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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
) File No.: EB-08-TC-5801
In the Matter of
) NAL/Acct. No.: 201032170920
USA Teleport, Inc.
) FRN: 0003775566
)
)
MEMORANDUM OPINION & ORDER
Adopted: April 29, 2011 Released: April 29, 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 ("Act"), and section
1.106 of the Commission's rules, we deny a Petition for
Reconsideration filed on March 8, 2011, by USA Teleport, Inc.
("USAT"). The object of the Petition for Reconsideration is a
Forfeiture Order imposing a $20,000 forfeiture for USTA'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;
paragraphs 51 and 53 of 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. USAT is a telecommunications carrier, located in North Miami Beach,
Florida, that provides interexchange services. As a telecommunications
carrier, USAT 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, USAT file a CPNI compliance certification with the
Commission's Enforcement Bureau ("Bureau") in EB Docket No. 06-36.
3. On September 5, 2008, the Bureau issued a Letter of Inquiry ("LOI") to
USAT asking whether, on or before March 1, 2008, USAT had filed a
section 64.2009(e) compliance certification for the calendar year
2007, and if not, why not. USAT responded not by claiming to have
filed the certification on time, but by proposing to make a late
filing. USAT's late-filed certification, dated September 10 and
postmarked September 12, 2008, was eventually received by the
Commission on September 19, 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 USAT, 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 file a written response stating why the
proposed forfeiture should be canceled or reduced.
5. In response, USAT conceded that it had failed to file a CPNI
compliance certification on or before March 1, 2008. USAT raised three
arguments, however, for why its failure to make a timely filing should
be excused without forfeiture. First, characterizing itself as a
"small company" with "[n]either a Legal Department [n]or a regulatory
compliance attorney," USAT claimed that until receiving the Bureau's
LOI, it was unaware of the certification filing requirement. Second,
USAT claimed "a long history of compliance" with CPNI regulations and
argued its "alleged misconduct" was "uncharacteristic." Finally, USAT
contended that forfeiture was unwarranted when USAT had filed the
required certification "promptly" after receiving the LOI. USAT's
arguments were considered and rejected in the Forfeiture Order.
6. USAT's Petition for Reconsideration largely repeats the arguments of
its Response to the Omnibus NAL. Challenging the Forfeiture Order's
interpretation of "willfulness," USAT again seeks to excuse its
failure to file a timely CPNI compliance certification based on its
ignorance of the filing requirement. USAT also continues to emphasize
its supposed history of protecting CPNI and its position that
forfeiture is unwarranted because USAT did eventually file the
required certification.
7. In addition, the Petition for Reconsideration raises three further
issues: First, it contests our finding that USAT's violation of the
CPNI compliance certification filing requirement was "continuing"
until corrected (and thus "repeated" within the meaning of section
503(b)(1)(B) of the Act). Second, it seemingly argues that USAT was
entitled to personal notice of the certification filing requirement.
Finally, it asserts-without evidence-that USAT is unable to pay the
forfeiture amount because the recession has "devastat[ed]" the
company's finances.
III. DISCUSSION
8. 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, USAT has raised no new facts and
relies on arguments-largely duplicative of USAT's earlier
Response-that reveal no error or omission in the Forfeiture Order. We
therefore deny the Petition for Reconsideration, taking the
opportunity below to reaffirm the findings and analysis of the
Forfeiture Order, as well as to address USAT's newly raised claim of
financial hardship.
9. First, we reaffirm the Forfeiture Order's interpretation of the term
"willfulness"; our related holding that USAT committed a "willful"
violation of section 64.2009(e) of the Commission's rules, the
Commission's EPIC CPNI Order, and section 222 of the Act; and our
determination that, on the facts here, USAT's claimed ignorance of the
EPIC CPNI Order's amendment to section 64.2009(e) does not warrant
reduction of the forfeiture. USAT's contention that a "[w]illful
violation" necessarily entails a party's "deliberate[]" disobedience
of "know[n] . . . requirement[s]" reflects a fundamental
misunderstanding of section 503(b)(1)(B) of the Act. As the Commission
has repeatedly explained when interpreting that provision, willfulness
need not entail "`any intent to violate' the law"; a party's ignorance
of a filing requirement does not negate the willfulness of its failure
to file. Here, the fact that USAT failed to file a timely CPNI
compliance certification for 2007 is not (or at least not seriously)
disputed. Thus, USAT committed a willful violation of section
64.2009(e) of the Commission's rules, the EPIC CPNI Order, and (by
extension) section 222 of the Act. Moreover, on the facts of this
case, USAT's claimed ignorance of the certification filing requirement
does not warrant mitigation 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.
10. Second, USAT's continued assertions-unsupported by evidence-that it
has a history of protecting CPNI do not warrant reconsideration of the
Forfeiture Order. To begin with, USAT stops conspicuously short of
affirmatively representing that prior to the amendment of section
64.2009(e) of the Commission's rules in the EPIC CPNI Order, USAT met
its obligation to complete and independently maintain annual CPNI
compliance certifications. Indeed, USAT implicitly concedes that it
did not meet that obligation, arguing it never knew such
certifications were required. In any event, USAT has already received
an opportunity to present evidence of historical compliance but has
failed to do so.
11. Third, because "corrective action taken to come into compliance with
Commission rules or policy is expected," USAT's eventual filing of a
2007 CPNI compliance certification, upon receiving the LOI, "does not
nullify or mitigate" USAT's violation or the forfeiture we have
imposed.
12. Fourth, we reaffirm our determination that USAT's failure to file its
2007 CPNI compliance certification-which had a continuing harmful
impact on "the Commission's ability to effectively monitor and respond
to violations of consumer[] privacy" and ensure the necessary industry
response-was a "continuing violation until cured." That determination
is entirely consistent with Bureau precedent, and indeed with numerous
decisions of the Commission itself. By contrast, we know of no
precedent (and USAT has cited none) to support USAT's newly raised
theory that "a continuing violation means" a party's failure to
"comply with . . . requirements" after having "been advised [of them]
numerous times." Because USAT's failure to file its 2007 CPNI
compliance certification was a continuing violation until cured, it
was also a "repeated" violation within the meaning of section
503(b)(1)(B) of the Act. We affirm the Forfeiture Order on that basis
as well as on the independent basis that the violation was willful.
13. Fifth, to the extent USAT argues it was entitled to personal notice of
the EPIC CPNI Order's amendment to section 64.2009(e) of the
Commission's rules, that contention is utterly without merit. The
amendment requiring carriers to file CPNI compliance certifications
with the Commission was promulgated pursuant to the Commission's
general rulemaking authority. As such, proper and timely publication
in the Federal Register-which USAT does not dispute occurred
here-furnished sufficient notice under section 553(b) of the
Administrative Procedure Act.
14. Sixth, and finally, we decline to consider USAT's newly raised and
unsupported claim of financial hardship. As the company itself admits,
USAT elected not to argue financial hardship in its Response to the
Omnibus NAL, and we have no basis to consider such a newly raised
claim here. Moreover, although USAT now claims that it "does not have
any problem to show the Commission the devastating financial situation
the company has been through for the last years," USAT has offered no
evidence of financial hardship-let alone evidence of the kind we have
expressly explained is required.
15. "[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 USAT is well within our
discretion. There are no grounds for reconsideration of the Forfeiture
Order.
IV. ordering clauses
16. ACCORDINGLY, IT IS ORDERED that, pursuant to section 405 of the Act
and section 1.106 of the Commission's rules, USAT's Petition for
Reconsideration IS DENIED.
17. It is FURTHER ORDERED that the Forfeiture Order IS AFFIRMED and that
pursuant to section 503(b) of the Act, USAT SHALL FORFEIT to the U.S.
Government the sum of $20,000.
18. Payment of the forfeiture shall be made in the manner provided for in
section 1.80 of the Commission's rules within thirty (30) days of the
release of this Memorandum Opinion & 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. USAT 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, 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.
19. 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 USAT at 127th NE 167th Street, Unit B, North Miami
Beach, FL 33162.
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 Comm'n's Part 1 Rules of
Practice and Procedure and Part 0 Rules of Comm'n Org., GC Docket No.
10-44, Report and Order, FCC 11-16, 2011 WL 379987, at *8-10, paras. 26-32
(rel. Feb. 4, 2011). Because those amendments have yet to take effect,
however, we rely here on the existing version of section 1.106. See id. at
*13, para. 43 (adopting amendments "effective 30 days after publication in
the Federal Register").
Although USAT captioned its pleading as an "Answer to Order of Forfeiture"
and submitted it via electronic mail to Division staff (rather than to the
Secretary as prescribed by section 1.106(i) of the Commission's rules),
the pleading was filed within the time period permitted for petitions for
reconsideration and we therefore treat it as such pursuant to section 405
of the Act and section 1.106.
USA Teleport, Inc., File No. EB-08-TC-5801, Order of Forfeiture, DA
11-424, 2011 WL 742240, at *1, 4, paras. 1, 11 (Telcomm. Consumers Div.
rel. Mar. 3, 2011) ("Forfeiture Order").
47 U.S.C. S: 64.2009(e).
Implementation of the Telecomms. Act of 1996: Telecomms. 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, 6954, 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, 2011 WL
742240, at *2, para. 5.
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, FCC Enforcement Bureau, to Legal Department, USA Teleport, Inc.
(Sept. 5, 2008) at 1.
See E-Mail from Noemi Dolinsky, General Manager, USA Teleport, Inc., to
Marcy Greene, Deputy Chief, Telecommunications Consumers Division, FCC
Enforcement Bureau (Sept. 9, 2008, 19:41 EDT); E-Mail from Noemi Dolinsky,
General Manager, USA Teleport, Inc., to Marcy Greene, Deputy Chief,
Telecommunications Consumers Division, FCC Enforcement Bureau (Sept. 8,
2008, 11:54 EDT).
Annual CPNI Certification, Omnibus Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd 2299, 2299, para. 1 (Enf. Bur. 2009) ("Omnibus
NAL").
See id. at 2303, para. 13.
See Letter from Noemi Dolinsky, General Manager, USA Teleport, Inc., to
Office of the Secretary, FCC (attn: Marcy Greene, Deputy Chief,
Telecommunications Consumers Division, FCC Enforcement Bureau) (Mar. 2,
2009) at 1 ("Response") (claiming that USAT filed its CPNI compliance
certification on September 10, 2008, rather than on or before March 1,
2008, because USAT was not aware of the filing requirement prior to
receiving the Bureau's LOI).
Id. at 2.
See id. at 1-2.
Id. at 1.
Id.
See 2011 WL 742240, at *2-3, paras. 6-9.
See Petition for Reconsideration at 1-2, paras. 1, 3, 5-6.
See id. at 3, para. 7.
See id. at 1-2, paras. 1, 3.
See id. at 3, para. 8.
See id. at 1-4, paras. 2, 6, 8, Conclusion.
Id. at 3-4, para. 9.
Christian Family Network, Inc., Memorandum Opinion and Order, 23 FCC Rcd
18369, 18371, para. 8 (Enf. Bur. 2008); accord Bible Broad. Network, Inc.,
File No. BRFT-20040730ADB, Memorandum Opinion and Order, DA 11-397, 2011
WL 704382, at *2, para. 5 (Audio Div. rel. Mar. 1, 2011).
Christian Family Network, 23 FCC Rcd at 18371, para. 8.
See 2011 WL 742240, at *2, para. 4.
See id. at *1-2, paras. 1, 6.
See id. at *2, para. 6.
Petition for Reconsideration at 1, para. 1.
E.g., Media Gen. Commc'ns Holdings, LLC, Notice of Apparent Liability for
Forfeiture, 25 FCC Rcd 6136, 6137-38, para. 6 (2010) (quoting 47
U.S.C. 312(f)(1)) (explaining that the legislative history of section
312(f)(1) makes clear the same "definition of willful applies to both
Sections 312 and 503(b) of the Act"); accord So. Cal. Broad. Co. Licensee,
Radio Station KIEV (AM) Glendale, Cal., Memorandum Opinion and Order, 6
FCC Rcd 4387, 4387-88, para. 5 (1991) ("Southern California
Broadcasting").
See, e.g., Mr. Robert L. Lasso, Letter, 25 FCC Rcd 9093, 9094 (Audio Div.
2010) (deeming the defendant's failure to file a license renewal
application a "willful[] violat[ion]" of the Commission's rules, and
emphasizing that the Commission has repeatedly held "violations resulting
from inadvertent error or failure to become familiar with the FCC's
requirements" to constitute "willful violations"); see also PJB Commc'ns
of Va., Inc., Memorandum Opinion and Order, 7 FCC Rcd 2088, 2088, para. 5
(1992) ("By their own admission, the authorizations of [the defendants]
inadvertently lapsed [by their failure to timely file FCC Form 489]. The
fact that a licensee's violation occurred through inadvertence does not
prevent it from being willful. It is not necessary that the violation be
intentional. All that is necessary is that the licensee knew it was doing
the act in question.").
Although USAT now insists that it has "never admitted its failure to
timely file the compliance certification," Petition for Reconsideration
at 2, para. 6, that contention is merely a variation of USAT's argument
that it cannot have "willfully" violated the CPNI compliance certification
filing requirement if it was unaware that the requirement existed. USAT
does not and cannot claim to have filed its 2007 CPNI compliance
certification on or before March 1, 2008. USAT simply contends that,
because it ultimately filed the certification upon learning the
certification was overdue, its September 2008 filing should be treated as
timely. See id. at 2-3, paras. 3, 6.
As a threshold matter, USAT apparently does not seek reduction of the
forfeiture amount, but only cancellation of the forfeiture. See id. at 4,
para. 9 (arguing that USAT cannot pay any amount, let alone the full
forfeiture, but indicating that the "point" of USAT's Response to the
Omnibus NAL was not to seek a lower forfeiture but "to explain why the
certification was sent after the due date"-i.e., why in USAT's theory of
the case there was no violation); see also Response at 2 ("[F]orfeiture
must not be imposed against USA Teleport, Inc."). Moreover, 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
USAT 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, USAT has failed to show that it complied with the CPNI
compliance certification requirement of the former version of section
64.2009(e). Indeed, USAT claims ignorance of that requirement, and further
emphasizes that it does not have a "[l]egal [d]epartment" or employ "a
regulatory compliance attorney" to keep abreast of the Commission's rules.
Response at 2. Under the circumstances, we do not confront a party that
has historically monitored and complied with the rules but has been caught
unaware by a recent and major departure from prior policy. 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 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).
See Petition for Reconsideration at 3, para. 7 ("The fact that the
Commission never [before issuing the LOI] asked USA Teleport, Inc[.] for
anything related to CPNI compliance does not mean that USA Teleport,
Inc[.] did not comply with [the CPNI regulations]. USA Teleport, Inc[.]
has always protected customer information . . . ." (emphasis added)).
USAT's failure here, or at any earlier stage of this proceeding, either to
make an affirmative representation that it historically maintained CPNI
compliance certifications or to produce evidence of such certifications is
particularly notable in light of the Omnibus NAL's express invitation for
carriers to "present evidence . . . that [they have] maintained a history
of overall compliance." 24 FCC Rcd at 2303, para. 10. Indeed, USAT appears
to concede that it did not maintain such certifications, arguing that USAT
never knew it was required to do so. See Petition for Reconsideration at
3, para. 7 ("If there was a requirement prior to the adoption of the
annual CPNI certification filing requirement that required an officer of
the company to certify annually that the company was in compliance with
the Commission['s] rules, USA Teleport, Inc[.] was never notified about
it, but this fact does not mean that USA Teleport, Inc[.] was not doing
anything to protect CPNI.").
See id.
See Omnibus NAL, 24 FCC Rcd at 2303, para. 10.
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, 2011 WL 742240, at *3, para. 8.
See e.g., Champaign Tel. Co. D/B/A CT Commc'ns, Inc., Order and Notice of
Apparent Liability for Forfeiture, 25 FCC Rcd 17814, 17818-19, para. 9
(Spec. Enf. Div. 2010) (construing a failure to file the hearing aid
compatibility status report required under section 20.19(i)(1) of the
Commission's rules as "a continuing violation that continues
until . . . cured"); STI Prepaid, 25 FCC Rcd at 17845, para. 20 (same);
Lightyear Network Solutions, LLC, Order and Notice of Apparent Liability
for Forfeiture, 25 FCC Rcd 16212, 16217, para. 12 (Spec. Enf. Div. 2010)
(same); Alpheus Commc'ns, LP, Notice of Apparent Liability for Forfeiture,
25 FCC Rcd 8993, 8998, para. 12 & n.40 (Enf. Bur. 2010) (construing the
failure to file timely network-outage reports as a continuing violation);
Am. Samoa Telecomms. Auth., Notice of Apparent Liability for Forfeiture,
23 FCC Rcd 16432, 16437, para. 11 (Spec. Enf. Div. 2008) (construing the
failure to file a hearing aid compatibility status report as a continuing
violation), response pending.
See ADMA Telecom, Inc., File No. EB-06-IH-2110, Forfeiture Order, FCC
11-42, at 4, para. 8 (rel. Mar. 10, 2010) ("ADMA's failure to register was
a continuing violation that began on the day ADMA started providing
interstate telecommunications service without having registered in
accordance with section 64.1195(a) and continued until it filed its first
Form 499 on August 1, 2006."); Telrite Corp., Notice of Apparent Liability
for Forfeiture and Order, 23 FCC Rcd 7231, 7244, para. 30 (2008)
(construing the carrier's failures to file Telecommunications Reporting
Worksheets as "continuing violations for which the statute of limitations
for forfeiture does not begin to run until the violation is cured");
Compass Global, Inc., Notice of Apparent Liability for Forfeiture, 23 FCC
Rcd 6125, 6138, para. 29 (2008) (same); VCI Co., Notice of Apparent
Liability for Forfeiture and Order, 22 FCC Rcd 15933, 15940, para. 20
(2007) (same); Global Teldata II, 22 FCC Rcd at 8717, para. 17 (construing
a telecommunications reseller's failure to register with the Commission as
a "continuing" violation that "ended only when the company finally
registered"); see also SBC Commc'ns, Inc., Forfeiture Order, 17 FCC Rcd
7589, 7600, para. 28 n.72 (2002) (holding that, but for the Bureau's
decision to act pursuant its delegated authority rather than refer the
matter to the Commission, the defendant carrier's failure to file an
affidavit verifying the accuracy of its response to the Bureau's LOI would
have been subject to "a forfeiture . . . of up to $120,000 per day, up to
a maximum of $1.2 million for the more than 10 days for which [the
carrier's] violation continued" (emphasis added)).
Petition for Reconsideration at 3, para. 8.
See Global Teldata II, 22 FCC Rcd at 8717, paras. 16-17 (explaining that
"Congress clearly intended" for the term "repeated" in sections 312 and
503 of the Act to "include a continuous violation lasting for more than
one day," and holding the defendant's "failure to register was continuing
and, therefore, `repeated'").
See 47 U.S.C. S: 503(b)(1)(B) (authorizing forfeiture penalties for
parties who "willfully or repeatedly" violate the Act or the Commission's
rules (emphasis added)).
See Petition for Reconsideration at 1-4, paras. 2, 6, 8, Conclusion.
See EPIC CPNI Order, 22 FCC Rcd at 6933, para. 11 (summarizing the history
of the rulemaking).
5 U.S.C. S: 553(b); see United States v. Daniels, 418 F. Supp. 1074, 1077
(D.S.D. 1976).
See Petition for Reconsideration at 3-4, para. 9; see also generally
Response (attempting to justify USAT's failure to file a timely CPNI
compliance certification but nowhere asserting inability to pay).
This is not an instance, for example, in which the petitioner's financial
hardship occurred after or was otherwise unknown at the petitioner's last
opportunity to present such matters, or in which consideration of the
petitioner's financial hardship is necessary to serve the public interest.
See 47 C.F.R. S: 1.106(b), (c).
Petition for Reconsideration at 4, para. 9.
See Omnibus NAL, 24 FCC Rcd at 2304, para. 16 ("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."). Without such evidence, even if
we were otherwise inclined to consider USAT's claim of financial hardship,
we would have no basis for determining the proper extent of any
cancellation or reduction.
Bible Broadcasting, 2011 WL 704382, at *3, para. 11 (quoting Family
Ministries, Inc., Memorandum Opinion and Order, 18 FCC Rcd 1418, 1419
(2003)).
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(continued....)
Federal Communications Commission DA 11-802
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Federal Communications Commission DA 11-802