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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-IH-4282
In the Matter of
) NAL/Acct. No. 200932080013
Cincinnati Bell, Inc.
) FRN No. 0003-0180-33
)
ORDER
Adopted: November 21, 2008 Released: December 3, 2008
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau (the "Bureau") and Cincinnati Bell,
Inc., Cincinnati Bell Telephone Company and Cincinnati Bell Extended
Territories, Inc. ("Cincinnati Bell"). The Consent Decree terminates
the enforcement proceeding initiated by the Bureau against Cincinnati
Bell for possible violations of sections 9(a)(1), 225(b)(1) and 254 of
the Communications Act of 1934, as amended (the "Act"), and sections
1.1151, 1.1154, 1.1157(b)(1), 52.17, 52.32, 54.706, 54.711, 54.713,
and 64.604 of the Commission's Rules, relating to universal service,
and certain Rules relating to universal service, the
Telecommunications Relay Service ("TRS") Fund, the North American
Numbering Plan Administration ("NANPA"), Local Number Portability
("LNP") and regulatory fees.
2. The Bureau and Cincinnati Bell have negotiated the terms of the
Consent Decree that resolve this matter. A copy of the Consent Decree
is attached hereto and incorporated by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and terminating the enforcement
proceeding.
4. In the absence of material new evidence relating to this matter, we
conclude that the Bureau's investigation raises no substantial or
material questions of fact as to whether Cincinnati Bell possesses the
basic qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to section 4(i) of the Act,
the Consent Decree attached to this Order IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Douglas D. Orvis II, Bingham McCutchen LLP, 2020 K
Street, N.W., Washington, D.C. 20006-1806.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-IH-4282
In the Matter of
) NAL/Acct. No. 200932080013
Cincinnati Bell, Inc.
) FRN No. 0003-0180-33
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and Cincinnati Bell, Inc.,
Cincinnati Bell Telephone Company and Cincinnati Bell Extended
Territories (collectively, "Cincinnati Bell"), by their authorized
representatives, hereby enter into this Consent Decree for the purpose
of terminating the Bureau's investigation concerning Cincinnati
Bell's compliance with section 254 of the Communications Act of 1934,
as amended (the "Act"), relating to universal service, and certain
Rules relating to universal service, the Telecommunications Relay
Service ("TRS") Fund, the North American Numbering Plan Administration
("NANPA"), Local Number Portability ("LNP") and regulatory fees.
I. DEFINITIONS
2. For the 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. "Adopting Order" means an Order of the Commission adopting the terms
of this Consent Decree without change, addition, deletion, or
modification.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Cincinnati Bell" means Cincinnati Bell, Inc., Cincinnati Bell
Telephone Company and Cincinnati Bell Extended Territories, Inc., and
its predecessors-in-interest and successors-in-interest or assigns.
e. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
f. "Compliance Plan" means the program described in this Consent Decree
at paragraph 13.
g. "Effective Date" means the date on which the Commission releases the
Adopting Order.
h. "Investigation" means the investigation commenced by the Bureau's
March 6, 2007 Letter of Inquiry regarding Cincinnati Bell's universal
service and other reporting and contribution obligations associated
with FCC Form 499-A and FCC Form 499-Q.
i. "Parties" means Cincinnati Bell and the Bureau.
j. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
3. Pursuant to section 254(d) of the Act and sections 54.706, 54.711, and
54.713 of the Rules, telecommunications carriers that provide
interstate telecommunications services are required to file annual and
quarterly Telecommunications Reporting Worksheets (FCC Form 499-A and
FCC Form 499-Q) and contribute to the federal Universal Service Fund
("USF").
4. Pursuant to section 251(e) of the Act and sections 52.17 and 52.32 of
the Rules, all telecommunications carriers are required to contribute
to the costs of establishing numbering administration and local number
portability, based on information contained in FCC Form 499-A and FCC
Form 499-Q.
5. Pursuant to section 225(b)(1) of the Act and section 64.604 of the
Rules, telecommunications carriers that provide interstate
telecommunications services are required to contribute to the TRS
Fund, based on information contained in FCC Form 499-A and FCC Form
499-Q.
6. Pursuant to section 9(a)(1) of the Act and sections 1.1151, 1.1154,
and 1.1157(b)(1) of the Rules, interstate telecommunications carriers
are required to pay regulatory fees.
7. Cincinnati Bell offers interstate and international telecommunications
services and is subject to the requirements discussed in paragraphs 3
through 6 above.
8. On January 30, 2007, Cincinnati Bell informed the Bureau that, as part
of a review of its compliance with its universal service and other
associated reporting and contribution obligations, it may have
underreported its interstate telecommunications revenues on its FCC
Form 499-As and FCC Form 499-Qs. As a result, Cincinnati Bell's
federal USF contributions, numbering administration and local number
portability contributions, TRS Fund contributions, and regulatory fee
payments may have been calculated incorrectly. Shortly thereafter, the
Bureau issued Letters of Inquiry ("LOIs") concerning Cincinnati Bell's
voluntary disclosures. Cincinnati Bell submitted to the Universal
Service Administrative Company ("USAC") revised FCC Form 499-As to
report accurate revenue. Cincinnati Bell timely responded to each LOI,
has paid all subsequent invoices from USAC fully and timely, and has
remained in compliance with all federal regulatory payment obligations
since the inception of the Investigation.
III. TERMS OF AGREEMENT
9. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order
without change, addition, modification, or deletion.
10. Jurisdiction. Cincinnati Bell agrees that the Bureau has jurisdiction
over it and the matters contained in this Consent Decree and has the
authority to enter into and adopt this Consent Decree.
11. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the date on which the FCC releases the
Adopting Order. Upon release, the Adopting Order and this Consent
Decree shall have the same force and effect as any other Order of the
Bureau. Any violation of the Adopting Order or of the terms of this
Consent Decree shall constitute a separate violation of a Bureau
Order, entitling the Bureau to exercise any rights and remedies
attendant to the enforcement of a Commission Order.
12. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate its
investigation. In consideration for the termination of said
investigation, Cincinnati Bell agrees to the terms, conditions, and
procedures contained herein. The Bureau further agrees that, in the
absence of new material evidence, the Bureau will not use the facts
developed in this investigation through the Effective Date of the
Consent Decree, or the existence of this Consent Decree, to institute,
on its own motion, any new proceeding, formal or informal, or take any
action on its own motion against Cincinnati Bell concerning the
matters that were the subject of the investigation. The Bureau also
agrees that it will not use the facts developed in this investigation
through the Effective Date of this Consent Decree, or the existence of
this Consent Decree, to institute on its own motion any proceeding,
formal or informal, or take any action on its own motion against
Cincinnati Bell with respect to Cincinnati Bell's basic
qualifications, including its character qualifications, to be a
Commission licensee or authorized common carrier.
13. Compliance Plan. For purposes of settling the matters set forth
herein, Cincinnati Bell agrees to create within sixty (60) days a
Compliance Plan related to Cincinnati Bell's future compliance with
the Act, the Commission's Rules, and the Commission's Orders governing
telecommunications service providers' federal reporting and
contribution requirements. The Plan will include, at a minimum, the
following components:
a. Compliance Manual. Cincinnati Bell shall create, maintain and update
an FCC Compliance Manual. Cincinnati Bell personnel who engage in
activities related to FCC regulation of Cincinnati Bell will have
ready access to the Compliance Manual and are to follow the procedures
contained therein. The Compliance Manual will, among other things,
describe the rules and requirements as they apply to Cincinnati Bell
regarding the annual regulatory fee, the USF, the TRS Fund, and the
NANPA and LNP regulatory requirements. The Compliance Manual will set
forth a schedule of filing and payment dates associated with these
regulatory programs. The Compliance Manual will encourage personnel to
contact Cincinnati Bell's Designated Contact or internal regulatory
legal counsel, with any questions or concerns that arise with respect
to Cincinnati Bell's FCC compliance. Cincinnati Bell shall submit to
the Bureau a final version of its Compliance Manual sixty (60) days
after the Effective Date.
b. Compliance Training Program. Cincinnati Bell will establish an FCC
compliance training program for any employee who engages in activities
related to FCC regulation of Cincinnati Bell. Training sessions will
be conducted at least annually for such employees to ensure compliance
with the Act and the FCC's regulations and policies and, for new
employees who are engaged in such activities, within the first sixty
(60) days of employment.
c. Designated Contact. Cincinnati Bell designates its General Counsel as
the point of contact for all FCC compliance matters.
d. Review and Monitoring. Cincinnati Bell will review the FCC Compliance
Manual and FCC Compliance Training Program annually to ensure that
they are maintained in a proper manner and continue to address the
objectives set forth therein.
e. Compliance Reports. Cincinnati Bell will file compliance reports with
the Commission ninety (90) days after the Effective Date, twelve (12)
months after the Effective Date, and twenty-four (24) months after the
Effective Date. Each compliance report shall include a compliance
certificate from an officer, as an agent of Cincinnati Bell, stating
that the officer has personal knowledge that Cincinnati Bell has
established operating procedures intended to ensure compliance with
this Consent Decree, together with an accompanying statement
explaining the basis for the officer's compliance certification. All
compliance reports shall be submitted to Chief, Investigations &
Hearings Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street, S.W., Room 4-C320, Washington, D.C.
20554.
f. Termination. Cincinnati Bell's obligations under this Paragraph shall
expire twenty-four (24) months after the Effective Date.
14. Section 208 Complaints; Subsequent Investigations. Nothing in this
Consent Decree shall prevent the Commission or its delegated authority
from adjudicating complaints filed pursuant to section 208 of the Act
against Cincinnati Bell or its affiliates for alleged violations of
the Act, or for any other type of alleged misconduct, regardless of
when such misconduct took place. The Commission's adjudication of any
such complaint will be based solely on the record developed in that
proceeding. Except as expressly provided in this Consent Decree, this
Consent Decree shall not prevent the Commission from investigating new
evidence of noncompliance by Cincinnati Bell of the Act, the Rules, or
any Commission Order.
15. Voluntary Contribution. Cincinnati Bell agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
four hundred fifty thousand dollars ($450,000) within thirty (30) 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 the
Account Number and FRN Number referenced in the caption to the
Adopting Order. 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 Federal Reserve Bank of New York, and
account number 27000001. Cincinnati Bell will also send electronic
notification within forty-eight (48) hours of the date said payment is
made to David.Janas@fcc.gov.
16. Waivers. Cincinnati Bell 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 Commission issues an Adopting
Order adopting the Consent Decree without change, addition,
modification, or deletion. Cincinnati Bell shall retain the right to
challenge Commission interpretation of the Consent Decree or any terms
contained herein. If either Party (or the United States on behalf of
the Commission) brings a judicial action to enforce the terms of the
Adopting Order, neither Cincinnati Bell nor the Commission shall
contest the validity of the Consent Decree or the Adopting Order, and
Cincinnati Bell shall waive any statutory right to a trial de novo.
Cincinnati Bell hereby 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.
17. Contingent on Bureau Action. Cincinnati Bell's decision to enter this
Consent Decree is expressly contingent upon the Bureau's issuance of
an Adopting Order, adopting the Consent Decree without change,
addition, or modification.
18. Future Petitions. Nothing in this Consent Decree shall preclude
Cincinnati Bell from petitioning the Commission for relief as to
future obligations under Section 254 of the Act and Commission's Rules
or other relevant sections of the Act and the Commission's Rules.
19. Subsequent Legal Action. In the event that this Consent Decree is
rendered invalid by any court of competent jurisdiction, it shall
become null and void and may not be used in any manner in any legal
proceeding.
20. Subsequent Rule or Order. The Parties agree that if any provision of
the 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 Cincinnati Bell does not
expressly consent) that provision will be superseded by such
Commission Rule or Order.
21. Successors and Assigns. Cincinnati Bell agrees that the provisions of
this Consent Decree shall be binding on its successors, assigns, and
transferees.
22. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further 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 with the
requirements of the Act or the Commission's Rules and Orders. The
Parties agree that this Consent Decree is for settlement purposes only
and that by agreeing to this Consent Decree, Cincinnati Bell does not
admit or deny noncompliance, violation or liability for violating the
Act or Case Reports in connection with the matters that are the
subject of this Consent Decree.
23. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
24. Paragraph Headings. The headings of the Paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
25. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
26. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
________________________________
Kris Anne Monteith
Chief
Enforcement Bureau
________________________________
Date
________________________________
Christopher Wilson
Vice President and General Counsel
Cincinnati Bell
________________________________
Date
47 U.S.C. S:S: 9(a)(1), 225(b)(1), 254; 47 C.F.R. S:S: 1.1151, 1.1154,
1.1157(b)(1), 52.17, 52.32, 54.706, 54.711, 54.713, and 64.604.
47 U.S.C. S: 154(i).
47 U.S.C. S: 254.
See Letter from Trent B. Harkrader, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission
to Karen Brinkmann, Latham & Watkins LLP, issued March 6, 2007.
47 U.S.C. S: 254(d); 47 C.F.R. S:S: 54.706, 54.711, 54.713.
47 U.S.C. S: 251(e); 47 C.F.R. S:S: 52.17, 52.32.
47 U.S.C. S: 225(b)(1); 47 C.F.R. S: 64.604.
47 U.S.C. S: 9(a)(1); 47 C.F.R. S:S: 1.1151, 1.1154, 1.1157(b)(1).
Federal Communications Commission DA 08-2551
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Federal Communications Commission DA 08-2551
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12/4/2008 Draft Federal Communications Commission FCC XX-XXX