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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-IH-0976
In the Matter of
) Acct. No. 200932080048
Hiawatha Broadband Communications, Inc.
) FRN No. 0003785318
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") of the Federal Communications
Commission ("Commission" or "FCC") and Hiawatha Broadband
Communications, Inc. ("Hiawatha" or the "Company"), by their
authorized representatives, hereby enter into this Consent Decree for
the purpose of terminating the Bureau's investigation into whether
Hiawatha may have violated section 214(a) of the Communications Act of
1934, as amended (the "Act"), relating to the construction,
acquisition, and operation of transmission lines; sections 63.03 and
63.04 of the Commission's rules, relating to procedures for the
assignment or transfer of control of domestic transmission lines or
section 214 authorizations; and sections 63.18 and 63.24 of the
Commission's rules, relating to procedures for the assignment or
transfer of control of international section 214 authorizations.
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 Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "Applicants" means Hiawatha Broadband Communications, Inc., and TDS
Metrocom, LLC, as successor-in-interest to HBC Telecom, Inc.
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 9.
g. "Effective Date" means the date on which the Commission releases the
Adopting Order.
h. "Investigation" means any investigation commenced by the Bureau
regarding whether Hiawatha may have violated section 214(a) of the
Communications Act of 1934, as amended (the "Act"), relating to the
construction, acquisition, and operation of transmission lines;
sections 63.03 and 63.04 of the Commission's rules, relating to
procedures for the assignment or transfer of control of domestic
transmission lines or section 214 authorizations; and sections 63.18
and 63.24 of the Commission's rules, relating to procedures for the
assignment or transfer of control of international section 214
authorizations.
i. "Parties" means Hiawatha Broadband Communications, Inc. and the
Bureau.
j. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
k. "Telecommunications" or "Telecommunications service" means
telecommunications or telecommunications service as defined in
sections 3(43) and 3(46) of the Act, respectively, 47 U.S.C. S:S:
153(43), 153(46).
l. "Hiawatha Broadband Communications, Inc." means Hiawatha and its
predecessors-in-interest and successors-in-interest.
II. BACKGROUND
3. Pursuant to Section 214 of the Act, telecommunications carriers must
obtain a certificate of public convenience and necessity from the
Commission before constructing, acquiring, operating, or engaging in
transmission over lines of communications, or before discontinuing,
reducing, or impairing service to a community. In accordance with
section 63.03 of the Commission's rules, any domestic carrier seeking
to transfer control of lines or authorization to operate pursuant to
section 214 of the Act must obtain prior approval from the Commission.
Similarly, pursuant to section 63.24, an assignment or transfer of
control of an international section 214 authorization requires
application to and prior approval from the Commission. Sections 63.04
and 63.24 set forth the required contents of domestic and
international transfer of control applications, respectively.
4. Hiawatha Broadband Communications, Inc. is a provider of high speed
internet, competitive local exchange, nondominant interexchange, cable
television, and video production services to residential and business
customers in Minnesota. On November 9, 2007, Hiawatha and TDS
Metrocom, LLC, the successor-in-interest to HBC Telecom, Inc.
("Telecom") (together, "Applicants"), filed an application, pursuant
to sections 63.03, 63.04, and 63.24(e) of the Commission's rules,
requesting approval to assign assets and customer accounts relating to
Telecom's telecommunications business and Telecom's domestic and
international section 214 authorizations from Telecom to Hiawatha. The
Applicants stated that they consummated the transaction in October
2003, but inadvertently did not seek Commission consent prior to the
assignment of assets and Hiawatha's provision of telecommunications
services to former Telecom customers. The Commission's Wireline
Competition Bureau granted the Applicants' request for approval to
transfer control of the domestic section 214 authorization from
Telecom to Hiawatha on January 28, 2008 and referred for possible
enforcement the issue of whether Hiawatha violated section 214 of the
Act and the Commission's rules with respect to the assignment of
Telecom's assets and customers and the transfer of control of
Telecom's 214 authorization to Hiawatha. The Commission's
International Bureau granted the Applicants' request for approval to
assign the international section 214 authorization from Telecom to
Hiawatha on January 18, 2008. On November 6, 2008, the Bureau and
Hiawatha entered into a tolling agreement.
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. Hiawatha 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.
7. 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.
8. 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, Hiawatha 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 Hiawatha 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 Hiawatha
with respect to Hiawatha's basic qualifications, including its
character qualifications, to be a Commission licensee or hold
Commission authorizations.
9. Compliance Plan. For purposes of settling the matters set forth
herein, Hiawatha agrees to create within thirty (30) calendar days
from the Effective Date a Compliance Plan related to future compliance
with the provisions of the Act, the Commission's rules, and the
Commission's orders governing the assignment or transfer of control of
FCC section 214 authorizations. As part of this Compliance Plan,
Hiawatha will conduct an education program for company attorneys,
managers, and other parties responsible for and involved in the
purchase, sale, or acquisition of telecommunications assets or
carriers, regarding the Commission's rules and requirements applicable
to assignments and transfers of control under section 214 of the Act
and related Commission's rules. Hiawatha also commits to seek federal
regulatory counsel to ascertain any Commission approvals required for
transactions involving transfers of control or assignments of
Commission licenses or authorizations.
10. Compliance Reports. Hiawatha will file compliance reports with the
Commission 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
Hiawatha, stating that the officer has personal knowledge that
Hiawatha 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 and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C.
20554.
11. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire twenty-four (24) months after the Effective
Date.
12. Voluntary Contribution. Hiawatha agrees that it will make a voluntary
contribution to the United States Treasury in the amount of thirteen
thousand dollars ($13,000) 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. Hiawatha will also send an
electronic notification on the date payment is made to Chin Yoo at
Chin.Yoo@fcc.gov.
13. Waivers. Hiawatha 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 without change, addition, modification, or deletion.
Hiawatha 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 Hiawatha
nor the Commission shall contest the validity of the Consent Decree or
the Adopting Order, and Hiawatha shall waive any statutory right to a
trial de novo. Hiawatha 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.
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 Hiawatha does not expressly
consent) that provision will be superseded by such Commission rule or
order.
15. Successors and Assigns. Hiawatha 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, Hiawatha does not admit
or deny any fact, noncompliance, violation, or liability for violating
the Act 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 Representative. 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.
________________________________
Hillary S. DeNigro
Chief, Investigations & Hearings Division
Enforcement Bureau
________________________________
Date
Robert Bartz
Vice President of Finance
Hiawatha Broadband Communications, Inc.
_June 5, 2009_______________________
Date
47 U.S.C. S: 214(a).
47 C.F.R. S:S: 63.03, 63.04.
47 C.F.R. S: 63.24.
See 47 U.S.C. S: 214(a).
See Implementation of Further Streamlining Measures for Domestic Section
214 Authorizations, Report and Order, 17 FCC Rcd 5517, 5521, P: 5 (2002);
47 C.F.R. S: 63.03.
47 C.F.R. S: 63.24(a).
47 C.F.R. S:S: 63.04, 63.24.
TDS Metrocom, LLC (as successor-in-interest to HBC Telecom, Inc.),
Assignor and Hiawatha Broadband Communications, Inc., Assignee,
Application for Nunc Pro Tunc Assignment of Domestic and International
Authority Under Section 214 of the Communications Act, as Amended, WC
Docket No. 07-262, File No. ITC-ASG-20071113-00462 (filed Nov. 9, 2007)
("Application"). Hiawatha also requested and was granted special temporary
authority to provide domestic and international telecommunications
services during the pendency of the application. See Hiawatha Broadband
Communications, Inc., Request for Special Temporary Authority, WC Docket
No. 07-262 (domestic), File No. ITC-STA-20071127-00474 (international)
(filed Nov. 26, 2007, granted Dec. 7, 2007).
Application at 3-4.
Domestic 214 Application Granted, Public Notice, WC Docket No. 07-262, DA
No. 08-177 (rel. Jan. 28, 2008).
International Authorizations Granted, Public Notice, File No.
ITC-ASG-20071113-00462, DA No. 08-152 (rel. Jan. 24, 2008).
Federal Communications Commission DA 09-1263
2
Federal Communications Commission DA 09-1263