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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-08-TC-4638
Midwest Management, Inc. -- ) NAL/Acct. No. 200932170560
Consolidated
) FRN: 0004376364
)
ORDER
Adopted: October 13, 2010 Released: October 13, 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 Midwest
Management, Inc. -- Consolidated ("Midwest Management" or "Company").
The Consent Decree terminates an investigation and Notice of Apparent
Liability for Forfeiture ("NAL") by the Bureau against Midwest
Management for possible violation of section 222 of the Communications
Act of 1934, as amended ("Communications Act" or "Act"), 47 U.S.C. S:
222, section 64.2009(e) of the Commission's rules, 47 C.F.R. S:
64.2009(e), and the Commission's EPIC CPNI Order, regarding Midwest
Management's apparent failure to timely file a compliant annual
customer proprietary network information ("CPNI") certification
pursuant to section 64.2009(e).
2. The Bureau and Midwest Management 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 Midwest Management 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-08-TC-4638
Midwest Management, Inc. -- ) NAL/Acct. No. 200932170560
Consolidated
) FRN: 0004376364
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and Midwest Management, Inc. --
Consolidated ("Midwest Management" or the "Company"), by their
authorized representatives, hereby enter into this Consent Decree for
the purpose of cancelling the Notice of Apparent Liability ("NAL") and
terminating the Enforcement Bureau's investigation into Midwest
Management'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, section 64.2009(e) of the
Commission's rules, 47 C.F.R. S: 64.2009(e), and the Commission's EPIC
CPNI Order.
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
letter of inquiry regarding whether Midwest Management violated the
requirements of section 222 of the Communications Act and section
64.2009(e) of the Commission's rules by failing to file a compliant
customer proprietary network information ("CPNI") certification.
h. "Midwest Management" means Midwest Management, Inc. -- Consolidated
and its predecessors-in-interest and successors-in-interest.
i. "NAL" means Notice of Apparent Liability for Forfeiture.
j. "Parties" means Midwest Management 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.
4. In 2006, some companies, known as "data brokers," advertised the
availability of records of wireless subscribers' incoming and outgoing
telephone calls for a fee. Data brokers also advertised the
availability of certain landline toll calls. On April 2, 2007, the
Commission strengthened its privacy rules with the release of the EPIC
CPNI Order, which adopted additional safeguards to protect CPNI
against unauthorized access and disclosure. The EPIC CPNI Order was
directly responsive to the actions of databrokers, or pretexters, to
obtain unauthorized access to CPNI. The EPIC CPNI Order requires that
all companies subject to the CPNI rules file annually, on or before
March 1, a certification with the Commission pursuant to amended rule
47 C.F.R. S: 64.2009(e). Additionally, companies must now provide,
with their certification, "an explanation of any actions taken against
data brokers and a summary of all customer complaints received in the
past year concerning the unauthorized release of CPNI."
5. The Bureau sent a Letter of Inquiry ("LOI") to Midwest Management on
September 5, 2008, asking it to provide copies and evidence of its
timely filed CPNI compliance certificate for 2007, which was due by
March 1, 2008, pursuant to section 64.2009(e) of the Commission's
rules or an explanation as to why no certification was filed. Midwest
Management submitted a response to the LOI on September 15, 2008. The
Bureau concluded that Midwest Management failed to submit satisfactory
evidence of its timely filing of the annual CPNI compliance
certification. Accordingly, on February 24, 2009, the Bureau released
the Omnibus NAL against numerous companies, including Midwest
Management, proposing a monetary forfeiture of twenty thousand dollars
($20,000) for its apparent failure to comply with section 64.2009(e)
of the Commission's rules, and the Commission's EPIC CPNI Order, and
ordered the Company either to pay the proposed forfeiture or file a
written response within thirty (30) days of the release date stating
why the proposed forfeiture should be reduced or canceled. Midwest
Management submitted a response to the Omnibus NAL; subsequently,
Midwest Management and the Bureau entered into settlement discussions.
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. Midwest Management 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, Midwest
Management 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 Midwest Management 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 Midwest Management with
respect to Midwest Management's basic qualifications, including its
character qualifications, to be a Commission licensee or authorized
common carrier or hold Commission authorizations.
10. Compliance Plan. For purposes of settling the matters set forth herein
and to help ensure compliance with the Commission's CPNI rules,
Midwest Management agrees to take all measures necessary to achieve
full compliance with section 64.2009(e) of the Commission's rules.
Midwest Management agrees that its personnel will be trained as to
when they are and are not authorized to use CPNI. Midwest Management
further agrees to have an express disciplinary process in place for
the unauthorized use of CPNI. Additionally, Midwest Management agrees
to submit a copy of its annual section 64.2009(e) compliance
certificate, which it is required to file annually in EB Docket 06-36,
for each of two (2) 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. Midwest Management will also send an
electronic copy of its certification to other Telecommunications
Consumers Division staff as directed by the Division Chief. This
Consent Decree will expire two (2) years after the Effective Date or
upon the termination of the certification requirement set forth in
section 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 Midwest Management 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 Midwest Management of the Act, the rules,
or the Order.
12. Voluntary Contribution. Midwest Management agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
$300. The contribution will be made within thirty (30) calendar days
after the Effective Date of the Adopting Order. 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). Midwest Management will also
send electronic notification on the date said payment is made to
johnny.drake@fcc.gov.
13. Waivers. Midwest Management 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. Midwest Management 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 Midwest Management nor the
Commission shall contest the validity of the Consent Decree or the
Adopting Order, and Midwest Management shall waive any statutory right
to a trial de novo. Midwest Management 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 Midwest Management does not
expressly consent) that provision will be superseded by such
Commission rule or Order.
16. Successors and Assigns. Midwest Management 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
________________________________
John L. Weron
President
Midwest Management, Inc. -- Consolidated
________________________________
Date
Implementation of the Telecommunications Act of 1996: Telecommunications
Carriers' Use of Customer Proprietary Network Information and Other
Customer Information; IP-Enabled Services, CC Docket No. 96-115; WC Docket
No. 04-36, Report and Order and Further Notice of Proposed Rulemaking, 22
FCC Rcd 6927, 6953 (2007) ("EPIC CPNI Order"); aff'd sub nom. Nat'l Cable
& Telecom. Assoc. v. FCC, No. 07-132, (D.C. Cir. decided Feb. 13, 2009).
47 U.S.C. S:S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
Implementation of the Telecommunications Act of 1996: Telecommunications
Carriers' Use of Customer Proprietary Network Information and Other
Customer Information; IP-Enabled Services, CC Docket No. 96-115; WC Docket
No. 04-36, Report and Order and Further Notice of Proposed Rulemaking, 22
FCC Rcd 6927, 6953 (2007) ("EPIC CPNI Order"); aff'd sub nom. Nat'l Cable
& Telecom. Assoc. v. FCC, No. 07-132, (D.C. Cir. decided Feb. 13, 2009).
See Letter from Marcy Greene, Deputy Division Chief, Telecommunications
Consumers Division, Enforcement Bureau, FCC, to Midwest Management (Sept.
5, 2008) ("LOI").
47 C.F.R. 64.2009(e).
Section 222 of the Communications Act, 47 U.S.C S: 222, 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." Prior to the 1996 Act, the
Commission had established CPNI requirements applicable to the enhanced
services operations of AT&T, the Bell Operating Companies ("BOCs"), and
GTE, and the customer premises equipment ("CPE") operations of AT&T and
the BOCs, in the Computer II, Computer III, GTE Open Network Architecture
("ONA"), and BOC CPE Relief proceedings. See Implementation of the
Telecommunications Act of 1996: Telecommunications Carriers' Use of
Customer Proprietary Network Information and Other Customer Information
and Implementation of Non-Accounting Safeguards of Sections 271 and 272 of
the Communications Act of 1934, as amended, CC Docket Nos. 96-115 and
96-149, Second Report and Order and Further Notice of Proposed Rulemaking,
13 FCC Rcd 8061, 8068-70, para. 7 (1998) ("CPNI Order") (describing the
Commission's privacy protections for confidential customer information in
place prior to the 1996 Act.
See CPNI Order. See also 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, CC Docket Nos. 96-115 and 96-149, Order on
Reconsideration and Petitions for Forbearance, 14 FCC Rcd 14409 (1999);
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, CC
Docket Nos. 96-115 and 96-149; 2000 Biennial Regulatory Review -- Review
of Policies and Rules Concerning Unauthorized Changes of Consumers' Long
Distance Carriers, CC Docket No. 00-257, Third Report and Order and Third
Further Notice of Proposed Rulemaking, 17 FCC Rcd 14860 (2002); EPIC CPNI
Order.
See, e.g., http://www.epic.org/privacy/iei/.
See id.
EPIC CPNI Order, 22 FCC Rcd 6927. Specifically, pursuant to section
64.2009(e): A telecommunications carrier must have an officer, as an agent
of the carrier, sign and file with the Commission a compliance certificate
on an annual basis. The officer must state in the certification that he or
she 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
certification explaining how its operating procedures ensure that it is or
is not in compliance with the rules in this subpart. In addition, the
carrier must include an explanation of any actions taken against data
brokers and a summary of all customer complaints received in the past year
concerning the unauthorized release of CPNI. This filing must be made
annually with the Enforcement Bureau on or before March 1 in EB Docket No.
06-36, for data pertaining to the previous calendar year. 47 C.F.R. S:
64.2009(e).
Id. at 6928.
Id. at 6953; 47 C.F.R. S: 64.2009(e).
EPIC CPNI Order, 22 FCC Rcd at 6953.
See note 2, supra.
See email from Dana Deberko to Marcy Greene, Deputy Division Chief,
Telecommunications Consumers Division, Enforcement Bureau, FCC (Sept. 15,
2008).
Annual CPNI Certification, Omnibus Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd 2299 (Enf. Bur. 2009) ("Omnibus NAL").
Id.
Federal Communications Commission DA 10-1941
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Federal Communications Commission DA 10-1941