Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
File No. EB-07-SE-228
In the Matter of )
Acct. No. 200932100059
Windstream Corporation )
FRN No. 0014400220
)
order
Adopted: May 12, 2009 Released: May 14, 2009
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Windstream Corporation
("Windstream"). The Consent Decree terminates investigations by the
Bureau into Windstream's possible violations of Part 4 of the
Commission's rules regarding the reporting of network outages.
2. The Bureau and Windstream 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 investigations.
4. Based on the record before us, we conclude that our investigations
raise no substantial or material questions of fact as to whether
Windstream 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
Communications Act of 1934, as amended, and sections 0.111 and 0.311
of the Commission's Rules, the Consent Decree attached to this Order
IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigations ARE
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 Michael D. Rhoda, Senior Vice President, Windstream
Corporation, 4001 Rodney Parham Road, Little Rock, AR 72212, and to
Windstream's counsel, David H. Solomon, Esq., Wilkinson Barker Knauer
LLP, 2300 N Street, N.W., Washington, D.C. 20037.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
File No. EB-07-SE-228
In the Matter of )
Acct. No. 200932100059
Windstream Corporation )
FRN No. 0014400220
)
CONSENT DECREE
The Enforcement Bureau (the "Bureau") and Windstream Corporation
("Windstream"), by their respective authorized representatives, hereby
enter into this Consent Decree for the purpose of terminating the Bureau's
investigations into Windstream's compliance with the Commission's
regulations in 47 C.F.R. Part 4 regarding the reporting of network
outages.
I. DEFINITIONS
1. 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:S:
151 et seq.
(b) "Adopting Order" means an order of the Bureau adopting this the terms
of this Consent Decree without change, addition, deletion, or
modification.
(c) "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
(d) "Commission" or "FCC" means the Federal Communications Commission and
all of its bureaus and offices.
(e) "Compliance Plan" means the program described in this Consent Decree
at paragraph 10.
(f) "Effective Date" means the date on which the Bureau releases the
Adopting Order.
(g) "Investigations" means the investigations initiated by the Bureau's
July 26, 2007 and July 7, 2008 Letters of Inquiry regarding Windstream's
compliance with the Commission's regulations in Part 4 of its Rules
regarding the reporting of network outages through the Effective Date.
(h) "Parties" means Windstream and the Bureau.
(i) "Rules" means the Commission's regulations set forth in Title 47 of
the Code of Federal Regulations.
(j) "Windstream" means Windstream Corporation, its affiliates, its
predecessors-in-interest and successors-in-interest.
II. BACKGROUND
2. Pursuant to Part 4 of the Rules, a wireline communications provider is
required to submit to the Commission an electronic Notification within
120 minutes after discovering that it has experienced a network outage
of at least 30 minutes duration that: (1) potentially affects at least
900,000 user minutes of either telephony or paging; (2) affects at
least 1,350 DS3 minutes; (3) potentially affects any special offices
or facilities, as defined by the Rules; or (4) potentially affects a
911 special facility, as defined by the Rules. 47 C.F.R. S:S: 4.5,
4.9(f). Within 72 hours after discovering such an outage, a wireline
communications provider is required to submit electronically an
Initial Communications Outage Report. 47 C.F.R. S: 4.9(f).
3. Windstream is a wireline communications provider and is subject to the
network outage reporting regulations in Part 4 of the Commission's
Rules.
4. On July 26, 2007, the Bureau issued a Letter of Inquiry ("LOI")
initiating an Investigation regarding Windstream's outage reporting
procedures and Windstream's compliance with the Commission's outage
reporting rules. On August 27, 2007, Windstream submitted a response
to the LOI. The Bureau issued an additional LOI on July 7, 2008, and
Windstream submitted a response to that LOI on August 1, 2008. The
Bureau and Windstream executed a Tolling Agreement on October 2, 2007,
and executed subsequent Tolling Agreement Extensions.
III. TERMS OF AGREEMENT
5. 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.
6. Jurisdiction. Windstream agrees that the Bureau has jurisdiction over
it and the matters contained in this Consent Decree and the authority
to enter into and adopt this Consent Decree.
7. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the date on which the Bureau 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.
8. Termination of Investigations. 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
Investigations without any finding of liability on the part of
Windstream. In consideration for the termination of said
investigations, Windstream agrees to the terms, conditions, and
procedures contained herein. The Bureau further agrees that, in the
absence of new material evidence that suggests any misrepresentation
or lack of candor by Windstream in connection with the Investigations,
it will not use the facts developed in the investigations through the
Effective Date, or the existence of this Consent Decree, to institute,
on its own motion, or refer to the Commission, any new proceeding,
formal or informal, or take on its own motion, or refer to the
Commission, any action against Windstream for possible violations of
Part 4 of the Commission's rules regarding the reporting of network
outages that were subject to these investigations prior to the
Effective Date. The Bureau also agrees that it will not institute, on
its own motion or in response to third-party objection, or refer to
the Commission, any new proceeding, formal or informal, or take or
refer to the Commission any action on its own motion against
Windstream for possible past violations of Part 4 of the Commission's
rules regarding the reporting of network outages prior to the
Effective Date. Windstream represents that it has no knowledge of any
failure to disclose reportable outages to the Commission during the
period between the network outages that were the subject of the
investigations and the Effective Date. The Bureau further agrees that
it will not use the facts developed in the investigations through the
Effective Date, or the existence of this Consent Decree, to institute
on its own motion, or refer to the Commission, any proceeding, formal
or informal, or take on its own motion, or refer to the Commission,
any action, against Windstream with respect to Windstream's basic
qualifications, including its character qualifications, to be a
Commission licensee.
9. Compliance Plan. For purposes of settling the matters set forth
herein, Windstream agrees that it will develop, within thirty (30)
calendar days from the Effective Date, an internal Compliance Plan to
ensure Windstream's future compliance with the Commission's
regulations in Part 4 of its Rules regarding the reporting of
disruptions to communications. The Compliance Plan will include, at a
minimum, the following components:
a. Compliance Training Program. Windstream shall establish and maintain
an FCC outage reporting training program, as detailed below, for all
employees who are responsible for analyzing technical information
regarding Windstream's network outages, entering information into any
Windstream database(s) and/or record(s) that form the basis of
Windstream's reporting of network outages to the Commission, and
compiling and/or submitting Windstream's outage reports to the
Commission.
i. Windstream's Compliance Training Program shall address, at a minimum,
the FCC's Rules governing the reporting of network outages, the
information and calculations necessary to determine whether an outage is
reportable under the FCC's Rules, and the time periods during which
notifications and reports of reportable outages must be submitted to the
FCC. Windstream's Compliance Training Program shall also address the
methods and procedures adopted by Windstream to identify and report those
network outages that satisfy the FCC's reporting criteria in order to
ensure compliance with the FCC's outage reporting Rules. The training
program shall also include information on the potential internal and
regulatory consequences of failing to comply with Windstream's methods and
procedures and/or the FCC's outage reporting requirements.
ii. Windstream shall provide the foregoing outage reporting training
within six months of the Effective Date and will update the training at
least annually for employees who are responsible for analyzing technical
information regarding Windstream's network outages, entering information
into any Windstream database(s) and/or record(s) that form the basis of
Windstream's reporting of network outages to the Commission, and compiling
and/or submitting Windstream's outage reports to the Commission.
Windstream will also provide training to new employees responsible for
these activities.
iii. Windstream shall update and enhance the foregoing training regarding
the FCC's outage reporting requirements as appropriate and necessary.
b. Compliance Reports. Windstream will file compliance reports with the
Commission ninety (90) days after the Effective Date, twelve (12)
months and twenty-four (24) months after the Effective Date. Each
compliance report shall include a compliance certificate from an
officer, as an agent of Windstream, stating that the officer has
personal knowledge that Windstream 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 the Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street, S.W.,
Washington, D.C. 20554. All reports shall also be submitted
electronically to Kathryn S. Berthot, Chief, Spectrum Enforcement
Division at kathy.berthot@fcc.gov and Ava Holly Berland at
holly.berland@fcc.gov.
c. Termination. The provisions of this paragraph shall remain in effect
for two (2) years from the Effective Date.
10. 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 Windstream 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 Windstream with the Act, the Rules, or
Commission Orders.
11. Voluntary Contribution. Windstream agrees that it will make a
voluntary contribution to the United States Treasury, in the amount of
two hundred thousand dollars ($200,000). The payment will be made
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 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
Account number in block number 23A (call sign/other ID), and enter the
letters "FORF" in block number 24A (payment type code). Windstream
will also send electronic notification on the date said payment is
made to Kathy.Berthot@fcc.gov and Holly.Berland@fcc.gov.
12. Waivers. Windstream 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 Bureau issues an Adopting Order
adopting the Consent Decree without change, addition, modification, or
deletion. Windstream 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
Windstream nor the Commission shall contest the validity of the
Consent Decree or the Adopting Order, and Windstream shall waive any
statutory right to a trial de novo. Windstream, however, may present
evidence that it has not violated the Consent Decree. In addition,
nothing in this Consent Decree shall preclude Windstream from
petitioning the Commission for relief as to future obligations under
Part 4 of the Commission's Rules. Windstream 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.
13. Invalidity. 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.
14. 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 Windstream does not expressly
consent), that provision will be superseded by such Commission Rule or
Order.
15. Successors and Assigns. Windstream agrees that the provisions of this
Consent decree shall be binding on its successors, assigns, and
transferees.
16. 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, Windstream does not admit
or deny noncompliance, violation or liability for violating the Act or
the Rules in connection with the matters that are the subject of this
Consent Decree.
17. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
18. 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.
19. Authorized Representatives. Each Party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
20. 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
____________________________
Michael D. Rhoda
Senior Vice President
Windstream Corporation
____________________________
Date
47 C.F.R. S: 4.1 et seq.
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, to Jeffrey R. Gardner, President, CEO and Director,
Windstream Corporation (July 26, 2007); Letter from Kathryn S. Berthot,
Chief, Spectrum Enforcement Division, Enforcement Bureau, to Jeffrey R.
Gardner, President, CEO and Director, Windstream Corporation (July 7,
2008).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, to Jeffrey R. Gardner, President, CEO and Director,
Windstream Corporation (July 26, 2007)
Letter from David H. Solomon, Esq., Wilkinson Barker Knauer, LLP, to Ava
Holly Berland, Spectrum Enforcement Division, Enforcement Bureau (August
27, 2007).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, to Jeffrey R. Gardner, President, CEO and Director,
Windstream Corporation (July 7, 2008).
Letter from David H. Solomon, Esq., Wilkinson Barker Knauer, LLP, to Ava
Holly Berland, Spectrum Enforcement Division, Enforcement Bureau (August
1, 2008).
Under this provision, Windstream will not be required to provide outage
reporting compliance training to employees other than those whose
responsibilities include analyzing technical information regarding
Windstream's network outages, entering information into Windstream's
database(s) and/or record(s) that form the basis of Windstream's reporting
of network outages to the Commission, and compiling and/or submitting
Windstream's outage reports to the Commission.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 09-1053
1
1
Federal Communications Commission DA 09-1053
Federal Communications Commission DA 09-1053
1
1
Federal Communications Commission DA 09-1053