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 Nos. EB-06-TC-4007,
In the Matter of ) EB-06-TC-4008,
EB-06-TC-4067 and
RBJ Corporation and its subsidiaries, ) EB-06-TC-4553
KLM Telephone Company, KLM Long
Distance Company, Holway Telephone ) NAL/Acct. No. 200732170034
Company, and Holway Long Distance
Company ) FRN: 0003772274
)
ORDER
Adopted: August 16, 2010 Released: August 16, 2010
By the Acting Chief, Telecommunications Consumers Division, 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 KLM Telephone
Company, KLM Long Distance, Holway Telephone Company, and Holway Long
Distance Company, all operating subsidiaries of RBJ Corporation
(collectively "KLM"). The Consent Decree terminates an investigation
and Notice of Apparent Liability for Forfeiture ("NAL") by the Bureau
against KLM for possible violation of section 222 of the
Communications Act of 1934, as amended ("Communications Act" or
"Act"), 47 U.S.C. S: 222, and section 64.2009(e) of the Commission's
rules, 47 C.F.R. S: 64.2009(e), regarding KLM's apparent failure to
file a compliant annual customer proprietary network information
("CPNI") certification pursuant to 64.2009(e).
2. The Bureau and KLM 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 KLM 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
Kurt A. Schroeder
Acting Chief
Telecommunications Consumers Division Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
File Nos. EB-06-TC-4007,
In the Matter of ) EB-06-TC-4008,
EB-06-TC-4067 and
RBJ Corporation and its subsidiaries, ) EB-06-TC-4553
KLM Telephone Company, KLM Long
Distance Company, Holway Telephone ) NAL/Acct. No. 200732170034
Company, and Holway Long Distance
Company ) FRN: 0003772274
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and KLM Telephone Company, KLM Long
Distance, Holway Telephone Company, and Holway Long Distance Company,
all operating subsidiaries of RBJ Corporation (collectively "KLM" or
the "Company"), by their authorized representatives, hereby enter into
this Consent Decree for the purpose of terminating the Enforcement
Bureau's investigation into KLM'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, and section
64.2009(e) of the Commission's rules, 47 C.F.R. S: 64.2009(e).
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
December 2006, letters of inquiry regarding whether KLM violated the
requirements of section 222 of the Communications Act and section
64.2009(e) of the Commission's rules by failing to maintain a
compliant customer proprietary network information ("CPNI")
certification.
h. "KLM" means RBJ Corporation and its subsidiaries, KLM Telephone
Company, KLM Long Distance Company, Holway Telephone Company, and
Holway Long Distance Company, and their predecessors-in-interest and
successors-in-interest.
i. "NAL" means Notice of Apparent Liability for Forfeiture.
j. "Parties" means KLM 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. Pursuant to
section 64.2009(e):
A telecommunications carrier must have an officer, as an agent of the
carrier, sign a compliance certificate on an annual basis stating that the
officer 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 certificate
explaining how its operating procedures ensure that it is or is not in
compliance with the rules in this subpart.
4. The Bureau has been investigating the adequacy of procedures
implemented by telecommunications carriers to ensure confidentiality of
their subscribers' CPNI, based on concerns regarding the apparent
availability to third parties of sensitive, personal subscriber
information. For example, some companies, known as "data brokers," have
advertised the availability of records of wireless subscribers' incoming
and outgoing telephone calls for a fee. Data brokers have also advertised
the availability of call information that relates to certain landline toll
calls.
1. As part of its inquiry into these issues, the Bureau sent LOIs to KLM
in December 2006, directing it to produce the compliance certificates
for the previous five (5) years that it had prepared pursuant to
section 64.2009(e) of the Commission's rules. On December 11, 2006,
KLM submitted responses to the Bureau's LOIs. The Bureau concluded
that the documents submitted by KLM did not satisfy the requirements
set forth in the rule and that KLM had apparently failed to comply
with the requirement that it have an officer certify on an annual
basis that the officer has personal knowledge that KLM has established
operating procedures adequate to ensure compliance with the
Commission's CPNI rules. In addition, the Bureau concluded that KLM
failed to provide any compliance certificates for the years preceding
the most recent one, executed February 3, 2006. Accordingly, on March
29, 2007, the Bureau released an NAL against KLM proposing a monetary
forfeiture of $100,000 for its apparent failure to comply with section
64.2009(e) of the Commission's rules, and ordered the Company either
to pay the proposed forfeiture or file a written response within
thirty (30) days of the NAL release date stating why the proposed
forfeiture should be reduced or canceled. KLM filed its response to
the NAL on April 24, 2007, and supplemented that response on October
15, 2007.
III. TERMS OF AGREEMENT
3. 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.
4. Jurisdiction. KLM 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.
5. 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.
6. 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, KLM
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 KLM 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 KLM with respect to KLM's basic
qualifications, including its character qualifications, to be a
Commission licensee or authorized common carrier or hold Commission
authorizations.
7. Compliance Plan. For purposes of settling the matters set forth herein
and to help ensure compliance with the Commission's CPNI rules, KLM
agrees to take all measures necessary to achieve full compliance with
Section 64.2009(e) of the Commission's rules. KLM agrees that, within
thirty (30) days, its personnel will be trained as to when they are
and are not authorized to use CPNI. KLM further agrees to have an
express disciplinary process in place for the unauthorized use of
CPNI, within thirty (30) days. Additionally, KLM agrees to send a
copy, either electronically or by regular mail, of its annual
64.2009(e) compliance certificate for each of two 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. KLM will also
send an electronic copy of its certification to other
Telecommunications Consumers Division staff as directed by the Bureau
Chief. This Consent Decree will expire two (2) years after the
Effective Date or upon the termination of the certification
requirement set forth in sections 64.2009(e) of the Commission's
rules, 47 C.F.R. S: 64.2009(e), whichever is earlier.
8. 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 KLM 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 KLM of the Act, the rules, or the Order.
9. Voluntary Contribution. KLM agrees that it will make a voluntary
contribution to the United States Treasury in the amount of two
thousand dollars ($2,000). The contribution will be made within thirty
(30) calendar 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 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). KLM
will also send electronic notification on the date said payment is
made to Johnny.Drake@fcc.gov.
10. Waivers. KLM 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. KLM 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 KLM nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and KLM shall
waive any statutory right to a trial de novo. KLM 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.
11. 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.
12. 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 KLM does not expressly consent)
that provision will be superseded by such Commission rule or Order.
13. Successors and Assigns. KLM agrees that the provisions of this Consent
Decree shall be binding on its successors, assigns, and transferees.
14. 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.
15. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
16. 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.
17. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
18. 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.
________________________________
Kurt A. Schroeder
Acting Chief
Telecommunications Consumers Division
Enforcement Bureau
________________________________
Date
________________________________
Shawn W. Hanson
President and General Manager
RBJ Corporation and its subsidiaries,
KLM Telephone Company
KLM Long Distance Company
Holway Telephone Company
Holway Long Distance Company
________________________________
Date
47 U.S.C. S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
Letter from Marcy Greene, Deputy Division Chief, Telecommunications
Consumers Division, Enforcement Bureau, Federal Communications Commission,
to Bruce Copsey, Corporate Secretary, KLM Telephone Company and Robert
Jackson, Esq., Blooston, Mordkofsky, Dickens, Duffy and Prendergast, LLP
(December 4, 2006); Letter from Marcy Greene, Deputy Division Chief,
Telecommunications Consumers Division, Enforcement Bureau, Federal
Communications Commission, to Bruce Copsey, Corporate Secretary, KLM Long
Distance Company and Robert Jackson, Esq., Blooston, Mordkofsky, Dickens,
Duffy and Prendergast, LLP (December 5, 2006); Letter from Marcy Greene,
Deputy Division Chief, Telecommunications Consumers Division, Enforcement
Bureau, Federal Communications Commission, to Bruce Copsey, Corporate
Secretary, Holway Telephone Company and Robert Jackson, Esq., Blooston,
Mordkofsky, Dickens, Duffy and Prendergast, LLP (December 8, 2006); and
Letter from Marcy Greene, Deputy Division Chief, Telecommunications
Consumers Division, Enforcement Bureau, Federal Communications Commission,
to Bruce Copsey, Corporate Secretary, Holway Long Distance Company and
Robert Jackson, Esq., Blooston, Mordkofsky, Dickens, Duffy and
Prendergast, LLP (December 5, 2006) (collectively "December 2006 LOIs").
47 C.F.R. 64.2009(e).
Section 222 of the Communications Act 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." 47 U.S.C. S: 222.
In the Matter of 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, Order and Further Notice of Proposed Rulemaking,
13 FCC Rcd 8061 (1998) ("CPNI Order"); see also In the Matter of
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,
Order on Reconsideration and Petitions for Forbearance, 14 FCC Rcd 14409
(1999); In the Matter of 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; 2000 Biennial Regulatory Review -- Review of
Policies and Rules Concerning Unauthorized Changes of Consumers' Long
Distance Carriers, Third Report and Order and Third Further Notice of
Proposed Rulemaking, 17 FCC Rcd 14860 (2002).
47 C.F.R. S: 64.2009(e). This rule has been amended since issuance of the
NAL against KLM. The quoted rule is cited as it was at the time of the
alleged violation.
See, e.g. http://www.epic.org/privacy/iei/.
See id.
See note 1, supra.
Letter from Gerard J. Duffy, Counsel to KLM Telephone Company, to Marcy
Greene, Deputy Division Chief, Telecommunications Consumers Division,
Enforcement Bureau, Federal Communications Commission (December 11, 2006);
Letter from Gerard J. Duffy, Counsel to KLM Long Distance Company, to
Marcy Greene, Deputy Division Chief, Telecommunications Consumers
Division, Enforcement Bureau, Federal Communications Commission (December
11, 2006); Letter from Gerard J. Duffy, Counsel to Holway Telephone
Company, to Marcy Greene, Deputy Division Chief, Telecommunications
Consumers Division, Enforcement Bureau, Federal Communications Commission
(December 11, 2006); and Letter from Gerard J. Duffy, Counsel to Holway
Long Distance Company, to Marcy Greene, Deputy Division Chief,
Telecommunications Consumers Division, Enforcement Bureau, Federal
Communications Commission (December 11, 2006 ) (collectively "December 11
responses").
In the Matter of RBJ Corporation and its subsidiaries, KLM Telephone
Company, KLM Long Distance Company, Holway Telephone Company, and Holway
Long Distance Company., Notice of Apparent Liability for Forfeiture, 22
FCC Rcd. 5487 (Enf. Bur. rel. March 29, 2007) ("NAL").
Id.
Statement Seeking Cancellation of Proposed Forfeiture, filed by RBJ
Corporation and its subsidiaries KLM Telephone Company, KLM Long Distance
Company, Holway Telephone Company, and Holway Long Distance Company, April
30, 2007.
Supplement to Statement Seeking Cancellation of Proposed Forfeiture, filed
by RBJ Corporation and its subsidiaries KLM Telephone Company, KLM Long
Distance Company, Holway Telephone Company, and Holway Long Distance
Company, October 15, 2007
Federal Communications Commission DA 10-1524
2
Federal Communications Commission DA 10-1524