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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-09-SE-126
In the Matter of
) Acct. No. 201032100033
Alpheus Communications, L.P.
) FRN No. 0005004361
)
ORDER
Adopted: August 12, 2011 Released: August 12, 2011
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Alpheus Communications,
L.P. ("Alpheus"). The Consent Decree terminates an investigation and
cancels a Notice of Apparent Liability for Forfeiture ("NAL") issued
by the Bureau against Alpheus for possible violations of Part 4 of the
Commission's rules regarding the reporting of network outages.
2. The Bureau and Alpheus have negotiated the terms of the Consent Decree
that resolves 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, which terminates the investigation and
cancels 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 Alpheus 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 issued
by the Bureau against Alpheus on July 6, 2010 IS CANCELLED.
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 Stephen W. Crawford, General Counsel and Senior Vice
President, Alpheus Communications, L.P. 1301 Fannin St., 20th Floor,
Houston, TX 77002 and Joshua Bobeck, Esq., counsel for Alpheus,
Bingham McCutchen LLP, 2020 K Street NW, Washington, DC 20006-1806.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-09-SE-126
In the Matter of
) Acct. No. 201032100033
Alpheus Communications, LP
) FRN No. 0005004361
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Alpheus Communications, L.P.
("Alpheus" or the "Company"), by their authorized representatives, hereby
enter into this Consent Decree for the purpose of terminating the Bureau's
investigation into whether Alpheus violated Section 4.9(f) of the
Commission's Rules by failing to file network outage reports by the
compliance deadlines.
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: 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. "Alpheus" means Alpheus Communications, L.P. and its subsidiaries,
affiliates, predecessors-in-interest and successors-in-interest.
d. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
e. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
f. "Compliance Plan" means the program described in this Consent Decree
at paragraph 8.
g. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
h. "Investigation" means the investigation commenced by the Bureau's
September 10, 2009 Letter of Inquiry regarding whether Alpheus
violated Section 4.9(f) of the Rules regarding the reporting of
network outages.
i. "NAL" means the Notice of Apparent Liability for Forfeiture issued by
the Bureau against Alpheus Communications on July 6, 2010.
j. "Parties" means Alpheus and the Bureau, and each a "Party."
k. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
8. Under Section 4.9(f) of the Rules, wireline service 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 on facilities that they own, operate, lease, or otherwise
utilize, 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.
9. On September 10, 2009, the Bureau issued a Letter of Inquiry ("LOI")
to Alpheus. The LOI directed Alpheus, among other things, to submit a
sworn written response to a series of questions relating to Alpheus's
compliance with the Commission's network outage reporting rules.
Alpheus responded to the LOI on October 9, 2009. On July 6, 2010, the
Bureau released the NAL proposing that Alpheus be held liable for a
monetary forfeiture of sixty thousand dollars ($60,000) under section
503(b)(1)(B) of the Act, and ordered the Company either to pay the
proposed forfeiture or file a written response within thirty (30) days
of the release date stating why the proposed forfeiture should be
reduced or canceled. Alpheus and the Bureau subsequently entered into
settlement discussions.
III. TERMS OF AGREEMENT
10. 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.
11. Jurisdiction. Alpheus 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.
12. 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 Commission Order, entitling the Commission to
exercise any rights and remedies attendant to the enforcement of a
Commission Order.
13. 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 and to cancel the NAL. In consideration for the
termination of the Investigation and cancellation of the NAL, Alpheus
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 obtained 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 Alpheus
concerning the matters that were the subject of the Investigation. The
Bureau also agrees that, in the absence of new material evidence, 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 Alpheus with
respect to Alpheus's basic qualifications, including its character
qualifications, to be a Commission licensee or authorized common
carrier or hold Commission authorizations.
14. Compliance Plan. For purposes of settling the matters set forth
herein, Alpheus agrees that it shall develop and implement within
thirty (30) calendar days a Compliance Plan related to Alpheus's
future compliance with the Act, the Rules, and the Commission's
Orders. The Plan will include, at a minimum, the following components:
a. Compliance Officer. Alpheus shall designate an officer of the Company
to serve as the Compliance Officer for FCC outage reporting, oversee
the Compliance Manual and Compliance Training, both of which are
described below, and ensure compliance with the outage reporting
requirements in the Rules.
b. Compliance Manual. Alpheus shall develop an FCC outage reporting
compliance manual addressing FCC network outage reporting
requirements, as detailed below, and distribute to all employees who
are responsible for analyzing technical information regarding
Alpheus's network outages, entering information into any Alpheus
database(s) and/or record(s) that form the basis of Alpheus's
reporting of network outages to the Commission, and compiling and/or
submitting Alpheus's outage reports to the Commission.
i. Alpheus's Compliance Manual shall address, at a minimum, the FCC's
Rules governing the reporting of network outages, the information and
calculations necessary to determine whether an outage is reportable under
the FCC's Rules, and the time periods during which notifications and
reports of reportable outages must be submitted to the FCC. Alpheus's
Compliance Manual shall also address the methods and procedures adopted by
Alpheus to identify and report those network outages that satisfy the
FCC's reporting criteria in order to ensure compliance with the FCC's
outage reporting Rules. The Compliance Manual shall also include
information on the potential internal and regulatory consequences of
failing to comply with Alpheus's methods and procedures and/or the FCC's
outage reporting requirements.
ii. Alpheus shall update and enhance the foregoing Compliance Manual as
appropriate and necessary to ensure that it remains current at all times
on all the FCC's outage reporting requirements.
c. Compliance Training Program. Alpheus shall establish and implement an
FCC outage reporting training program addressing FCC network outage
reporting requirements, as detailed below, for all employees who are
responsible for analyzing technical information regarding Alpheus's
network outages, entering information into any Alpheus database(s)
and/or record(s) that form the basis of Alpheus's reporting of network
outages to the Commission, and compiling and/or submitting Alpheus's
outage reports to the Commission. Alpheus's Training Program shall
cover the topics outlined in the Compliance Manual set forth in
section (b) above.
i. Alpheus shall provide the foregoing outage reporting training within
sixty (60) calendar days of the Effective Date and will update the
training at least annually for employees who are responsible for analyzing
technical information regarding Alpheus's network outages, entering
information into any Alpheus database(s) and/or record(s) that form the
basis of Alpheus's reporting of network outages to the Commission, and
compiling and/or submitting Alpheus's outage reports to the Commission.
Alpheus will also provide training to new employees responsible for these
activities within thirty (30) days of such person beginning employment or
assuming such responsibilities.
ii. Alpheus shall update and enhance the foregoing training as appropriate
and necessary to ensure that it remains current at all times on all the
FCC's outage reporting requirements.
d. Outage Reporting. Beginning sixty (60) days after the Effective Date
and thereafter, Alpheus shall include in any NORS report filed with
the Commission the date and time that Alpheus discovered the outage
was reportable using the following two separate fields: (1) Date
Outage Determined Reportable and (2) Local Time Outage Determined
Reportable (24 hr clock (nnnn))
e. Reporting Non-Compliance. Alpheus shall report any non-compliance with
section 4.9 of the Rules to the Bureau within fifteen (15) calendar
days after the discovery of such noncompliance. Such reports shall
include a detailed explanation of (i) each instance of noncompliance;
(ii) the steps that Alpheus has taken or will take to remedy such
noncompliance, including the schedule on which proposed remedial
actions will be taken; and (iii) the steps that Alpheus has taken or
will take to prevent the recurrence of any such non-compliance,
including the schedule on which such preventive action will be taken.
All such reports of non-compliance shall be submitted to Chief,
Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C.
20554, with a copy submitted electronically to Ricardo Durham at
Ricardo.Durham@fcc.gov, and Linda Nagel at Linda.Nagel@fcc.gov.
f. Compliance Reports. Alpheus will 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 compliance
certificate from the Compliance Officer, as an agent and on behalf of
Alpheus, stating that the Compliance Officer has personal knowledge
that Alpheus has (i) established and implemented operating procedures
intended to ensure compliance with this Consent Decree, the Act, the
Rules and the Commission's Orders, together with an accompanying
statement explaining the basis for the officer's compliance
certification; (ii) has been utilizing those procedures since
establishing and implementing the Compliance Plan; and (iii) is not
aware of any instances of noncompliance, other than those set forth in
paragraph 8(e) above. The certification shall be accompanied by a
statement explaining the basis for the Compliance Officer's
certification and 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 Alpheus, shall provide the Commission with a detailed
explanation of: (i) any instances of noncompliance with this Consent
Decree, the Act, or the Rules, (ii) the steps that Alpheus has taken
or will take to remedy each instance of noncompliance and ensure
future compliance, and (iii) 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 Ricardo
Durham at Ricardo.Durham@fcc.gov and Linda Nagel at
Linda.Nagel@fcc.gov.
g. Termination. Unless stated otherwise, the provisions of this paragraph
shall remain in effect for twenty-four (24) months from the Effective
Date.
15. 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 Alpheus 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 Alpheus of the Act, the Rules, or
Commission Orders.
16. Voluntary Contribution. Alpheus agrees to make a voluntary
contribution to the United States Treasury in the amount of Fifty-Five
Thousand Dollars ($55,000) within thirty (30) calendar days after the
Effective Date. 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 NAL/Account number in block number 23A (call sign/other ID), and
enter the letters "FORF" in block number 24A (payment type code).
Alpheus will also send electronic notification on the date said
payment is made to Ricardo.Durham@fcc.gov and Linda.Nagel@fcc.gov.
17. Waivers. Alpheus waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or stay, or
otherwise to 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. Alpheus 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
Alpheus nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Alpheus shall waive any statutory
right to a trial de novo. Alpheus 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.
18. 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.
19. 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 Alpheus does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
20. Successors and Assigns. Alpheus agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
21. 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, Alpheus 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.
22. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
23. 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.
24. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
25. 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
________________________________
Stephen W. Crawford
General Counsel and Senior Vice President, Mergers and
Acquisitions
Alpheus Communications, L.P.
________________________________
Date
Alpheus Communications, L.P., Notice of Apparent Liability for
Forfeiture, 25 FCC Rcd 8993 (Enf. Bur. 2010) ("NAL").
47 C.F.R. S: 4.1 et seq.
47 U.S.C. S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S: 4.9(f).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement
Division, Enforcement Bureau, to Stephen W. Crawford, Esq., General
Counsel and Senior Vice President, Alpheus Communications, LP
(September 10, 2009) ("LOI").
"User minutes" are defined as "assigned telephone number minutes ...
for telephony and for those paging networks in which each individual
user is assigned a telephone number" or "the mathematical result of
multiplying the duration of an outage, expressed in minutes, by the
number of end users potentially affected by the outage for all other
forms of communication." 47 C.F.R. S: 4.7(e).
"DS3 minutes" are defined as "the mathematical result of multiplying
the duration of an outage, expressed in minutes, by the number of
previously operating DS3 circuits that were affected by the outage."
47 C.F.R. S: 4.7(d).
"Special offices and facilities" include major military installations,
key government facilities, nuclear power plants, and certain airports.
47 C.F.R. S: 4.5(b)-(d).
See 47 C.F.R. S: 4.5(e).
See 47 C.F.R. S: 4.9(f).
See LOI, supra n. 2.
Letter from Joshua M. Bobeck, Esq., Counsel for Alpheus
Communications, LP, to Linda M. Nagel, Esq., Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission
(October 9, 2009) ("LOI Response").
Alpheus Communications, L.P., Notice of Apparent Liability for
Forfeiture, 25 FCC Rcd 8993 (Enf. Bur. 2010).
Under this provision, Alpheus will not be required to provide outage
reporting compliance training to employees other than those whose
responsibilities include one or more of the following duties analyzing
technical information regarding Alpheus's network outages, entering
information into Alpheus's database(s) and/or record(s) that form the
basis of Alpheus's reporting of network outages to the Commission, and
compiling and/or submitting Alpheus's outage reports to the
Commission.
Federal Communications Commission DA 11-1362
4
Federal Communications Commission DA 11-1362