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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of EB Docket No. 07-197
)
Kurtis J. Kintzel, Keanan Kintzel, and File No. EB-06-IH-5037
all Entities by which they do business )
before the Federal Communications FRN: 0007179054
Commission )
NAL/Acct. No.
Resellers of Telecommunications Services ) 200732080029
)
)
ORDER TO SHOW CAUSE AND NOTICE OF OPPORTUNITY FOR HEARING
Adopted: September 10, 2007 Released: September 10, 2007
By the Commission:
I. INTRODUCTION
1. In this Order to Show Cause and Notice of Opportunity for Hearing, we
commence an evidentiary hearing before an administrative law judge to
determine, among other things, whether the authority granted to Kurtis J.
Kintzel, Keanan Kintzel, and any and all entities in which they are
principals and/or do business, to operate as common carriers, pursuant to
Section 214 of the Communications Act of 1934, as amended, should be
revoked and, further, whether Kurtis J. Kintzel, Keanan Kintzel, and any
and all entities in which they are or may be principals and/or by which
they do, or may do business, should be required to refrain from providing
any interstate common carrier services in the future without first
obtaining prior Commission consent. As discussed below, entities providing
interstate common carrier services owned and controlled by the Kintzel
brothers apparently willfully and repeatedly violated multiple terms of a
Consent Decree to which they were signatories and apparently willfully and
repeatedly violated multiple Commission rules and provisions of the Act
relating to the provision of interstate common carrier services. Such
apparent violations, and a lengthy history of noncompliance before the
Commission, raise material and substantial questions regarding the basic
qualifications of the Kintzel brothers to engage in the provision of
interstate common carrier services now and in the future.
II. BACKGROUND
A. The BOI Consent Decree
2. Business Options, Inc. ("BOI") is an entity controlled by the Kintzel
brothers and which operates as an interstate telecommunications service
provider. As early as 2002, the Enforcement Bureau began receiving
consumer complaints about BOI's operations, particularly its efforts to
market services to new customers. On April 7, 2003, following a full
investigation by the Enforcement Bureau, the Commission released an Order
to Show Cause and Notice of Opportunity for Hearing in EB Docket No. 03-85
("the earlier proceeding"), initiating an evidentiary hearing against BOI.
The BOI Show Cause Order directed the Presiding Administrative Law Judge
("Presiding Judge") to determine, among other things: whether BOI had
intentionally provided incorrect or misleading information to the
Commission; whether BOI had engaged in unlawful "slamming" activities by
changing consumers' long distance providers without authorization in
violation of Section 258 of the Act and Section 64.1120(a)(1) of the
Commission's rules; whether BOI failed to file registration statements
required under Section 64.1195 of the Commission's rules; and whether BOI
discontinued service to the public in violation of Section 214 of the Act
and Section 63.71 of the Commission's rules. After the hearing was
commenced, additional issues were added to determine whether BOI had
properly filed Telecommunications Reporting Worksheets, and made all
required contributions to the Universal Service Fund ("USF") and
Telecommunications Relay Services Fund ("TRS"), respectively.
3. On December 9, 2003, and December 24, 2003, the Presiding Judge issued
orders granting the Enforcement Bureau's motions for summary decision
adverse to BOI on several key issues. In the December 9, 2003 order, the
Presiding Judge concluded that BOI had indeed engaged in "slamming"
activities on at least 16 separate occasions, failed to file an FCC Form
499A (Telecommunications Reporting Worksheet) as required by Section
64.1195 of the Commission's rules, and discontinued service in violation
of Section 214 of the Act and Section 63.71 of the Commission's rules. In
the December 24, 2003 order, the Presiding Judge concluded that BOI had
failed to make required universal service and TRS payments.
4. BOI faced possible sanctions for each of these violations, including
$80,000 for each of the 16 "slamming" violations; up to $120,000 for
unlawfully discontinuing service; and up to $3,000 for its failure to file
a sworn statement. According to the Presiding Judge's December 24, 2003
order, BOI also faced possible sanctions of $115,533.52 for failure to
make required universal service contributions, $10,000 for failure to file
required Telecommunications Reporting Worksheets, and $10,000 for failure
to make required TRS contributions. Prior to final disposition of the
hearing, however, the Enforcement Bureau and BOI entered into a consent
decree ("Consent Decree"), pursuant to Section 1.93(b) of the Commission's
rules.
5. The terms of the Consent Decree specifically applied to all entities
owned, directed, or controlled by the Kintzel brothers, and was intended
to ensure their future compliance with Sections 214, 254, and 258 of the
Act and related Commission rules. The Consent Decree contemplated a
voluntary contribution to the United States Treasury in the total amount
of $510,000 to be paid in 48 scheduled monthly installments; payment of
all outstanding universal service and TRS debts; and timely payment of all
future universal service and TRS assessments. In addition, the Kintzel
brothers agreed to henceforth obtain all appropriate and necessary
authorizations prior to discontinuing service in any state and to
implement procedures regarding marketing of services to new customers and
verification procedures related to these marketing efforts. The Consent
Decree also required the filing of regular reports with the Commission
relating to compliance with various Commission rules and Consent Decree
requirements. The Presiding Judge approved the Consent Decree and
terminated the BOI hearing on February 20, 2004.
B. Post-Consent Decree Misconduct
6. In the fall of 2006, the Enforcement Bureau received information
indicating that the Kintzel brothers had discontinued making the required
regularly scheduled monthly installment payments toward satisfaction of
their voluntary contribution under the 2004 Consent Decree. The
information also suggested that an entity controlled by the Kintzel
brothers, and subject to the terms of the Consent Decree, Buzz Telecom
Corporation ("Buzz"), had unlawfully discontinued service to the public,
and failed to pay required universal service and TRS assessments. Both
Buzz and BOI are entities controlled by the Kintzel brothers that
apparently operated separately; both resold the interstate voice
telecommunications services of other carriers to business and residential
subscribers; and both were signatories subject to the Consent Decree.
7. During the last quarter of 2006, the Commission also received a number
of consumer complaints alleging that Buzz, like BOI, had engaged in
prohibited slamming and/or cramming activities. Consequently, the
Enforcement Bureau, on December 20, 2006, initiated an investigation of,
and directed a Letter of Inquiry ("LOI") to, Buzz and BOI requiring the
production of various documents and responses to interrogatories
concerning these allegations.
8. By letter dated January 17, 2007, Kurtis Kintzel replied to the LOI on
behalf of Buzz and BOI. In his LOI Response, Kintzel admitted that the
voluntary contribution of $510,000 had not been completely satisfied, and
that $192,600 was past due. Kintzel attributed the failure to comply with
the required payment schedule to a shortage of working capital resulting
from protracted litigation and a shrinking customer base. Kintzel also
conceded that Buzz and BOI had discontinued service to all customers in
each state where they had been providing services despite having failed to
request and obtain Commission authorization to do so. In addition, despite
information from the Universal Service Administrative Company ("USAC") and
the National Exchange Carrier Association ("NECA") that Buzz had failed to
make required universal service and TRS payments, Kintzel represented in
his LOI response that the entities that he and his brother controlled were
up to date and in compliance with all such obligations. Kintzel's LOI
Response also failed to provide any information about the multiple
slamming and cramming complaints the Commission had received from
consumers. This failure compelled the Enforcement Bureau to direct a
follow-up communication to Kintzel requesting the same information.
Kintzel again failed to provide the requested information. In addition,
despite the Enforcement Bureau's request, Kintzel failed to produce
information about slamming and cramming complaints that Buzz had received
directly from consumers.
III. DISCUSSION
A. Apparent Violations of the 2004 Consent Decree
9. A consent order adopted pursuant to Section 1.93 of the Commission's
rules is an order of the Commission under Section 416 of the Act. All
persons, agents, and employees of an entity subject to the order must
observe and comply with the terms of the order as long as it remains in
effect. Consent orders are an important aspect of the Commission's
enforcement effort because they promote the public interest through prompt
compliance and the timely and efficient disposition of proceedings. Where,
as here, a party to a consent order apparently engages in willful and
repeated violations of the terms of the order, it undermines public
confidence in the consent order process and the ability of consent orders
to serve the public interest. As such, violations of a consent order
represent a serious breach of the Commission's rules that must be
deterred.
10. The Kintzel brothers and the Commission jointly filed a request for
adoption of the 2004 Consent Decree on February 17, 2004. In executing the
agreement and jointly filing for adoption, the Kintzel brothers made
certain representations and promises to the Commission about their
commitments to comply with the Commission's rules and various provisions
of the Act. The Enforcement Bureau relied on those representations and
promises in good faith in agreeing to jointly seek termination of the BOI
hearing proceeding. As discussed below, the information now before the
Commission indicates that the Kintzel brothers reneged on their promises
to the Commission, and deliberately engaged in conduct that was
inconsistent with the terms of the Consent Decree to which they were
signatories.
11. The Consent Decree, at paragraph 14(d), required the Kintzel brothers
to obtain authorization from either the Commission or the applicable state
public utility commission prior to discontinuing long distance telephone
service to customers. In addition, and independent of the Consent Decree,
Section 63.71 of the Commission's rules requires any domestic carrier
seeking to reduce or impair service to comply with a series of procedures,
including furnishing notice to all affected customers, providing a copy of
its application to the state public service commission and the Governor of
each state, and furnishing an application to the Commission confirming
notification to the foregoing. The purpose of Section 63.71, upon which
paragraph 14(d) of the Consent Decree was predicated, is to prevent the
interruption of service to communities without prior notice, and to allow
affected customers to make alternate arrangements for continued service
when a carrier seeks to discontinue service. The information before the
Commission indicates that the Kintzel brothers failed to notify either the
Commission or the appropriate state officials and regulatory bodies prior
to terminating service to customers in 43 states in November of 2006. Such
failure is manifestly inconsistent with the terms of the Consent Decree
and Section 63.71 of the Commission's rules. Accordingly, issues will be
specified to determine whether the Kintzel brothers discontinued service
to the public in willful and repeated violation of the terms of the
Consent Decree and in willful and repeated violation of Section 63.71 of
the Commission's rules.
12. The Consent Decree, at paragraph 14(f), required the Kintzel brothers
to make all federal universal service contributions by the due date
specified in each invoice sent by the USAC. The requirement to pay
universal service contributions is also codified in Section 54.706 of the
Commission's rules and is critical to maintaining the vitality of the
universal service fund and guaranteeing the continued availability of
funds. The information before the Commission indicates that one of the
Kintzel brothers' companies, Buzz, apparently failed to make 22 required
universal service contributions. The Kintzel brothers' apparent utter
disregard for their universal service obligations is flatly inconsistent
with their commitments under the terms of the Consent Decree and contrary
to the requirements set forth in Section 54.706 of the Commission's rules.
Accordingly, an issue will be specified to determine whether the Kintzel
brothers failed to make required universal service payments in willful and
repeated violation of the Consent Decree and of Section 54.706 of the
Commission's rules.
13. The Consent Decree, at paragraph 14(g), required the Kintzel brothers
to make all required TRS contributions by the due date on each invoice
received from NECA. The requirement that carriers providing interstate
telecommunications services timely pay TRS contributions is codified in
Section 64.604(c)(5)(iii)(A) of the Commission's rules. The information
before the Commission indicates that the Kintzel brothers, doing business
as Buzz, failed to pay annual TRS assessments for either 2005 or 2006.
NECA indicates that Buzz has an outstanding balance of $2,709.92. The
failure to make timely TRS contributions to NECA over the course of two
years is unquestionably inconsistent with the obligations of an interstate
common carrier, and constitutes apparent willful and repeated violations
of the Consent Decree and of Section 64.604(c)(5)(iii)(A) of the
Commission's rules. Accordingly, an issue will be specified to determine
whether the Kintzel brothers failed to make TRS payments in willful and
repeated violation of the Consent Decree and Section 64.604(c)(5)(iii)(A)
of the Commission's rules.
14. The Consent Decree, at paragraph 15, required the Kintzel brothers to
remit to the Commission a voluntary contribution in the total amount of
$510,000, to be paid in regularly scheduled installments for 48
consecutive months. The information before the Commission indicates,
however, that the Kintzel brothers only made timely payments from May 2004
through May 2005 before missing their first scheduled payment in June
2005. Thereafter, they apparently made one payment in July 2005 and missed
their next ten scheduled payments before making another payment in May
2006. No further payments have been received. As of the date of this Order
to Show Cause and Notice of Opportunity for Hearing, at least $224,700 is
apparently past due. Accordingly, an issue will be specified to determine
whether the Kintzel brothers failed to make timely payments to the
Commission in willful and repeated violation of the terms of the Consent
Decree to which they were signatories.
B. Other Apparent Violations
15. Section 218 of the Act 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 also grants the Commission the power
to direct responses to inquiries in order to execute its functions. The
Commission has previously held that the failure to respond to an LOI from
the Commission may result in a forfeiture. The Enforcement Bureau sent an
LOI to the Kintzel brothers on December 20, 2006, and a follow-up request
for information on January 19, 2007. Kurtis Kintzel provided only a
partial response to the LOI, and only a partial response to the follow-up
request. Specifically, Kintzel failed to provide verification tapes
associated with ten slamming complaints received by the Commission, failed
to provide a list of complaints received by Buzz from May of 2006 to the
date of the LOI, and failed to provide verification tapes associated with
such complaints. The apparent failure of the Kintzel brothers to provide
all of the information requested by the Enforcement Bureau in a timely and
comprehensive manner prevented the Commission staff from carrying out its
statutory obligations. Accordingly, an issue will be specified to
determine whether the Kintzel brothers failed to respond fully and
completely to staff inquiries for information, in willful and/or repeated
violation of Sections 218 and 403 of the Act.
16. Section 258 of the Act, as amended, prohibits telecommunications
carriers from executing a change in a subscriber's selection of a provider
of telephone exchange or telephone toll service except in accordance with
Commission rules. Section 64.1120 of the Commission's rules requires
telecommunications carriers to obtain authorization from a subscriber
prior to executing a change in the subscriber's telephone exchange or
telephone toll service, and to verify the subscriber's authorization in
accordance with the procedures specified therein. The Enforcement Bureau
requested that the Kintzel brothers provide information and verification
tapes associated with at least ten apparent slamming complaints received
by the Commission in the last calendar quarter of 2006. The Kintzel
brothers failed to provide the information requested by the LOI and the
follow-up communication. The Commission continues to receive complaints
alleging that Buzz executed a change to a subscriber's telephone exchange
or telephone toll service without authorization in apparent violation of
Section 258 of the Act, as amended, and Section 64.1120 of the
Commission's rules. The information before the Commission indicates that
the Kintzel brothers have apparently violated Section 258 of the Act, as
amended, and Section 64.1120 of the Commission's rules on numerous
occasions. Accordingly, an issue will be specified to determine whether
the Kintzel brothers have executed changes in a subscriber's selection of
a provider of telephone exchange or telephone toll service, in willful and
repeated violation of Section 258 of the Act, as amended, and Section
64.1120 of the Commission's rules.
C. Sanctions
17. Under Section 1.95 of the Commission's rules, the violation of a
consent order subjects the consenting party to the entire range of
sanctions that "could have been imposed" in the proceeding that led to the
consent order if the issues in that proceeding had been decided against
the consenting party, as well as additional sanctions for the consent
violations. The Commission carries the burden to demonstrate that the
"consent order has been violated in some, but not all respects." As
discussed above, issues will be specified herein to determine whether
multiple provisions of the 2004 Consent Decree were violated. If the
Presiding Judge concludes on the basis of evidence adduced pursuant to
those issues that the subject Consent Decree was in fact violated, it
shall also be determined, as discussed below and pursuant to Section 1.95
of our rules, whether the entire, or some lesser range, of sanctions that
could have been imposed from the earlier proceeding had all the issues
been decided adversely to BOI should be imposed against the Kintzel
brothers in the instant proceeding.
18. The BOI 2003 Show Cause Order, at paragraph 39, specified a potential
forfeiture:
in the amount of no more than: (a) $80,000 for each unauthorized
conversion of complainants' long distance service in violation of 47
U.S.C. S: 258 and 47 C.F.R. S: 64.1120; (b) $3,000 for the failure to file
a sworn statement or a Registration Statement in violation of a Commission
directive and 47 C.F.R. S: 64.1195; and (c) $120,000 for the unauthorized
discontinuance of service to a community in violation of 47 U.S.C. S:214
and 47 C.F.R. S:S:63.71 and 63.505.
The Presiding Judge in the earlier proceeding determined that BOI: (a)
changed the long distance provider of a subscriber without authorization
16 times; (b) failed to file an FCC Form 499-A; and (c) discontinued
service without Commission authorization in willful or repeated violation
of Section 214 of the Act and Sections 63.71 and 63.505 of the
Commission's rules. In addition, the issues that were added in the
earlier proceeding carried additional potential sanctions, including
$115,533.52 for failure to make timely universal service contributions;
$10,000 for each failure to timely file Telecommunications Reporting
Worksheets ("Worksheets"); and $10,000 for each failure to make timely TRS
contributions. The Presiding Judge in the earlier proceeding determined
that BOI (a) failed to make required universal service contributions in
violation of Section 254(d) of the Act and Section 54.706 of the
Commission's rules; (b) failed to make required contributions to the
Telecommunications Relay Services Fund in violation of Section
64.604(c)(5)(iii)(A) of the Commission's rules; and (c) failed to file
Telecom ReportingWorksheets in violation of Sections 54.711, 54.713 and
64.604(c)(iii)(B) of the Commission's rules. Consequently, with respect
to the range of sanctions relating to violations of the Consent Decree, it
shall be determined whether the Kintzel brothers are subject to a
forfeiture in an amount not to exceed $1,538,533.52.
19. In addition to issues relating to compliance with the Consent Decree,
issues are also specified below to determine whether the Kintzel brothers
engaged in conduct that may have violated Sections 54.706,
64.604(c)(5)(iii)(A), and 63.71 of the Commission's rules, and Section 218
of the Act. Section 503(b)(2)(B) of the Act states that violations of each
of these provisions carry a potential forfeiture of $130,000 per violation
or each day of a continuing violation except that the amount assessed for
any continuing violation shall not exceed $1,325,000 for any single act or
failure to act. The information before the Commission indicates that the
Kintzel brothers, doing business as Buzz, apparently failed to make 22
consecutive universal service contributions, failed to make two
consecutive annual TRS contributions, and discontinued service without
Commission authorization. The apparent universal and TRS contribution
violations are subject to maximum forfeitures of $29,150,000 and
$2,650,000 respectively under the Commission's rules. The Kintzel brothers
also discontinued service without Commission authorization in violation of
Sections 63.71 and 63.505 of the Commission's rules and failed to respond
to a Commission inquiry in violation of Sections 218 and 403 of the Act.
Each of these apparent violations is subject to a maximum forfeiture of
$130,000. Consequently, with respect to the range of sanctions relating to
these apparent violations of the various sections of the Commission's
rules and of the Act, it shall also be determined whether the Kintzel
brothers are subject to a forfeiture in an amount not to exceed
$32,060,000.
20. Issues are specified below to determine whether the Kintzel brothers
engaged in conduct that violates paragraph 15 of the Consent Order. Each
violation of this paragraph carries a potential forfeiture of $130,000 per
violation or each day of a continuing violation except that the amount
assessed for any continuing violation shall not exceed $1,325,000 for any
single act or failure to act. The Kintzel brothers apparently failed to
remit 12 consecutive monthly voluntary contributions required under
paragraph 15. These apparent violations each represent a separate
continuing violation, and it therefore shall be determined whether the
Kintzel brothers are subject to a forfeiture in an amount not to exceed
$15,900,000.
21. Issues are specified below to determine whether the Kintzel brothers,
doing business as Buzz, engaged in conduct that may have violated Section
258 of the Act and Section 64.1120 of the Commission's rules. Each
complaint alleging an unauthorized change to the telephone exchange or
telephone toll service of a subscriber, in violation of the foregoing that
is determined to be a violation is subject to a maximum forfeiture of
$130,000.
22. In sum, the Kintzel brothers, through their various businesses, appear
to have engaged in a pervasive pattern of misconduct that includes
slamming, failure to make universal service and TRS contributions, failure
to seek appropriate authorizations from the Commission, and, most
recently, failure to honor their obligations under the Consent Decree. The
extensive list of apparent violations, and the fact that the misconduct
appears to have continued after prior enforcement proceedings were
resolved through a negotiated Consent Decree, plainly suggest that the
Kintzel brothers and the entities they control have little regard for the
Commission's rules and the compliance responsibilities of a common
carrier. Such egregious behavior is patently inconsistent with the
obligations of a Commission regulatee and calls into question whether the
Kintzel brothers are qualified to be and remain interstate common
carriers. Consequently, appropriate issues are specified below to
determine whether the blanket authority conferred upon the Kintzel
brothers, as defined herein, to provide common carrier services should be
revoked and, further, whether they should be required in the future to
refrain from providing such services without prior written application to
and consent from the Commission.
D. Procedural Matter
23. We note that Section 1.95 of the Commission's rules provides that
"violation of the consent order and the sanctions to be imposed shall be
the only issues considered in a proceeding concerning such an alleged
violation." This language contemplates that a proceeding initiated to
consider an entity's violation of a consent order will ordinarily be
limited to alleged violations of the order. Where, in addition to possible
consent order violations, there are also alleged violations of Commission
rules that arise out of the same misconduct, relate closely to the alleged
violations of a consent order, and collectively raise very serious
questions about the fundamental qualifications of the entities in
question, it is administratively efficient and would serve the public
interest to consider such issues in a consolidated proceeding. We
therefore waive Section 1.95 to the extent that it would otherwise
restrict the scope of this proceeding to allow a comprehensive inquiry
into all of the apparent violations referenced above committed by the
Kintzel brothers.
V. ORDERING CLAUSES
24. ACCORDINGLY, IT IS ORDERED, pursuant to Sections 4(i) and 214 of the
Communications Act of 1934, as amended, 47 U.S.C. S:S:154(i) and 214, that
Buzz Telecom Corporation, Business Options, Inc., US Bell Corporation,
Link Technologies, AVATAR, and/or their principals Kurtis J. Kintzel
and/or Keanan Kintzel ARE DIRECTED TO SHOW CAUSE why the operating
authority bestowed on them pursuant to Section 214 of the Communications
Act of 1934, as amended, should not be REVOKED, in a consolidated
proceeding before an administrative law judge, at a time and place to be
specified in a subsequent order, upon the following issues:
(a) to determine whether Buzz Telecom Corporation, Business Options, Inc.,
US Bell Corporation, Link Technologies, AVATAR, and/or their principals
Kurtis J. Kintzel and/or Keanan Kintzel willfully and/or repeatedly
violated Paragraph 14(d) of the Consent Decree in EB Docket No. 03-85 by
discontinuing service in one or more states without first notifying either
the Commission or the appropriate state regulatory authority;
(b) to determine whether Buzz Telecom Corporation, Business Options, Inc.,
US Bell Corporation, Link Technologies, AVATAR, and/or their principals
Kurtis J. Kintzel and/or Keanan Kintzel willfully and/or repeatedly
violated Paragraph 14(f) of the Consent Decree in EB Docket No. 03-85 by
failing to make required universal service contributions by the date
indicated on invoices from USAC;
(c) to determine whether Buzz Telecom Corporation, Business Options, Inc.,
US Bell Corporation, Link Technologies, AVATAR, and/or their principals
Kurtis J. Kintzel and/or Keanan Kintzel willfully and/or repeatedly
violated Paragraph 14(g) of the Consent Decree in EB Docket No. 03-85 by
failing to make required TRS contributions by the date indicated on
invoices received from NECA;
(d) to determine whether Buzz Telecom Corporation, Business Options, Inc.,
US Bell Corporation, Link Technologies, AVATAR, and/or their principals
Kurtis J. Kintzel and/or Keanan Kintzel willfully and/or repeatedly
violated Paragraph 15 of the Consent Decree in EB Docket No. 03-85 by
failing to make required voluntary contributions to the Commission in a
timely manner;
(e) to determine whether Buzz Telecom Corporation, Business Options, Inc.,
US Bell Corporation, Link Technologies, AVATAR, and/or their principals
Kurtis J. Kintzel and/or Keanan Kintzel willfully and/or repeatedly
violated Section 63.71 of the Commission's rules by discontinuing service
in one or more states without first notifying either the Commission or the
appropriate state regulatory authority;
(f) to determine whether Buzz Telecom Corporation, Business Options, Inc.,
US Bell Corporation, Link Technologies, AVATAR, and/or their principals
Kurtis J. Kintzel and/or Keanan Kintzel willfully and/or repeatedly
violated Section 54.706 of the Commission's rules by failing to make
required universal service contributions by the date indicated on invoices
from USAC;
(g) to determine whether Buzz Telecom Corporation, Business Options, Inc.,
US Bell Corporation, Link Technologies, AVATAR, and/or their principals
Kurtis J. Kintzel and/or Keanan Kintzel willfully and/or repeatedly
violated Section 64.604(c)(5)(iii)(A) of the Commission's rules by failing
to make required TRS contributions by the date indicated on invoices
received from NECA;
(h) to determine whether Buzz Telecom Corporation, Business Options, Inc.,
US Bell Corporation, Link Technologies, AVATAR, and/or their principals
Kurtis J. Kintzel and/or Keanan Kintzel willfully and/or repeatedly
violated Sections 218 and/or 403 of the Communications Act of 1934, as
amended, by failing to respond fully, completely, and in a timely manner
to one or more Commission inquiries;
(i) to determine whether Buzz Telecom Corporation, Business Options, Inc.,
US Bell Corporation, Link Technologies, AVATAR, and/or their principals
Kurtis J. Kintzel and/or Keanan Kintzel willfully and/or repeatedly
violated Section 258 of the Communications Act of 1934, as amended, and
Section 64.1120 of the Commission's rules by changing a subscriber's
provider of telephone exchange or telephone toll service without
authorization and/or without following the verification procedure's
outlined in Section 64.1120 of the Commission's rules;
(j) to determine, in light of the evidence adduced pursuant to the
foregoing issues, whether the authority conferred by Section 214 of the
Communications Act of 1934, as amended, upon Buzz Telecom Corporation,
Business Options, Inc., US Bell Corporation, Link Technologies, AVATAR,
and/or their principals Kurtis J. Kintzel and/or Keanan Kintzel to provide
interstate common carrier services should be revoked;
(k) to determine, in light of the evidence adduced pursuant to the
foregoing issues, whether Buzz Telecom Corporation, Business Options,
Inc., US Bell Corporation, Link Technologies, AVATAR, and/or their
principals Kurtis J. Kintzel and/or Keanan Kintzel should be ordered to
henceforth cease, desist and otherwise refrain from providing interstate
common carrier services of any kind without prior written application to
and consent from the Commission.
25. IT IS FURTHER ORDERED, pursuant to Section 1.91(c) of the Commission's
rules, that, to avail themselves of the opportunity to be heard, Buzz
Telecom Corporation, Business Options, Inc., US Bell Corporation, Link
Technologies, AVATAR, and/or their principals Kurtis J. Kintzel and/or
Keanan Kintzel, SHALL FILE with the Commission within 20 calendar days of
the mailing of this Order to Show Cause and Notice of Opportunity for
Hearing a WRITTEN APPEARANCE stating that they will, individually and/or
by legal representative, appear on the date fixed for hearing and present
evidence on the issues specified herein.
26. IT IS FURTHER ORDERED that the Chief, Enforcement Bureau, SHALL BE
MADE a party to this proceeding without the need to file a notice of
appearance.
27. IT IS FURTHER ORDERED, pursuant to Section 1.92(c) of the Commission's
rules, that if Buzz Telecom Corporation, Business Options, Inc., US Bell
Corporation, Link Technologies, AVATAR, and/or their principals Kurtis J.
Kintzel and/or Keanan Kintzel fail to timely file written appearances
within the 20-day period referenced above, or have not filed a petition to
accept, for good cause shown, a written appearance beyond the expiration
of the 20-day period, their right to a hearing shall be deemed by the
Presiding Administrative Law Judge to be waived, and the Presiding
Administrative Law Judge shall, at the earliest practicable date, issue an
order terminating the hearing proceeding and certifying the case to the
Commission.
28. IT IS FURTHER ORDERED, pursuant to Section 312(d) of the
Communications Act of 1934, as amended, and Section 1.91(d) of the
Commission's rules, that the burden of proceeding with the introduction of
evidence and the burden of proof with respect to all of the issues
specified above SHALL BE on the Chief, Enforcement Bureau.
29. IT IS FURTHER ORDERED that this document constitutes a NOTICE OF
OPPORTUNITY FOR HEARING pursuant to Section 503(b)(3)(A) of the
Communications Act of 1934, as amended.
30. IT IS FURTHER ORDERED that irrespective of whether Buzz Telecom
Corporation, Business Options, Inc., US Bell Corporation, Link
Technologies, AVATAR, and/or their principals Kurtis J. Kintzel and/or
Keanan Kintzel are determined to be qualified to operate pursuant to
Section 214 of the Communications Act of 1934, as amended, it shall be
determined, pursuant to Section 503 of the Communications Act of 1934, as
amended, whether an ORDER FOR FORFEITURE shall be issued against them,
individually and/or collectively, for willful and/or repeated violations
of the Consent Decree in EB Docket No. 03-85, specified as issues (a)-(c)
above, in an amount not to exceed $1,538,533.52.
31. IT IS FURTHER ORDERED that irrespective of whether Buzz Telecom
Corporation, Business Options, Inc., US Bell Corporation, Link
Technologies, AVATAR, and/or their principals Kurtis J. Kintzel and/or
Keanan Kintzel are determined to be qualified to operate pursuant to
Section 214 of the Communications Act of 1934, as amended, it shall be
determined, pursuant to Section 503 of the Communications Act of 1934, as
amended, whether an ORDER FOR FORFEITURE shall be issued against them,
individually and/or collectively, for willful and/or repeated violations
of the Commission's rules, and/or the Communications Act of 1934, as
amended, specified as issues (d)-(g) above, in an amount not to exceed
$32,060,000.
32. IT IS FURTHER ORDERED that irrespective of whether Buzz Telecom
Corporation, Business Options, Inc., US Bell Corporation, Link
Technologies, AVATAR, and/or their principals Kurtis J. Kintzel and/or
Keanan Kintzel are determined to be qualified to operate pursuant to
Section 214 of the Communications Act of 1934, as amended, it shall be
determined, pursuant to Section 503 of the Communications Act of 1934, as
amended, whether an ORDER FOR FORFEITURE shall be issued against them,
individually and/or collectively, for willful and/or repeated violations
of the Commission's rules, and/or the Communications Act of 1934, as
amended, specified as issue (h) above, in an amount not to exceed $130,000
for each such violation.
33. IT IS FURTHER ORDERED that irrespective of whether Buzz Telecom
Corporation, Business Options, Inc., US Bell Corporation, Link
Technologies, AVATAR, and/or their principals Kurtis J. Kintzel and/or
Keanan Kintzel are determined to be qualified to operate pursuant to
Section 214 of the Communications Act of 1934, as amended, it shall be
determined, pursuant to Section 503 of the Communications Act of 1934, as
amended, whether an ORDER FOR FORFEITURE shall be issued against them,
individually and/or collectively, for willful and/or repeated violations
of the Commission's rules, and/or the Communications Act of 1934, as
amended, specified as issue (i) above, in an amount not to exceed
$15,900,000.
34. IT IS FURTHER ORDERED that, Section 1.95 of the Commission's rules IS
WAIVED to allow consideration of all of the issues specified above in one
consolidated hearing proceeding.
35. IT IS FURTHER ORDERED that, a copy of this ORDER TO SHOW CAUSE AND
NOTICE OF OPPORTUNITY FOR HEARING shall be sent by certified mail, return
receipt requested, to Buzz Telecom Corporation, Business Options, Inc., US
Bell Corporation, Link Technologies, AVATAR, and/or their principals
Kurtis J. Kintzel and/or Keanan Kintzel.
36. IT IS FURTHER ORDERED that, a copy of this ORDER TO SHOW CAUSE, or a
summary thereof, shall be published in the Federal Register.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
According to Commission records, Kurtis J. Kintzel and his brother, Keanan
Kintzel, are or have been principals in entities doing business before the
Commission as Business Options, Inc., Buzz Telecom Corporation, Link
Technologies, AVATAR, and US Bell Corporation. For the purposes of this
Order to Show Cause and Notice of Opportunity for Hearing, Kurtis J.
Kintzel and Keanan Kintzel will be referred to as the "Kintzel brothers."
Such reference includes any and all entities in which they are principals,
that they control and/or by which they do business.
See, Business Options, Inc., Order to Show Cause and Notice of Opportunity
for Hearing, 18 FCC Rcd 6881 (2003) ("BOI 2003 Show Cause Order").
Id. at 6887 (P:16).
See 47 C.F.R. S:64.1120(a)(1). Slamming refers to the practice of
executing a change in a subscriber's telephone exchange service or
telephone toll service without the subscriber's authorization and/or
without following the verification procedures established by the
Commission
See BOI 2003 Show Cause Order, at 6892-93 (P:P: 27-31).
See Section 54.706 of the Commission's rules relating to payment of
universal contributions. See also Section 64.604(c)(5)(iii)(A) of the
Commission's rules relating to payment of Telecommunications Relay
Services contributions.
See Memorandum Opinion and Order, FCC 03M-54, released December 9, 2003,
and see also Memorandum Opinion and Order, FCC 03M-58, released December
24, 2003.
See Memorandum Opinion and Order, FCC 03M-54, released December 9, 2003.
See Memorandum Opinion and Order, FCC 03M-58, released December 24, 2003.
See 47 C.F.R. S: 1.93(b).
See Consent Order, FCC 04M-08, released February 20, 2004 ("2004 Consent
Decree"), at P:2(c). See also Presiding Judge Order Approving Consent
Decree, 19 FCC Rcd 2916 (2004) ("Approving Order") (noting "BOI, its
affiliates (Buzz and U.S. Bell) and their management company, Avatar
Enterprises, Inc. (collectively, the "Companies"), and the Bureau have
entered into a Consent Decree which would resolve all of the issues.
Approval of the Consent Decree authorizes terminating this proceeding.")
See 47 U.S.C. S:S: 214, 254 and 258.
Consent Decree at P:15.
Id. at P:14 (h)-(i).
Id. at P:14 (f)-(g).
Id. at P:14 (o).
See Approving Order, 19 FCC Rcd 2916 (2004).
See 47 U.S.C. S:416(c).
Id.
See Approving Order, 19 FCC Rcd 2916 (2004) (noting "[t]his is a ruling on
Joint Request for Adoption of Consent Decree and Termination of
Proceeding, filed on February 17, 2004, by the Enforcement Bureau
("Bureau") and Business Options, Inc. ("BOI")."
Id. at P:14(d).
See 47 C.F.R. S:63.71.
See Consent Decree, at P:14(f).
See 47 C.F.R. S:54.706. This section of the Commission's rules
unambiguously directs ``entities [providing] interstate telecommunications
to the public . . . for a fee . . . contribute to the universal service
support
programs."
See Consent Decree, at P:14(g).
See 47 C.F.R. S:64.604(c)(5)(iii).
Consent Decree, at P:15.
See 47 U.S.C. S:218.
See 47 U.S.C. S:403. See also Unicom Communications, LLC, 21 FCC Rcd
4361, 4364 (2006).
See id. See also International Telecom Exchange, Inc., 21 FCC Rcd 6232
(2006) and Universal Telecommunications, Inc., 21 FCC Rcd 6579 (2006).
See 47 U.S.C. S:258(a).
See 47 C.F.R. S:64.1120.
47 C.F.R. S:1.95.
Id.
See Memorandum Opinion and Order, FCC 03M-54, released December 9, 2003.
See Memorandum Opinion and Order, FCC 03M-58, released December 24, 2003.
See 47 C.F.R. S:1.80 (b)(2). The Kintzel brothers have engaged in a
pattern of misconduct that spans more than five years and now multiple
enforcement proceedings. Their conduct represents a systemic abrogation of
their obligations as a common carrier and demonstrates a blatant disregard
for Commission Rules. We therefore believe it is appropriate to consider
assessing the statutory maximum for each of these recent violations.
47 C.F.R. S:1.95.
See 47 C.F.R. S:1.92(a).
See 47 C.F.R. S:1.92(c).
See 47 U.S.C. S:312(d).
See 47 C.F.R. S:1.91(d).
See 47 U.S.C. S:503(b)(3)(A).
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