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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-09-SE-246
In the Matter of
) Acct. No. 201132100013
XO Communications, LLC
) FRN No. 0014917959
)
ORDER
Adopted: December 9, 2010 Released: December 10, 2010
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and XO Communications, LLC
("XO"). The Consent Decree terminates an investigation by the Bureau
against XO for possible violations of Part 4 of the Commission's Rules
("Rules") regarding the reporting of network outages.
2. The Bureau and XO 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 XO 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 Steve Nocella, Senior Vice President, Network Services,
XO Communications, LLC, 13865 Sunrise Valley Drive, Herndon, Virginia
20171, and to counsel for XO Communications, Todd D. Daubert, Esq.,
SNR Denton US LLP, 1300 K Street, NW, Suite 600, East Tower,
Washington, DC 20005-3364.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-09-SE-246
In the Matter of
) Acct. No. 201132100013
XO Communications, LLC
) FRN No. 0014917959
)
CONSENT DECREE
The Enforcement Bureau (the "Bureau") and XO Communications, LLC ("XO"),
by their respective authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's Investigation
into XO's compliance with the Commission's regulations in 47 C.F.R. Part 4
regarding the reporting of network outages.
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: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" or "FCC" means the Federal Communications Commission and
all of its bureaus and offices.
(e) "Compliance Plan" means the program described in this Consent Decree
at Paragraph 9.
(f) "Effective Date" means the date on which the Bureau releases the
Adopting Order.
(g) "Investigation" means the investigation initiated by the Bureau's May
21, 2010 Letter of Inquiry regarding XO's compliance with the Commission's
regulations in Part 4 of its Rules regarding the reporting of network
outages.
(h) "Parties" means XO and the Bureau, and each is a "Party".
(i) "Rules" means the Commission's regulations set forth in Title 47 of
the Code of Federal Regulations.
(j) "XO" means XO Communications, LLC, its affiliates, its
predecessors-in-interest and successors-in-interest.
II. BACKGROUND
2. Under Section 4.9(f) of the Rules, wireline communications providers
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 and facilities; or (4)
potentially affects a 911 special facility. Upon discovery of such an
outage, wireline service providers must file an electronic
Notification within 120 minutes, an Initial Communications Outage
Report within 72 hours, and a Final Communications Outage Report
within 30 days.
3. XO is a wireline communications provider as defined in the Rules and
is subject to the network outage reporting regulations in Part 4 of
the Rules.
4. On May 21, 2010, the Bureau issued a Letter of Inquiry ("LOI")
initiating an Investigation regarding XO's outage reporting procedures
and XO's compliance with the Commission's outage reporting rules. On
June 16, 2010, XO requested an extension for submitting a response to
the LOI. The Bureau granted the extension on June 17, 2010. On July 9,
2010, XO submitted a response to the LOI.
III. TERMS OF AGREEMENT
5. 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.
6. Jurisdiction. XO agrees that the Bureau has jurisdiction over it and
the matters contained in this Consent Decree and the authority to
enter into and adopt this Consent Decree.
7. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the Effective Date. 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 Commission
Order.
8. 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 the
Investigation. In consideration for the termination of said
Investigation, XO agrees to the terms, conditions, and procedures
contained herein. The Bureau further 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 new proceeding,
formal or informal, or take any action on its own motion against XO
concerning the matters that were the subject of the Investigation. The
Bureau further agrees that in the absence of new material evidence it
will not use the facts developed in the 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 XO with respect to XO's basic
qualifications, including its character qualifications, to be a
Commission licensee.
9. Compliance Plan. For purposes of settling the matters set forth
herein, XO agrees that it will develop, within thirty (30) calendar
days from the Effective Date, an internal Compliance Plan to ensure
XO's future compliance with the Commission's regulations in Part 4 of
its Rules regarding the reporting of disruptions to communications.
The Compliance Plan will include, at a minimum, the following
components:
a. Compliance Officer. Within thirty (30) calendar days after the
Effective Date, XO shall designate a Compliance Officer who will be
responsible for administering the Compliance Plan.
b. Compliance Training Program. XO shall establish and maintain an FCC
outage reporting training program, as detailed below, for all
employees who are responsible for analyzing technical information
regarding XO's network outages, entering information into any XO
database(s) and/or record(s) that form the basis of XO's reporting of
network outages to the Commission, and compiling and/or submitting
XO's outage reports to the Commission.
i. XO's Compliance Training Program shall address, at a minimum, the Rules
governing the reporting of network outages, the information and
calculations necessary to determine whether an outage is reportable under
the Rules, and the time periods during which notifications and reports of
reportable outages must be submitted to the FCC. XO's Compliance Training
Program shall also address the methods and procedures adopted by XO to
identify and report those network outages that satisfy the FCC's reporting
criteria in order to ensure compliance with the outage reporting Rules.
The training program shall also include information on the potential
internal and regulatory consequences of failing to comply with XO's
methods and procedures and/or the FCC's outage reporting requirements.
ii. XO shall provide the foregoing outage reporting training to all of the
employees identified above within two months of the Effective Date, and
will update the training, and require retraining, at least annually. XO
will also provide training to all new employees responsible for these
activities within thirty (30) days of the start of their employment.
iii. XO shall update and enhance the foregoing training regarding the
FCC's outage reporting requirements as appropriate and necessary.
c. Compliance Reports. XO shall 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 XO, stating
that the Compliance Officer has personal knowledge: (i) that XO 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)
that XO has been utilizing those procedures since the development of
the Compliance Plan, and in any event no later than thirty (30) days
after the Effective Date; and (iii) that XO is not aware of any
instances of noncompliance. 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 XO, shall provide the
Commission with a detailed explanation of: (i) any instances of
noncompliance with this Consent Decree or the Rules, and (ii) the
steps XO has taken or will take to remedy each instance of
noncompliance 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 JoAnn Lucanik at JoAnn.Lucanik@fcc.gov and Kevin M.
Pittman at Kevin.Pittman@fcc.gov.
d. Termination Date. Unless stated otherwise, the provisions of this
Paragraph 9 of the Consent Decree will expire twenty-four months (24)
from the Effective Date.
10. 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 XO 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 XO with the Act, the Rules, or Commission
Orders.
11. Voluntary Contribution. XO agrees that it will make a voluntary
contribution to the United States Treasury, in the amount of
sixty-eight thousand dollars ($68,000). The payment 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
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). XO will also send electronic
notification on the date said payment is made to JoAnn Lucanik at
JoAnn.Lucanik@fcc.gov and to Kevin M. Pittman at
Kevin.Pittman@fcc.gov.
12. Waivers. XO 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 the Consent Decree without change, addition, modification, or
deletion. XO 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
XO nor the Commission shall contest the validity of the Consent Decree
or the Adopting Order, and XO shall waive any statutory right to a
trial de novo. XO, however, may present evidence that it has not
violated the Consent Decree. In addition, nothing in this Consent
Decree shall preclude XO from petitioning the Commission for relief as
to future obligations under Part 4 of the Commission's Rules. XO
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.
13. Invalidity. In the event that this Consent Decree 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.
14. 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 XO does not expressly consent),
that provision will be superseded by such Commission Rule or Order.
15. Successors and Assigns. XO agrees that the provisions of this Consent
decree shall be binding on its successors, assigns, and transferees.
16. 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. The
Parties agree that this Consent Decree is for settlement purposes only
and that by agreeing to this Consent Decree, XO does not admit or deny
noncompliance, violation or liability for violating the Act or the
Rules in connection with the matters that are the subject of this
Consent Decree.
17. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
18. 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.
19. Authorized Representatives. Each Party represents and warrants to
the other that it has full power and authority to enter into this
Consent Decree.
20. 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
____________________________
Steve Nocella
Senior Vice President
Network Services
XO Communications, LLC
____________________________
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.
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, to Heather Burnett Gold, Senior Vice President,
External Affairs, XO Communications (May 21, 2010) ("LOI").
See LOI.
E-mail from Todd D. Daubert, Esq., Sonnenschein Nath & Rosenthal, LLP to
Kevin M. Pittman, Esq., Spectrum Enforcement Division, Enforcement Bureau
(June 16, 2010).
E-mail from Kevin M. Pittman, Esq., Spectrum Enforcement Division,
Enforcement Bureau, to Todd D. Daubert, Esq., Sonnenschein Nath &
Rosenthal, LLP (June 17, 2010).
Letter from Todd D. Daubert, Esq., Sonnenschein Nath & Rosenthal, LLP, to
Marlene H. Dortch, Federal Communications Commission, Kevin M. Pittman,
Esq., Spectrum Enforcement Division, Enforcement Bureau (July 9, 2010).
Under this provision, XO will not be required to provide outage reporting
compliance training to employees other than those whose responsibilities
include analyzing technical information regarding XO's network outages,
entering information into XO's database(s) and/or record(s) that form the
basis of XO's reporting of network outages to the Commission, and
compiling and/or submitting XO's outage reports to the Commission.
Federal Communications Commission DA 10-2303
2
Federal Communications Commission DA 10-2303