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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-06-TC-4261
In the Matter of
) NAL/Acct. No. 200732170035
Easterbrooke Cellular Corporation
) FRN: 0001544790
)
ORDER
Adopted: October 19, 2010 Released: October 20, 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 Easterbrooke
Cellular Corporation ("Easterbrooke Cellular"). The Consent Decree
terminates an investigation and Notice of Apparent Liability for
Forfeiture ("NAL") by the Bureau against Easterbrooke Cellular 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 Easterbrooke Cellular's apparent failure to file a compliant
annual customer proprietary network information ("CPNI") certification
pursuant to 64.2009(e).
2. The Bureau and Easterbrooke Cellular 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 Easterbrooke Cellular 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
)
) File No. EB-06-TC-4261
In the Matter of
) NAL/Acct. No. 200732170035
Easterbrooke Cellular Corporation
) FRN: 0001544790
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and Easterbrooke Cellular
Corporation ("Easterbrooke Cellular" or the "Company"), by their
authorized representatives, hereby enter into this Consent Decree for
the purpose of terminating the Enforcement Bureau's investigation into
Easterbrooke Cellular'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 4, 2006, letter of inquiry regarding whether Easterbrooke
Cellular 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. "Easterbrooke" means Easterbrooke Cellular Corporation and its
predecessors-in-interest and successors-in-interest.
i. "NAL" means Notice of Apparent Liability for Forfeiture.
j. "Parties" means Easterbrooke Cellular 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.
5. As part of its inquiry into these issues, the Bureau sent a LOI to
Easterbrooke Cellular on December 4, 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 8, 2006, Easterbrooke Cellular submitted a document in
response to the Bureau's LOI stating that Easterbrooke Cellular did
not maintain written compliance certificates for the previous five (5)
years, but that it did maintain policies and procedures during those
years that were in substantial compliance with the CPNI rules. The
Bureau concluded that Easterbrooke Cellular did not satisfy the
requirements set forth in section 64.2009(e) of the Commission's rules
and that it had apparently failed to comply with the requirement that
it maintain a CPNI compliance certificate. Accordingly, on March 26,
2007, the Bureau released an NAL against Easterbrooke Cellular
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.
Easterbrooke Cellular filed its response to the NAL on April 25, 2007,
and supplemented that response on May 17, 2007.
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. Easterbrooke Cellular 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,
Easterbrooke Cellular 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 Easterbrooke Cellular 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 Easterbrooke
Cellular with respect to Easterbrooke Cellular's basic qualifications,
including its character qualifications, to be a Commission licensee or
authorized common carrier or hold Commission authorizations.
10. Compliance Plan. Easterbrooke Cellular no longer offers
telecommunications services. For purposes of settling the matters set
forth herein and to help ensure compliance with the Commission's CPNI
rules, Easterbrooke Cellular agrees that if it offers
telecommunications services in the future, it will take all measures
necessary to achieve full compliance with Section 64.2009(e) of the
Commission's rules. If Easterbrooke Cellular offers telecommunications
services, it will, within thirty (30) days, train its personnel as to
when they are and are not authorized to use CPNI. In addition, if
Easterbrooke Cellular offers telecommunications services, it will have
an express disciplinary process in place for the unauthorized use of
CPNI, within thirty (30) days. Easterbrooke Cellular agrees that if it
offers telecommunications services in the future, it will 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. Easterbrooke Cellular 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.
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 Easterbrooke Cellular 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 Easterbrooke Cellular of the Act, the
rules, or the Order.
12. Voluntary Contribution. Easterbrooke Cellular agrees that it will
make a voluntary contribution to the United States Treasury in the
amount of seven thousand dollars ($7,000). 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). Easterbrooke Cellular will also send electronic
notification on the date said payment is made to Johnny.Drake@fcc.gov.
13. Waivers. Easterbrooke Cellular 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. Easterbrooke Cellular 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 Easterbrooke Cellular
nor the Commission shall contest the validity of the Consent Decree or
the Adopting Order, and Easterbrooke Cellular shall waive any
statutory right to a trial de novo. Easterbrooke Cellular 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 Easterbrooke Cellular does not
expressly consent) that provision will be superseded by such
Commission rule or Order.
16. Successors and Assigns. Easterbrooke Cellular 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.
________________________________
Kimberly A. Wild
Assistant Division Chief
Telecommunications Consumers Division
Enforcement Bureau
________________________________
Date
________________________________
Tim McGaw
Vice President
Easterbrooke Cellular Corporation
________________________________
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 Tim McGaw, Vice President, Easterbrooke Cellular Corporation and
Michael F. Morrone, Esq., Counsel for Easterbrooke Cellular Corporation
(December 4, 2006) ("December 4 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 Easterbrooke Cellular. 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.
See Letter from Tim McGaw, Vice President, Easterbrooke Cellular, to Marcy
Greene, Deputy Division Chief, Telecommunications Consumers Division,
Enforcement Bureau, Federal Communications Commission (December 8, 2006)
("response to LOI").
In the Matter of Easterbrooke Cellular Corporation, Notice of Apparent
Liability for Forfeiture, 22 FCC Rcd 5491 (Enf. Bur. rel. March 26, 2007)
("NAL").
Id.
Response to Notice of Apparent Liability for Forfeiture, filed by
Easterbrooke Cellular Corporation, April 25, 2007.
Supplemental Response to Notice of Apparent Liability, filed by
Easterbrooke Cellular Corporation, May 17, 2007.
Federal Communications Commission DA 10-1913
2
Federal Communications Commission DA 10-1913