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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-IH-5316
In the Matter of
) NAL/Acct. No. 200932080037
Inmate Telephone, Inc.
) FRN No. 0018179531
)
ORDER
Adopted: March 31, 2009 Released: March 31, 2009
By the Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Inmate Telephone, Inc.
("Inmate"). The Consent Decree terminates an investigation by the
Bureau against Inmate for possible violations of section 254 of the
Communications Act of 1934, as amended (the "Act") and sections 54.706
and 54.711 of the Commission's rules relating to reporting and
contribution requirements for the universal service fund ("USF").
2. The Bureau and Inmate 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 and terminating the investigation.
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 Inmate 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 Act
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.
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 Thomas J. Navin, Esq., Wiley Rein LLP, 1776 K Street,
NW, Washington, DC 20006.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-IH-5316
In the Matter of
) NAL/Acct. No. 200932080037
Inmate Telephone, Inc.
) FRN No. 0018179531
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and Inmate Telephone, Inc. ("Inmate"
or the "Company"), by their authorized representatives, hereby enter
into this Consent Decree for the purpose of terminating the Bureau's
investigation into whether Inmate violated section 254 of the
Communications Act of 1934, as amended (the "Act") and sections 54.706
and 54.711 of the Commission's rules relating to reporting and
contribution requirements for the universal service fund ("USF").
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. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
c. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
d. "Compliance Plan" means the program described in this Consent Decree
at paragraph 10.
e. "Effective Date" means the date on which the Commission releases the
Adopting Order.
f. "Investigation" means the investigation commenced by the Bureau's
December 8, 2008 Letter of Inquiry regarding whether Inmate violated
section 254 of the Act and sections 54.706 and 54.711 of the
Commission's rules relating to reporting and contribution requirements
for the universal service fund.
g. "Inmate" means Inmate Telephone, Inc. and its predecessors-in-interest
and successors-in-interest.
h. "Order" or "Adopting Order" means an Order of the Commission adopting
the terms of this Consent Decree without change, addition, deletion,
or modification.
i. "Parties" means Inmate and the Bureau.
j. "Rules" means the Commission's regulations found in Title 47 of the
Federal Regulations.
II. BACKGROUND
3. Pursuant to section 254(d) of the Act and sections 54.706 and 54.711
of the rules, telecommunications carriers that provide interstate
telecommunications services and private service providers that provide
interstate telecommunications are required to file annual and
quarterly Telecommunications Reporting Worksheets (FCC Forms 499-A and
FCC Form 499-Q) and contribute to the USF.
4. Inmate, a Pennsylvania-based company, is a niche provider of
telecommunications, offering telecommunications and information
services exclusively to correctional facilities that are based on
individualized contracts and pricing arrangements with each
correctional institution. Inmate thus is subject to the requirements
discussed in paragraph 3 above.
5. On December 4, 2008, through counsel, Inmate self-disclosed to the
Bureau that it had discovered that it may have failed to comply with
certain regulations pertaining to universal service and other
associated reporting and contribution obligations. Inmate also
submitted FCC Forms 499-A and FCC Forms 499-Q to the Universal Service
Administrative Company on November 26, 2008. On December 8, 2008, the
Bureau issued a letter of inquiry to Inmate directing it to provide
certain documents and information. Inmate submitted its response on
December 22, 2008. On January 23, 2009, the Bureau sent a follow-up
letter of inquiry to Inmate, to which Inmate responded on February 5,
2009.
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. Inmate 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 Commission 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. In consideration for the termination of said
investigation, Inmate 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 Inmate 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 Inmate with respect to
Inmate's basic qualifications, including its character qualifications,
to be a Commission licensee or hold Commission authorizations.
10. Compliance Plan. Inmate agrees that it has implemented or will
implement, within thirty (30) calendar days from the Effective Date,
an internal Compliance Plan to ensure Inmate's future compliance with
the Act, the Commission's rules, and the Commission's orders governing
reporting and USF contribution requirements. The Compliance Plan
includes the following components:
a. Compliance Manual. Inmate shall create, maintain and update a USF
Compliance Manual. Inmate personnel who engage in activities related
to USF compliance and reporting obligations of Inmate 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 Inmate regarding
USF compliance and reporting obligations. The Compliance Manual will
set forth a schedule of filing and payment dates associated with the
USF, and Inmate will create compliance notifications that alert Inmate
to upcoming filing and payment dates. The Compliance Manual will
encourage personnel to contact Inmate's Designated Contact and
Regulatory Legal Counsel with any questions or concerns that arise
with respect to Inmate's USF compliance and reporting obligations.
b. Compliance Training Program. Inmate will establish a USF compliance
training program for any employee who engages in activities related to
Inmate's USF compliance and reporting obligations. Training sessions
will be conducted for such employees to ensure such employees are
informed regarding all applicable USF obligations, and, for new
employees who are engaged in such activities, within the first sixty
(60) days of employment.
c. Designated Contact. Inmate will designate one employee as the point of
contact for all USF compliance obligations.
d. Review and Monitoring. Inmate will review the USF Compliance Manual
and USF Compliance Training Program to ensure that they are maintained
in a proper manner and continue to address the objectives set forth
therein.
e. Compliance Reports. Inmate will file compliance reports with the
Commission ninety days after the Effective Date and twelve (12) months
after the Effective Date. Each compliance report shall include a
compliance certificate from an officer or responsible official, as an
agent of Inmate, stating that the individual has personal knowledge
that Inmate has established operating procedures intended to ensure
compliance with this Consent Decree, together with an accompanying
statement explaining the basis for the officer's or responsible
official's compliance certification. All compliance reports shall be
submitted to Hillary S. DeNigro, Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W., Washington, D.C. 20554. The Company shall also
transmit a copy of the reports via email to hillary.denigro@fcc.gov.
f. Termination Date: Unless stated otherwise, the compliance requirements
under this Consent Decree will expire twelve (12) months after the
Effective Date.
11. The Parties agree that this Consent Decree and Inmate's March 4, 2009
meeting with the Bureau staff are deemed to satisfy the requirements
of the Citation provisions under subsections 503(b)(5)(A)-(B) of the
Act, 47 U.S.C. S:S: 503(b)(5)(A)-(B).
12. Waivers. Inmate 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 Order adopting this Consent Decree, provided the Commission
issues an Order adopting the Consent Decree without change, addition,
modification, or deletion. Inmate 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 Inmate nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and Inmate shall
waive any statutory right to a trial de novo. Inmate 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. 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 Inmate does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
14. Successors and Assigns. Inmate agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
15. 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.
16. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
17. 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.
18. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
19. 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
________________________________
Anthony R. Bambocci
Chief Executive Officer
Inmate Telephone, Inc.
________________________________
Date
47 U.S.C. S: 254.
47 C.F.R. S:S: 54.706, 54.711.
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S: 254.
47 C.F.R. S:S: 54.706, 54.711.
See Letter from Trent B. Harkrader, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, FCC, to Thomas J. Navin, Wiley Rein
LLP, dated December 8, 2008 ("LOI").
47 U.S.C. S: 254.
47 C.F.R. S:S: 54.706, 54.711.
47 U.S.C. S: 254(d); 47 C.F.R. S:S: 54.706, 54.711. The Commission also
requires certain providers of interstate telecommunications, including
interconnected Voice over Internet Protocol ("VoIP") providers, to
contribute to the USF. See 47 U.S.C. S: 254(d) ("Any other provider of
interstate telecommunications may be required to contribute to the
preservation and advancement of universal service if the public interest
so requires."); Universal Service Contribution Methodology, Report and
Order and Notice of Proposed Rulemaking, 21 FCC Rcd 7518 (2006) (extending
section 254(d) permissive authority to require interconnected VoIP
providers to contribute to the USF) petition for review denied, and
vacated in part on other grounds, Vonage Holding Corp. v. FCC, 489 F.3d
1232 (D.C. Cir. 2007).
See Letter from Thomas J. Navin, Wiley Rein LLP, to Trent B. Harkrader,
Deputy Chief, Investigations and Hearings Division, Enforcement Bureau,
FCC, dated December 22, 2008 ("LOI Response").
See LOI.
See LOI Response.
Letter from Trent B. Harkrader, Deputy Chief, Investigations and Hearings
Division, Enforcement Bureau, FCC, to Thomas J. Navin, Wiley Rein LLP,
dated January 23, 2009 ("Supplemental LOI").
Letter from Thomas J. Navin, Wiley Rein LLP, to Michele Levy Berlove,
Attorney Advisor, Investigations and Hearings Division, Enforcement
Bureau, FCC, dated February 5, 2009 ("Supplemental LOI Response").
Federal Communications Commission DA 09-740
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Federal Communications Commission DA 09-740