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Before the
Federal Communications Commission
Washington, D.C. 20554
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In the Matter of
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Associated Telecommunications File No. EB-10-IH-4133
Management )
NAL/Acct. No. 201132080030
Services, LLC )
FRN No. 0019354513
BLC Acquisition Group, LLC )
FRN No. 0019421031
Bellerud Acquisition Group, LLC )
FRN No. 0019389527
Ganoco Acquisition Group, LLC )
FRN No. 0019389485
Lifeconnex Acquisition Group, LLC )
FRN No. 0019387182
Triarch Acquisition Group, LLC )
FRN No. 0019389451
SCTxLink Acquisition Group, LLC )
FRN No. 0019419746
DialTone & More Acquisition Group, )
LLC FRN No. 0019418581
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Ren-Tel Acquisition Group, LLC FRN No. 0019418474
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Apparent Liability for Forfeiture
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NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 15, 2011 Released: July 15, 2011
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that various subsidiaries of Associated Telecommunications Management
Services, LLC ("ATMS") apparently violated section 214(a) of the
Communications Act of 1934, as amended ("Act"), and sections 63.03 and
63.04 of the Commission's Rules ("Rules") by willfully consummating
eight separate transactions, each involving the substantial transfer
of control of a domestic section 214 authorization, before they
obtained Commission approval. ATMS is the parent of eight wholly-owned
subsidiaries - BLC Acquisition Group, LLC; Bellerud Acquisition Group,
LLC; DialTone & More Acquisition Group, LLC; Ganoco Acquisition Group,
LLC; Lifeconnex Acquisition Group, LLC; Ren-Tel Acquisition Group,
LLC; SCTxLink Acquisition Group, LLC and Triarch Acquisition Group,
LLC (collectively, "ATMS Subsidiaries") - that consummated eight
separate unauthorized domestic section 214 transfers of control. Based
on our review of the undisputed facts in this matter, and for the
reasons discussed below, we find that each of the ATMS Subsidiaries is
apparently liable for a forfeiture of $8000.
II. BACKGROUND
2. Section 214(a) of the Act, in pertinent part, prohibits the operation
or acquisition of lines for interstate or international common carrier
communication without prior Commission approval. Sections 63.03 and
63.04 of the Rules require Commission approval before a transfer of
control or assignment of a domestic section 214 authorization.
3. The ATMS Subsidiaries consummated the following domestic section 214
transfers of control without prior Commission approval:
* BLC Acquisition Group, LLC ("BLC") and BLC Management, LLC filed a
section 214 transfer of control application with the Wireline
Competition Bureau ("WCB") on December 21, 2009. On February 27, 2010,
WCB granted BLC's application. BLC acquired BLC Management, LLC prior
to filing the requisite section 214 transfer of control application.
* On or about September 1, 2009, Bellerud Acquisition Group, LLC
("Bellerud") acquired Bellerud Communications, LLC. On December 21,
2009, Bellerud filed its transfer of control application with WCB. On
January 26, 2010, WCB granted a Special Temporary Authority ("STA")
application for a 60-day period for the Bellerud transaction. On
February 27, 2010, WCB granted Bellerud's application.
* DialTone & More Acquisition Group ("DialTone") and DialTone & More,
Inc. filed a section 214 transfer of control application with WCB on
December 21, 2009. On February 27, 2010, WCB granted DialTone's
application. DialTone acquired DialTone & More, Inc. prior to filing
the requisite section 214 transfer of control application.
* On or about September 30, 2009, Ganoco Acquisition Group, LLC
("Ganoco") acquired Ganoco, Inc. d/b/a American Dial Tone, LLC. On
December 21, 2009, Ganoco filed its transfer of control application
with WCB. On January 26, 2010, WCB granted an STA to Ganoco for a
60-day period for the transaction. On February 27, 2010, WCB granted
Ganoco's application.
* On or about September 1, 2009, LifeConnex Acquisition Group, LLC
("LifeConnex") acquired LifeConnex Telecom, LLC. On December 21, 2009,
LifeConnex filed its transfer of control application with WCB. On
January 26, 2010, WCB granted an STA for a 60-day period for the
Lifeconnex transaction. On February 27, 2010, WCB granted LifeConnex's
application.
* Ren-Tel Acquisition Group, LLC ("Ren-Tel") and Ren-Tel Communications,
Inc. filed a section 214 transfer of control application with WCB on
December 21, 2009. On February 27, 2010, WCB granted Ren-Tel's
application. Ren-Tel acquired Ren-Tel Communications, Inc. prior to
filing the requisite section 214 transfer of control application
* SC TXLink Acquisition Group, LLC ("SC TXLink") and SC TXLink, LLC
filed a section 214 transfer of control application with WCB on
December 21, 2009. On February 27, 2010, WCB granted SC TXLink's
application. SC TXLink prior to filing the requisite section 214
transfer of control application.
* On or about October 12, 2009, Triarch Acquisition Group, LLC
("Triarch") acquired Triarch Marketing, Inc. On December 21, 2009,
Triarch filed its transfer of control application with WCB. On
February 1, 2010, WCB granted a 60-day STA for the Triarch
transaction. On March 5, 2010, WCB granted Triarch's application.
III. DISCUSSION
4. Under section 503(b)(1) of the Act, "[a]ny person who is determined by
the Commission ... to have ... willfully or repeatedly failed to
comply with any of the provisions of this Act or of any rule,
regulation, or order issued by the Commission under this Act ... shall
be liable to the United States for a forfeiture penalty. Section
312(f)(1) of the Act defines "willful" as "the conscious and
deliberate commission or omission of [any] act, irrespective of any
intent to violate any provision of this Act or any rule or regulation
by the Commission authorized by this Act...." The legislative history
to section 312(f)(1) of the Act clarifies that this definition of
"willful" applies to both sections 312 and 503(b) of the Act, and the
Commission has so interpreted the term in the section 503(b) context.
To impose a forfeiture penalty, the Commission must issue a notice of
apparent liability, and the person against whom the notice has been
issued must have an opportunity to show, in writing, why no such
forfeiture penalty should be imposed. The Commission will then issue a
forfeiture if it finds, based on the evidence, that the person has
violated the Act, a Rule, or a Commission Order.
5. We conclude that it is apparent that the ATMS Subsidiaries willfully
violated section 214(a) of the Act and sections 63.03 and 63.04 of the
Rules because they failed to obtain Commission approval before
consummating eight separate substantial transfers of control of
domestic section 214 authorizations. The facts underlying this case
are undisputed: ATMS, as parent of the ATMS Subsidiaries, confirmed
that its ATMS Subsidiaries (i) did not seek approval for any of these
transactions until after each had been consummated, and (ii) did not
disclose four of the eight transactions until the Enforcement Bureau's
investigation and only after WCB had granted the applications. The
violation periods range from approximately 2.5 months to approximately
3.5 months.
6. In determining the amount of a forfeiture penalty, section
503(b)(2)(D) of the Act and section 1.80(a)(4) of the Rules direct the
Commission to take into account "the nature, circumstances, extent,
and gravity of the violation . . . and the degree of culpability, any
history of prior offenses, ability to pay, and such other matters as
justice may require." The Commission's Forfeiture Policy Statement
and implementing Rules prescribe a base forfeiture of $8,000 for each
separate unauthorized substantial transfer of control. In determining
the appropriate forfeiture amount, we consider the factors enumerated
in section 503(b)(2)(D) of the Act, including "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 consideration of the factors enumerated in section
503(b)(2)(D) for establishing the forfeiture amount, there is no other
evidence before us to suggest that the base amount should be adjusted
in any way. Accordingly, we find that the base forfeiture of $8,000 is
appropriate for each one of the eight separate domestic substantial
transfers of control without prior Commission approval. Based on the
facts and circumstances presented, we conclude that a proposed
forfeiture of $8,000 against each of the ATMS Subsidiaries is
warranted.
IV. ORDERING CLAUSES
7. ACCORDINGLY, IT IS ORDERED that, pursuant to section 503(b) of the Act
and sections 0.111, 0.311, 0.314 and 1.80 of the Rules, BLC
Acquisition Group, LLC, is hereby NOTIFIED of its APPARENT LIABILITY
FOR A FORFEITURE in the amount of eight thousand dollars ($8,000) for
apparently willfully or repeatedly violating section 214(a) of the Act
and sections 63.03 and 63.04 of the Rules.
8. IT IS FURTHER ORDERED that, pursuant to section 503(b) of the Act and
sections 0.111, 0.311, 0.314 and 1.80 of the Rules, Bellerud
Acquisition Group, LLC, is hereby NOTIFIED of its APPARENT LIABILITY
FOR A FORFEITURE in the amount of eight thousand dollars ($8,000) for
apparently willfully or repeatedly violating section 214(a) of the Act
and sections 63.03 and 63.04 of the Rules.
9. IT IS FURTHER ORDERED that, pursuant to section 503(b) of the Act and
sections 0.111, 0.311, 0.314 and 1.80 of the Rules, DialTone & More
Acquisition Group, LLC, is hereby NOTIFIED of its APPARENT LIABILITY
FOR A FORFEITURE in the amount of eight thousand dollars ($8,000) for
apparently willfully or repeatedly violating section 214(a) of the Act
and sections 63.03 and 63.04 of the Rules.
10. IT IS FURTHER ORDERED that, pursuant to section 503(b) of the Act and
sections 0.111, 0.311, 0.314 and 1.80 of the Rules, Ganoco Acquisition
Group, LLC, is hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of eight thousand dollars ($8,000) for
apparently willfully or repeatedly violating section 214(a) of the Act
and sections 63.03 and 63.04 of the Rules.
11. IT IS FURTHER ORDERED that, pursuant to section 503(b) of the Act and
sections 0.111, 0.311, 0.314 and 1.80 of the Rules, Lifeconnex
Acquisition Group, LLC, is hereby NOTIFIED of its APPARENT LIABILITY
FOR A FORFEITURE in the amount of eight thousand dollars ($8,000) for
apparently willfully or repeatedly violating section 214(a) of the Act
and sections 63.03 and 63.04 of the Rules.
12. IT IS FURTHER ORDERED that, pursuant to section 503(b) of the Act and
sections 0.111, 0.311, 0.314 and 1.80 of the Rules, Ren-Tel
Acquisition Group, LLC, is hereby NOTIFIED of its APPARENT LIABILITY
FOR A FORFEITURE in the amount of eight thousand dollars ($8,000) for
apparently willfully or repeatedly violating section 214(a) of the Act
and sections 63.03 and 63.04 of the Rules.
13. IT IS FURTHER ORDERED that, pursuant to section 503(b) of the Act and
sections 0.111, 0.311, 0.314 and 1.80 of the Rules, SCTxLink
Acquisition Group, LLC, is hereby NOTIFIED of its APPARENT LIABILITY
FOR A FORFEITURE in the amount of eight thousand dollars ($8,000) for
apparently willfully or repeatedly violating section 214(a) of the Act
and sections 63.03 and 63.04 of the Rules.
14. IT IS FURTHER ORDERED that, pursuant to section 503(b) of the Act and
sections 0.111, 0.311, 0.314 and 1.80 of the Rules, Triarch
Acquisition Group, LLC, is hereby NOTIFIED of its APPARENT LIABILITY
FOR A FORFEITURE in the amount of eight thousand dollars ($8,000) for
apparently willfully or repeatedly violating section 214(a) of the Act
and sections 63.03 and 63.04 of the Rules.
15. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the
Commission's rules, within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, the ATMS Subsidiaries
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
16. 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/Acct. No. and FRN referenced above.
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 Federal Reserve Bank of New York, 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). ATMS will
also send electronic notification within forty-eight (48) hours of the
date said payment is made to Terry.Cavanaugh@fcc.gov,
Pamela.Kane@fcc.gov and Robert.Krinsky@fcc.gov.
17. The written statement seeking reduction or cancellation of the
proposed forfeitures, if any, must include a detailed factual
statement supported by appropriate documentation and affidavits
pursuant to sections 1.80(f)(3) and 1.16 of the Commission's rules.
The written statement must be mailed to Theresa Z. Cavanaugh, Acting
Chief, Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission, 445 12th Street, S.W., Room 4-C330,
Washington, D.C. 20554 and must include the NAL/Acct. No. referenced
above. The written statement should also be emailed to Terry Cavanaugh
at Terry.Cavanaugh@fcc.gov, Pamela Kane at Pamela.Kane@fcc.gov and
Robert.Krinsky at Robert.Krinsky@fcc.gov.
18. 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 (GAAP); 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.
19. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Chief Financial Officer -- Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. For answers to questions regarding payment
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov.
20. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by certified mail, return receipt
requested, to counsel for ATMS: Timothy J. Cooney, Esq., Wilkinson,
Barker, Knauer LLP, 2300 N Street, N.W., Suite 700, Washington, D.C.
20037-1128.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
47 U.S.C. S: 214(a).
47 C.F.R. S:S: 63.03, 63.04.
For the sake of brevity, unless stated otherwise, all references to "ATMS
Subsidiaries" in this NAL refer to one or more of the aforementioned eight
ATMS subsidiaries.
47 U.S.C. S: 214(a).
47 C.F.R. S:S: 63.03, 63.04. Section 63.03(d) addresses pro forma domestic
section 214 transactions, which do not result in carrier's ultimate
ownership or control. 47 C.F.R. S: 63.03(d).
See "Notice of Section 214 Authorizations Granted, WC Docket Nos. 10-5,
10-6, 10-7, 10-8, 10-9, 10-10 & 10-11," Public Notice, DA 10-354, 25 FCC
Rcd 2018 (WCB 2010).
The Bureau cannot disclose the specific date on which this transaction was
consummated due to a pending request for confidential treatment.
See "Domestic Section 214 Application Filed for the Transfer of Control of
Bellerud Communications, LLC to Bellerud Acquisitions Group, LLC,
Streamlined Pleading Cycle Established," Public Notice, WC Docket No.
10-11, DA 10-149, 25 FCC Rcd 970 (WCB 2010).
Id.
Id. at n. 1.
See supra, at note 7.
Id.
The Bureau cannot disclose the specific date on which this transaction was
consummated due to a pending request for confidential treatment.
See "Domestic Section 214 Application Filed for the Transfer of Control of
Ganoco, Inc. D/B/A American Dial Tone to Ganoco Acquisition Group, LLC,
Streamlined Pleading Cycle Established," Public Notice, WC Docket No.
10-9, 25 FCC Rcd 976 (WCB 2010).
Id..
Id. at n. 1.
See supra, at note 7.
See "Domestic Section 214 Application Filed for the Transfer of Control of
Lifeconnex Telecom, LLC to Lifeconnex Acquisition Group, LLC, Streamlined
Pleading Cycle Established," Public Notice, WC Docket No. 10-10, DA
10-152, 25 FCC Rcd 979 (WCB 2010).LOI Response at 4.
Id.
Id. at n. 1.
See supra, at note 7.
The Bureau cannot disclose the specific date on which this transaction was
consummated due to a pending request for confidential treatment.
See supra, at note 7.
The Bureau cannot disclose the specific date on which this transaction was
consummated due to a pending request for confidential treatment.
.See "Domestic Section 214 Application Filed for the Transfer of Control
of Triarch Marketing, Inc. to Triarch Acquisition Group, LLC, Streamlined
Pleading Cycle Established," Public Notice, WC Docket No. 10-33, DA
10-219, 25 FCC Rcd 1238 (WCB 2010).
Id.
Id. at n. 1.
See "Notice of Domestic Section 214 Authorization Granted, WC Docket No.
10-33," Public Notice, DA 10-386, 25 FCC Rcd 2258 (WCB 2010).
47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388, P: 5 (1991) ("Southern California
Broadcasting").
47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591, P: 4 (2002).
See Application for Commission Consent to Transfer of Control of Section
214-Authorized Interstate Carrier Ganoco, Inc. d/b/a American Dial Tone to
Ganoco Acquisition Group, LLC, WC Docket No. 10-09 (Dec. 18, 2009) at 4;
Application for Commission Consent to Transfer of Control of Section
214-Authorized Interstate Carrier Lifeconnex Telecom, LLC to Lifeconnex
Acquisition Group, LLC, WC Docket No. 10-10 (Dec. 18, 2009) at 4;
Application for Commission Consent to Transfer of Control of Section
214-Authorized Interstate Carrier Bellerud Communications, LLC to Bellerud
Acquisition Group, LLC, WC Docket No. 10-11 (Dec. 18, 2009) at 4;
Application for Commission Consent to Transfer of Control of Section
214-Authorized Interstate Triarch Marketing, Inc. to Triarch Acquisition
Group, LLC, WC Docket No. 10-11 (Dec. 18, 2009) at 4; see also Letter from
David H. Solomon and Robert G. Morse, Counsel to ATMS to Robert Krinsky,
Investigations and Hearings Div., Enf. Bur., Fed. Comm. Comm'n. (Nov. 8,
2010) at 4 and 7, n. 6.
47 U.S.C. S: 503(b)(2)(D).
47 C.F.R. S: 1.80(a)(4).
See 47 C.F.R. S: 1.80; Forfeiture Policy Statement, 12 FCC Rcd 17087,
17113 (1997). See also One Call Internet, Inc. Section 214 Transfer of
Control of Domestic Transmission Lines Requirements, Order adopting
Consent Decree, 18 FCC Rcd 25718 (2003) (setting the voluntary amount at
$8,000 for possible unauthorized domestic section 214 transfer of
control).
47 U.S.C. S: 503(b)(2)(D).
See 47 C.F.R. S:S: 1.80(f)(3), 1.16.
See 47 C.F.R. S: 1.1914.
Federal Communications Commission DA 11-1183
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Federal Communications Commission DA 11-1183