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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-06-IH-2959
In the Matter of
) NAL/Acct. No. 201032080029
Qwest Communications Company, LLC
) FRN No. 0018421941
)
ORDER
Adopted: June 28, 2010 Released: June 29, 2010
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Qwest Communications
Company, LLC f/k/a Qwest Communications Corporation ("QCC" or the
"Company"). The Consent Decree resolves and terminates the Bureau's
investigation into QCC's compliance with section 276 of the
Communications Act of 1934, as amended (the "Act"), and the
Commission's rules and regulations regarding the obligations of
telecommunications service providers to transmit payphone-specific
coding digits in order to enable payphone service providers ("PSPs")
to collect compensation for coinless calls originated from pay
telephones.
2. The Bureau and QCC 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 QCC 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-referenced investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class certified mail, return receipt requested,
to Harisha J. Bastiampillai, Esq., Senior Attorney, Qwest
Communications Company, LLC, 607 14th Street, N.W., Suite 950,
Washington, D.C. 20005.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-06-IH-2959
In the Matter of
) NAL/Acct. No. 201032080029
Qwest Communications Company, LLC
) FRN No. 0018421941
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and Qwest Communications Company,
LLC f/k/a Qwest Communications Corporation ("QCC" or the "Company"),
by their authorized representatives, hereby enter into this Consent
Decree for the purpose of terminating the Bureau's Investigation into
QCC's compliance with section 276 of the Communications Act of 1934,
as amended (the "Act"), and the Commission's rules and regulations
regarding the obligations of telecommunications service providers to
transmit payphone-specific coding digits in order to enable payphone
service providers ("PSPs") to collect compensation for coinless calls
originated from pay telephones.
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:S: 151-714.
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 9.
e. "Effective Date" means the date on which the Commission releases the
Adopting Order.
f. "Investigation" means the investigation commenced by the Bureau's
August 31, 2006, August 22, 2007, and October 7, 2008 Letters of
Inquiry regarding QCC's compliance with section 276 of the Act, and
the Commission's rules and regulations regarding the obligations of
telecommunications service providers to transmit payphone-specific
coding digits in order to enable PSPs to collect compensation for
coinless calls originated from pay telephones.
g. "Local Exchange Carrier" or "LEC" means a person or company engaged in
the provision of telephone exchange service, as defined under section
153(47) of the Act. "LECs" include incumbent local exchange carriers,
as defined under section 251(h) of the Act, and all other LECs,
including competitive local exchange carriers.
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 Qwest Communications Corporation and the Bureau.
j. "Qwest Communications Corporation" or "QCC" means Qwest Communications
Company, LLC f/k/a Qwest Communications Corporation and its
predecessors-in-interest and successors.
k. "Payphone Service Provider" or "PSP" means a person or company engaged
in the provision of payphone service, as defined under section 276(d)
of the Act.
l. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
m. "Switch-Based Reseller" or "SBR" means a reseller of
telecommunications service that possesses switching equipment and can
therefore physically receive a call and route it onward, either to the
LEC serving the call recipient or to the switch of another reseller.
II. BACKGROUND
3. Pursuant to section 276(b)(1)(A) of the Act, the Commission has
prescribed regulations that "establish a per call compensation plan to
ensure that all payphone service providers are fairly compensated for
each and every completed intrastate and interstate call using their
payphone." The Commission's rules governing payphone compensation
obligations and procedures are codified under sections 64.1300-1320 of
the Commission's rules.
4. On August 31, 2006, the Bureau issued a letter of inquiry ("LOI") to
QCC. The August 31, 2006 LOI directed QCC, among other things, to
submit a sworn written response to a series of questions relating to
the Qwest's compliance with the Commission's payphone compensation
rules. QCC responded to the August 31, 2006 LOI on October 4, 2006. On
April 13, 2007, QCC voluntarily disclosed to the Bureau an issue
regarding QCC's ability to transmit payphone-specific coding digits to
switch-based reseller customers using Integrated Services Digital
Network ("ISDN") technology. Therefore, on August 22, 2007, the Bureau
issued a letter of inquiry to QCC relating to the QCC's compliance
with the Commission's rules and regulations regarding the obligations
of telecommunications service providers to transmit payphone-specific
coding digits. QCC responded to the August 22, 2007 LOI on September
14, 2007, and provided supplemental responses on October 12, October
31, and November 30, 2007. On September 8, 2008, PSPs provided the
Bureau information regarding calls that were not being identified as
payphone-originated calls. Therefore, the Bureau issued a letter of
inquiry to QCC on October 7, 2008 regarding possible coding digit
issues with these calls. QCC provided a response to the October 7,
2008 LOI on November 6, 2008, and in response to a March 5, 2009
Bureau letter QCC supplemented its November 6, 2008 response to the
October 7, 2008 LOI on April 2, 2009.
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. QCC 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, and without any determination of liability on the part
of QCC, QCC 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 or
in response to a third party objection, or recommend to the
Commission, any new proceeding, formal or informal, or take any action
on its own motion, or recommend to the Commission any action, against
QCC 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 or in response to a third party objection, or recommend to the
Commission, any proceeding, formal or informal, or take any action on
its own motion, or recommend to the Commission any action, against QCC
with respect to the Company's basic qualifications, including its
character qualifications, to be a Commission licensee or authorized
common carrier.
9. Compliance Plan. For purposes of settling the matters set forth
herein, QCC agrees to implement the following Compliance Plan related
to future compliance with the Act, and the Commission's rules and
orders regarding the obligations of telecommunications service
providers to receive and transmit payphone-specific coding digits in
order to enable PSPs to collect compensation for coinless calls
originated from pay telephones. The Compliance Plan will include, at a
minimum, the following components:
(a) Compliance Official(s). QCC designates its Vice President - Customer
Service Operations as the point(s) of contact for QCC's obligations
related to payphone compensation and who will be responsible for
implementation of this Compliance Plan. The Compliance Official(s) will be
familiar with the Commission's payphone compensation rules and orders.
(b) Compliance Training. QCC will conduct training of appropriate
employees with respect to the Commission's payphone compensation rules
within six (6) months of the Effective Date of the Consent Decree and will
update the training at least annually for such employees.
(c) Compliance Procedures. QCC will diligently investigate and take prompt
action to resolve any problems QCC has transmitting coding digits from QCC
to SBRs. Likewise, QCC will diligently investigate and take prompt action
to resolve possible payphone-specific coding digit failures reported by a
third party to QCC. Whenever QCC discovers a payphone-specific coding
digit failure, it will share all relevant, non-proprietary information
with representatives of any affected LECs, SBRs, or PSPs to enable
affected LECs, SBRs or PSPs to take action to resolve the coding digit
failure as soon as possible and to minimize the loss or delay of payphone
compensation. Relevant, non-proprietary information includes but is not
limited to the following information available to QCC:
1. the cause of the payphone-specific coding digit failure;
2. the dates when the payphone-specific coding digit failure began and
either was resolved or is expected to be resolved;
3. the specific QCC facilities affected by the payphone-specific coding
digit failure;
4. if applicable, for each calendar quarter, the specific QCC switch
types affected by the information-digit failure;
5. the means QCC is using to identify compensable calls that were
affected by the payphone-specific coding digit failure, and the
action QCC is taking to assist SBRs to identify compensable calls
that were affected by the payphone-specific coding digit failure;
6. regarding information provided to PSPs, any information that, because
of the payphone-specific coding digit failure, QCC was unable to
include in its quarterly Completing Carrier and Intermediate Carrier
reports submitted under section 64.1310 of the Commission's rules;
and
7. any other relevant information that enables affected LECs, SBRs and
PSPs to take steps to resolve payphone-specific coding digit failures
as soon as possible and to minimize the loss or delay of payphone
compensation.
QCC will update and post to its billing agents website information
regarding the failure to transmit payphone-specific coding digits as soon
as possible. At a minimum, QCC will update the posting with status reports
on a quarterly basis until the information-digit failure is resolved.
Until the payphone-specific coding digit failures and associated
compensation issues are resolved, Qwest has an ongoing obligation to
ensure its information is complete and accurate.
(d) Compliance Reports. QCC will submit Compliance Reports to the
Commission Twelve (12) months and twenty-four (24) months after the
Effective Date. Each Compliance Report will include a certification by the
Compliance Official stating that he or she has personal knowledge that QCC
(1) has established operating procedures intended to ensure compliance
with the terms and conditions of this Consent Decree, with section 276 of
the Act, and with the Commission's rules and regulations regarding the
obligations of telecommunications service providers to transmit
payphone-specific coding digits; (2) has been utilizing those procedures
at all times since the previous Compliance Report was submitted; and (3)
is not aware of any instances of non-compliance. If the Compliance
Official is not able to so certify, he shall explain fully the reason(s)
therefore. All Compliance Reports shall be directed to the Chief,
Investigations & Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C. 20554.
The certification must comply with section 1.16 of the Commission's rules,
and be substantially in the form set forth therein.
(e) Self-Disclosure. QCC will report any occurrences of non-compliance
with the terms and conditions of this Consent Decree, with section 276 of
the Act, and with the Commission's rules and regulations regarding the
obligations of telecommunications service providers to transmit
payphone-specific coding digits, within 60 days after QCC's Compliance
Official or senior executive management becomes aware of the matter
(whether from a report from an employee or otherwise), to the Chief,
Investigations & Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C. 20554,
provided that this report shall not be required if QCC cures the violation
before the report is due.
(f) 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 QCC 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
allegations of noncompliance by QCC of the Act, the rules, or the
Order.
11. Voluntary Contribution. QCC agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $75,000
within 10 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 NAL/Account Number and FRN Number referenced in the
caption to the Adopting Order. Payment by check or money order may be
mailed to the Federal Communications Commission, P.O. Box 979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. 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. QCC will also send electronic
notification within forty-eight (48) hours of the date said payment is
made to david.janas@fcc.gov.
12. Waivers. QCC 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. QCC 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 QCC nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and QCC shall
waive any statutory right to a trial de novo regarding the terms and
conditions of this Consent Decree. In addition, nothing in the Consent
Decree shall preclude QCC from petitioning the Commission for relief
as to future obligations under Part 64 of these Rules. QCC hereby
agrees to waive any claims it may otherwise have under the Equal
Access to Justice Act, 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 QCC does not expressly consent)
that provision will be superseded by such Commission rule or Order.
14. Successors and Assigns. QCC agrees that the provisions of this Consent
Decree shall be binding on its successors and any entity to which QCC
assigns or transfers substantially all of its assets.
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. The
Parties agree that this Consent Decree is for settlement purposes only
and that by agreeing to this Consent Decree, QCC does not admit or
deny noncompliance, violation or liability for violating the Act or
Commission rules or orders in connection with the matters that are the
subject of this Consent Decree.
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.
________________________________
P. Michele Ellison
Chief
Enforcement Bureau
________________________________
Date
________________________________
Roland Thornton
Executive Vice President -- Wholesale Markets Qwest Communications
Corporation
________________________________
Date
47 U.S.C. S: 276.
See, e.g., Pay Tel. Reclassification & Compensation Provisions of the
Telecomms. Act of 1996, Report & Order, 18 FCC Rcd 19975, 19992, P: 35
(2003); Pay Tel. Reclassification & Compensation Provisions of the
Telecomms. Act of 1996, Memorandum Opinion & Order, 13 FCC Rcd 4998, 5020,
P: 37 (Common Carrier Bureau 1998).
See 47 U.S.C. S: 154(i), 503(b).
See 47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S: 276.
See, e.g., Pay Tel. Reclassification & Compensation Provisions of the
Telecomms. Act of 1996, Report & Order, 18 FCC Rcd 19975, 19992, P: 35
(2003) ("2003 Payphone Order"); Pay Tel. Reclassification & Compensation
Provisions of the Telecomms. Act of 1996, Memorandum Opinion & Order, 13
FCC Rcd 4998, 5020, P: 37 (Common Carrier Bureau 1998) ("1998 Payphone
Order").
See Qwest Commc'ns Corp., EB-06-IH-2959, Letter from Trent B. Harkrader,
Deputy Chief, Investigations & Hearings Division, Enforcement Bureau,
Federal Communications Commission to Melissa Newman, Vice
President-Federal Regulatory, Qwest Communications Corporation (Aug. 31,
2006) ("August 31, 2006 LOI"); Qwest Commc'ns Corp., EB-06-IH-2959, Letter
from Trent B. Harkrader, Deputy Chief, Investigations & Hearings Division,
Enforcement Bureau, Federal Communications Commission to Melissa Newman,
Vice President-Federal Regulatory, Qwest Communications Corporation (Aug.
22, 2007) ("August 22, 2007 LOI"); Qwest Commc'ns Corp., EB-06-IH-2959,
Letter from Trent B. Harkrader, Deputy Chief, Investigations & Hearings
Division, Enforcement Bureau, Federal Communications Commission to Melissa
Newman, Vice President-Federal Regulatory, Qwest Communications
Corporation (Oct. 7, 2008) ("October 7, 2008 LOI").
47 U.S.C. S: 276.
See, e.g., 2003 Payphone Order, 18 FCC Rcd at 19992, P: 35; 1998 Payphone
Order, 13 FCC Rcd at 5020, P: 37.
47 U.S.C.S: 153(47). See 47 U.S.C.S: 153(26).
47 U.S.C. S: 251(h).
Id. at S: 276(d).
E.g., APCC Services, Inc. v. Network IP, LLC, 20 FCC Rcd 2073, 2075-76,
P:P: 5-6 (Enforcement Bureau 2005).
47 U.S.C. S: 276(b)(1)(A).
47 C.F.R. S:S: 64.1300-1320.
See supra note 3.
Qwest Commc'ns Corp., EB-06-IH-2959, Letter from Daphne Butler, Attorney,
Qwest Communications Corp. to Jacqueline Spindler, Investigations &
Hearings Division, Enforcement Bureau, Federal Communications Commission
(Oct. 4, 2006).
Qwest Commc'ns Corp., EB-06-IH-2959, Letter from Daphne Butler, Attorney,
Qwest Communications Corp. to Hillary S. DeNigro, Chief, Investigations &
Hearings Division, Enforcement Bureau, Federal Communications Commission
(Apr. 13, 2007).
See supra note 3.
Qwest Commc'ns Corp., EB-06-IH-2959, Letter from Daphne Butler, Attorney,
Qwest Communications Corp. to Michele Berlove, Attorney Advisor, and
Elizabeth Mumaw, Assistant Chief, Investigations & Hearings Division,
Enforcement Bureau, Federal Communications Commission (Sept. 14, 2007);
Qwest Commc'ns Corp., EB-06-IH-2959, Letter from Daphne Butler, Attorney,
Qwest Communications Corp. to Michele Berlove, Attorney Advisor, and
Elizabeth Mumaw, Assistant Chief, Investigations & Hearings Division,
Enforcement Bureau, Federal Communications Commission (Oct. 12, 2007);
Qwest Commc'ns Corp., EB-06-IH-2959, Letter from Daphne Butler, Attorney,
Qwest Communications Corp. to Michele Berlove, Attorney Advisor, and
Elizabeth Mumaw, Assistant Chief, Investigations & Hearings Division,
Enforcement Bureau, Federal Communications Commission (Oct. 31, 2007);
Qwest Commc'ns Corp., EB-06-IH-2959, Letter from Daphne Butler, Attorney,
Qwest Communications Corp. to Michele Berlove, Attorney Advisor, and
Elizabeth Mumaw, Assistant Chief, Investigations & Hearings Division,
Enforcement Bureau, Federal Communications Commission (Nov. 30, 2007).
Qwest Commc'ns Corp., EB-06-IH-2959, Letter from Trent B. Harkrader,
Deputy Chief, Investigations & Hearings Division, Enforcement Bureau,
Federal Communications Commission to Melissa Newman, Vice
President-Federal Regulatory, Qwest Communications Corporation (Oct. 7,
2008) ("October 7, 2008 LOI").
Qwest Commc'ns Corp., EB-06-IH-2959, Letter from Harisha Bastiampillai,
Senior Attorney, Qwest Communications Corp. to David Janas, Special
Counsel, Investigations & Hearings Division, Enforcement Bureau, Federal
Communications Commission (Nov. 6, 2008).
See Qwest Commc'ns Corp., EB-06-IH-2959, Electronic Message from Letter
from David Janas, Special Counsel, Investigations & Hearings Division,
Enforcement Bureau, Federal Communications Commission to Melissa Newman,
Vice President-Federal Regulatory, Qwest Communications Corporation (Mar.
5, 2009); Qwest Commc'ns Corp., EB-06-IH-2959, Letter from Harisha
Bastiampillai, Senior Attorney, Qwest Communications Corp. to David Janas,
Special Counsel, Investigations & Hearings Division, Enforcement Bureau,
Federal Communications Commission (Apr. 2, 2009).
47 C.F.R. S: 64.1310.
47 U.S.C. S: 276.
See, e.g., Pay Tel. Reclassification & Compensation Provisions of the
Telecomms. Act of 1996, Report & Order, 18 FCC Rcd 19975, 19992, P: 35
(2003); Pay Tel. Reclassification & Compensation Provisions of the
Telecomms. Act of 1996, Memorandum Opinion & Order, 13 FCC Rcd 4998, 5020,
P: 37 (Common Carrier Bureau 1998).
47 C.F.R. S: 1.16.
5 U.S.C. S: 504; 47 C.F.R. Part 1, Subpart K.
(Continued from previous page)
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Federal Communications Commission DA 10-1086
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Federal Communications Commission DA 10-1086