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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No. EB-06-MDIC-0049
)
File No. EB-07-MDIC-0021
)
File No. EB-07-MDIC-0025
In the Matter of )
File No. EB-07-MDIC-0030
West Star Telecommunications, LLC )
File No. EB-07-MDIC-0049
Apparent Liability for Forfeiture )
File No. EB-07-MDIC-0055
)
NAL/Acct. No. 2008-3209-0001
)
FRN: 0017-4416-35
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 19, 2008 Released: February 19, 2008
By the Chief, Enforcement Bureau:
I. introduction
1. This Notice of Apparent Liability for Forfeiture ("NAL") finds that
West Star Telecommunications, LLC ("West Star" or "Defendant")
apparently violated section 1.717 of the Commission's rules and
certain Commission letter orders by failing to respond to six informal
complaints served on Defendant by the Commission. Based upon our
review of the facts and circumstances surrounding this apparent
violation, we find that West Star is apparently liable for a
forfeiture in the amount of $24,000.
II. BACKGROUND
2. The Commission's informal complaint rules provide a mechanism for
complainants to (i) allege that a common carrier has violated Title II
of the Communication Act of 1934, as amended (the "Act"), and (ii)
receive a response in writing from the carrier defendant. The process
is designed to enable the parties to resolve disputes informally. A
complainant initiates the process by filing the informal complaint
with the Commission. Pursuant to section 1.717 of the rules, the
Commission then issues a letter order entitled "Notice of Informal
Complaint" ("Notice"). In that Notice, the Commission forwards the
informal complaint to the appropriate carrier and prescribes a time
for such carrier to respond in writing to the informal complaint. The
defendant must file its response with the Commission and serve it on
the complainant. If the complainant is not satisfied by the carrier's
response, and the parties are not able to resolve the dispute
informally, the complainant may file a formal complaint.
3. Payphone service providers ("PSPs") and their representatives often
file informal complaints in an effort to recover per-call payphone
compensation that carriers allegedly owe. As required by rule 1.717,
the Commission served on West Star six informal complaints filed by
various PSPs. For example, the Commission Notice dated April 4, 2007
in APCC v. West Star Telecommunications, LLC was served on West Star.
The Notice required West Star to respond in writing "specifically to
all material allegations raised in the informal complaint and
summarize the actions taken or to be taken to satisfy it." The Notice
further directed West Star to "file a response within twenty business
days of the date of this letter . . . Failure to respond . . . may
subject West Star to enforcement action. Such Notices were served on
West Star for each of the subsequent five informal complaints.
III. Discussion
A. Authority
4. Any person who the Commission determines has willfully or repeatedly
failed to comply with any provision of the Act, or any rule,
regulation, or order issued by the Commission, is liable to the United
States for a forfeiture penalty. As defined by the Act, "willful"
means "the conscious and deliberate commission or omission of [any]
act, irrespective of any intent to violate" the law. The legislative
history of section 312(f)(1) of the Act clarifies that this definition
of "willful" applies to both sections 312 and 503(b) of the Act, and
the Commission has so interpreted the term in the section 503(b)
context. The Commission also may assess a forfeiture for violations
that are merely repeated, and not willful. "Repeated" means that the
act was committed or omitted more than once, or lasts more than one
day.
5. To impose a forfeiture penalty, the Commission must issue a notice of
apparent liability, and the person against whom the notice has been
issued must have an opportunity to show, in writing, why no such
forfeiture penalty should be imposed. The Commission will then issue a
forfeiture if it finds by a preponderance of the evidence that the
person has willfully or repeatedly violated the Act or a Commission
order or rule.
6. Sections 4(i), 4(j), 218, and 403 of the Act afford the Commission
broad authority to investigate the entities it regulates. Section 4(i)
authorizes the Commission to "issue such orders, not inconsistent with
this Act, as may be necessary in the execution of its functions," and
section 4(j) states that "the Commission may conduct its proceedings
in such manner as will best conduce to the proper dispatch of business
and to the ends of justice." Section 218 of the Act specifically
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."
Finally, as noted above, rule 1.717 directs the carrier to respond to
informal complaints within the prescribed time.
7. We find that West Star apparently violated section 1.717 of the
Commission's rules and its letter orders by failing to respond to the
above-referenced informal complaints served by the Commission. The
Commission recently reminded carriers of the importance of responding
to informal complaints, and the seriousness of the penalties for
failure to do so. Nevertheless, Defendant has not responded to the six
informal complaints. We conclude that Defendant's continuing failure
to respond to the informal complaints constitutes an apparent willful
and repeated violation of a Commission rule and Commission letter
orders.
B. Forfeiture Amount
8. The Act establishes the Commission's authority to assess forfeitures;
the Commission's rules set the limits. Section 503(b)(2)(B) of the Act
authorizes the Commission to assess a forfeiture of up to $130,000 for
each violation or each day of a continuing violation, up to a
statutory maximum of $1,325,000 for a single act or failure to act.
Section 1.80 of the Commission's rules and the Commission's Forfeiture
Policy Statement establish a base forfeiture amount of $4,000 for
failure to respond to a Commission communication. West Star's failure
to respond to the Commission's notices of the six informal complaints,
as required by section 1.717 of the Commission's rules, and letter
orders warrants the base forfeiture amount of $4,000 for each informal
complaint, for a proposed forfeiture of $24,000.
9. West Star will have an opportunity to submit evidence and arguments in
response to this NAL to attempt to show that no forfeiture should be
imposed or that some lesser amount should be assessed.
IV. CONCLUSION and ORDERING CLAUSES
10. We conclude that West Star apparently willfully or repeatedly violated
a Commission rule by failing to provide written responses to the
Commission in response to six informal complaints. Accordingly, a
proposed forfeiture is warranted against Defendant for this apparent
willful or repeated violation.
11. ACCORDINGLY, IT IS ORDERED THAT, pursuant to section 503(b) of the
Communications Act of 1934, as amended, section 1.80(f)(4) of the
Commission's rules, and authority delegated by sections 0.111 and
0.311 of the Commission's rules, West Star IS LIABLE FOR A MONETARY
FORFEITURE in the amount of $24,000.00 for willfully or repeatedly
failing to respond to six informal complaints served by the
Commission, in violation of section 1.717 of the Commission's rules
and Commission letter orders.
12. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the
Commission's rules, within thirty days of the release date of this
NOTICE OF APPARENT LIABILITY, West Star 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 credit card through the
Commission's Revenue and Receivables Operations Group at (202)
418-1995, or 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 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 Federal Reserve Bank of
New York, and account number 27000001. 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. Questions, please contact the Financial Operations
Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov.
14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be served by first class mail with a certified
mail return receipt requested to West Star Telecommunications, LLC, at
the home address of its principal, Jeff Larsen, 7743 Keswick Dr.,
Sandy, Utah 84093.
FEDERAL COMMUNICATIONS COMMISSION
Kris A. Monteith
Chief, Enforcement Bureau
Appendix
Informal Complaints against West Star Telecommunications, LLC
File No. Complainant/ Notice Served
Defendant
EB-06-MDIC-0049 APCC Services, Inc. 04/06/07
Weststar Telecom'ns, LLC
EB-07-MDIC-0021 PBS TelCom Inc. 06/20/07
West Star Telecom'ns, LLC
EB-07-MDIC-0025 G-Five LLC 06/20/07
Weststar Telecom'ns, LLC
EB-07-MDIC-0030 C&M 06/20/07
West Star Telecom'ns, LLC
EB-07-MDIC-0049 Pinnacle Public 12/07/07
West Star
EB-07-MDIC-0055 Paytel 12/20/07
West Star
Defendant is variously referred to as "West Star," "WestStar," and
"Weststar" in the various complaints - see Attachment. For consistency and
ease of reference, we will refer to Defendant as "West Star."
47 C.F.R. S: 1.717.
47 U.S.C. S:S: 201 - 276.
47 C.F.R. S:S: 1.716 - 717.
47 C.F.R. S: 1.717.
47 C.F.R. S: 1.717.
See 47 C.F.R. S:S: 1.718, 1.720-1.736 (describing the formal complaint
process).
See 47 C.F.R. S:S: 64.1300-64.1340 (describing payphone compensation
obligations).
See Appendix.
APCC Services v. West Star Telecommunications, LLC, Notice of Possible
Enforcement Action, File No. EB-06-MDIC-0049 (dated Apr. 4, 2007)
("Notice").
Notice at 2.
Notice at 2.
See Appendix.
47 U.S.C. S: 503(b)(1)(B).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) ("Southern
California Broadcasting Co.").
See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of
Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362, P: 10
(2001) ("Callais Cablevision") (issuing a Notice of Apparent Liability
for, inter alia, a cable television operator's repeated signal leakage).
Southern California Broadcasting Co., 6 FCC Rcd at 4388, P: 5; Callais
Cablevision, 16 FCC Rcd at 1362, P: 9.
47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591 (2002) ("SBC Forfeiture Order").
47 U.S.C. S:S: 154(i), 154(j), 218, 403.
47 U.S.C. S:S: 154(i), 154(j).
47 U.S.C. S: 218.
47 C.F.R. S: 1.717.
Consumer & Governmental Affairs Bureau Reminds Common Carriers of Their
Obligation to Timely Respond to Informal Complaints, Public Notice, 22 FCC
Rcd 4243 (2007).
47 U.S.C. S: 503(b)(2)(B), as amended. See 47 C.F.R. S: 1.80(b)(2);
Amendment of Section 1.80(b) of the Commission's Rules, Adjustment of
Forfeiture Maxima to Reflect Inflation, Order, 19 FCC Rcd 10945 (2004).
Citing 28 U.S.C. S: 2461, the Debt Collection Improvement Act, the
Commission adjusted the statutory amounts upward (from $100,000 to
$130,000 per violation or day of continuing violation, and from $1,000,000
to $1,325,000 for any single act or failure to act, as described).
47 C.F.R. S: 1.80; 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, 17114 (1997), recon. denied, 15 FCC
Rcd 303 (1999).
47 C.F.R. S: 1.717.
47 U.S.C. S: 503(b)(4)(C); 47 C.F.R. S: 1.80(f)(3).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80(f)(4).
47 C.F.R. S:S: 0.111, 0.311.
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(continued....)
Federal Communications Commission DA 08-424
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Federal Communications Commission DA 08-424