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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No. See Appendix I
)
Annual CPNI Certification NAL/Acct. No. See
) Appendix I
Omnibus Notice of Apparent Liability for
Forfeiture and Order ) FRN: See Appendix I
)
)
OMNIBUS NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: February 25, 2011 Released: February 25, 2011
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Omnibus Notice of Apparent Liability for Forfeiture and Order
("NAL"), we find that the companies listed in Appendix I ("the
Companies"), have apparently willfully and repeatedly violated (1)
section 64.2009(e) of the Federal Communications Commission's ("FCC"
or "Commission") rules by failing to submit an annual customer
proprietary network information ("CPNI") compliance certificate, and
(2) an Enforcement Bureau ("Bureau") order by failing to provide
certain information regarding their CPNI filings. Based upon our
review of the facts and circumstances surrounding both apparent
violations, we find that the Companies are each apparently liable for
a monetary forfeiture in the amount of $29,000. Furthermore, we direct
the Companies to file the reports required under section 64.2009(e) of
the Commission's rules that were due March 1, 2009, and March 1, 2010.
II. BACKGROUND
2. Section 222 of the Act imposes the general duty on all
telecommunications carriers to protect the confidentiality of their
subscribers' proprietary information. The Commission has issued rules
implementing section 222. The rules require, among other things, that
carriers and entities providing interconnected
Voice-over-Internet-Protocol service establish and maintain systems
designed to ensure that they adequately protect their subscribers'
CPNI and file with the Commission annually, on or before March 1, a
certification of their compliance with the CPNI rules.
3. According to publicly available information, each of the Companies is
a telecommunications carrier. However, based on the record before us,
none of the Companies has filed the certification required by the
Commission's rules.
4. In late February 2010, as a result of the Companies' apparent
noncompliance with the certification filing requirement for calendar
year 2008 (due March 1, 2009), the Bureau sent each company a letter
advising it of its noncompliance, and directing each "either to
provide evidence of its timely filing of the 2008 report, or to file
its CPNI compliance certification for calendar year 2008 within 30
days of the date of this letter." The letter warned that "[f]ailure to
comply with this directive may result in monetary penalties." Based on
the record before us, none of the Companies complied with this
directive.
5. The letter also reminded each of the Companies about the then-upcoming
certification filing requirement for calendar year 2009 (due March 1,
2010), and also warned that "violations of this upcoming filing
requirement may result in sanctions including monetary penalties."
Once again, however, based on the record before us, none of the
Companies filed a certification for calendar year 2009.
III. DISCUSSION
6. The Companies have apparently violated section 64.2009(e) of the
Commission's rules by failing to file the required compliance
certifications for both 2008 and 2009 calendar years, and have
apparently violated a Bureau order by failing to provide certain
information. The Act provides the Commission with broad power to
compel carriers to provide "full and complete information necessary to
enable the Commission to perform the duties and carry out the objects
for which it was created," and to "issue such orders, not inconsistent
with this [Act], as may be necessary in the execution of its
functions." Given the purpose of section 222 of the Act in protecting
CPNI, and the Commission's implementing rules, the Bureau's order to
the Companies to produce information about their 2008 certifications
is an order the Commission or its delegate is empowered to issue.
7. Section 503(b) of the Communications Act authorizes the Commission to
assess a forfeiture against a common carrier of up to $150,000 for
each violation of the Act or of any rule, regulation, or order issued
by the Commission under the Act. The Commission may assess this
penalty if it determines that the carrier's noncompliance is "willful
or repeated." For a violation to be willful, it need not be
intentional. In exercising our forfeiture authority, we are required
to take into account "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." The Commission has established
base forfeitures for certain violations in its guidelines, but retains
discretion to set the actual amount to impose on a case-by-case basis.
8. With respect to determining the forfeiture for the Companies'
violation of the Commission's CPNI rules, we note that the Bureau has
proposed a penalty of $20,000 for failure to file a CPNI certification
in a given calendar year, and has proposed a fine of $25,000 for a
repeat violation, e.g., when the Commission has previously taken some
form of enforcement action, such as issuing an admonishment or a
citation, against the violator. Against this backdrop, we propose a
forfeiture of $25,000 against each of the Companies at issue in this
NAL. While we have not previously issued a citation, admonishment, or
NAL against any of them for a violation of the Commission's CPNI
rules, we have advised each of the Companies, through the letters we
sent in early 2010, that they appeared to be in noncompliance with our
rules for calendar year 2008, and we reminded them of the
then-upcoming filing requirement for calendar year 2009. Further,
notwithstanding the section 503(b)(6) one-year statute of limitations
for assessing forfeitures, we are permitted in this NAL to consider
the Companies' failure to file the certification required for calendar
year 2008 (due March 1, 2009) for two different reasons. First,
section 503(b)(2)(E) not only permits, but indeed requires, us to
consider an entity's past violations in determining a forfeiture
penalty: "the Commission or its designee shall take into account ...
with respect to the violator, any history of prior offenses...."
Second, in a number of recent actions, the Commission has held that
the failure to file forms is a continuing violation until cured, i.e.,
the Companies at issue in this NAL continue to violate the
certification filing requirement for 2008 until they file the
certification. Accordingly, we find that an adjustment upward from the
$20,000 forfeiture we have proposed for failure to file a CPNI
certification is therefore warranted.
9. With respect to determining the forfeiture for the Companies'
violation of a Commission order to provide information, we note that
the Commission's base forfeitures for failing to respond to Commission
communications is $4,000. Based on each of the Companies' failure to
respond to the Bureau's letter containing the order to provide
information, we believe that an additional $4,000 forfeiture on top of
the $25,000 for failure to file a certification is appropriate.
10. Accordingly, we propose a forfeiture of $29,000 against each of the
Companies. We further order each of the Companies to file the
certifications required by section 64.2009(e) of the Commission's
rules within 30 days of the date of this NAL. Failure to file such
certifications may result in further enforcement actions by the
Bureau.
IV. CONCLUSION
11. We have determined that the Companies set forth in Appendix I of this
NAL and Order have apparently willfully or repeatedly violated section
64.2009(e) of the Commission's rules and have apparently willfully or
repeatedly violated a Bureau order by failing to provide certain
information. We find each of the Companies apparently liable for a
forfeiture of $29,000.
V. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED THAT, pursuant to section 503(b) of the
Act, section 1.80 of the Commission's rules, and authority delegated
by sections 0.111 and 0.311 of the Commission's rules, each Company
listed in Appendix I of this Order is hereby NOTIFIED of their
APPARANT LIABLILITY FOR A MONETARY FORFEITURE in the amount of twenty
nine thousand dollars ($29,000) each for willfully and repeatedly
violating section 64.2009(e) of the Commission's rules by failing to
submit annual compliance certificates, and willfully and repeatedly
violating a Bureau order by failing to provide certain information.
13. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the
Commission's rules, within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture and Order, each of
the Companies listed in Appendix I of this Order SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
14. IT IS FURTHER ORDERED THAT, pursuant to sections 4(i) and 4(j) of the
Act and section 64.2009(e) of the Commission's rules, the companies in
Appendix I SHALL SUBMIT the reports required under section 64.2009(e)
of the Commission's rules that were due March 1, 2009, and March 1,
2010 within thirty (30) days of the release date of this Notice of
Apparent Liability for Forfeiture and Order. The report must be mailed
to the Office of the Secretary, Federal Communications Commission, 445
12th Street, S.W., Washington, D.C. 20554, ATTN: Enforcement Bureau -
Telecommunications Consumers Division, and must include the NAL/Acct.
No. referenced in the caption. A copy of the report must also be
emailed to Richard A. Hindman at Richard.Hindman@fcc.gov and Kimberly
Wild at Kimberly.Wild@fcc.gov.
15. 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 Number and FRN Number referenced
in Attachment I. 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). The Companies will
also send electronic notification on the date said payment is made to
johnny.drake@fcc.gov. Requests for full payment under an installment
plan should be sent to: Chief Financial Officer -- Financial
Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C.
20554. Please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures.
16. The response, if any, must be mailed both to: Marlene H. Dortch,
Secretary, Federal Communications Commission, 445 12th Street, SW,
Washington, DC 20554, ATTN: Enforcement Bureau - Telecommunications
Consumers Division; and to Richard A. Hindman, Division Chief,
Telecommunications Consumers Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, SW, Washington, DC 20554,
and must include the NAL/Acct. No. referenced in the caption.
Documents sent by overnight mail (other than United States Postal
Service Express Mail) must be addressed to: Marlene H. Dortch,
Secretary, Federal Communications Commission, Office of the Secretary,
9300 East Hampton Drive, Capitol Heights, MD 20743. Hand or
messenger-delivered mail should be directed, without envelopes, to:
Marlene H. Dortch, Secretary, Federal Communications Commission,
Office of the Secretary, 445 12th Street, SW, Washington, DC 20554
(deliveries accepted Monday through Friday 8:00 a.m. to 7:00 p.m.
only). See www.fcc.gov/osec/guidelines.html for further instructions
on FCC filing addresses.
17. 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; 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.
18. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by Certified Mail Return
Receipt Requested and First Class Mail to the Companies' addresses of
record.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau APPENDIX I
Case Name EB File Number FRN Date Sent NAL Acct
Number
A2Z Telecom, Inc. EB-10-TC-022 0017898669 2/26/2010 201132170014
Civicom, Inc. EB-10-TC-086 0018221515 2/25/2010 201132170013
Communications Masters, EB-10-TC-096 0016305435 2/26/2010 201132170012
Inc
Conversenetworks, LLC EB-10-TC-105 0018114249 2/26/2010 201132170011
Canopco, Inc. EB-10-TC-073 0017960725 2/25/2010 201132170010
EnterConference EB-10-TC-138 0018083949 2/25/2010 201132170009
ESLITE Networks, LLC EB-10-TC-144 0017665217 2/25/2010 201132170008
Jahan Telecommunication EB-10-TC-194 0020537387 2/26/2010 201132170007
Owtel, Inc. EB-10-TC-248 0016273583 2/26/2010 201132170006
ReadyTalk EB-10-TC-278 0020537395 2/26/2010 201132170005
See 47 C.F.R. S: 64.2009(e); 47 U.S.C. S: 403.
See Appendix I listing the dates that the inquiries were sent to the
Companies.
See 47 U.S.C S: 222.
47 C.F.R. S:S: 64.2001-2011. Section 64.2003(o) of the rules defines
"telecommunications carrier" to include a provider of
Voice-over-Internet-Protocol service.
See 47 C.F.R. S: 64.2009(e). See also Enforcement Advisory No. 2011-02,
DA 11-159 (rel. January 28, 2011); Enforcement Advisory No. 2010-01, DA
10-91 (rel. January 15, 2010).
See, e.g., Letter to A2Z Telecom, Inc. from Colleen Heitkamp, Chief,
Telecommunications Consumers Division, Enforcement Bureau, Federal
Communications Commission mailed February 26, 2010.
Id.
Id.
47 U.S.C. S:S: 154(i), 218.
47 U.S.C. S:503(b)(2)(B); see also 47 C.F.R. S: 1.80(b)(2) (Amendment of
Section 1.80 of the Commission's Rules, Order, 12 FCC Rcd 1038
(1997)(inflation adjustment to $100,000/$1,100,000); Amendment of Section
1.80(b) of the Commission's Rules and Adjustment of Forfeiture Maxima to
Reflect Inflation, Order, 15 FCC Rcd 18,221 (2000)(inflation adjustment to
$120,000/$1,200,000); ); Amendment of Section 1.80 of the Commission's
Rules and Adjustment of Forfeiture Maxima to Reflect Inflation, Order, 23
FCC Rcd 9845 (2008) (inflation adjustment to $150,000/$1,500,000)). See
also FCC Enforcement Advisory, DA 11-159 (rel. January 28, 2011).
See 47 U.S.C. S: 503(b)(1)(B).
Southern California Broadcasting Co., 6 FCC Rcd 4387, 4388 (1991).
See 47 U.S.C. S: 503(b)(2)(E); see also The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Commission's Rules, 12 FCC
Rcd 17087, 17100-17101 (1997) ("Forfeiture Policy Statement"); recon.
denied, 15 FCC Rcd 303 (1999).
Forfeiture Policy Statement, 12 FCC Rcd 17098-99, P: 22.
Annual CPNI Certification, Omnibus Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd 2299 (Enf. Bur. 2009).
For the annual CPNI certifications for calendar year 2008, the Bureau
issued NALs in the amount of $25,000 against the carriers that failed to
file for both calendar year 2007 and 2008. See Omnibus Notice of Apparent
Liability for Forfeiture, 25 FCC Rcd 1790 (Enf. Bur. 2010).
47 U.S.C. S: 503(b)(6).
47 U.S.C. S: 503(b)(2)(E)(emphasis added).
Compass Global, Inc., 23 FCC Rcd 6125, 6139 (2008); Telrite Corp., 23 FCC
Rcd 7231, 7244 (2008); VCI Co., 22 FCC Rcd 15933, 15940 (2007).
See 47 C.F.R. S: 1.80(b)(4).
47 U.S.C. S: 503(b).
47 U.S.C. S: 1.80.
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S: 1.80.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 11-371
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Federal Communications Commission DA 11-371