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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-TC-3862
In the Matter of
) NAL/Acct. No. 200932170382
Falcon1, Inc.
) FRN No. 0014206858
)
ORDER
Adopted: August 5, 2009 Released: August 6, 2009
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") of the Federal
Communications Commission ("FCC" or "Commission") and Falcon1, Inc.
("Falcon1" or "Company"). The Consent Decree terminates an
investigation and Notice of Apparent Liability for Forfeiture ("NAL")
by the Bureau against Falcon1 for possible violation of section 222 of
the Communications Act of 1934, as amended ("Communications Act" or
"Act"), 47 U.S.C. S: 222, section 64.2009(e) of the Commission's
rules, 47 C.F.R. S: 64.2009(e), and the Commission's EPIC CPNI Order,
regarding Falcon1's apparent failure to timely file a compliant annual
customer proprietary network information ("CPNI") certification
pursuant to section 64.2009(e).
2. The Bureau and Falcon1 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, terminating the investigation and
cancelling 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 Falcon1 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, 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 investigation IS
TERMINATED and the Notice of Apparent Liability for Forfeiture IS
CANCELLED.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-TC-3862
In the Matter of
) NAL/Acct. No. 200932170382
Falcon1, Inc.
) FRN No. 004206858
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and Falcon1, Inc. ("Falcon1" or the
"Company"), by their authorized representatives, hereby enter into
this Consent Decree for the purpose of cancelling the Notice of
Apparent Liability ("NAL") and terminating the Enforcement Bureau's
investigation into Falcon1's possible noncompliance with the
requirements of section 222 of the Communications Act of 1934, as
amended ("Communications Act" or "Act"), 47 U.S.C. S: 222, section
64.2009(e) of the Commission's rules, 47 C.F.R. S: 64.2009(e), and the
Commission's EPIC CPNI Order.
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. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Commission" and "FCC" mean 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 Commission releases the
Adopting Order.
g. "Investigation" means the investigation commenced by the Bureau's
letter of inquiry regarding whether Falcon1 violated the requirements
of section 222 of the Communications Act and section 64.2009(e) of the
Commission's rules by failing to file a compliant customer proprietary
network information ("CPNI") certification.
h. "Falcon1" means Falcon1, Inc. and its predecessors-in-interest and
successors-in-interest.
i. "NAL" means Notice of Apparent Liability for Forfeiture.
j. "Parties" means Falcon1 and the Bureau.
k. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
3. 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.
4. In 2006, some companies, known as "data brokers," advertised the
availability of records of wireless subscribers' incoming and outgoing
telephone calls for a fee. Data brokers also advertised the
availability of certain landline toll calls. On April 2, 2007, the
Commission strengthened its privacy rules with the release of the EPIC
CPNI Order, which adopted additional safeguards to protect CPNI
against unauthorized access and disclosure. The EPIC CPNI Order was
directly responsive to the actions of databrokers, or pretexters, to
obtain unauthorized access to CPNI. The EPIC CPNI Order requires that
all companies subject to the CPNI rules file annually, on or before
March 1, a certification with the Commission pursuant to amended rule
47 C.F.R. S: 64.2009(e). Additionally, companies must now provide,
with their certification, "an explanation of any actions taken against
data brokers and a summary of all customer complaints received in the
past year concerning the unauthorized release of CPNI."
5. The Bureau sent a Letter of Inquiry ("LOI") to Falcon1 on September 5,
2008, asking it to provide copies and evidence of its timely filed
CPNI compliance certificate for 2007, which was due by March 1, 2008,
pursuant to section 64.2009(e) of the Commission's rules or an
explanation as to why no certification was filed. Falcon1 submitted a
response to the LOI on September 16, 2008. The Bureau concluded that
Falcon1 failed to submit satisfactory evidence of its timely filing of
the annual CPNI compliance certification. Accordingly, on February 24,
2009, the Bureau released the Omnibus NAL against numerous companies,
including Falcon1, proposing a monetary forfeiture of twenty thousand
dollars ($20,000) for its apparent failure to comply with section
64.2009(e) of the Commission's rules, and the Commission's EPIC CPNI
Order, and ordered the Company either to pay the proposed forfeiture
or file a written response within thirty (30) days of the release date
stating why the proposed forfeiture should be reduced or canceled.
Falcon1 requested that the Bureau enter into settlement discussions.
III. TERMS OF AGREEMENT
6. 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.
7. Jurisdiction. Falcon1 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.
8. 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 Bureau Order.
9. 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 and to cancel the NAL. In consideration for the
termination of said investigation and cancellation of the NAL, Falcon1
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 Falcon1 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 Falcon1 with respect to Falcon1's
basic qualifications, including its character qualifications, to be a
Commission licensee or authorized common carrier or hold Commission
authorizations.
10. Compliance Plan. For purposes of settling the matters set forth herein
and to help ensure compliance with the Commission's CPNI rules,
Falcon1 agrees to take all measures necessary to achieve full
compliance with section 64.2009(e) of the Commission's rules. Falcon1
agrees to train its personnel as to when they are and are not
authorized to use CPNI. Falcon1 further agrees to have an express
disciplinary process in place for the unauthorized use of CPNI.
Additionally, Falcon1 agrees to submit a copy of its annual section
64.2009(e) compliance certificate, which it is required to file
annually in EB Docket 06-36, 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. Falcon1 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
section 64.2009(e) of the Commission's rules, 47 C.F.R. S: 64.2009(e),
whichever is earlier.
11. 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 Falcon1 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 Falcon1 of the Act, the rules, or the
Order.
12. Voluntary Contribution. Falcon1 agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $1,000.
The contribution will be made within thirty (30) calendar days after
the Effective Date of the Adopting Order. Payment must be made by
check or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the NAL/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 NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Falcon1 will also send
electronic notification on the date said payment is made to
Johnny.drake@fcc.gov.
13. Waivers. Falcon1 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 an Adopting
Order adopting the Consent Decree without change, addition,
modification, or deletion. Falcon1 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 Falcon1 nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and Falcon1
shall waive any statutory right to a trial de novo. Falcon1 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. Severability. The Parties agree that if any of the provisions of the
Adopting Order or the Consent Decree shall be invalid or
unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable the entire Adopting Order or
Consent Decree, but rather the entire Adopting Order or Consent Decree
shall be construed as if not containing the particular invalid or
unenforceable provision or provisions, and the rights and obligations
of the Parties shall be construed and enforced accordingly. In the
event that this Consent Decree in its entirety 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.
15. 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 Falcon1 does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
16. Successors and Assigns. Falcon1 agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
17. 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.
18. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
19. 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.
20. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
21. 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
________________________________
Joe Bennett
President
Falcon1, Inc.
________________________________
Date
Implementation of the Telecommunications Act of 1996:
Telecommunications Carriers' Use of Customer Proprietary Network
Information and Other Customer Information; IP-Enabled Services, CC
Docket No. 96-115; WC Docket No. 04-36, Report and Order and Further
Notice of Proposed Rulemaking, 22 FCC Rcd 6927, 6953 (2007) ("EPIC
CPNI Order"); aff'd sub nom. Nat'l Cable & Telecom. Assoc. v. FCC, No.
07-132, (D.C. Cir. decided Feb. 13, 2009).
47 U.S.C. S:S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
Implementation of the Telecommunications Act of 1996:
Telecommunications Carriers' Use of Customer Proprietary Network
Information and Other Customer Information; IP-Enabled Services, CC
Docket No. 96-115; WC Docket No. 04-36, Report and Order and Further
Notice of Proposed Rulemaking, 22 FCC Rcd 6927, 6953 (2007) ("EPIC
CPNI Order"); aff'd sub nom. Nat'l Cable & Telecom. Assoc. v. FCC, No.
07-132, (D.C. Cir. decided Feb. 13, 2009).
See Letter from Marcy Greene, Deputy Division Chief,
Telecommunications Consumers Division, Enforcement Bureau, FCC to
Falcon1 (Sept. 5, 2008) ("LOI").
47 C.F.R. 64.2009(e).
Section 222 of the Communications Act, 47 U.S.C S: 222, 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." Prior to the 1996
Act, the Commission had established CPNI requirements applicable to
the enhanced services operations of AT&T, the Bell Operating Companies
("BOCs"), and GTE, and the customer premises equipment ("CPE")
operations of AT&T and the BOCs, in the Computer II, Computer III, GTE
Open Network Architecture ("ONA"), and BOC CPE Relief proceedings. See
Implementation of the Telecommunications Act of 1996:
Telecommunications Carriers' Use of Customer Proprietary Network
Information and Other Customer Information and Implementation of
Non-Accounting Safeguards of Sections 271 and 272 of the
Communications Act of 1934, as amended, CC Docket Nos. 96-115 and
96-149, Second Report and Order and Further Notice of Proposed
Rulemaking, 13 FCC Rcd 8061, 8068-70, para. 7 (1998) ("CPNI Order")
(describing the Commission's privacy protections for confidential
customer information in place prior to the 1996 Act.
See CPNI Order. See also 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, CC Docket Nos. 96-115 and
96-149, Order on Reconsideration and Petitions for Forbearance, 14 FCC
Rcd 14409 (1999); 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, CC Docket Nos. 96-115 and
96-149; 2000 Biennial Regulatory Review -- Review of Policies and
Rules Concerning Unauthorized Changes of Consumers' Long Distance
Carriers, CC Docket No. 00-257, Third Report and Order and Third
Further Notice of Proposed Rulemaking, 17 FCC Rcd 14860 (2002); EPIC
CPNI Order.
See, e.g., http://www.epic.org/privacy/iei/.
See id.
EPIC CPNI Order, 22 FCC Rcd 6927. Specifically, pursuant to section
64.2009(e): A telecommunications carrier must have an officer, as an
agent of the carrier, sign and file with the Commission a compliance
certificate on an annual basis. The officer must state in the
certification that he or she 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 certification explaining how its operating
procedures ensure that it is or is not in compliance with the rules in
this subpart. In addition, the carrier must include an explanation of
any actions taken against data brokers and a summary of all customer
complaints received in the past year concerning the unauthorized
release of CPNI. This filing must be made annually with the
Enforcement Bureau on or before March 1 in EB Docket No. 06-36, for
data pertaining to the previous calendar year. 47 C.F.R. S:
64.2009(e).
Id. at 6928.
Id. at 6953; 47 C.F.R. S: 64.2009(e).
EPIC CPNI Order, 22 FCC Rcd at 6953.
See note 2, supra.
See email from Melinda Campbell, Thompson Hine LLP, counsel to
Falcon1, to Marcy Greene, Deputy Division Chief, Telecommunications
Consumers Division, Enforcement Bureau, FCC (Sept. 16, 2008).
Annual CPNI Certification, Omnibus Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd. 2299 (Enf. Bur. 2009) ("Omnibus NAL").
Id.
Federal Communications Commission DA 09-1743
2
Federal Communications Commission DA 09-1743