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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-09-IH-1048
In the Matter of
) NAL/Acct. No.: 201132080036
Nevada Utilities, Inc.
) FRN: 0014886931
)
ORDER
Adopted: September 12, 2011 Released: September 12, 2011
By the Chief, Enforcement Bureau:
1. In this Order, we adopt a Consent Decree entered into between the
Enforcement Bureau ("Bureau") and Nevada Utilities, Inc. ("NUI"). The
Consent Decree resolves and terminates the Bureau's investigation into
NUI's compliance with section 214 of the Communications Act of 1934,
as amended (the "Act"), and the Commission's Rules and Orders
concerning NUI's obligation to obtain Commission approval before
transferring control of Commission authority granted under section 214
of the Act.
2. A copy of the Consent Decree negotiated by the Bureau and NUI 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 as to whether NUI 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 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-referenced investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class certified mail, return receipt requested,
to Michael Landreth, Chief Financial Officer, BroadRiver Communication
Corporation, 1000 Hemphill Avenue, Atlanta, Georgia 30318.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-09-IH-1048
In the Matter of
) NAL/Acct. No.: 201132080036
Nevada Utilities, Inc.
) FRN: 0014886931
)
CONSENT DECREE
1. The Enforcement Bureau and Nevada Utilities, Inc. ("NUI" or the
"Company"), by their authorized representatives, hereby enter into
this Consent Decree for the purpose of terminating the Bureau's
investigation into NUI's compliance with section 214 of the
Communications Act of 1934, as amended (the "Act"), and the
Commission's Rules and Orders concerning NUI's obligation to obtain
Commission approval before transferring control of Commission
authority granted under section 214 of the Act.
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. "Adopting Order" means an Order of the Bureau 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 compliance obligations and program
described in this Consent Decree at paragraph 9.
f. "Effective Date" means the date on which the Commission releases the
Adopting Order.
g. "Investigation" means the investigation commenced by the Bureau's
August 5, 2009 letter of inquiry regarding the Companies' compliance
with section 214 of the Act, and part 63 of the Commission's Rules,
concerning NUI's obligation to obtain Commission approval before
transferring control of Commission authority granted under section 214
of the Act.
h. NUI" or the "Company" means Nevada Utilities, Inc. and its
predecessors-in-interest and successors-in-interest.
i. "Parties" means NUI and the Bureau, each of which is a "Party."
j. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
3. Section 214 of the Act requires telecommunications carriers to obtain
a certificate of public convenience and necessity from the Commission
before constructing, acquiring, operating or engaging in transmission
over lines of communications, or before discontinuing, reducing or
impairing service to a community. In accordance with section 63.03 of
the Rules, any domestic carrier seeking to transfer control of lines
or authorization to operate pursuant to section 214 must obtain prior
approval from the Commission. Section 63.04 of the Rules sets forth
the required contents of domestic transfer of control applications.
4. NUI is a telecommunications services provider in Las Vegas, Nevada. On
April 25, 2008, Nevada Telecom Solutions ("NTS") acquired 100% of
NUI's stock. After this acquisition, NUI became a wholly-owned
subsidiary of NTS. On February 24, 2009, almost one full year after
NTS acquired NUI, NTS and NUI jointly applied for Commission
authorization to transfer, from NUI to NTS, NUI's authority to provide
domestic and international telecommunications services under section
214 of the Act. The Commission granted the application to transfer
NUI's authority to provide international telecommunications services
on March 26, 2009. The Commission granted the application to transfer
NUI's authority to provide domestic telecommunications services on
April 16, 2009. On August 5, 2009, the Bureau issued a Letter of
Inquiry ("LOI") to NUI. The LOI directed NUI, among other things, to
submit a sworn written response to a series of questions relating to
NUI's compliance with section 214 of the Act and part 63 of the Rules.
NUI responded to the LOI on September 1, 2009, confirming that it
filed for Commission authorization to transfer its authority to
provide domestic and international telecommunications services under
section 214 of the Act after it was acquired by NTS.
III. TERMS OF AGREEMENT
5. 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.
6. Jurisdiction. NUI agrees that the Bureau has jurisdiction over NUI and
the matters contained in this Consent Decree, and the Bureau has the
authority to enter into and adopt this Consent Decree.
7. Effective Date: Violations. The Parties agree that this Consent Decree
shall become effective on the Effective Date as defined herein. 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.
8. 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, NUI 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, or the existence of this
Consent Decree, to institute, on its own motion or in response to a
third party objection, or recommend to the Commission, any new
proceeding, formal or informal, or take any action on its own motion
against NUI 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, 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 NUI with
respect to NUI's basic qualifications, including its character
qualifications, to hold Commission authorizations.
9. Compliance Plan. NUI agrees that it will implement, within thirty (30)
calendar days from the Effective Date, a Compliance Plan related to
compliance with the Act, the Rules, and the Commission's Orders, with
particular emphasis on compliance with the Rules concerning the
purchase, sale, acquisition, assignment or transfer of control of NUI
or NUI assets potentially subject to FCC regulation. The Compliance
Plan shall include, at a minimum, the following components:
a. Compliance Officer. Within thirty (30) calendar days of the Effective
Date, NUI will designate a Compliance Officer who is responsible for
administering the Compliance Plan, supervise NUI's compliance with the
Act, Rules, and Commission Orders, and serve as the point of contact
on behalf of NUI for all FCC-related compliance matters.
b. Internal Controls. NUI will institute internal processes that ensure
(i) future transactions contemplating a change in control of any
corporate entities controlled by NUI, and that hold FCC
authorizations, are communicated to NUI's management in advance of any
actual transfer of control; and (ii) that the requirements of all
appropriate regulatory authorities are timely satisfied. The
Companies' management will be informed when transactions that involve
a transfer of FCC authorizations require Commission consent to
transfer the authorizations.
c. Compliance Manual. Within sixty (60) calendar days of the Effective
Date, NUI will develop and distribute a Compliance Manual to employees
and others who perform duties at NUI that trigger or may trigger
responsibilities related to regulatory compliance with the Act and the
Rules. The Compliance Manual will be reviewed annually and updated as
appropriate, and any revisions will be distributed within thirty (30)
calendar days.
d. Compliance Training Program. Within ninety (90) calendar days of the
Effective Date, all NUI employees and others who perform duties at NUI
that trigger or may trigger compliance-related responsibilities must
complete a Compliance Training Program focused on those portions of
the Act, Rules, and Commission Orders that relate to the purchase,
sale, acquisition, assignment or transfer of control of NUI or NUI
assets potentially subject to FCC regulation. The Compliance Training
Program will contain, at a minimum, information regarding the need to
conduct due diligence regarding potential FCC authorizations of any
company in a potential merger or acquisition transaction, the need to
monitor any corporate reorganization for potential assignment or
transfer issues, and the need to obtain prior FCC approval for all
assignments and transfers of control of FCC authorizations. This
Compliance Training Program will also be presented to new employees
who are engaged in such activities, within the first 30 calendar days
of employment, and to employees who are reassigned to such duties
within 30 calendar days of reassignment. This Compliance Training
Program will track the Compliance Manual, focusing on proper
implementation of the Compliance Manual and will be tailored to
specific user groups.
e. Compliance Reports. NUI will file compliance reports with the
Commission ninety (90) calendar days; twelve (12) months; twenty-four
(24) months; and thirty-six (36) months after the Effective Date. Each
compliance report shall include a compliance certificate from the
Compliance Officer stating that the officer has personal knowledge
that NUI (1) has established operating procedures intended to ensure
compliance with the terms and conditions of this Consent Decree, with
section 214 of the Act, and the Rules and FCC Orders concerning NUI's
obligations to obtain Commission approval before transferring control
of Commission authorizations; (2) have been utilizing those procedures
at all times since the previous Compliance Report was submitted; and
(3) are not aware of any instances of non-compliance. If the
Compliance Officer is not able to so certify, he or she shall explain
fully the reason(s) therefore. All Compliance Reports shall be
directed to the Chief, Investigations & Hearings Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street, S.W.,
Washington, D.C. 20554. The certification must comply with section
1.16 of the Rules, and be substantially in the form set forth therein.
f. Reporting Non-Compliance. NUI will report to the Bureau any
non-compliance with this Consent Decree or sections of the Act, Rules,
or Commission Orders that relate to the purchase, sale, acquisition,
assignment or transfer of control of NUI or NUI assets, within 15 days
after the discovery of non-compliance.
g. Termination. The provisions of this paragraph shall remain in effect
for three (3) years from the Effective Date.
10. 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 NUI 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 NUI with the Act, the Rules, or
Commission Orders.
11. Voluntary Contribution. NUI agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $12,000 in
24 monthly installments of $500. The first payment will be made within
10 days after the Effective Date, with subsequent payments made by the
15th day of each subsequent month for 23 months. 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 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 Account number in block
number 23A (call sign/other ID), and enter the letters "FORF" in block
number 24A (payment type code). NUI shall send electronic notification
of each installment payment to David Janas at david.janas@fcc.gov on
the date payments are made.
12. Waivers. NUI 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 Adopting Order, provided the Bureau issues an Adopting Order,
adopting the Consent Decree without change, addition, modification, or
deletion. NUI 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
NUI nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and NUI shall waive any statutory right
to a trial de novo. NUI hereby agrees to waive any claims it may 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.
13. 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.
14. 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 NUI does not expressly consent)
that provision will be superseded by such Commission Rule or Order.
15. Successors and Assigns. NUI agrees that the provisions of this Consent
Decree shall be binding on its successors, assigns, and transferees.
16. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties with
respect to the matters set forth herein. 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 Rules and Commission's Orders.
17. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
18. 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.
19. Authorized Representative. The individual signing this Consent Decree
on behalf of NUI represents and warrants that he is authorized by NUI
to execute this Consent Decree and to bind NUI to the obligations set
forth herein. The FCC signatory represents that she is signing this
agreement in her official capacity and that she is authorized to
execute this Consent Decree.
20. 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
Federal Communications Commission
________________________________
Date
________________________________
Michael Oken
Chief Technology Officer
BroadRiver, Inc.
On behalf of Nevada Utilities, Inc.
________________________________
Date
NUI is a subsidiary of BroadRiver, Inc.
47 U.S.C. S: 214; see 47 C.F.R. Pt. 63.
47 U.S.C. S:S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
NUI is a subsidiary of BroadRiver, Inc. ("BroadRiver").
47 U.S.C. S: 214; see 47 C.F.R. Pt. 63.
See Nevada Utilities, Inc., EB-09-IH-1048, Letter from Trent B. Harkrader,
Deputy Chief, Investigations & Hearings Division, Enforcement Bureau,
Federal Communications Commission, to Jack Pestaner,
Nevada Utilities, Inc. (Aug. 5, 2009) ("LOI").
47 U.S.C. S: 214; 47 C.F.R. Pt. 63.
See 47 U.S.C. S: 214(a).
See 47 C.F.R. S: 63.03; Implementation of Further Streamlining Measures
for Domestic Section 214 Authorizations, Report and Order, 17 FCC Rcd
5517, 5521, P: 5 (2002) ("2002 Streamlining Order").
47 C.F.R. S: 63.04.
Nevada Utilities, Inc., EB-09-IH-1048, Nevada Utilities Response, at 3
(Sept. 1, 2009) ("LOI Response").
Id. at 2. Until April 25, 2008, NUI was jointly owned by Robert and Anita
Jankovics.
Id. at 4.
International Authorizations Granted, Public Notice, 24 FCC Rcd. 3644
(International Bureau 2009).
Notice of Domestic Section 214 Authorization Granted, Public Notice, 24
FCC Rcd. 4601 (Wireline Competition Bureau 2009).
See supra note 3.
See LOI Response at 4. Subsequently, in 2010, control of NUI was
transferred from NTS to BroadRiver. NTS and BroadRiver timely sought and
received Commission approval for the 2010 transfer of control of the
domestic and international section 214 authorizations held by NUI.
47 C.F.R. S: 1.16.
(Continued from previous page)
(continued...)
Federal Communications Commission DA 11-1482___
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Federal Communications Commission DA 11-1482___