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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
)
In the Matter of )
EB-06-TC-4497
Hiawatha Broadband Communications, )
Inc. NAL/Acct. No. 20073217 0042
)
Apparent Liability for Forfeiture FRN: 0006149223
)
)
)
)
)
ORDER
Adopted: May 27, 2010 Released: May 28, 2010
By the Chief, 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 Hiawatha
Broadband Communications, Inc. ("HBC"). The Consent Decree terminates
an investigation and Notice of Apparent Liability for Forfeiture
("NAL") by the Bureau against HBC for possible violation of section
222 of the Communications Act of 1934, as amended ("Communications
Act" or "Act"), 47 U.S.C. S: 222, and section 64.2009(e) of the
Commission's rules, 47 C.F.R. S: 64.2009(e), regarding Shoreham's
apparent failure to file a compliant annual customer proprietary
network information ("CPNI") certification pursuant to 64.2009(e).
2. The Bureau and HBC 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 HBC 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
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
)
In the Matter of )
EB-06-TC-4497
Hiawatha Broadband Communications, )
Inc. NAL/Acct. No. 20073217 0042
)
Apparent Liability for Forfeiture FRN: 0006149223
)
)
)
)
)
CONSENT DECREE
I. INTRODUCTION
1. The Enforcement Bureau ("the Bureau") and Hiawatha Broadband
Communications, Inc. ("HBC"), by their authorized representatives, hereby
enter into this Consent Decree for the purpose of terminating the Bureau's
investigation into HBC'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, and section 64.2009(e)
of the Commission's rule, 47 C.F.R. S: 64.2009(e).
II. 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 9.
f. "Effective Date" means the date on which the Commission releases the
Adopting Order.
g. "HBC" means "Hiawatha Broadband Communications, Inc." and its
predecessors-in-interest and its successors-in-interest.
h. "Investigation" means the investigation commenced by the Bureau's
December 5, 2006 Letter of Inquiry ("LOI") regarding whether HBC
violated section 222 of the Communications Act and section 64.2009)(a)
of the Commission's rules by failing to maintain a compliant customer
proprietary network information ("CPNI") certification.
i. "NAL" means Notice of Apparent Liability for Forfeiture.
j. "Parties" means HBC and the Commission.
k. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
III. 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. 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.
4. The Bureau has been investigating the adequacy of procedures
implemented by telecommunications carriers to ensure confidentiality of
their subscribers' CPNI based on concerns regarding the apparent
availability to third parties of sensitive, personal subscriber
information. For example, some companies, known as "data brokers" have
advertised the availability of records of wireless subscribers' incoming
and outgoing telephone calls for a fee. Data brokers have also advertised
the availability of call information that relates to certain land line
toll calls.
5. As part of its inquiry into these issues, the Bureau sent an LOI to HBC
on December 5, 2006, directing it to produce the compliance certificate
for the previous five (5) years that it had prepared pursuant to section
64.2009(e) of the Commission's rules. On December 12, 2006, HBC submitted
a document in response to the Bureau's LOI. The Bureau concluded that the
document submitted by HBC did not satisfy the requirements set forth in
the rule and that HBC had apparently failed to comply with the requirement
that it have a corporate officer with personal knowledge execute an annual
certificate stating that the company has established operating procedures
adequate to ensure compliance with the Commission's rules. Further, HBC
did not provide any additional information in response to the Bureau's
request to demonstrate that it had otherwise complied with the
Commission's CPNI rules by preparing and maintaining a certificate that
satisfied the requirements of section 64.2009(e). Finally, HBC failed to
provide any compliance certificates for the years preceding the most
recent one, executed February 2, 2006. Accordingly, on March 27, 2007, the
Bureau released an NAL against HBC proposing a monetary forfeiture of
$100,000 for its apparent failure to comply with section 64.2009(e) of the
Commission's rules, and ordered the company either to pay the proposed
forfeiture or file a written response within thirty (30) days of the NAL
release date stating why the proposed forfeiture should be reduced or
canceled. HBC filed its response to the NAL on April 27, 2007, seeking
cancellation or reduction of the proposed forfeiture.
IV. 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. HBC agrees that the Commission 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 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.
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. In
consideration for the termination of said investigation, HBC agrees to the
terms, conditions, and procedures contained herein. The Bureau further
agrees that 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 HBC 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 HBC with respect to HBC's basic qualifications, including
its character qualifications, to be a Commission licensee or authorized
common carrier or hold Commission authorizations.
10. Compliance Plans. For purposes of settling the matters set forth
herein and to help ensure compliance with the Commission's CPNI rules, HBC
agrees to take all measures necessary to achieve full compliance with
section 64.2009(e) of the of the Commission's rules. HBC agrees to train
its personnel as to when they are or are not authorized to use CPNI. HBC
further agrees to have an express disciplinary process in place for the
unauthorized use of CPNI. Additionally, HBC agrees to submit a copy of its
annual 64.2009(e) compliance certificate 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. HBC 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. Except as expressly
provided in this Consent Decree, this Consent Decree shall not prevent the
Commission or its delegated authority from investigating new evidence of
noncompliance by HBC with the Act, the rules, or the Adopting Order or
from adjudicating complaints filed pursuant to section 208 of the Act. The
Commission's adjudication of any such complaints will be based solely on
the record developed in that proceeding.
12. Voluntary Contribution. HBC agrees that it will make a voluntary
contribution to the United States Treasury in the amount of two thousand
dollars ($2,000). The contribution will be made within thirty (30)
calendar days after the Effective Date of the Adopting Order. The 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 of 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. Payments
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 23A (call sign/other ID),
and enter the letters "FORF" in block number 24A (payment type code). HBC
will also send electronic notification on the date said payment is made to
Johnny Drake at Johnny.Drake@fcc.gov.
13. Waivers. HBC 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
Order adopting this Consent Decree, provided the Commission issues an
Order adopting the Consent Decree without change, addition, modification,
or deletion. HBC 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 HBC
nor the Commission shall contest the validity of the Consent Decree or the
Adopting Order, and HBC shall waive any statutory right to a trial de
novo. HBC 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 HBC does not expressly consent) that
provision will be superseded by such Commission rule or Order.
16. Successors and Assigns. HBC 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 reflects a compromise and
was entered into by HBC to avoid further cost and inconvenience of the
investigation. Neither the Consent Decree nor the payment of monies
pursuant to the Consent Decree is to be construed as an admission of
liability or an admission of noncompliance with the requirements of the
Act or the Commission's Rules and Orders. 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.
________________________________
Kris A. Monteith
Chief, Enforcement Bureau
Federal Communications Commission
________________________________
Date
________________________________
Robert Bartz
Vice President of Finance
Hiawatha Broadband Communications, Inc.
________________________________
Date
47 U.S.C. S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S: 64.1120(c)(3)(ii).
Letter from Marcy Greene, Deputy Division Chief, Telecommunications
Consumers Division, Enforcement Bureau, Federal Communications Commission,
to Robert Bartz, Vice President of Finance, HBC, December 5, 2006
("December 5 LOI").
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."
In the Matter of 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, FCC 98-27,
Order and Further Notice of Proposed Rulemaking, 13 FCC Rcd 8061 (1998)
("CPNI Order"). See also, In the Matter of 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, FCC 99-223, Order on Reconsideration and Petitions for
Forbearance 14 FCC Rcd 14409 (1999); see also In the Matter of
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).
47 C.F.R. S: 64.2009(e).
See, e.g. http://www.epic.org/privacy/iei/.
See id.
See fn 3, supra.
In the Matter of Hiawatha Broadband Communications, Inc., Notice of
Apparent Liability for Forfeiture, 22 FCC Rcd 5501 (Enf. Bur. Rel. March
28, 2007) ("NAL").
Federal Communications Commission DA 10-832
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Federal Communications Commission DA 10-832