.
31. This Consent Decree may be signed in counterparts.
________________________________
Kris Anne Monteith
Chief, Enforcement Bureau
Federal Communications Commission
________________________________
Date
________________________________
William H. Weber
Vice-President and Corporate Counsel
Cbeyond, Inc.
________________________________
Date
47 U.S.C. S: 222; 47 C.F.R. S: 64.2009(e).
47 C.F.R. S: 64.2007(a)(3).
47 U.S.C. S: 154(i).
47 U.S.C. S: 222; 47 C.F.R. S:S: 64.2007(a), 64.2009(e).
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, CC
Docket Nos. 96-115 and 96-149, Order and Further Notice of Proposed
Rulemaking, 13 FCC Rcd 8061 (1998) ("CPNI Order"). See also 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, CC Docket Nos. 96-115
and 96-149, Order on Reconsideration and Petitions for Forbearance, 14 FCC
Rcd 14409 (1999); 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, CC Docket Nos. 95-115, 96-149 and 00-257, Third Report
and Order and Third Further Notice of Proposed Rulemaking, 17 FCC Rcd
14860 (2002).
47 C.F.R. S: 64.2009(e) states that "[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."
47 C.F.R. S: 64.2007(a)(3) requires telecommunications carriers to
maintain records of approval required for use of CPNI, whether oral,
written or electronic, for one year.
www.Cbeyond.net.
Some companies, known as "data brokers," have advertised the availability
of wireless and wireline subscriber information. See, e.g.
http://www.epic.org/privacy/iei/
Enforcement Bureau Directs all Telecommunications Carriers to Submit CPNI
Compliance Certifications, Public Notice, 21 FCC Rcd 756 (Enf. Bur. rel
Jan. 30, 2006); Enforcement Bureau Opens New Docket for the February 6,
2006, Filing of CPNI, Public Notice, 21 FCC Rcd 1122 (Enf. Bur. rel Feb.
2, 2006).
Letter from Hillary S. DeNigro, Deputy Chief, Investigations and Hearings
Division, Enforcement Bureau, to James Geiger, Chief Executive Officer,
and Julia Strow, Vice President, Regulatory and Legislative Affairs,
Cbeyond Communications, LLC, dated February 1, 2006 ("LOI").
Federal Communications Commission DA 07-4090
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Federal Communications Commission DA 07-4090
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Federal Communications Commission DA 07- 4090