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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of
)
AST TELECOM, LLC d/b/a
) File No. EB-10-IH-2090
Blue Sky Communications
) Account No.:
Wholly-Owned Subsidiary of eLandia 201132080020
International, Holder of Various )
International Section 214, Cable FRN: 0011021458
Landing, Wireless, and Satellite Earth )
Station Authorizations, and Winning
Bidder for Advanced Wireless Services )
Licenses in Auction No. 78
)
)
)
ORDER
Adopted: April 14, 2011 Released: April 18, 2011
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau (the "Bureau") and AST Telecom, LLC
d/b/a Blue Sky Communications ("AST"). The Consent Decree terminates
an investigation by the Bureau of AST's compliance with Sections 214
and 310(d) of the Communications Act of 1934, as amended, and the
Cable Landing Licensing Act of 1921, and Sections 1.767, 1.948, 25.119
and 63.24 of the Commission's Rules relating to AST's transfer of
control and assignment of Commission authorizations. The Consent
Decree also terminates the investigation by the Bureau of AST's
compliance with section 1.65 of the Commission's rules relating to the
continuing accuracy and completeness of information furnished to the
Commission.
2. The Bureau and AST have negotiated the terms of a 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 and terminating the investigation.
4. In the absence of material new evidence relating to this matter, we
conclude that the Bureau's investigation raises no substantial or
material questions of fact as to whether AST possesses the basic
qualifications, including those related to character, to hold or
obtain a Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to section 4(i) 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-captioned investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by Certified Mail - Return Receipt Requested to counsel
for AST Telecom, LLC d/b/a/ Blue Sky Communications, LLC, Kent D.
Bressie, Esq., Wiltshire & Grannis, LLP, 1200 18th Street, NW,
Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
AST TELECOM, LLC d/b/a
) File No.: EB-10-IH-2090
Blue Sky Communications
) Account No.:
Wholly-Owned Subsidiary of eLandia 201132080020
International, Holder of Various )
International Section 214, Cable FRN: 0011021458
Landing, Wireless, and Satellite Earth )
Station Authorizations, and Winning
Bidder for Advanced Wireless Services )
Licenses in Auction No. 78
)
)
CONSENT DECREE
I. INTRODUCTION
1. The Enforcement Bureau of the Federal Communications Commission and
AST Telecom, LLC, d/b/a Blue Sky Communications, hereby enter into
this Consent Decree for the purpose of terminating the Enforcement
Bureau's investigation into AST's compliance with sections 214 and
310(d) of the Communications Act of 1934, as amended (the Act), 47
U.S.C. S:S: 214, 310(d), the Cable Landing License Act of 1921, 47
U.S.C. S:S: 34-39, and sections 1.767, 1.948, 25.119 and 63.24 of the
Commission's rules, 47 C.F.R. S:S: 1.767, 1.948, 25.119, 63.24,
relating to AST's transfer of control and assignment of various
Commission authorizations and section 1.65 of the Act, 47 C.F.R. S:
1.65, relating to the continuing accuracy and completeness of
information furnished to the Commission.
II. 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 Commission adopting the terms
of this Consent Decree without change, addition, deletion, or
modification.
c. "AST" means AST Telecom, LLC d/b/a Blue Sky Communications, and its
predecessors-in-interest and successors-in-interest.
d. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
e. "Cable Landing License Act" means the Cable Landing License Act of
1921, 47 U.S.C. S:S: 34-39.
f. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
g. "Compliance Plan" means the plan described in this Consent Decree at
paragraph 16.
h. "Effective Date" means the date on which the Commission or the Bureau,
by delegated authority, releases the Adopting Order.
i. "eLandia" means eLandia International, Inc. and its
predecessors-in-interest and successors-in-interest.
j. "Investigation" means the investigation commenced by the Bureau on
June 25, 2010, into AST's compliance with sections 214 and 310(d) of
the Act, and sections 34-39 of the Cable Landing License Act, and
sections 1.65, 1.767, 1.948, 25.119 and 63.24 of the Rules, 47 C.F.R.
S:S: 1.65, 1.767, 1.948, 25.119, 63.24, relating to AST's transfer of
control and assignment of various Commission authorizations and the
accuracy and completeness of information furnished to the Commission.
k. "Parties" means AST and the Bureau, each of which is a "Party".
l. "Pizarro" means Pete R. Pizarro, Chairman and Chief Executive Officer
of eLandia and trustee for the voting trust into which all shares of
eLandia capital stock owned by Stanford International Bank Limited
were deposited as a result of a February 6, 2009, capital structure
reorganization.
m. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
n. "SIBL" means Stanford International Bank Limited and its
predecessors-in-interest and successors-in-interest.
III. BACKGROUND
3. Pursuant to section 310(d) of the Act, "[n]o construction permit or
station license, or any rights thereunder, shall be transferred,
assigned, or disposed of in any manner, voluntarily or involuntarily,
directly or indirectly, or by transfer of control of any corporation
holding such permit or license, to any person except upon application
to the Commission and upon finding by the Commission that the public
interest, convenience, and necessity will be served thereby." Sections
1.767, 1.948, 25.119 and 63.24 of the Rules similarly require prior
Commission consent to a transfer of control or assignment of license.
4. 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 communication, or before discontinuing, reducing, or
impairing service to a community. In accordance with sections 63.12
and 63.18 of the Rules, any international carrier seeking
authorization for such activities pursuant to section 214 of the Act,
including any transfer of control of facilities, must obtain approval
from the Commission. In particular, pursuant to section 63.24 of the
Commission's rules, a transfer of control of an International Section
214 authorization requires application to, and approval from, the
Commission.
5. Section 34 of the Cable Landing License Act states that "[n]o person
shall land or operate in the United States any submarine cable
directly or indirectly connecting the United States with any foreign
country, or connecting one portion of the United States with any other
portion thereof, unless a written license to land or operate such
cable has been issued by the President of the United States[]." The
functions vested in the President by the Cable Landing License Act
have been delegated to the Commission by Executive Order. Thus, in
accordance with section 1.767 of the Rules, a transfer of control of a
cable landing license requires application to, and approval from, the
Commission.
6. In addition, section 1.65 of the Rules states that "[e]ach applicant
is responsible for the continuing accuracy and completeness of
information furnished in a pending application or in Commission
proceeding[]." Under section 1.65, applicants must amend their
applications within 30 days of any substantial change in information
provided to the Commission.
7. AST is a Delaware limited liability company with its principal place
of business in American Samoa. AST is a wholly-owned subsidiary of
eLandia, a Delaware corporation with its principal place of business
in Miami, Florida. Prior to eLandia's February 6, 2009 capital
structure reorganization, SIBL held a 68.1 percent controlling
interest in eLandia.
8. AST was the winning bidder for two Advanced Wireless Services licenses
in Auction No. 78. As a requirement for participating in Auction 78,
AST filed FCC Form 601 and the required associated ownership
disclosure report on FCC Form 602 providing information to the
Commission about its ownership structure as it then existed. The
long-form application, as amended, remains pending.
9. eLandia states that on February 6, 2009, it completed a reorganization
of its capital structure. As a result of that reorganization, control
of eLandia was transferred from SIBL to Pizarro, who became vested
with control of eLandia as an individual shareholder of eLandia and
the trustee of a newly-created voting trust. As explained in AST's
response to the Bureau's letter of inquiry (LOI), SIBL was placed in
receivership on February 16, 2009, by order of the U.S. District Court
for the Northern District of Texas.
10. eLandia and its affiliated companies collectively hold several
International Section 214, cable landing, wireless, and satellite
earth station licenses. eLandia's February 6, 2009, capital structure
reorganization effectuated a substantial transfer of control requiring
prior Commission consent. However, AST did not file applications
seeking Commission consent to the transfer of control of eLandia's
licenses from SIBL to Pizarro until approximately one year after the
transaction. AST also did not amend its Auction 78 long-form
application and associated ownership disclosure report to reflect the
changes in ownership and control until January 29, 2010, approximately
one year after the transaction. AST ultimately filed appropriate
amendments after the Commission staff officially notified AST that its
continued failure to do so could result in dismissal of its
application.
11. Thereafter, the matter was referred to the Bureau which promptly
commenced its Investigation. On June 25, 2010, the Bureau issued a LOI
to AST about the matters discussed above. In its July 26, 2010 LOI
response, AST stated that eLandia was not initially aware that
Commission consent was required for the capital structure
reorganization. All remedial applications that were not previously
withdrawn have been addressed by the appropriate operating bureaus.
IV. TERMS OF AGREEMENT
12. 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.
13. Jurisdiction. AST 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.
14. 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 Bureau order, entitling the Bureau to
exercise any rights and remedies attendant to the enforcement of a
Commission order.
15. 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, AST 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
the 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 AST
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 AST with respect to AST's basic
qualifications, including its character qualifications, to be a
Commission licensee or hold Commission authorizations.
16. Compliance Plan. AST agrees that it will implement a comprehensive
Compliance Plan for purposes of ensuring its compliance with sections
214 and 310(d) of the Act, and sections 34-39 of the Cable Landing
License Act of 1921, and sections 1.65, 1.767, 1.948, and 63.24 of the
Rules. The Compliance Plan shall include, at a minimum, the following
components:
a. Compliance Officer. Within 60 calendar days of the Effective Date, AST
will designate a Compliance Officer who will administer the Compliance
Plan, supervise AST's compliance with the Act and the Rules and the
Commission's orders, and serve as the point of contact on behalf of
AST for all FCC-related compliance matters.
b. Compliance Manual. Within 60 calendar days of the Effective Date, the
Compliance Officer will develop and distribute a Compliance Manual to
employees and others who perform duties at AST that trigger or may
trigger compliance-related responsibilities. The Compliance Manual
will include (i) an overview of the Commission's requirements,
including the need for prior approval for license assignments and
transfers of control; (ii) a description of the regulatory
requirements applicable to the accurate and timely reporting of
information in FCC applications and in response to inquiries by FCC
staff; and (iii) instructions regarding due diligence for FCC
applications and information presented to the FCC, including in
response to FCC staff inquiries.
c. Compliance Training Program. Within 90 calendar days of the Effective
Date, all AST employees and others who perform duties at AST that
trigger or may trigger compliance-related responsibilities must
complete the Compliance Training Program. 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. This
Compliance Training Program will track the Compliance Manual, focusing
on proper implementation of the Compliance Manual and tailored to
specific user groups.
d. Review and Monitoring. AST will review the Compliance Manual and
Compliance Training Program at least annually to ensure that they are
maintained in a proper manner and continue to address the objectives
set forth therein, and shall update the Compliance Manual and
Compliance Training Program in accordance with any changes to the
relevant sections of the Act, Rules, and related Commission orders.
e. Reporting Non-Compliance. AST shall report any non-compliance with
this Consent Decree or any relevant sections of the Act, Rules, or
related Commission orders to the Bureau within 15 days after the
discovery of non-compliance.
f. Compliance Reports. AST will file Compliance Reports with the
Commission 90 days after the Effective Date, 12 months after the
Effective Date, and 24 months after the Effective Date. Each
Compliance Report shall include a compliance certificate from an
officer, as an agent of AST, stating that he/she has personal
knowledge that (i) AST has established operating procedures intended
to ensure compliance with the terms and conditions of this Consent
Decree and with sections 214 and 310(d) of the Act, sections 34-39 of
the Cable Landing License Act of 1921, and sections 1.65, 1.767,
1.948, 25.119 and 63.24 of the Rules, together with an accompanying
statement explaining the basis for the certification; (ii) AST has
been utilizing those procedures since the previous Compliance Report
was submitted; and (iii) AST is not aware of any instances of
non-compliance. The certification 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, he/she shall provide the
Commission with a detailed explanation of: (i) any instances of
non-compliance with this Consent Decree and the Rules, and (ii) the
steps that AST has taken or will take to remedy each instance of
non-compliance and ensure future compliance, and the schedule on which
proposed remedial actions will be taken. All Compliance Reports shall
be submitted to the Chief, Investigations & Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445 12th
Street, S.W., Room 4-C320, Washington, D.C. 20554.
g. Termination. The requirements relating to the Compliance Plan shall
expire 36 months after the Effective Date.
17. Voluntary Contribution. AST agrees that it will make a voluntary
contribution to the United States Treasury in the total amount of
$35,000.00 within 10 business days of the Effective Date. The payment
shall be made by check or similar instrument, payable to the Order of
the Federal Communications Commission. The payment shall 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. 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). AST
will also send electronic notification to Gary Schonman at
Gary.Schonman@fcc.gov and to Pam Slipakoff at Pam.Slipakoff@fcc.gov on
the date said payment is made.
18. Waivers. AST 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 Order adopting
the Consent Decree without change, addition, modification, or
deletion. AST 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
AST nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and AST shall waive any statutory right
to a trial de novo. AST 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.
19. 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.
20. 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 AST does not expressly consent)
that provision will be superseded by such Commission rule or order.
21. Successors and Assigns. AST agrees that the provisions of this Consent
Decree shall be binding on its successors, assigns, and transferees.
22. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute full and final settlement between the Parties.
The Parties further agree that this Consent Decree does not constitute
and shall not be construed as (1) an adjudication on the merits; (2)
a factual or legal finding or determination; or (3) an admission by
AST regarding any compliance or noncompliance with the requirements of
the Act or the Rules and/or the Commission's orders. The Parties
further agree that this Consent Decree does not constitute and shall
not be construed as a finding that it would be in the public interest,
or contrary to the public interest, to grant, deny, dismiss, or
otherwise take final action on any pending auction application filed
by AST.
23. Modifications. This Consent Decree cannot be modified without the
written consent of both Parties.
24. 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.
25. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
26. Counterparts. This Consent Decree may be signed in 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.
By: __________________________________ By: ____________________________
P. Michele Ellison Adolfo Montenegro
Chief, Enforcement Bureau President
Federal Communications Commission AST Telecom, LLC
d/b/a Blue Sky Communications
Date: _________________________________ Date: ___________________________
47 U.S.C. S:S: 214, 310(d).
47 U.S.C. S:S: 34-39.
47 C.F.R. S:S: 1.767, 1.948, 25.119, 63.24.
47 C.F.R. S:S: 1.65.
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
Federal Communications Commission DA 11-60
7
Federal Communications Commission DA 11-60