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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-06-TC-4174
Keystone Wireless d/b/a Immix ) NAL/Acct. No. 200732170033
Wireless
) FRN: 0007415706
)
ORDER
Adopted: October 4, 2010 Released: October 5, 2010
By the Assistant Division 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 Keystone
Wireless d/b/a Immix Wireless ("Keystone Wireless"). The Consent
Decree terminates an investigation and Notice of Apparent Liability
for Forfeiture ("NAL") by the Bureau against Keystone Wireless 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 Keystone Wireless's apparent failure to file a compliant
annual customer proprietary network information ("CPNI") certification
pursuant to 64.2009(e).
2. The Bureau and Keystone Wireless 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 Keystone Wireless 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
Kimberly A. Wild
Assistant Division Chief
Telecommunications Consumers Division
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-06-TC-4174
Keystone Wireless d/b/a Immix ) NAL/Acct. No. 200732170033
Wireless
) FRN: 0007415706
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and Keystone Wireless d/b/a Immix
Wireless ("Keystone Wireless" or the "Company"), by their authorized
representatives, hereby enter into this Consent Decree for the purpose
of terminating the Enforcement Bureau's investigation into Keystone
Wireless'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 5, 2006, letter of inquiry regarding whether Keystone
Wireless 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. "Keystone Wireless" means Keystone Wireless d/b/a Immix Wireless and
its predecessors-in-interest and successors-in-interest.
i. "NAL" means Notice of Apparent Liability for Forfeiture.
j. "Parties" means Keystone Wireless 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 a LOI to
Keystone Wireless on December 5, 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 13, 2006, Keystone Wireless submitted a document in response
to the Bureau's LOI. The Bureau concluded that the document submitted
by Keystone Wireless did not satisfy the requirements set forth in the
rule and that Keystone Wireless 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 Keystone Wireless has
established operating procedures adequate to ensure compliance with
the Commission's CPNI rules. Accordingly, on March 28, 2007, the
Bureau released an NAL against Keystone Wireless 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. Keystone Wireless filed its
response to the NAL on April 25, 2007, and supplemented that response
on May 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. Keystone Wireless 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,
Keystone Wireless 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 Keystone Wireless 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 Keystone
Wireless with respect to Keystone Wireless'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,
Keystone Wireless agrees to take all measures necessary to achieve
full compliance with Section 64.2009(e) of the Commission's rules.
Keystone Wireless agrees that, within thirty (30) days, its personnel
will be trained as to when they are and are not authorized to use
CPNI. Keystone Wireless further agrees to have an express
disciplinary process in place for the unauthorized use of CPNI, within
thirty (30) days. Additionally, Keystone Wireless 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. Keystone
Wireless 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 Keystone Wireless 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 Keystone Wireless of the Act, the rules,
or the Order.
9. Voluntary Contribution. Keystone Wireless 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).
Keystone Wireless will also send electronic notification on the date
said payment is made to Johnny.Drake@fcc.gov.
10. Waivers. Keystone Wireless 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. Keystone Wireless 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 Keystone Wireless nor the
Commission shall contest the validity of the Consent Decree or the
Adopting Order, and Keystone Wireless shall waive any statutory right
to a trial de novo. Keystone Wireless 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 Keystone Wireless does not
expressly consent) that provision will be superseded by such
Commission rule or Order.
13. Successors and Assigns. Keystone Wireless 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.
________________________________
Kimberly A. Wild
Assistant Division Chief
Telecommunications Consumers Division
Enforcement Bureau
________________________________
Date
________________________________
Robert C. Martin
President
Keystone Wireless, LLC d/b/a Immix Wireless
________________________________
Date
47 U.S.C. S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
See Letter from Marcy Greene, Deputy Division Chief, Telecommunications
Consumers Division, Enforcement Bureau, Federal Communications Commission,
to Robert C. Martin, President, Keystone Wireless d/b/a Immix Wireless and
David Kaufman, Esq., Brown, Nietert & Kaufman, Chartered (December 5,
2006) ("December 5 LOI").
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 Keystone Wireless. 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 Robert Martin, President, Keystone Wireless, to Marcy Greene,
Deputy Division Chief, Telecommunications Consumers Division, Enforcement
Bureau, Federal Communications Commission (December 13, 2006) ("response
to LOI").
In the Matter of Keystone Wireless d/b/a Immix Wireless, Notice of
Apparent Liability for Forfeiture, 22 FCC Rcd. 5526 (Enf. Bur. rel. March
28, 2007) ("NAL").
Id.
Request for Cancellation or Reduction of Proposed Forfeiture, filed by
Keystone Wireless, LLC d/b/a Immix Wireless, April 25, 2007.
Supplement to Request for Cancellation or Reduction of Proposed
Forfeiture, filed by Keystone Wireless, LLC d/b/a/ Immix Wireless, May 15,
2007
Federal Communications Commission DA 10-1841
2
Federal Communications Commission DA 10-1841