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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                                  )                          
                                                                             
     In the Matter of                             )   File No. EB-07-SE-310  
                                                                             
     Cardinal Broadband LLC,                      )   NAL/Acct. No.          
     aka Sovereign Telecommunications,                200832100069           
                                                  )                          
     a wholly owned subsidiary of Cardinal            FRN No. 0018035063     
     Communications, Inc.                         )                          
                                                                             
                                                  )                          


                  Notice of apparent Liability for forfeiture

   Adopted: August 15, 2008 Released:   August 15, 2008

   By the Chief, Enforcement Bureau:

   I. introduction

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       Cardinal Broadband, LLC, aka Sovereign Telecommunications, a wholly
       owned subsidiary of Cardinal Communications, Inc. (hereinafter,
       "Cardinal"), apparently liable for a forfeiture in the amount of
       twenty-five thousand dollars ($25,000) for willful violation of
       Section 1.17(a)(2) of the Commission's Rules ("Rules"). The noted
       apparent violation involves Cardinal's provision of incorrect material
       factual information to the Commission without a reasonable basis for
       believing that the information was correct and accurate.

   II.  BACKGROUND 

    2. On July 13, 2007, the Commission received a complaint alleging that
       Cardinal, an interconnected Voice over Internet Protocol ("VoIP")
       service provider, was not providing E911 service in a condominium
       complex called Millstone in Golden, Colorado. Specifically, the
       complaint alleged that "no one in the complex can call 911 and get our
       local police department." The complaint further alleged that the local
       police department had visited the condominium complex to confirm the
       situation and had provided residents a flyer advising them that they
       did not have 911 service and that they should call the police
       department's regular number in case of emergency. This complaint was
       subsequently referred to the Enforcement Bureau's Spectrum Enforcement
       Division ("Division") for investigation. During a follow-up phone call
       on August 24, 2007, the complainant informed Division staff that he
       and his neighbors had had a form of E911  service for approximately
       two weeks. The complainant indicated that the 911 calls now went to a
       third party, which would forward the call and the 911 caller's address
       to the appropriate emergency personnel. The complainant also asserted
       that conventional landline telephone service was not available at
       Millstone because an affiliate company of Cardinal constructed the
       condominium complex and did not permit it to be wired for conventional
       landline service.

    3. On September 10, 2007, the Division issued a letter of inquiry ("LOI")
       to Cardinal directing it to provide certain information concerning its
       provision of interconnected VoIP service. In its response, Cardinal
       admitted that it "resells" telephone service but claimed that it does
       not provide an "interconnected VoIP service." Specifically, Cardinal
       argued that "the service Cardinal resells does not require `a
       broadband connection from the user's location' ... [or] ... `internet
       protocol-compatible customer premises equipment ["CPE"]'" and, thus
       does not meet two of the four criteria for interconnected VoIP
       service. Relying on its claim that the service it provided was not
       interconnected VoIP service, Cardinal did not respond to the remainder
       of the LOI.

    4. During internet research on the website of Cardinal's wholly-owned
       subsidiary, Broadband, the Division found marketing materials that
       included the following statement: "Our state-of-the-art phone service
       transports voice data using both regular phone lines and the Internet.
       Getting connected to our broadband network is easy. You simply connect
       your telephone to your Digital Telephone adaptor and use your phone
       service like you do today."

    5. On November 20, 2007, the Division directed a follow-up LOI to
       Cardinal, attaching the marketing materials found on the Broadband
       website. In a preliminary e-mail response, Cardinal stated that:

   In my initial response I relied on the information provided to me verbally
   by the employees of our subsidiary, Cardinal Broadband. Somewhere we had a
   communication break down because I agree with you that anywhere a customer
   must use an internet adapter to have telephone service would definitely
   qualify as Interconnected VoIP.

   Beyond this admission, in its response to the follow-up LOI, Cardinal
   provided additional information confirming that the company is an
   interconnected VoIP service provider.

   III. Discussion

     A. Cardinal Apparently Provided Incorrect Material Factual Information
        to the Commission

    6. Section 1.17 of the Rules provides, in pertinent part, that in any
       investigation, no person shall:

   (1) In any written or oral statement of fact, intentionally provide
   material factual information that is incorrect or intentionally omit
   material information that is necessary to prevent any material factual
   statement that is made from being incorrect or misleading; and

   (2) In any written statement of fact, provide material factual information
   that is incorrect or omit material information that is necessary to
   prevent any material factual statement that is made from being incorrect
   or misleading without a reasonable basis for believing that any such
   material factual statement is correct and not misleading.

   Any person who has received a letter of inquiry from the Commission or its
   staff or is otherwise the subject of a Commission investigation is subject
   to this rule. In expanding the scope of Section 1.17 in 2003 to include
   written statements made without a reasonable basis for believing the
   statements are correct and not misleading, the Commission explained that
   it intended this requirement to clarify the obligations of persons dealing
   with the Commission, ensure that they exercised due diligence in preparing
   written submissions, and enhance the effectiveness of the Commission's
   enforcement efforts. Thus, even absent an intent to deceive, a false
   statement may constitute an actionable violation of Section 1.17 of the
   Rules if provided without a reasonable basis for believing that the
   material factual information it contains is correct and not misleading.

    7. In its response to the first LOI, Cardinal claimed that its telephone
       service is not interconnected VoIP service because it does not require
       a broadband connection from the user's location or Internet
       protocol-compatible CPE, and thus the service fails to meet two of the
       four criteria defining interconnected VoIP service. Our review of
       Cardinal's marketing materials, however, indicates that a broadband
       connection and, at least in some locations, a digital telephone
       adapter were required for Cardinal's digital telephone service. We
       therefore conclude on the basis of Cardinal's marketing materials that
       it already knew it was providing interconnected VoIP service.
       Moreover, as noted above, Cardinal subsequently admitted that the
       service it provides is interconnected VoIP service. Cardinal's earlier
       claim that the service it provides does not require a broadband
       connection from the user's location or Internet protocol-compatible
       CPE is, therefore, incorrect material factual information.

    8. As the Commission has stated, parties must "use due diligence in
       providing information that is correct and not misleading to the
       Commission, including taking appropriate affirmative steps to
       determine the truthfulness of what is being submitted. A failure to
       exercise such reasonable diligence would mean that the party did not
       have a reasonable basis for believing in the truthfulness of the
       information."  It does not appear that Cardinal had a reasonable basis
       for believing that the information it initially provided was correct
       and not misleading. We think that, had it exercised even a minimum of
       diligence prior to the submission of its initial LOI response,
       Cardinal would not have submitted incorrect or misleading material
       factual information. Although we have insufficient information to
       conclude that Cardinal's provision of incorrect material factual
       information was intentional in violation of Section 1.17(a)(1) of the
       Rules, we find that Cardinal apparently willfully violated Section
       1.17(a)(2) by providing material factual information that was
       incorrect without a reasonable basis for believing that the
       information was correct and not misleading.

   B.  Proposed Forfeiture

    9. Section 503(b) of the Act authorizes the Commission to assess a
       forfeiture for each willful or repeated violation of the Act or of any
       rule, regulation, or order issued by the Commission under the Act. In
       exercising such 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."

   10. Under  the Forfeiture Policy Statement  and Section 1.80 of the Rules,
       the base forfeiture amount for misrepresentation or lack of candor is
       the statutory maximum. Therefore, for common carriers such as
       Cardinal, the statutory maximum is $130,000 for each violation or each
       day of a continuing violation. The Commission has imposed the
       statutory maximum penalty against common carriers for the intentional
       provision of incorrect material factual information. Because we do not
       have evidence that the misrepresentation was intentional and Cardinal
       provided the correct information against its interest and prior to any
       formal Commission action, we impose a lesser forfeiture penalty here.
       Nonetheless, we find a significant forfeiture appropriate. The
       Commission has stated that "[we rely] heavily on the truthfulness and
       accuracy of the information provided to us. If information submitted
       to us is incorrect, we cannot properly carry out our statutory
       responsibilities."  Cardinal's failure to exercise due diligence to
       ensure that the information provided in its initial LOI response was
       correct and not misleading hampered our ability to properly carry out
       our statutory responsibilities and consumed scarce Commission
       resources. Although Cardinal ultimately provided the correct
       information, it did so only after the Bureau sent the company a
       follow-up LOI  directing it to provide substantially the same
       information requested in the first LOI. Accordingly, considering all
       of the enumerated factors and the particular circumstances of this
       case, we find that a forfeiture of $25,000 is warranted here for
       Cardinal's apparent willful violation of Section 1.17(a)(2).

   iV.  ordering clauses

   11. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
       Act, and Sections 0.111, 0.311 and 1.80 of the Rules, Cardinal
       Broadband LLC IS  NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE
       in the amount of twenty-five thousand dollars ($25,000) for providing
       incorrect material factual information to the Commission in willful
       violation of Section 1.17(a)(2) of the Rules.

   12. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
       within thirty days of the release date of this Notice of Apparent
       Liability for Forfeiture, Cardinal 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/Account Number and FRN Number referenced
       above. Payment by check or money order may be mailed to Federal
       Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
       Payment by overnight mail may be sent to U.S. Bank - Government
       Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
       63101. Payment by wire transfer may be made to ABA Number 021030004,
       receiving bank TREAS/NYC, and account number 27000001. For payment by
       credit card, an FCC Form 159 (Remittance Advice) must be submitted.
       When completing the FCC Form 159, enter the NAL/Account number in
       block number 23A (call sign/other ID), and enter the letters "FORF" in
       block number 24A (payment type code). Requests for full payment under
       an installment plan should be sent to: Chief Financial Officer --
       Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
       D.C. 20554. Please contact the Financial Operations Group Help Desk at
       1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
       regarding payment procedures. Cardinal will also send electronic
       notification on the date said payment is made to
       Thomas.Fitz-Gibbon@fcc.gov and Ricardo.Durham@fcc.gov.

   14. The response, if any, must be mailed to the Office of the Secretary,
       Federal Communications Commission, 445 12th Street, S.W., Washington,
       D.C. 20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division,
       and must include the NAL/Acct. No. referenced in the caption.

   15. The Commission will not consider reducing or canceling a forfeiture in
       response to a claim of inability to pay unless the petitioner submits:
       (1) federal tax returns for the most recent three-year period; (2)
       financial statements prepared according to generally accepted
       accounting practices; 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.

   16. 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 Ronald S. Bass, Principal Accounting
       Officer, Cardinal Communications, Inc., 11101 120th Avenue, Suite 220,
       Broomfield, CO 80021.

   FEDERAL COMMUNICATIONS COMMISSION

   Kris Anne Monteith

   Chief, Enforcement Bureau

   47 C.F.R. S: 1.17(a)(2). In a companion decision issued concurrently with
   this NAL, we propose a forfeiture of $25,000 against Cardinal for its
   willful and repeated failure to provide fully compliant E911 service in
   apparent violation of Section 9.5(b) of the Rules. Cardinal Broadband LLC,
   Notice of Apparent Liability and Order, DA 08-1920 (Enf. Bur., rel. August
   15, 2008) ("Cardinal VoIP E911 NAL").

   An interconnected VoIP service is a service that: (1) enables real-time,
   two-way voice communications; (2) requires a broadband connection from the
   user's location; (3) requires Internet Protocol-compatible customer
   premises equipment; and (4) permits users generally to receive calls that
   originate on the public switched telephone network ("PSTN") and to
   terminate calls to the PSTN. See 47 C.F.R. S: 9.3; see also IP-Enabled
   Services and E911 Requirements for IP-Enabled Service Providers, First
   Report and Order and Notice of Proposed Rulemaking, 20 FCC Rcd 10245,
   10257-58, P: 24 (2005) ("VoIP 911 Order"), aff'd sub nom. Nuvio v. FCC,
   473 F.3d 302 (D.C. Cir. 2006).

   Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
   Enforcement Bureau, Federal Communications Commission, to Cardinal
   Communications, Inc. (September 10, 2007) ("LOI").

   Letter from Edward A. Garneau, Chief Executive Officer, Cardinal
   Communications, Inc., and Ronald S. Bass, Principal Accounting Officer,
   Cardinal Communications, Inc., to Kathryn S. Berthot, Chief, Spectrum
   Enforcement Division, Enforcement Bureau, Federal Communications
   Commission, and Thomas D. Fitz-Gibbon, Esq., Spectrum Enforcement
   Division, Enforcement Bureau, Federal Communications Commission (October
   9, 2007) ("LOI Response") at 3.

   Id. at 3 (emphasis in original).

   Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
   Enforcement Bureau, Federal Communications Commission, to Ronald S. Bass,
   Principal Accounting Officer, Cardinal Communications, Inc. (November 20,
   2007) ("Second LOI").

   Electronic Mail Message from Ronald S. Bass, Principal Accounting Officer,
   Cardinal Communications, Inc., to Thomas D. Fitz-Gibbon, Esq., Spectrum
   Enforcement Division, Enforcement Bureau, Federal Communications
   Commission (November 30, 2007).

   See Cardinal VoIP E911 NAL at P: 12.

   47 C.F.R. S: 1.17.

   47 C.F.R. S: 1.17(b)(4).

   In the Matter of Amendment of Section 1.17 of the Commission's Rules
   Concerning Truthful Statements to the Commission, Report and Order, 18 FCC
   Rcd 4016, 4016-17 P: 1-2, 4021 P: 12 (2003) ("Amendment of Section 1.17"),
   recon. denied, Memorandum Opinion and Order, 19 FCC Rcd 5790, further
   recon. denied, Memorandum Opinion and Order, 20 FCC Rcd 1250 (2004).

   See Amendment of Section 1.17, 18 FCC Rcd at 4017 P: 2 (stating that the
   revision to Section 1.17 is intended to "prohibit incorrect statements or
   omissions that are the result of negligence, as well as an intent to
   deceive").

   See P: 4, supra.

   Amendment of Section 1.17, 18 FCC Rcd at 4021 P: 12.

   See, e.g., Syntax-Brillian Corporation, Forfeiture Order and Notice of
   Apparent Liability for Forfeiture, 23 FCC Rcd 6323 6342 P: 44 (2008)
   ("Syntax-Brillian Further NAL") (finding that a television manufacturer
   apparently provided incorrect material information concerning its
   importation and interstate shipment of non-DTV-compliant televisions
   without a reasonable basis for believing that the information was correct
   and not misleading, in violation of Section 1.17(a)(2) of the Rules);
   Citicasters License, L.P., Memorandum Opinion and Order and Notice of
   Apparent Liability for Forfeiture, 22 FCC Rcd 19324, 19338 P: 40 (2007)
   ("Citicasters") (forfeiture paid) (finding that a licensee's false
   certification that it had not violated the Act or any Commission rules
   during the preceding license term had no reasonable basis but was not made
   with the intent to deceive Commission and, therefore, apparently violated
   Section 1.17(a)(2) of the rules)"".

   47 C.F.R. S: 1.17(a)(1),

   Section 312(f)(1) of the Communications Act of 1934, as amended ("Act"),
   47 U.S.C. S: 312(f)(1), which applies to violations for which forfeitures
   are assessed under Section 503(b) of the Act, provides that "[t]he term
   `willful', ... means the conscious and deliberate commission or omission
   of such act, irrespective of any intent to violate any provision of this
   Act or any rule or regulation of the Commission authorized by this Act
   ...." See Southern California Broadcasting Co., Memorandum Opinion and
   Order, 6 FCC Rcd 4387 (1991).

   We further note that Cardinal initially failed to respond to all of the
   questions in the LOI, which itself is a violation of a Commission order
   and subject to forfeiture. See, e.g., Hauppauge Computer Works, Inc,
   Notice of Apparent Liability, 23 FCC Rcd 3684 P: 8  (Enf. Bur., Spectrum
   Enf. Div. 2008) (proposing an $11,000 forfeiture for failure to provide
   complete response to Letter of Inquiry) (forfeiture paid). Given that
   Cardinal ultimately responded to the LOI in full and our Section 1.17
   holding largely relies on the same facts, however, we will exercise our
   prosecutorial discretion here and not propose an additional forfeiture for
   Cardinal's incomplete initial response to our LOI.

   47 U.S.C. S: 503(b).

   47 U.S.C. S: 503(b)(2)(E).

   The 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, 17113 (1997) ("Forfeiture Policy Statement"), recon.
   denied, 15 FCC Rcd 303 (1999).

   47 C.F.R. S: 1.80(b)(4), Note to Paragraph (b)(4): Section I. Base Amounts
   for Section 503 Forfeitures.

   See, e.g., SBC Communications, Inc., Notice of Apparent Liability, 16 FCC
   Rcd 19091, 19120 (2001) (statutory maximum forfeiture amount proposed for
   intentional violation of Section 1.17 of the Rules) (subsequent history
   omitted).

   As noted above, Cardinal is a reseller of Qwest analog telephone service
   and therefore is subject to the forfeiture penalties applicable to common
   carriers. See, e.g., Telrite Corp., Notice of Apparent Liability and
   Order, 23 FCC Rcd 7231 (2008) (proposing a forfeiture for non-payment of
   universal service contributions against a toll reseller as a common
   carrier); Regulatory Policies Concerning Resale And Shared Use Of Common
   Carrier Services And Facilities, Report and Order, 60 FCC 2d 261 at P:
   101(1976) (subsequent history omitted) ("Resellers will be offering a
   communications service for hire to the public just as the traditional
   carriers do. The ultimate test is the nature of the offering to the
   public. No one contends that resellers will make a private offer of
   communications service rather than a public offering. Nor we will permit
   resellers to operate in a discriminatory fashion. Accordingly, the
   offering which resellers will make will satisfy the ` sine qua non ' of
   common carrier status, and they will be considered as such."). See also 47
   C.F.R. S: 63.01 (granting blanket Section 214 authority to domestic
   carriers for the construction and operation of all new lines).

   See note 34, supra.

   See, e.g., Access.1 New York License Company, LLC, Notice of Apparent
   Liability, 22 FCC Rcd 15205, 15209 P: 11 (Media Bur. 2007) (forfeiture
   amount proposed for provision of incorrect material factual information
   adjusted downward from statutory maximum amount of $32,500 to $10,000 on
   basis that violation was unintentional). Compare Syntax-Brillian Further
   NAL, 23 FCC Rcd at 6343 P: 46 (proposing statutory maximum forfeiture
   ($11,000) for apparent negligent misrepresentation based on totality of
   the circumstances; company corrected the erroneous information only after
   the Commission had relied on it in an earlier enforcement action);
   Intelsat North America, Notice of Apparent Liability, 21 FCC Rcd 9246,
   9250 P: 12 (Enf. Bur., Inv. & Hearings Div. 2006) (proposing statutory
   maximum forfeiture ($11,000) for apparent negligent misrepresentation
   based on the totality of the circumstances, including ability to pay and
   the Commission's reliance on the incorrect information). We note that in
   the Syntax-Brillian and Intelsat cases, our statutory maximum forfeiture
   was significantly less than that applicable to broadcast licensees and
   common carriers.

   In the Matter of Amendment of Section 1.17 of the Commission's Rules
   Concerning Truthful Statements to the Commission, Notice of Proposed
   Rulemaking, 17 FCC Rcd 3296, 3297 P: 3 (2002).

   Id. S:S: 0.111, 0.311 and 1.80.

   (Continued from previous page)

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   Federal Communications Commission DA 08-1921

   6

   Federal Communications Commission DA 08-1921