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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-04-IH-0394
In the Matter of
) NAL/Acct. No. 200532080143
BCE Nexxia Corporation
) FRN No. 0008-2783-76
)
ORDER
Adopted: December 12, 2008 Released: December 15, 2008
By the Commission:
1. In this Order, we adopt the attached Consent Decree entered into
between the Federal Communications Commission ("Commission") and BCE
Nexxia Corporation ("BCE"). The Consent Decree terminates an
investigation and Notice of Apparent Liability for Forfeiture ("NAL")
by the Commission against BCE for possible violations of sections 9,
214, and 254 of the Communications Act of 1934, as amended ("the
Act"), 47 U.S.C. S:S: 159, 214, 254, sections 34-39 of the Cable
Landing Act, 47 U.S.C. S:S: 34-39, Executive Order No. 10530, and
sections 1.767, 1.1154, 1.1156, 43.61, 43.82, 54.706, 54.711, 63.10,
and 63.11 of the Commission's rules, 47 C.F.R. S:S: 1.767, 1.1154,
1.1156, 43.61, 43.82, 54.706, 54.711, 63.10, and 63.11, regarding
violation of the universal service reporting and contribution
requirements, as well as international reporting and fee payment
requirements.
2. The Commission and BCE 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, which terminates the investigation and
cancels the NAL.
4. In the absence of material new evidence relating to this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether BCE 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 sections 4(i) and 503(b)
of the Communications Act of 1934, as amended, the Consent Decree
attached to this Order IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED and the Notice of Apparent Liability for Forfeiture IS
CANCELLED.
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 Joel S. Winnik, Counsel for BCE, Columbia Square, 555
Thirteenth Street, NW, Washington D.C., 20004.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-04-IH-0394
In the Matter of
) NAL/Acct. No. 200532080143
BCE Nexxia Corporation
) FRN No. 0008-2783-76
)
CONSENT DECREE
1. The Federal Communications Commission ("Commission" or "FCC") and BCE
Nexxia Corporation ("BCE" or the "Company") (as defined in para 2(c)
hereof), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Commission's
investigation into whether BCE violated sections 9, 214 and 254 of the
Communications Act of 1934, as amended ("the Act"), 47 U.S.C. S:S:
159, 214, 254, sections 34-39 of the Cable Landing Act, 47 U.S.C. S:S:
34-39, Executive Order No. 10530, and sections 1.767, 1.1154, 1.1156,
43.61, 43.82, 54.706, 54.711, 63.10, and 63.11 of the Commission's
rules, 47 C.F.R. S:S: 1.767, 1.1154, 1.1156, 43.61, 43.82, 54.706,
54.711, 63.10, and 63.11, regarding violation of the universal service
reporting and contribution requirements, as well as international
reporting and fee payment requirements.
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. "BCE" or "the Company" means BCE Nexxia Corporation, BCE Nexxia Voice
Services Corporation, Marine Cable Corporation and their
predecessors-in-interest and successors-in-interest, collectively.
d. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
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 8.
g. "Effective Date" means the date on which the Commission releases the
Adopting Order.
h. "Investigation" means the investigation commenced by the Bureau's
September 8, 2004 Letter of Inquiry regarding whether BCE Nexxia
Corporation violated the universal service reporting and contribution
requirements of Section 254 of the Communications Act of 1934, as
amended (the "Act"), 47 U.S.C. S: 254, and of sections 54.706 and
54.711 of the Commission's rules, 47 C.F.R. S:S: 54.706 and 54.711. It
also includes the BCE self-disclosure with regard to compliance with
section 9 and 214 of the Act, 47 U.S.C. S:S: 159, 214, and of sections
34-39 of the Cable Landing Act, 47 U.S.C. S:S: 34-39, and Executive
Order No. 10530, and sections 1.767, 1.1154, 1.1156, 43.61, 43.82,
63.10, and 63.11 of the Commission's Rules, 47 C.F.R. S:S: 1.767,
1.1154, 1.1156, 43.61, 43.82, 63.10, and 63.11, regarding violation of
the universal service reporting and contribution requirements, as well
as international reporting and fee payment requirements
i. "NAL" means Notice of Apparent Liability for Forfeiture, 20 FCC Rcd
15121 (2005).
j. "Parties" means BCE and the Commission.
k. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
3. On September 13, 2005, the Commission issued a Notice of Apparent
Liability for Forfeiture ("NAL") proposing that BCE be held liable for
a forfeiture of $282,000 for apparent violations of section 254 of the
Act and sections 54.711(a) and 54.706(a) of the Commission's Rules by
willfully and repeatedly failing to submit certain Telecommunications
Reporting Worksheets and by failing to contribute to the Universal
Service Fund ("USF"). In response, BCE requested that the Commission
consider settling the investigation with a consent agreement prior to
issuing a forfeiture order. During the course of the settlement
discussions, BCE voluntarily disclosed several other potential
violations of the Act and the Commission's rules involving Submarine
Cable Landing License Reports, International Bearer Circuit Fees,
International Carrier Traffic and Revenue Reports, International
Circuit Status Reports, and Foreign Carrier Affiliation Notification
and proposed that the new self-disclosed violations be settled in the
same consent agreement. As of the Effective Date, BCE has paid all
invoiced amounts to the Universal Service Fund, Telecommunications
Relay Service Fund, cost recovery mechanisms for the North American
Numbering Plan administration, and regulatory fees, as well as
complied with the other regulatory obligations noted above.
III. TERMS OF AGREEMENT
4. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Commission by
incorporation of such provisions by reference in the Adopting Order
without change, addition, modification, or deletion.
5. Jurisdiction. BCE agrees that the Commission has jurisdiction over it
and the matters contained in this Consent Decree and has the authority
to enter into and adopt this Consent Decree.
6. 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
Commission. Any violation of the Adopting Order or of the terms 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.
7. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further
expenditure of public resources, the Commission agrees to terminate
its investigation and to cancel its NAL. In consideration for the
termination of said investigation and cancellation of the NAL, BCE
agrees to the terms, conditions, and procedures contained herein. The
Commission further agrees that in the absence of new material
evidence, the Commission will not use the facts developed in this
investigation including information voluntarily disclosed by BCE,
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 BCE concerning the matters that were the subject of the
investigation. The Commission also agrees that it will not use the
facts developed in this investigation including information
voluntarily disclosed by BCE, 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 BCE with respect to BCE's basic
qualifications, including its character qualifications, to be a
Commission licensee or authorized common carrier or hold Commission
authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, BCE agrees to create within sixty (60) calendar days a
Compliance Plan related to future compliance with the Act, the
Commission's Rules, and the Commission's Orders. The Plan will
include, at a minimum, the following components:
a. Compliance Manual. BCE shall create, maintain and update an FCC
Compliance Manual. BCE personnel who engage in activities related to
FCC regulation of BCE 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 BCE regarding international bearer circuit fees,
annual regulatory fees, the Universal Service Fund, the
Telecommunications Relay Service Fund, and the North American
Numbering Plan administration cost recovery fund, as well as the
filing of Submarine Cable Landing License Reports, International
Carrier Traffic and Revenue Reports, International Circuit Status
Reports, and Foreign Carrier Affiliation Notifications. The Compliance
Manual will set forth a schedule of filing and payment dates
associated with these regulatory programs, and BCE will create
compliance notifications that alert BCE to upcoming filing and payment
dates. The Compliance Manual will encourage personnel to contact BCE's
Designated Contact, Regulatory Legal Counsel, Regulatory Services
Advisors, and/or Mirko Bibic, Vice President, Regulatory Matters, with
any questions or concerns that arise with respect to BCE's FCC
compliance. BCE shall submit to the Bureau a final version of its
Compliance Manual sixty (60) days after the Effective Date.
b. Compliance Training Program. BCE will establish an FCC compliance
training program for any employee who engages in activities related to
FCC regulation of BCE. 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. BCE will designate Mirko Bibic, Vice President
Regulatory Matters as the point of contact for all FCC compliance
matters.
d. Review and Monitoring. BCE 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. Termination. BCE's obligations under this Paragraph shall expire
twenty-four (24) months after the Effective Date.
9. Compliance Reports. BCE 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 BCE, stating that the
officer has personal knowledge that BCE 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 Hillary S. DeNigro, Chief, Investigations and Hearing
Division, Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W., Washington, D.C. 20554. The compliance reports
shall also be submitted electronically to hillary.denigro@fcc.gov.
10. Voluntary Contribution. BCE agrees that it will make a voluntary
contribution to the United States Treasury in the amount of three
hundred and twenty five thousand dollars ($325,000) with payment to be
made within thirty (30) calendar 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. BCE will also send electronic
notification to elizabeth.mumaw@fcc.gov and trent.harkrader@fcc.gov
within forty-eight (48) hours of the date said payment is made.
11. Waivers. BCE 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 the Adopting
Order adopting the Consent Decree without change, addition,
modification, or deletion. BCE 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 BCE nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and BCE shall
waive any statutory right to a trial de novo. BCE 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.
12. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent rule or Adopting
Order (except an Order specifically intended to revise the terms of
this Consent Decree to which BCE does not expressly consent) that
provision will be superseded by such Commission rule or Order.
13. Successors and Assigns. BCE agrees that the provisions of this Consent
Decree shall be binding on its successors, assigns, and transferees.
14. 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.
15. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
16. 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.
17. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
18. 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.
________________________________
Marlene H. Dortch
Secretary
Federal Communications Commission
________________________________
Date
________________________________
Mirko Bibic
Vice President, Regulatory Matters
BCE Nexxia Corporation, BCE Nexxia Voice Services Corporation and
Marine Cable Corporation
________________________________
Date
47 U.S.C. S: 154(i), 503(b).
See Letter from Hillary S. DeNigro, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, to David C. Kidd, Vice President,
Regulatory Law, BCE Nexxia Corporation, dated September 8, 2004 (September
8, 2004 LOI).
BCE Nexxia Corporation, Notice of Apparent Liability, 20 FCC Rcd 15121
(2005).
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