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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of
) File No. EB-06-TC-4483
CTC Communications Corp.
) NAL/Acct. No. 200732170037
Notice of Apparent
) FRN: 0005013669
Liability for Forfeiture
)
)
)
ORDER
Adopted: February 15, 2008 Released: February 19, 2008
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau (the "Bureau") of the Federal
Communications Commission (the "FCC" or "Commission") and CTC
Communications Corp. ("CTC"). The Consent Decree terminates a Notice of
Apparent Liability for Forfeiture ("NAL") against CTC for its apparent
violation of section 222 of the Communications Act of 1934, as amended
("Communications Act" or "Act"), 47 U.S.C. S: 222, and section 64.2009(e)
of the Commission's rules, 47 C.F.R. S: 64.2009(e).
2. The Bureau and CTC have negotiated the terms of a Consent Decree that
would resolve this matter and terminate the investigation. A copy of the
Consent Decree is attached hereto and incorporated by reference.
3. After reviewing the terms of the Consent Decree, we find that the
public interest would be served by adopting the Consent Decree and
terminating the NAL. We also conclude that, in the absence of material new
information not previously disclosed to the Bureau, the matters raised in
the investigation do not raise any substantial and material questions of
fact regarding CTC's qualifications to be a Commission licensee.
4. Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the Act that
the attached Consent Decree IS ADOPTED.
5. IT IS FURTHER ORDERED that CTC shall make its voluntary contribution to
the United States Treasury, as specified in the Consent Decree, by credit
card through the Commission's Revenue and Receivables Operations Group at
(202) 418-1995, or by mailing a check or similar instrument payable to the
order of the Federal Communications Commission, 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.
6. IT IS FURTHER ORDERED that the above-captioned NAL is cancelled.
FEDERAL COMMUNICATIONS COMMISSION
__________________________
Kris A. Monteith
Chief, Enforcement Bureau
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
)
)
)
In the Matter of
) File No. EB-06-TC-4483
CTC Communications Corp.
) NAL/Acct. No. 200732170037
Notice of Apparent
) FRN: 0005013669
Liability for Forfeiture
)
)
)
CONSENT DECREE
I. INTRODUCTION
1. The Enforcement Bureau (the "Bureau") of the Federal Communications
Commission (the "FCC" or "Commission") and CTC Communications Corp.,
("CTC") by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
into possible noncompliance by CTC with the requirements of 222 of the
Communications Act of 1934, as amended ("Communications Act" or "Act"), 47
U.S.C. S: 222, and section 64.2009(e) of the Commission's rules, 47 C.F.R.
S: 64.2009(e).
II. BACKGROUND
2. Section 222 imposes the general duty on all telecommunications carriers
to protect the confidentiality of their subscribers' proprietary
information. The Commission has issued rules implementing section 222 of
the Act. The Commission required carriers to establish and maintain a
system designed to ensure that carriers adequately protected their
subscribers' CPNI. Section 64.2009(e) is one such requirement. Pursuant to
section 64.2009(e):
A telecommunications carrier must have an officer, as an agent of the
carrier, sign a compliance certificate on an annual basis stating that the
officer has personal knowledge that the company has established operating
procedures that are adequate to ensure compliance with the rules in this
subpart. The carrier must provide a statement accompanying the certificate
explaining how its operating procedures ensure that it is or is not in
compliance with the rules in this subpart.
3. The Bureau has been investigating the adequacy of procedures
implemented by telecommunications carriers to ensure confidentiality of
their subscribers' CPNI, based on concerns regarding the apparent
availability to third parties of sensitive, personal subscriber
information. For example, some companies, known as "data brokers," have
advertised the availability of records of wireless subscribers' incoming
and outgoing telephone calls for a fee. Data brokers have also advertised
the availability of call information that relates to certain landline toll
calls.
4. As part of its inquiry into these issues, the Bureau sent a Letter of
Inquiry ("LOI") to CTC on January 5, 2007, directing it to produce the
compliance certificates for the previous five (5) years that it had
prepared pursuant to section 64.2009(e) of the Commission's rules. On
January 12, 2007, CTC submitted a document in response to the Bureau's
LOI. The Bureau concluded that the document submitted by CTC did not
satisfy the requirements set forth in the rule and that CTC had apparently
failed to comply with the requirement that it have an officer certify on
an annual basis that the officer has personal knowledge that CTC has
established operating procedures adequate to ensure compliance with the
Commission's CPNI rules. Accordingly, on March 26, 2007, the Bureau
released an NAL against CTC proposing a monetary forfeiture of $100,000
for its apparent failure to comply with section 64.2009(e) of the
Commission's rules.
III. DEFINITIONS
5. For purposes of this Consent Decree, the following definitions shall
apply:
a. "Act" means the Communications Act of 1934, as amended.
b. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
c. "Commission" or "FCC" means the Federal Communications Commission.
d. "CTC" means CTC Communications Corp. and any affiliate, d/b/a,
predecessor-in-interest, parent companies and any direct or indirect
subsidiaries of such parent companies, or other affiliated companies
or businesses and their successors and assigns.
e. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
f. "Investigation" means the investigation commenced by the Bureau's
January 5, 2007 Letter of Inquiry to CTC.
g. "Order" or "Adopting Order" means an Order of the Bureau adopting the
terms and conditions of this Consent Decree without change, addition,
or modification, and formally terminating the above-captioned
Investigation.
h. "Parties" means CTC and the Bureau.
IV. AGREEMENT
6. CTC agrees that the Bureau, by delegated authority of the Commission,
has jurisdiction over it and the subject matters contained in this Consent
Decree and the authority to enter into and adopt this Consent Decree.
7. The Parties agree and acknowledge that this Consent Decree shall
constitute a final settlement of the Investigation. In express reliance on
the covenants and representations contained herein, and to avoid the
potential expenditure of additional public resources, the Bureau agrees to
terminate the Investigation. In consideration for the termination of this
matter and in accordance with the terms of this Consent Decree, CTC agrees
to the terms, conditions, and procedures contained herein.
8. 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 CTC 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, CTC 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.
9. In consideration for the termination of the Investigation in accordance
with the terms of this Consent Decree, CTC 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 one hundred thousand dollars
($100,000) within thirty (30) calendar days after the Effective Date of
the Adopting Order. This voluntary payment does not constitute a fine or
penalty for, or admission of, the violation of any law. 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.
10. To resolve and terminate the Investigation, and to ensure compliance
with the Commission's CPNI rules, CTC agrees to full compliance with
Section 64.2009(e) of the Commission's rules. CTC agrees to train its
personnel as to when they are and are not authorized to use CPNI. CTC
further agrees to have an express disciplinary process in place for the
unauthorized use of CPNI. Additionally, CTC agrees to submit a copy of its
annual 64.2009(e) compliance certificate for each of two (2) years
following the Effective Date of this Consent Decree to the Chief,
Telecommunications Consumers Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W. Room 4-C244, Washington,
D.C. 20554, and must include the file number listed above. CTC will also
send an electronic copy of its certification to other Telecommunications
Consumers Division staff as directed by the Division Chief. This Consent
Decree will expire two (2) years after the Effective Date or upon the
termination of the certification requirement set forth in sections
64.2009(e) of the Commission's rules, 47 C.F.R. S: 64.2009(e), whichever
is earlier.
11. The Bureau agrees that, in the absence of new material evidence, it
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 initiate, on its own motion, any new proceeding, formal or
informal, or take any action on its own motion against CTC, concerning the
matters that were the subject of the Investigation, provided that CTC
satisfies all of its obligations under this Consent Decree. The Bureau
also agrees that, in the absence of new material evidence, 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 CTC with respect to CTC's basic
qualifications, including its character qualifications, to be a Commission
licensee or authorized common carrier. Nothing in this Consent Decree will
prevent the Bureau from instituting or recommending to the Commission any
new investigation or enforcement proceeding against CTC in the event of
any alleged future misconduct involving violation of this Consent Decree,
or violation of the Act or the Commission's rules. Nothing in this Consent
Decree shall prevent the Commission or its delegated authority from
adjudicating complaints filed pursuant to section 208 of the Act, 47
U.S.C. S:S: 208, against CTC 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.
12. CTC's decision to enter into this Consent Decree is expressly
contingent upon the Bureau's issuance of an Adopting Order which adopts
that Consent Decree without change, addition, or modification. Provided
the Bureau issues an Adopting Order, CTC 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.
13. 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 CTC nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and CTC and the Commission will waive any
statutory right to a trial de novo with respect to the issuance of the
Adopting Order and shall consent to a judgment incorporating the terms of
this Consent Decree.
14. 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.
15. By this Consent Decree, CTC 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.
16. CTC 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.
17. The Parties agree that if any provision of this Consent Decree is
inconsistent with any subsequent rule or order adopted by the Commission,
that provision will be superseded by such Commission rule or order.
18. This Consent Decree may be signed in counterparts.
For: CTC Communications Corp.
______________ ___________________
Date James P. Prenetta, Jr.
Executive Vice President and General Counsel
CTC Communications Corp.
For: Enforcement Bureau
Federal Communications Commission
______________ ____________________
Date Kris A. Monteith
Chief, Enforcement Bureau
CTC is headquartered at 220 Bear Hill Road, Waltham, Massachusetts, and is
a provider of wireline telecommunications services.
Section 222 of the Communications Act provides that: "Every
telecommunications carrier has a duty to protect the confidentiality of
proprietary information of, and relating to, other telecommunications
carriers, equipment manufacturers, and customers, including
telecommunication carriers reselling telecommunications services provided
by a telecommunications carrier." 47 U.S.C S: 222.
In the Matter of Implementation of the Telecommunications Act of 1996:
Telecommunications Carriers' Use of Customer Proprietary Network
Information and Other Customer Information and Implementation of the
Non-Accounting Safeguards of Sections 271 and 272 of the Communications
Act of 1934, as amended, Order and Further Notice of Proposed Rulemaking,
13 FCC Rcd 8061 (1998) ("CPNI Order"); see also In the Matter of
Implementation of the Telecommunications Act of 1996: Telecommunications
Carriers' Use of Customer Proprietary Network Information and Other
Customer Information and Implementation of the Non-Accounting Safeguards
of Sections 271 and 272 of the Communications Act of 1934, as amended,
Order on Reconsideration and Petitions for Forbearance, 14 FCC Rcd 14409
(1999); In the Matter of Implementation of the Telecommunications Act of
1996: Telecommunications Carriers' Use of Customer Proprietary Network
Information and Other Customer Information and Implementation of the
Non-Accounting Safeguards of Sections 271 and 272 of the Communications
Act of 1934, as amended; 2000 Biennial Regulatory Review -- Review of
Policies and Rules Concerning Unauthorized Changes of Consumers' Long
Distance Carriers, Third Report and Order and Third Further Notice of
Proposed Rulemaking, 17 FCC Rcd 14860 (2002).
47 C.F.R. S: 64.2009(e).
See, e.g. http://www.epic.org/privacy/iei/.
See id.
Letter from Marcy Greene, Deputy Division Chief, Telecommunications
Consumers Division, Enforcement Bureau, Federal Communications Commission,
to Mr. Ray Allieri, CEO, CTC Communications Corp., (January 5, 2007)
("January 5 LOI").
Letter from James P. Prenetta, Jr., Executive Vice President and General
Counsel, CTC Communications Corp., to Marcy Greene, Deputy Division Chief,
Telecommunications Consumers Division, Enforcement Bureau, Federal
Communications Commission (January 12, 2007) ("January 12 response").
In the Matter of CTC Communications Corporation, Notice of Apparent
Liability for Forfeiture, 22 FCC Rcd. 5506 (Enf. Bur. rel. March 26, 2007)
("NAL").
Id.
Federal Communications Commission DA 08-404
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Federal Communications Commission DA 08-404