Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No.: EB-08-TC-5708
Think 12 Corporation d/b/a Hello ) NAL/Acct. No.: 201032170826
Depot
) FRN: 0010729283
)
)
MEMORANDUM OPINION & ORDER
Adopted: October 27, 2011 Released: October 28, 2011
By the Chief, Enforcement Bureau:
I. introduction
1. In this Memorandum Opinion and Order, issued pursuant to section 405
of the Communications Act of 1934, as amended ("Communications Act" or
"Act"), and section 1.106 of the Commission's rules, we deny a
Petition for Reconsideration filed on March 28, 2011 by Think 12
Corporation d/b/a Hello Depot ("Think 12"). The object of the Petition
for Reconsideration is a Forfeiture Order imposing a $20,000
forfeiture for Think 12's willful and repeated failure to file a
timely Customer Proprietary Network Information ("CPNI") compliance
certification for the calendar year 2007, in violation of section
64.2009(e) of the Commission's rules; the Commission's EPIC CPNI
Order; and, by extension, section 222 of the Act. For the reasons set
forth below, the Petition for Reconsideration is denied.
II. Background
2. Think 12 is a telecommunications carrier located in Itasca, Illinois
that resells interexchange services. As a telecommunications carrier,
Think 12 is subject to the requirements of section 222 of the Act and
section 64.2009 of the Commission's rules (as amended by the EPIC CPNI
Order), including the requirement that "on or before March 1"
annually, Think 12 file a CPNI compliance certification with the
Commission in EB Docket No. 06-36.
3. On September 5, 2008, the Enforcement Bureau ("Bureau") issued a
Letter of Inquiry ("LOI") to Think 12 asking whether, on or before
March 1, 2008, Think 12 had filed a section 64.2009(e) compliance
certification for the calendar year 2007, and if not, why not. Think
12 responded by submitting a CPNI compliance certification for
calendar year 2007. Think 12's late-filed certification was dated
September 18, 2008.
4. On February 24, 2009, the Bureau released an Omnibus Notice of
Apparent Liability for Forfeiture ("Omnibus NAL") imposing a
forfeiture of $20,000 against numerous carriers, including Think 12,
for their apparent failure to comply with section 64.2009(e) of the
Commission's rules, the Commission's EPIC CPNI Order, and section 222
of the Act. The Omnibus NAL directed carriers either to pay the
proposed forfeiture or to file a written response stating why the
proposed forfeiture should be canceled or reduced. In its response,
Think 12 stated that it was not aware of the CPNI certification
filing requirement until it received the LOI. That statement, and
Think 12's other arguments raised in response to the Omnibus NAL, were
considered and rejected in the Forfeiture Order.
5. Think 12's Petition for Reconsideration raises three issues. First,
Think 12 argues that due to financial difficulties it is unable to pay
the forfeiture amount. Next, Think 12 contends that it was in
compliance with our CPNI rules and had a confidentiality policy for
handling customers' information, even though it had failed to timely
file the compliance certification. Finally, Think 12 explains that
there is no history of prior complaints regarding misuse or
mishandling of customer information.
III. DISCUSSION
6. Petitions for reconsideration are granted only in limited
circumstances. Absent "a material error or omission in the underlying
order," or unless a petitioner raises "additional facts not known or
not existing until after the petitioner's last opportunity to present
such matters," reconsideration is not warranted. "A petition for
reconsideration that reiterates arguments . . . previously considered
and rejected will be denied." Here, Think 12 has raised no new facts
and relies on arguments that reveal no error or omission in the
Forfeiture Order. We therefore deny the Petition for Reconsideration.
7. As an initial matter, we reaffirm our determination that Think 12's
ignorance of the EPIC CPNI Order's amendment to section 64.2009(e)
does not warrant reduction of the forfeiture. As we have repeatedly
held, "administrative oversight," "lack of knowledge," or "erroneous
beliefs" are not factors that warrant a forfeiture's reduction.
8. Think 12's assertions that it has a history of protecting CPNI do not
warrant reconsideration of the Forfeiture Order. Think 12 does not
affirmatively represent that prior to the amendment of section
64.2009(e) of the Commission's rules in the EPIC CPNI Order, Think 12
met its obligation to complete and independently maintain annual CPNI
compliance certifications. Indeed, Think 12 concedes that it "failed
to notice and educate itself with respect to the specific rules and
the filing requirements. . . ." We also note that because "corrective
action taken to come into compliance with Commission rules or policy
is expected," Think 12's eventual filing of a 2007 CPNI compliance
certification, upon receiving the LOI, "does not nullify or mitigate"
Think 12's violation or the forfeiture we have imposed.
9. Finally, we decline to reconsider Think 12's claim of financial
hardship. We observed in the Forfeiture Order that Think 12 had
submitted tax returns for years 2004, 2005, and 2006, and based on
that information as well as other information in our file we concluded
that Think 12 had not demonstrated an inability to pay the proposed
forfeiture amount. Although Bureau staff asked Think 12 to submit
additional financial information to update that which it previously
provided, the company did not avail itself of that opportunity. As a
result, the only financial information in the record is that which we
previously considered and rejected as inadequate to justify Think 12's
claim that it is unable to pay the penalty imposed in the Forfeiture
Order.
10. "[T]he Commission enjoys `broad discretion in determining whether to
impose sanctions in a given case.'" For all of the reasons explained
above, the forfeiture imposed against Think 12 is well within our
discretion. There are no grounds for reconsideration of the Forfeiture
Order.
IV. ordering clauses
11. ACCORDINGLY, IT IS ORDERED that, pursuant to section 405 of the Act
and section 1.106 of the Commission's rules, Think 12 Corporation
d/b/a Hello Depot's Petition for Reconsideration IS DENIED.
12. It is FURTHER ORDERED that the Forfeiture Order IS AFFIRMED and that
pursuant to section 503(b) of the Act, Think 12 Corporation d/b/a
Hello Depot SHALL FORFEIT to the U.S. Government the sum of $20,000.
13. Payment of the forfeiture shall be made in the manner provided for in
section 1.80 of the Commission's rules within thirty (30) calendar
days of the release of this Memorandum Opinion and Order. If the
forfeiture is not paid within the period specified, the case may be
referred to the Department of Justice for collection pursuant to
section 504(a) of the Act. 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/Account
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-C 2-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 24A. Think 12 Corporation d/b/a
Hello Depot shall also send electronic notification to
johnny.drake@fcc.gov on the date said payment is made. Requests for
full payment under an installment plan should be sent to Chief
Financial Officer - Financial Operations, 445 12th Street, SW, Room
1-A625, Washington, DC 20554. Please contact the Financial Operations
Group Help Desk at 1-877-480-3201 or e-mail ARINQUIRIES@fcc.gov with
any questions regarding payment procedures.
14. IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and Order
shall be sent by Certified Mail Return Receipt Requested and First
Class Mail to Think 12 Corporation d/b/a Hello Depot at 650 East Devon
Avenue, Suite 133, Itasca, IL 60143.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief
Enforcement Bureau
47 U.S.C. S: 405.
47 C.F.R. S: 1.106. The Commission recently adopted certain amendments to
section 1.106. See Amendment of Certain of the Commission's Part 1 Rules
of Practice and Procedure and Part 0 Rules of Commission Org., GC Docket
No. 10-44, Report and Order, 26 FCC Rcd 1594, 1606-08, paras. 26-32
(2011).
Think 12 Corporation d/b/a Hello Depot Petition for Reconsideration, filed
Mar. 28, 2011 ("Petition for Reconsideration").
Think 12 Corporation d/b/a Hello Depot, Order of Forfeiture, 26 FCC Rcd
2135 (Tel. Con. Div. Enf. Bur. 2011) ("Forfeiture Order").
47 U.S.C. S: 64.2009(e).
Implementation of the Telecommunications Act of 1996: Telecommunications
Carriers' Use of Customer Proprietary Network Info. and Other Customer
Info.,IP-Enabled Servs., Report and Order and Further Notice of Proposed
Rulemaking, 22 FCC Rcd 6927, 6953-54, paras. 51, 53 (2007) ("EPIC CPNI
Order"), petition for review denied sub nom. Nat'l Cable & Telecomm.
Assoc. v. FCC, 555 F.3d 996 (D.C. Cir. 2009).
47 U.S.C. S: 222. The CPNI compliance certification filing requirement
imposed by section 64.2009(e) of the Commission's rules and the EPIC CPNI
Order forms "an important part" of a carrier's general obligations to
protect CPNI under section 222 of the Act. Forfeiture Order, 26 FCC Rcd at
2137, para. 5.
The EPIC CPNI Order, among other things, established a requirement that
carriers, including interconnected VoIP providers, file with the
Commission an annual CPNI certification of compliance. Prior to adoption
of the EPIC CPNI Order, the Commission did not require carriers
automatically to file such a certification with the Commission, but
instead required them to maintain an annual CPNI compliance certificate in
their files, and produce such certifications for inspection upon
Commission request. See EPIC CPNI Order, 22 FCC Rcd at 6953-54, para. 52.
47 C.F.R. S: 64.2009(e); accord EPIC CPNI Order, 22 FCC Rcd at 6953, 6954,
paras. 51, 53.
See Letter from Marcy Greene, Deputy Chief, Telecommunications Consumers
Division, Enforcement Bureau, FCC, to Think 12 at 1 (Sept. 5, 2008).
Think 12 submitted its 2007 CPNI compliance certification to the Bureau on
September 22, 2008 (dated Sept. 18, 2008) after it received notice from
the Commission of this investigation into Think 12's potential
non-compliance with section 222 of the Act and section 64.2009(e) of the
Commission's rules. See Think 12's "Annual 47 C.F.R. S: 64.2009(e) CPNI
Certification."
Annual CPNI Certification, Omnibus Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd 2299, 2299, para. 1 (Enf. Bur. 2009) ("Omnibus
NAL").
See Omnibus NAL, 24 FCC Rcd at 2303, para. 13.
See Response to Omnibus Notice of Apparent Liability for Forfeiture, filed
Mar. 25, 2009 ("Response to NAL").
See Forfeiture Order, 26 FCC Rcd at 2138-40, paras 8-10 (Think12 argued
that it was unable to pay the forfeiture, had a history of compliance with
the CPNI rules, and had not previously received any such complaints).
Petition for Reconsideration at 2-3.
Id. at 3-4.
Id. at 4-5.
USA Teleport, Inc., Memorandum Opinion and Order, 26 FCC Rcd 6431, 6433,
para. 8 (Enf. Bur. 2011) ("USA Teleport"); Christian Family Network, Inc.,
Memorandum Opinion and Order, 23 FCC Rcd 18369, 18371, para. 8 (Enf. Bur.
2008) ("Christian Family Network"); accord Bible Broadcasting Network,
Inc., Memorandum Opinion and Order, 26 FCC Rcd 2259, 2260, para. 5 (Audio
Div. Med. Bur. 2011) ("Bible Broadcasting").
Christian Family Network, 23 FCC Rcd at 18371, para. 8.
See Forfeiture Order, 25 FCC Rcd at 2137-38, para. 6. This is not a case
in which forfeiture is imposed pursuant to a recent regulatory amendment
that departed from prior policy or completely rewrote an existing rule.
Prior to the EPIC CPNI Order, section 64.2009(e) of the Commission's rules
already required telecommunications carriers such as Think 12 to maintain
and make publicly available annual certifications of their CPNI
compliance. See EPIC CPNI Order, 22 FCC Rcd at 6953-54, para. 52. Here,
Think 12 has failed to show that it complied with the CPNI compliance
certification requirement of the former version of section 64.2009(e). In
addition, as the record reflects, the Omnibus NAL's proposal of a $20,000
forfeiture, rather than the $100,000 forfeiture proposed in earlier CPNI
enforcement proceedings, already accounted for the fact that 2008 was the
first year in which CPNI compliance certifications were required to be
filed with the Commission. See Omnibus NAL, 24 FCC Rcd at 2302, paras.
7-8.
STI Prepaid, LLC, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd
17836, 17845, para. 20 (Enf. Bur. 2010) (citing Southern California
Broadcasting, 6 FCC Rcd at 4387).
Petition for Reconsideration at 3-5.
See id. at 3-4.
See id. at 4.
USA Teleport, 26 FCC Rcd at 6435, para. 11; Callais Cablevision, Inc.,
Forfeiture Order, 17 FCC Rcd 22626, 22629, para. 16 (2002) (quoting
Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994)); see also Global
Teldata II, LLC, 22 FCC Rcd 8710, 8719, para. 22 (2007)
("Post-investigation corrective measures are not sufficient to avoid
enforcement action.").
Forfeiture Order, 26 FCC Rcd at 2139, para. 9.
Bible Broadcasting, 26 FCC Rcd at 2262, para. 11 (quoting Family
Ministries, Inc., Memorandum Opinion and Order, 18 FCC Rcd 1418, 1419
(2003)).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 11-1794
2
Federal Communications Commission DA 11-1794