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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-08-TC-4690
Mountain Communications and ) NAL/Acct. No. 200932170581
Electronics, Inc.
) FRN: 0004535118
)
ORDER
Adopted: November 23, 2010 Released: November 24, 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 Mountain
Communications and Electronics, Inc. ("Mountain Communications" or
"Company"). The Consent Decree terminates an investigation and Notice
of Apparent Liability for Forfeiture ("NAL") by the Bureau against
Mountain Communications 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 Mountain Communications' apparent failure to timely file a
compliant annual customer proprietary network information ("CPNI")
certification pursuant to section 64.2009(e).
2. The Bureau and Mountain Communications 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 Mountain Communications 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-4690
Mountain Communications and ) NAL/Acct. No. 200932170581
Electronics, Inc.
) FRN: 0004535118
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and Mountain Communications and
Electronics, Inc. ("Mountain Communications" 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
Mountain Communications' 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 Mountain Communications 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. "Mountain Communications" means Mountain Communications and
Electronics, Inc. and its predecessors-in-interest and
successors-in-interest.
i. "NAL" means Notice of Apparent Liability for Forfeiture.
j. "Parties" means Mountain Communications 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 Mountain Communications
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. Mountain
Communications submitted a response to the LOI on September 25, 2008.
The Bureau concluded that Mountain Communications 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
Mountain Communications, 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. Mountain Communications submitted a response to the Omnibus
NAL; subsequently, Mountain Communications 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. Mountain Communications 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,
Mountain Communications 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 Mountain Communications 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 Mountain Communications' 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,
Mountain Communications agrees to take all measures necessary to
achieve full compliance with section 64.2009(e) of the Commission's
rules. Mountain Communications agrees that within thirty (30) days its
personnel will be trained as to when they are and are not authorized
to use CPNI. Mountain Communications further agrees to have an express
disciplinary process in place for the unauthorized use of CPNI, within
thirty (30) days. Additionally, Mountain Communications 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.
Mountain Communications 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 Mountain Communications 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 Mountain
Communications of the Act, the rules, or the Order.
12. Voluntary Contribution. Mountain Communications 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). Mountain
Communications will also send electronic notification on the date said
payment is made to johnny.drake@fcc.gov.
13. Waivers. Mountain Communications 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. Mountain Communications 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 Mountain
Communications nor the Commission shall contest the validity of the
Consent Decree or the Adopting Order, and Mountain Communications
shall waive any statutory right to a trial de novo. Mountain
Communications 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 Mountain Communications does not
expressly consent) that provision will be superseded by such
Commission rule or Order.
16. Successors and Assigns. Mountain Communications 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
________________________________
Tyrone Thompson
President
Mountain Communications and Electronics, Inc.
________________________________
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 Mountain Communications
(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 Richard D. Rubino to Marcy Greene (Sept. 25, 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 10-2208
2
Federal Communications Commission DA 10-2208