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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No. EB-10-IH-3833
In the Matter of )
NAL/Acct. No. 201132080031
Union Telephone Company )
FRN No. 0001630201
)
)
ORDER
Adopted: July 21, 2011 Released: July 22, 2011
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Union Telephone Company
("UTC"). The Consent Decree terminates an investigation by the Bureau
into whether UTC violated section 214 of the Communications Act of
1934, as amended (the "Act") and section 63.18 of the Commission's
rules by willfully or repeatedly failing to obtain an international
section 214 authorization before providing international
telecommunications service.
2. The Bureau and UTC 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 concerning UTC's 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 Act
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.
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 counsel for Union Telephone Company, David L. Nace,
Esq., Lukas, Nace, Gutierrez & Sachs, LLP, 8300 Greensboro Drive,
Suite 1200, McLean, VA, 22102.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No. EB-10-IH-3833
In the Matter of )
NAL/Acct. No. 201132080031
Union Telephone Company )
FRN No. 0001630201
)
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and Union Telephone Company ("UTC"
or the "Company"), by their authorized representatives, hereby enter
into this Consent Decree for the purpose of terminating the Bureau's
investigation into whether the Company violated section 214 of the
Communications Act of 1934, as amended (the "Act), 47 U.S.C. S: 214,
and section 63.18 of the Commission's rules, 47 C.F.R. S: 63.18, by
willfully or repeatedly failing to obtain an international section 214
authorization before providing international telecommunications
service.
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. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
c. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
d. "Compliance Officer" means the individual designated in Paragraph 10
of this Consent Decree as the person responsible for administration of
the Compliance Plan.
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 Bureau's investigation commenced by its
August 25, 2010 Letter of Inquiry ("LOI") regarding whether the
Company violated section 214 and section 63.18 by willfully or
repeatedly failing to obtain an international section 214
authorization before providing international telecommunications
service.
h. "Order" or "Adopting Order" means an Order of the Commission adopting
the terms of this Consent Decree without change, addition, deletion,
or modification.
i. "Parties" means Union Telephone Company and the Bureau.
j. "Rules" means the Commission's regulations found in Title 47 of the
Federal Regulations.
k. "UTC" means Union Telephone Company and its predecessors-in-interest
and successors-in-interest.
II. BACKGROUND
3. Section 214(a) of the Act prohibits any carrier from constructing,
extending, or operating any line, and from engaging in transmission
through any such line, "unless and until there shall first have been
obtained from the Commission a certificate that the present or future
public convenience and necessity" require, or will require, the
construction, extension, or operation of the line. While the
Commission has granted "blanket" authority to carriers providing
domestic service, meaning that such carriers are granted authority to
provide domestic service without having to apply individually for such
authority, the Commission has not done the same for providers of
international telecommunications services. Rather, section 63.18 of
the Commission's rules requires that any carrier that seeks section
214 authority "for provision of common carrier communication services
between the United States, its territories or possessions, and a
foreign point shall request such authority by application." The
application requirement applies to carriers, including, but not
limited to, those that resell the service of another authorized
carrier, and to domestic providers of wireless telecommunications
service that also provide international telecommunications service.
4. UTC is a Wyoming-based company that began offering landline
telecommunications services in 1914. UTC states that it began
providing international telecommunications services in 1994. UTC
offers international services on a resale basis to its wireless and
landline customers. On March 19, 2010, UTC submitted an application
for international section 214 authority in which it disclosed that it
had provided international services since 1994, but could not locate
any record that the company sought or obtained authority to provide
such service under section 214 of the Act. The Commission also has no
record of any such application. On the same date, UTC filed a request
for Special Temporary Authority ("STA") for its provision of
international services. The International Bureau granted the STA on
March 26, 2010 and granted the section 214 application on April 16,
2010.
5. Based on UTC's disclosure in its international section 214
application, on August 25, 2010, the Bureau issued the LOI to UTC. The
LOI directed UTC to, among other things, submit a sworn written
response to a series of questions relating to its failure to obtain
international section 214 authorization before providing international
telecommunications services. UTC responded to the LOI on September 15,
2010.
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. The Company 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 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, the Company 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 the Company 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 the Company
with respect to the Company's basic qualifications, including its
character qualifications, to be a Commission licensee or authorized
common carrier or to hold Commission authorizations.
10. Compliance Plan. For purposes of settling the matters set forth
herein, UTC agrees to create within 60 days after the Effective Date
a Compliance Plan related to future compliance with the Act, the
Commission's Rules, and the Commission's Orders. The Plan shall
include, at a minimum, the following components:
a. Compliance Officer. Within 30 calendar days after the Effective Date,
UTC shall designate a Compliance Officer who shall administer the
Compliance Plan, supervise UTC's compliance with the Act and the Rules
and the Commission's orders, and serve as the point of contact on
behalf of UTC for all FCC-related compliance matters.
b. Compliance Manual. Within 60 calendar days after the Effective Date,
the Compliance Officer shall develop and distribute a Compliance
Manual to employees and others who perform duties at UTC that trigger
or may trigger compliance-related responsibilities. The Compliance
Manual shall include (i) an overview of the Commission's requirements,
including the need for prior approval for license assignments and
transfers of control; (ii) a description of the regulatory
requirements applicable to the accurate and timely reporting of
information in FCC applications and in response to inquiries by FCC
staff; and (iii) instructions regarding due diligence for FCC
applications and information presented to the FCC, including in
response to FCC staff inquiries.
c. Compliance Training Program. UTC shall develop a Compliance Training
Program that includes, at minimum, a complete discussion of the
Compliance Manual and its implementation. Within 90 calendar days
after the Effective Date, and annually thereafter, all UTC employees
and others who perform duties on behalf of UTC that trigger or may
trigger FCC compliance-related responsibilities shall complete the
Compliance Training Program. UTC shall also require new and reassigned
employees that are responsible for these activities to complete the
Compliance Training Program within 30 calendar days after their
assuming these duties.
d. Review and Monitoring. UTC shall review the Compliance Manual and
Compliance Training Program at least annually to ensure that they are
maintained in a proper manner and continue to address the objectives
set forth therein, and shall update the Compliance Manual and
Compliance Training Program in accordance with any changes to the
relevant sections of the Act, Rules, and related Commission orders.
e. Reporting Non-Compliance. UTC shall report any non-compliance with
this Consent Decree or any relevant sections of the Act, Rules, or
related Commission orders to the Bureau within 15 days after the
discovery of non-compliance.
f. Compliance Reports. UTC shall file compliance reports with the
Commission ninety (90) days after the Effective Date, twelve (12)
months after the Effective Date, twenty-four (24) months after the
Effective Date, and upon expiration of this Consent Decree, three (3)
years after the Effective Date. Each compliance report shall include a
compliance certificate from the Compliance Officer, as defined in
paragraph 2 of this Consent Decree, as an agent of the Company,
stating that the Compliance Officer has personal knowledge that the
Company: (i) has established operating procedures intended to ensure
compliance with the terms and conditions of this Consent Decree and
section 214 of the Act and section 63.18 of the Commission's rules,
together with an accompanying statement explaining the basis for the
Compliance Officer's certification; (ii) has been utilizing those
procedures since the previous Compliance Report was submitted; and
(iii) is not aware of any instances of non-compliance. The
certification must comply with section 1.16 of the Commission's 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 the Company, shall provide the Commission with a
detailed explanation of: (i) any instances of non-compliance with this
Consent Decree and section 214 of the Act and section 63.18 of the
Commission's rules;and (ii) the steps that the Company 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,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, Room 4-C330, 445 12th Street, S.W.,
Washington, D.C. 20554, with a copy submitted electronically to
Theresa Z. Cavanaugh at Terry.Cavanaugh, and to Pam Slipakoff at
Pam.Slipakoff@fcc.gov.
g. Termination Date. Unless stated otherwise, the requirements of this
Compliance Plan will expire three (3) years after the Effective Date.
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 the Company 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 the Company of the Act, the rules, or the
Order.
12. Voluntary Contribution. UTC agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $100,000.
The payment shall be made within 30 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 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 Federal Reserve Bank of
New York, and account number 27000001. UTC shall also send electronic
notification within forty-eight (48) hours of the date said payment is
made to Pam.Slipakoff@fcc.gov.
13. Waivers. The Company 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. The Company 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 the Company nor the Commission shall contest
the validity of the Consent Decree or the Adopting Order, and the
Company shall waive any statutory right to a trial de novo. The
Company 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. 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.
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 the Company does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
16. Successors and Assigns. The Company 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.
________________________________
P. Michele Ellison
Chief
Enforcement Bureau
________________________________
Date
________________________________
John G. Woody
Vice President
Union Telephone Company
________________________________
Date
47 U.S.C. S: 214.
47 C.F.R. S: 63.18.
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
See Letter from Trent B. Harkrader, Deputy Chief, Investigations &
Hearings Division, Enforcement Bureau, FCC, to John G. Woody, President,
Union Telephone Company, dated August 25, 2010.
47 U.S.C. S: 214(a).
47 C.F.R. S: 63.01(a) ("Any party that would be a domestic interstate
communications common carrier is authorized to provide domestic,
interstate services to any domestic point and to construct or operate any
domestic transmission line as long as it obtains all necessary
authorizations from the Commission for use of radio frequencies.").
Implementation of Section 402(b)(2)(A) of the Telecomm. Act of 1996,
Report and Order in CC Docket No. 97-11, Second Memorandum Opinion & Order
in AAD File No. 98-43, 14 FCC Rcd 11364, 11366 n.8 (1999) (grant of
blanket authority is only for domestic services and does not extend to the
provision of international services).
47 C.F.R. S: 63.18.
See id. S: 63.18(e)(2).
1998 International Biennial Regulatory Review -- Review of International
Common Carrier Regulations, Report and Order, 14 FCC Rcd 4909, 4926-27,
P:P: 38-39 (1999). See also Personal Communications Indus. Ass'n's
Broadband Personal Communications Servs. Alliance's Pet. for Forbearance
for Broadband Personal Communications Servs., Memorandum Opinion and Order
and Notice of Proposed Rulemaking, 13 FCC Rcd 16857, 16881-84, P:P: 45-54
(1998) (declining PCIA's request to forbear from requiring section 214
authority for a broadband PCS carrier to provide international services);
Implementation of Sections 3(n) and 332 of the Communications Act,
Regulatory Treatment of Mobile Servs., Second Report and Order, 9 FCC Rcd
1411, 1481, P: 182 n.369 (1994) (declining to forbear from application of
section 214 to CMRS carriers' provision of international services).
See Letter from David, L. Nace, Esquire, Lukas, Nace, Gutierrez & Sachs,
LLP, counsel for Union Telephone Company to Trent B. Harkrader, Deputy
Chief, Investigations & Hearings Division, Enforcement Bureau, FCC, dated
Sep. 15, 2010, at 3 ("LOI Response").
See LOI Response at 3. UTC first offered international calling to landline
customers in 1994. UTC believes that its wireless customers were also
permitted to make international calls beginning in 1994. LOI Response at
3.
See File No. ITC-STA-20100319-00118, Attachment 1.
See File No. ITC-214-20100319-00117. In its LOI Response, UTC also states
that in February of 1994, UTC received a proposed application for
international Section 214 authority from its attorney but it could find no
record that the application was filed with the Commission.
See File No. ITC-STA-20100319-00118.
Id.
See International Authorizations Granted, Public Notice, Rep. No.
TEL-01422, DA No. 10-678 (rel. April 22, 2010).
See LOI.
See LOI Response.
See 47 U.S.C. S: 214; 47 C.F.R. S: 63.18.
See 47 C.F.R. S: 1.16.
See 47 U.S.C. S: 214; 47 C.F.R. S: 63.18.
Federal Communications Commission DA 11-1058
7
Federal Communications Commission DA 11-1058