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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
) File No. EB-09-SE-107
In the Matter of
) Acct. No. 201132100009
Norlight, Inc.
) FRN No. 0002704682
)
)
ORDER
Adopted: November 15, 2010 Released: November 16, 2010
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Norlight, Inc.
("Norlight"). The Consent Decree terminates an investigation by the
Bureau against Norlight, Inc. for possible violations of Part 4 of the
Commission's Rules ("Rules") regarding the reporting of network
outages.
2. The Bureau and Norlight 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 Norlight 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 Section 4(i) of the
Communications Act of 1934, as amended, and Sections 0.111 and 0.311
of the Rules, the Consent Decree attached to this Order IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to John Chuang, Corporate Counsel, Norlight, Inc., 8829
Bond Street, Overland Park, Kansas 66214, and to counsel for Norlight,
Inc., John T. Nakahata, Esq., Wiltshire & Grannis LLP, 1200 18th
Street, NW Suite 1200, Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-09-SE-107
In the Matter of
) Acct. No. 201132100009
Norlight, Inc.
) FRN No. 0002704682
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") of the Federal Communications Commission
("Commission" or "FCC") and Norlight, Inc. ("Norlight"), by their
respective authorized representatives, hereby enter into this Consent
Decree for the purpose of terminating the Bureau's investigation into
whether Norlight violated Section 4.9(f) of the Commission's Rules
("Rules") by failing to file timely network outage reports.
I. DEFINITIONS
1. 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 Bureau 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 compliance obligations and compliance
program described in this Consent Decree at Paragraph 8.
(f) "Effective Date" means the date on which the Bureau releases the
Adopting Order.
(g) "Investigation" means the investigation commenced by the Bureau's
November 18, 2009 and March 1, 2010 Letters of Inquiry ("LOIs") to
Norlight regarding possible violations of Section 4.9(f) of the Rules.
h. "Norlight" means Norlight, Inc., its subsidiaries, affiliates,
predecessors-in-interest and its successors-in-interest.
(i) Parties means Norlight and the Bureau, each of which is a "Party."
(j) "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
2. Under Section 4.9(f) of the Rules, a wireline service provider, such
as Norlight, must report to the Commission an outage of at least 30
minutes duration that: 1) potentially affects at least 900,000 user
minutes of either telephony or paging; 2) affects at least 1,350 DS3
minutes; 3) potentially affects any special offices or facilities; or
4) potentially affects a 911 special facility, as defined by Section
4.5(e) of the Rules. Upon discovery of such an outage, a wireline
service provider is required to file an electronic Notification within
120 minutes, an Initial Communications Outage Report within 72 hours,
and a Final Communications Report within 30 days.
3. On November 18, 2009, the Bureau issued an LOI to Norlight. The
November 18, 2009 LOI directed Norlight, among other things, to submit
a sworn written response to a series of questions relating to
Norlight's compliance with the Commission's network outage reporting
rules. Norlight responded to the LOI on December 21, 2009. On March 1,
2010, the Bureau issued a follow-up LOI to Norlight. Norlight
responded to the follow-up LOI on March 29, 2010. The Bureau and
Norlight executed a Tolling Agreement on December 10, 2009, and
executed Tolling Agreement Extensions on March 19, 2010, June 8, 2010,
and October 12, 2010. These agreements, among other things, permitted
the Parties to continue discussions of the law and facts relating to
the matter under review in this Investigation.
III. TERMS OF AGREEMENT
4. 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.
5. Jurisdiction. Norlight 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.
6. Effective Date; Violations. The Parties agree that this Consent
Decree shall become effective on the date on which the Bureau 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
Commission. Any violation of the Adopting Order or of the terms of
this Consent Decree shall constitute a separate violation of a
Commission order, entitling the Commission to exercise any rights and
remedies attendant to the enforcement of a Commission order.
7. 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, Norlight 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 over the course of this Investigation through the Effective
Date, 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 Norlight concerning the matters that were
the subject of the Investigation. The Bureau also agrees that in the
absence of new material evidence it will not use the facts developed
in this Investigation through the Effective Date, 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
Norlight with respect to Norlight's basic qualifications, including
its character qualifications, to be a Commission licensee or
authorized common carrier or hold Commission authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, Norlight agrees to (i) create and implement, within thirty
(30) calendar days from the Effective Date a Compliance Plan related
to future compliance with the Act, the Commission's Rules and the
Commission's Orders, and (ii) establish operating procedures intended
to ensure compliance with the terms and conditions of this Consent
Decree and with Section 4.9(f) of the Rules. The Compliance Plan will
include, at a minimum, the following components:
a. Compliance Officer. Norlight will designate an officer of the company
to serve as the Compliance Officer for FCC outage reporting, who will
be responsible for administering the Compliance Plan.
b. Training Program. Norlight shall establish and maintain an FCC outage
reporting training program addressing FCC network outage reporting
requirements, as detailed below, for all employees who are responsible
for analyzing technical information regarding Norlight's network
outages, entering information into any Norlight database(s) and/or
record(s) that form the basis of Norlight's reporting of network
outages to the Commission, or compiling and/or submitting Norlight's
outage reports to the Commission.
i. Norlight's Compliance Training Program shall address, at a minimum, the
FCC's Rules governing the reporting of network outages, the information
and calculations necessary to determine whether an outage is reportable
under the FCC's Rules, and the time periods during which notifications and
reports of reportable outages must be submitted to the FCC. Norlight's
Compliance Training Program shall also address the methods and procedures
adopted by Norlight to identify and report those network outages that
satisfy the FCC's reporting criteria in order to ensure compliance with
the FCC's outage reporting Rules. The training program shall also include
information on the potential internal and regulatory consequences of
failing to comply with Norlight's methods and procedures and/or the FCC's
outage reporting requirements.
ii. Norlight shall provide the foregoing outage reporting training within
ninety (90) days of the Effective Date and will update the training at
least annually for employees who are responsible for analyzing technical
information regarding Norlight's network outages, entering information
into any Norlight database(s) and/or record(s) that form the basis of
Norlight's reporting of network outages to the Commission, and compiling
and/or submitting Norlight's outage reports to the Commission. Norlight
will also provide training to new employees responsible for these
activities.
iii. Norlight shall update and enhance the foregoing training regarding
the FCC's outage reporting requirements as appropriate and necessary, and
in any event will distribute new training materials to employees within
ninety (90) days of the release of any new or revised Rules governing
network outage reporting.
c. Compliance Reports. Norlight will file Compliance Reports with the
Commission ninety (90) days after the Effective Date, twelve (12)
months after the Effective Date, and twenty-four (24) months after the
Effective Date. Each Compliance Report shall include a certification
by the Compliance Officer, as an agent of and on behalf of Norlight,
stating that the Compliance Officer has personal knowledge that (i)
Norlight has established operating procedures intended to ensure
compliance with the terms and conditions of this Consent Decree and
with Section 4.9(f) of the Rules, together with an
accompanying statement explaining the basis for the Compliance Officer's
certification; (ii) Norlight has been utilizing those procedures since the
previous Compliance Report was submitted; and (iii) the Compliance Officer
is not aware of any instances of non-compliance with either the Consent
Decree or Section 4.9 of the Rules. The certification must comply with
Section 1.16 of the Rules and be subscribed to as true under penalty of
perjury in substantially the form set forth therein. If the Compliance
Officer cannot provide the requisite certification, the Compliance
Officer, as an agent of and on behalf of Norlight, shall provide the
Commission with a detailed explanation of: (i) any instances of
non-compliance with this Consent Decree and the Rules, and (ii) the steps
that Norlight has taken or will take to remedy each instance of
non-compliance and ensure future compliance, and the schedule on which
proposed remedial actions will be taken. All Compliance Reports shall be
submitted to the Chief, Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission, 445 12th Street, S.W., Washington, D.C.
20554. All reports shall also be submitted electronically to Ricardo
Durham, Senior Deputy Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission at Ricardo.Durham@fcc.gov and to
Nissa Laughner, Attorney Advisor, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission at
Nissa.Laughner@fcc.gov.
d. Termination Date. Unless stated otherwise, the provisions of this
paragraph shall remain in effect for twenty-four (24) months from the
Effective Date.
9. 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 Norlight 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 Norlight with the Act, the Rules, or
Commission Orders.
10. Voluntary Contribution. Norlight agrees that it will make a voluntary
contribution to the United States Treasury, in the amount of
sixty-seven thousand dollars ($67,000). The contribution will be made
within thirty (30) days after the Effective Date. The payment must be
made by check or similar instrument, payable to the order of the
Federal Communications Commission. The payment must include the
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, 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 Account number
in block number 23A (call sign/other ID), and enter the letters "FORF"
in block number 24A (payment type code). Norlight will also send
electronic notification to Ricardo.Durham@fcc.gov and
Nissa.Laughner@fcc.gov on the date said payment is made.
11. Waivers. Norlight 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 Bureau issues an Adopting Order
adopting this Consent Decree without change, addition, modification,
or deletion. Norlight 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 Norlight nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and Norlight shall
waive any statutory right to a trial de novo. Norlight 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.
12. Invalidity. 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.
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 Norlight does not expressly
consent), that provision will be superseded by such Commission Rule or
Order.
14. Successors and Assigns. Norlight agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
15. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties with
respect to the matters set forth herein. 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.
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 Representatives. 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
____________________________
Lohn Weber
Chief Financial Officer
Norlight, Inc.
____________________________
Date
47 C.F.R. S: 4.1 et seq.
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S: 4.9(f).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to John Chuang,
Corporate Counsel, Norlight, Inc. (November 18, 2009).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to John Chuang,
Corporate Counsel, Norlight, Inc. (March 1, 2010).
For the purpose of this Consent Decree, the term "affiliates" includes
those telecommunications carriers that are affiliates of Norlight, Inc.
both before and after the consummation of the transaction pending with
Windstream Corporation in WC Docket 10-169, i.e., Kentucky Data Link, Inc.
and Norlight Telecommunications, Inc. but excludes Cinergy MetroNet, Inc.
47 C.F.R. S: 4.9(f).
"User minutes" are defined as "assigned telephone number minutes ... for
telephony and for those paging networks in which each individual user is
assigned a telephone number" or "the mathematical result of multiplying
the duration of an outage, expressed in minutes, by the number of end
users potentially affected by the outage for all other forms of
communication." 47 C.F.R. S: 4.7(e).
"Special offices and facilities" include major military installations, key
government facilities, nuclear power plants, and certain airports. 47
C.F.R. S: 4.5(b)-(d).
See 47 C.F.R. S: 4.5(e).
See 47 C.F.R. S: 4.9(f).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to John Chuang,
Corporate Counsel, Norlight, Inc. (November 18, 2009).
Letter from John Chuang, Corporate Counsel, Norlight, Inc., to Susan M.
Stickley, Esq., Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission (December 21, 2009).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to John Chuang,
Corporate Counsel, Norlight, Inc. (March 1, 2010).
Letter from John Chuang, Corporate Counsel, Norlight, Inc., to Nissa
Laughner, Esq., Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission (March 29, 2010).
Tolling Agreement, File No. EB-09-SE-107, executed by and between Kathryn
S. Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission, and John Chuang, Corporate Counsel,
Norlight, Inc. (December 10, 2009).
Tolling Agreement Extension, EB-09-SE-107, executed by and between Kathryn
S. Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission, and John Chuang, Corporate Counsel,
Norlight, Inc. (March 19, 2010).
Tolling Agreement Extension, EB-09-SE-107, executed by and between Kathryn
S. Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission, and John Chuang, Corporate Counsel,
Norlight, Inc. (June 8, 2010).
Tolling Agreement Extension, EB-09-SE-107, executed by and between Kathryn
S. Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission, and John Chuang, Corporate Counsel,
Norlight, Inc. (October 12, 2010).
Under this provision, Norlight will not be required to provide outage
reporting compliance training to employees other than those whose
responsibilities include one or more of the following: analyzing technical
information regarding Norlight's network outages, entering information
into Norlight's database(s) and/or record(s) that form the basis of
Norlight's reporting of network outages to the Commission, and compiling
and/or submitting Norlight's outage reports to the Commission.
Federal Communications Commission DA 10-2181
2
Federal Communications Commission DA 10-2181