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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No. See Appendix I
)
Annual CPNI Certification NAL/Acct. No. See
) Appendix I
Omnibus Notice of Apparent Liability for
Forfeiture ) FRN: See Appendix I
)
)
OMNIBUS NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 25, 2010 Released: February 26, 2010
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Omnibus Notice of Apparent Liability for Forfeiture ("NAL"),
we find that the companies listed in Appendix I of this Order ("the
Companies"), by failing to submit an annual customer proprietary
network information ("CPNI") compliance certificate, have apparently
willfully or repeatedly violated section 64.2009(e) of the
Commission's rules. Protection of CPNI is a fundamental obligation of
all telecommunications carriers, as provided by section 222 of the
Act. Based upon our review of the facts and circumstances surrounding
these apparent violations, we find that the Companies are each
apparently liable for a monetary forfeiture in the amount of twenty
five thousand dollars ($25,000).
II. BACKGROUND
2. Section 222 of the Act 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. For instance, the Commission requires
carriers to establish and maintain systems designed to ensure that
they adequately protect their subscribers' CPNI. Moreover, 47 C.F.R.
S: 64.2009(e) requires that all companies subject to the CPNI rules
file with the Commission annually, on or before March 1, a
certification of their compliance with the CPNI rules.
III. DISCUSSION
3. The Companies have apparently violated rule 64.2009(e) by failing to
file the required compliance certifications for the 2008 calendar
year. The Bureau sent Letters of Inquiry to the Companies asking them
to provide copies and evidence of their annual CPNI certification
filings. Each of the Companies failed to submit satisfactory evidence
that it filed a certification.
4. Protection of subscribers' proprietary information is an important
carrier obligation. Consumers are understandably concerned about the
security of the sensitive, personal data that they must entrust to
their various service providers, whether they are financial
institutions or telephone companies. We must take aggressive,
substantial steps to ensure that carriers implement necessary and
adequate measures to protect their subscribers' CPNI, as required by
the Commission's CPNI rules.
5. Section 503(b) of the Communications Act authorizes the Commission to
assess a forfeiture of up to $150,000 for each violation of the Act or
of any rule, regulation, or order issued by the Commission under the
Act. The Commission may assess this penalty if it determines that the
carrier's noncompliance is "willful or repeated." For a violation to
be willful, it need not be intentional. It appears that the Companies'
failure to file was both willful and repeated, inasmuch as each of
them was previously issued a citation for failure to file their
certifications for calendar year 2007. In exercising our forfeiture
authority, we are required to take into account "the nature,
circumstances, extent, and gravity of the violation and, with respect
to the violator, the degree of culpability, any history of prior
offenses, ability to pay, and such other matters as justice may
require." In addition, the Commission has established guidelines for
forfeiture amounts and, where there is no specific base amount for a
violation, retained discretion to set an amount on a case-by-case
basis.
6. For the annual CPNI certifications for calendar year 2007, the Bureau
issued NALs in the amount of $20,000 against the carriers that failed
to file. The Companies identified in this order, however, have
repeatedly violated rule 64.2009(e) - as noted above, each of them was
previously issued a citation for failure to file. This repeated
failure to comply, even after the Companies were explicitly warned of
the potential consequences via the citations, warrants an upward
adjustment of the forfeiture amount. Accordingly, we propose a
forfeiture of $25,000 against each of the Companies for the failure to
comply with the annual CPNI certification filing requirement of
section 64.2009(e).
7. The Companies will have the opportunity to submit further evidence and
arguments in response to this NAL to show that no forfeiture should be
imposed or that some lesser amount should be assessed. For example,
any of the Companies may present evidence that it has compelling,
financial arguments to reduce the proposed forfeiture or that it has
maintained a history of overall compliance. The Commission will fully
consider any such arguments made by any of the Companies in its
response to this NAL.
IV. CONCLUSION AND ordering clauses
8. We have determined that the Companies set forth in Appendix I of this
Order, by failing to submit an annual compliance certificate, have
apparently willfully or repeatedly violated section 64.2009(e) of the
Commission's rules. We find each of the Companies apparently liable
for a forfeiture of twenty five thousand dollars ($25,000).
9. ACCORDINGLY, IT IS ORDERED THAT, pursuant to section 503(b) of the
Act, section 1.80(f)(4) of the Commission's rules, and authority
delegated by sections 0.111 and 0.311 of the Commission's rules, each
of the Companies listed in Appendix I of this Order are hereby LIABLE
FOR A MONETARY FORFEITURE in the amount of twenty five thousand
dollars ($25,000) each for willfully or repeatedly violating section
64.2009(e) of the Commission's rules by failing to submit annual
compliance certificates.
10. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the
Commission's rules, within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture, each of the
Companies listed in Appendix I of this Order SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
11. Payment of the forfeiture 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 Attachment I. 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). The Companies will
also send electronic notification on the date said payment is made to
johnny.drake@fcc.gov. Requests for full payment under an installment
plan should be sent to: Chief Financial Officer -- Financial
Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C.
20554. Please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures.
12. The response, if any, must be mailed both to the Office of the
Secretary, Federal Communications Commission, 445 12th Street, SW,
Washington, DC 20554, ATTN: Enforcement Bureau - Telecommunications
Consumers Division, and to Kimberly A. Wild, Assistant Division Chief,
Telecommunications Consumers Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, SW, Washington, DC 20554,
and must include the NAL/Acct. No. referenced in Attachment I.
13. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices; or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.
14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail Return Receipt
Requested and First Class Mail to the Companies' addresses of record.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
APPENDIX
Company Name DBA EB File Number FRN NAL Acct Number
Galaxy Internet EB-08-TC-3954 0017648718 200932170405
Services, Inc.
Intercel
Telecoms Group, EB-08-TC-4257 0014793905 200932170470
Inc.
RealConnect, EB-08-TC-5196 0015331952 200932170608
Inc.
Saving Call, LLC EB-08-TC-5304 0013258942 200932170731
VOIP Corporation EB-08-TC-5872 0013612825 200932170871
Z-Telephony, LLC EB-08-TC-6086 0015853450 200932170916
47 C.F.R. S: 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."
47 C.F.R. S: 64.2001-2011.
For purposes of the CPNI rules, the term "telecommunications carrier"
includes an entity that provides interconnected VoIP service. 47 C.F.R. S:
64.2003(o).
See 47 C.F.R. S: 64.2009(e). See also Enforcement Advisory No. 2010-01,
DA 10-91 (rel. January 15, 2010).
See Appendix I.
Section 503(b)(2)(B) provides for forfeitures against common carriers of
up to $150,000 for each violation or each day of a continuing violation up
to a maximum of $1,500,000 for each continuing violation. 47 U.S.C. S:
503(b)(2)(B). See Amendment of Section 1.80 of the Commission's Rules and
Adjustment of Forfeiture Maxima to Reflect Inflation, 15 FCC Rcd 18221
(2000); Amendment of Section 1.80 of the Commission's Rules and Adjustment
of Forfeiture Maxima to Reflect Inflation, 19 FCC Rcd 10945 (2004);
Amendment of Section 1.80 of the Commission's Rules and Adjustment of
Forfeiture Maxima to Reflect Inflation, 23 FCC Rcd 9845 (2008) (increasing
maximum forfeiture amounts to account for inflation). See also FCC
Enforcement Advisory, DA 10-91 (rel. January 15, 2010).
47 U.S.C. S: 503(b)(1)(B) (the Commission has authority under this section
of the Act to assess a forfeiture penalty against a common carrier if the
Commission determines that the carrier has "willfully or repeatedly"
failed to comply with the provisions of the Act or with any rule,
regulation, or order issued by the Commission under the Act); see also 47
U.S.C. S: 503(b)(4)(A) (providing that the Commission must assess such
penalties through the use of a written notice of apparent liability or
notice of opportunity for hearing).
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
See Citation Letter from Marcy Green, Deputy Chief, Telecommunications
Consumers Division to Galaxy Internet Services, Inc., Legal Department,
dated Feb. 26, 2009; Citation Letter from Marcy Green, Deputy Chief,
Telecommunications Consumers Division to Intercel Telecoms Group, Inc.,
Legal Department, dated Feb. 26, 2009; Citation Letter from Marcy Green,
Deputy Chief, Telecommunications Consumers Division to RealConnect, Inc.,
Legal Department, dated Feb. 26, 2009; Citation Letter from Marcy Green,
Deputy Chief, Telecommunications Consumers Division to Saving Call, LLC,
Legal Department, dated Feb. 26, 2009; Citation Letter from Marcy Green,
Deputy Chief, Telecommunications Consumers Division to VOIP Corporation,
Legal Department, dated Feb. 26, 2009; Citation Letter from Marcy Green,
Deputy Chief, Telecommunications Consumers Division to Z-Telephony, Legal
Department, LLC, dated Feb. 26, 2009.
See 47 U.S.C. S: 503(b)(2)(D); see also The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Commission's Rules, 12 FCC
Rcd 17087 (1997) ("Forfeiture Policy Statement"); recon. denied, 15 FCC
Rcd 303 (1999).
Forfeiture Policy Statement, 12 FCC Rcd 17098-99, P: 22.
Annual CPNI Certification, Omnibus Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd 2299 (Enf. Bur. 2009).
See 47 C.F.R. S: 108(b)(4).
47 U.S.C. S: 503(b)(4)(C); 47 C.F.R. S: 1.80(f)(3).
47 C.F.R. S: 1.80(b)(4) (discussing factors the Commission or its designee
will consider in deciding appropriate forfeiture amount).
47 U.S.C. S: 503(b).
47 U.S.C. S: 1.80(f)(4).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S: 1.80.
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Federal Communications Commission DA 10-293
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Federal Communications Commission DA 10-293