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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No. EB-08-TC-2780
In the Matter of )
NAL/Acct No. 200932170167
88 Telecom Corporation )
FRN: 0013372263
)
)
ORDER OF FORFEITURE
Adopted: June 3, 2011 Released: June 6, 2011
By the Chief, Telecommunications Consumers Division, Enforcement Bureau:
I. INTRODUCTION and background
1. In this Order of Forfeiture, we assess a monetary forfeiture of twenty
thousand dollars ($20,000) against 88 Telecom Corporation ("88
Telecom"). 88 Telecom has willfully or repeatedly violated section 222
of the Communications Act of 1934, as amended (the "Communications
Act" or "Act"), section 64.2009(e) of the Commission's rules, and the
Commission's EPIC CPNI Order by failing to timely file an annual
compliance certification with the Enforcement Bureau ("Bureau") for
calendar year 2007 on or before March 1, 2008.
2. 88 Telecom is a prepaid calling card telecommunications carrier
located in San Francisco, California. As a telecommunications carrier,
88 Telecom is subject to the requirements of section 222 of the Act
and section 64.2009 of the Commission's rules. Section 222 imposes the
general duty on all telecommunications carriers to protect the
confidentiality of their subscribers' proprietary information. As part
of that obligation, carriers that receive or obtain customer
proprietary network information ("CPNI") through the provision of
telecommunications services can only use, disclose, or allow access to
that information in connection with or to provide such
telecommunications services.
3. The Commission adopted rules implementing section 222 of the Act.
Section 64.2009 of these rules requires carriers to establish and
maintain a system designed to ensure that carriers adequately protect
their subscribers' CPNI. Prior to the EPIC CPNI Order, section
64.2009(e) of the Commission's rules required telecommunications
carriers such as 88 Telecom to maintain and make publicly available
annual certifications of their CPNI compliance. The EPIC CPNI Order
strengthened the CPNI rules by adding additional safeguards to protect
CPNI against unauthorized access and disclosure, including an
obligation that carriers subject to the CPNI rules file their annual
certification with the Commission on or before March 1 of each year.
Additionally, as part of their annual certification filing, carriers
were required to provide "an explanation of any actions taken against
data brokers and a summary of all customer complaints received in the
past year concerning the unauthorized release of CPNI."
4. On September 2, 2008, the Bureau sent a Letter of Inquiry ("LOI") to
88 Telecom requesting copies of its timely filed CPNI compliance
certificate for 2007, which was due by March 1, 2008, or an
explanation as to why no certification was filed. 88 Telecom responded
to the LOI and filed a CPNI certification for calendar year 2007. The
Bureau concluded that 88 Telecom failed to submit satisfactory
evidence of its timely filing of the annual CPNI compliance
certification. On February 24, 2009, the Bureau released the Omnibus
NAL against numerous companies, including 88 Telecom, proposing a
monetary forfeiture of $20,000 for the apparent failure to comply with
section 64.2009(e) of the Commission's rules, and the Commission's
EPIC CPNI Order, and ordered 88 Telecom to either pay the proposed
forfeiture or file a written response within 30 days of the release
date stating why the proposed forfeiture should be reduced or
canceled. 88 Telecom submitted a response to the Omnibus NAL on March
19, 2009, essentially arguing that it was unaware of the filing
requirement and thus, the violation was not willful.
II. discussion
5. Section 64.2009(e) of the Commission's rules requires
telecommunications carriers such as 88 Telecom to file annually before
March 1st a CPNI compliance certification signed by an officer of the
carrier. By its own admission, 88 Telecom failed to comply with this
Commission rule and is subject to forfeiture. 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." In addition, the Commission has established guidelines for
forfeiture amounts and, where there is no specific base amount for a
violation, retained discretion to set an amount on a case-by-case
basis.
6. The Commission's Forfeiture Policy Statement does not establish a base
forfeiture amount for the failure to timely file an annual CPNI
certification. The $3,000 base forfeiture amount suggested in the
Commission's Forfeiture Policy Statement for failure to file documents
generally is inadequate when applied to failure to file CPNI
certifications. The Commission adopted the annual CPNI certification
filing requirement to "ensure that carriers regularly focus their
attention on their duty to safeguard CPNI . . . [and] remind carriers
of the Commission's oversight and high priority regarding carrier
performance in this area." In the Omnibus NAL, the Commission took
into account the statutory factors for determining a forfeiture
amount, the gravity of the offense, Commission precedent involving
violations of our CPNI rules, and the fact that protection of a
subscriber's CPNI is an important carrier obligation and the
certification filing is an important part of that obligation. Taking
these factors into account, the Commission proposed a forfeiture
amount in the Omnibus NAL of $20,000. This amount is consistent with
other recent forfeiture orders. Further, we have examined 88 Telecom's
response to the NAL, pursuant to the statutory factors, our rules, and
the Forfeiture Policy Statement and find that no further downward
adjustment from the $20,000 forfeiture amount is warranted.
7. As a preliminary matter, 88 Telecom's failure to timely file its
annual 2007 CPNI certification is not disputed. By its own admission,
88 Telecom failed to file its CPNI certification by the March 1st
filing deadline. 88 Telecom submitted the required certification only
after the Commission notified it that it was investigating 88
Telecom's compliance with our rules and that it might be subject to
enforcement action, including forfeitures. That 88 Telecom may have
been unaware that it was required to file an annual CPNI certification
and then filed it after it was notified by the Commission, does not
rise to the level of a mitigating factor warranting a downward
adjustment. Ignorance of one's responsibility under the law is not a
mitigating factor.
8. In addition, 88 Telecom failed to show past compliance with the
Commission's CPNI certification requirements. Prior to the annual
certification filing requirement, carriers were required to have a
CPNI compliance plan and keep an annual CPNI compliance certificate in
their files (i.e., carriers were required to annually certify but were
not required to file the certification with the Commission). In lieu
of an annual filing requirement, carriers were required to produce
their annual certifications for inspection upon Commission request. 88
Telecom has failed to show that it was in compliance with the earlier
certification requirement. Thus, the Commission cannot consider past
CPNI compliance as a mitigating factor.
9. We also note that based on the revenue information provided by 88
Telecom, a downward adjustment is not warranted due to an inability to
pay the proposed forfeiture.
III. conclusion
10. In the Omnibus NAL, the Bureau considered several factors including
the amount of forfeiture necessary to have the intended deterrent
effect. The Bureau concluded that the goal of deterring future
non-compliance would be met by issuing forfeitures consistent with the
proposed amount. We take noncompliance with our CPNI rules very
seriously. This forfeiture order should advise 88 Telecom and other
carriers that the protection of a subscriber's CPNI and the annual
CPNI compliance certification filing requirements are important
carrier obligations.
IV. ordering clauses
11. Accordingly, IT IS ORDERED, pursuant to section 503(b) of the
Communications Act of 1934, as amended, 47 U.S.C. S: 503(b), section
1.80 of the Commission's rules, 47 C.F.R. S: 1.80, that 88 Telecom
Corporation SHALL FORFEIT to the United States government the sum of
$20,000 for willfully or repeatedly violating the Act and the
Commission's rules.
12. Payment of the forfeiture shall be made in the manner provided for in
section 1.80 of the rules within thirty (30) days of the release of
this Forfeiture 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. 88 Telecom
Corporation 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.
13. IT IS FURTHER ORDERED that a copy of this Order for Forfeiture shall
be sent by Certified Mail Return Receipt Requested and First Class
Mail to the company at 2525 Van Ness Avenue, #222, San Francisco, CA
94109.
FEDERAL COMMUNICATIONS COMMISSION
Richard A. Hindman
Chief
Telecommunications Consumers Division
Enforcement Bureau
The Commission has the authority to assess a forfeiture against any person
who has "willfully or repeatedly failed to comply with any of the
provisions of this [Act] or of any rule, regulation, or order issued by
the Commission under this [Act] ...." 47 U.S.C. S: 503(b)(1).
47 U.S.C. S: 222.
47 C.F.R. S: 64.2009(e).
Implementation of the Telecommunications Act of 1996: Telecommunications
Carriers' Use of Customer Proprietary Network Information and Other
Customer Information; IP-Enabled Services, CC Docket No. 96-115; WC Docket
No. 04-36, Report and Order and Further Notice of Proposed Rulemaking, 22
FCC Rcd 6927, 6953 (2007) ("EPIC CPNI Order"); aff'd sub nom. Nat'l Cable
& Telecom. Assoc. v. FCC, 555 F.3d 996, (D.C. Cir. 2009).
Section 222 of the Communications Act, 47 U.S.C S: 222, provides that:
"Every telecommunications carrier has a duty to protect the
confidentiality of proprietary information of, and relating to, other
telecommunications carriers, equipment manufacturers, and customers,
including telecommunication carriers reselling telecommunications services
provided by a telecommunications carrier."
The Act defines CPNI as "information that relates to the quantity,
technical configuration, type, destination, location, and amount of use of
a telecommunications service, subscribed to by any customer of a
telecommunications carrier, and that is made available to the carrier by
the customer solely by virtue of the carrier-customer relationship" and
"information contained in the bills pertaining to telephone exchange
service or telephone toll service received by a customer of a carrier"
excluding subscriber list information. 47 U.S.C. S: 222(h)(1)(A)-(B). The
Act provides for certain limited exceptions to a carrier's obligation to
protect CPNI. See 47 U.S.C. S: 222(d).
See Implementation of the Telecommunications Act of 1996:
Telecommunications Carriers' Use of Customer Proprietary Network
Information and Other Customer Information and Implementation of
Non-Accounting Safeguards of Sections 271 and 272 of the Communications
Act of 1934, as amended, CC Docket Nos. 96-115 and 96-149, Second Report
and Order and Further Notice of Proposed Rulemaking, 13 FCC Rcd 8061,
8068-70, P: 7 (1998). See also Implementation of the Telecommunications
Act of 1996: Telecommunications Carriers' Use of Customer Proprietary
Network Information and Other Customer Information and Implementation of
the Non-Accounting Safeguards of Sections 271 and 272 of the
Communications Act of 1934, as amended, CC Docket Nos. 96-115 and 96-149,
Order on Reconsideration and Petitions for Forbearance, 14 FCC Rcd 14409
(1999); Implementation of the Telecommunications Act of 1996:
Telecommunications Carriers' Use of Customer Proprietary Network
Information and Other Customer Information and Implementation of the
Non-Accounting Safeguards of Sections 271 and 272 of the Communications
Act of 1934, as amended, CC Docket Nos. 96-115 and 96-149; 2000 Biennial
Regulatory Review -- Review of Policies and Rules Concerning Unauthorized
Changes of Consumers' Long Distance Carriers, CC Docket No. 00-257, Third
Report and Order and Third Further Notice of Proposed Rulemaking, 17 FCC
Rcd 14860 (2002); EPIC CPNI Order.
47 C.F.R. S: 64.2009.
See EPIC CPNI Order, 22 FCC Rcd at 6953-54, P: 52.
Id. at 6953; 47 C.F.R. S: 64.2009(e).
EPIC CPNI Order, 22 FCC Rcd at 6953.
See Letter from Marcy Greene, Deputy Division Chief, Telecommunications
Consumers Division, Enforcement Bureau, FCC, to 88 Telecom Corp. (Sept. 2,
2008).
See 88 Telecom Corporation's Annual 47 C.F.R. S: 64.2009(e) CPNI
Certification, filed Sept. 24, 2008.
Annual CPNI Certification, Omnibus Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd 2299 (Enf. Bur. 2009) ("Omnibus NAL").
See email from Alice Ou, 88 Telecom, to Mika Savir, Attorney,
Telecommunications Consumers Division, Enforcement Bureau, FCC, (Mar. 19,
2009) ("NAL Response").
47 C.F.R. S: 64.2009(e); see also EPIC CPNI Order, 22 FCC Rcd at 6953-54,
P:P: 51-53.
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 and Adjustment of Forfeiture Maxima
to Reflect Inflation, Order, 23 FCC Rcd 9845 (2008) (inflation adjustment
to $150,000/$1,500,000); FCC Enforcement Advisory No. 2011-02, 26 FCC Rcd
650 (Enf. Bur. 2011). At the time the Omnibus NAL was released the maximum
forfeiture was $130,000 for each violation of the Act or of any rule,
regulation, or order issued by the Commission. See Omnibus NAL, 24 FCC Rcd
at 2301, P: 5.
See 47 U.S.C. S: 503(b)(1)(B).
See, e.g., Southern California Broadcasting, 6 FCC Rcd at 4387-88, P: 5.
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, P: 27 (1997) ("Forfeiture Policy Statement"),
recon. denied, 15 FCC Rcd 303 (1999).
See Forfeiture Policy Statement, 12 FCC Rcd at 17098-99, P: 22.
EPIC CPNI Order, 22 FCC Rcd at 6953, P: 51
See Omnibus NAL, 24 FCC Rcd at 2302, P: 8; see also EPIC CPNI Order, 22
FCC Rcd at 6953, P: 51.
See USA Teleport, Inc., Apparent Liability for Forfeiture, EB-08-TC-5801,
Order of Forfeiture, 26 FCC Rcd 2456 (Tel. Con. Div. 2011), recon. denied,
Memorandum Opinion & Order, DA 11-802 (Enf. Bur. Apr. 29, 2011); Think 12
Corporation d/b/a Hello Depot, Apparent Liability for Forfeiture,
EB-08-TC-5708, Order of Forfeiture, 26 FCC Rcd 2135 (Tel. Con. Div. 2011);
Nationwide Telecom, Inc., Apparent Liability for Forfeiture,
EB-08-TC-4772, Order of Forfeiture, 26 FCC Rcd 2440 (Tel. Con. Div. 2011);
Calmtel USA, Inc., Apparent Liability for Forfeiture, EB-08-TC-3240, Order
of Forfeiture, 26 FCC Rcd 2445 (Tel. Con. Div. 2011); Diamond Phone, Inc.,
Apparent Liability for Forfeiture, EB-08-TC-3704, Order of Forfeiture, 26
FCC Rcd 2451 (Tel. Con. Div. 2011).
See NAL Response at 1 ("[88 Telecom] wasn't aware of [the] annual CPNI
filing requirement").
See id.
See Southern California Broadcasting, 6 FCC Rcd at 4387, P: 3; see also
STI Prepaid, LLC, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd
17836, 17845, P: 20 (Enf. Bur. 2010) ("STI Prepaid") ("It is well
established that administrative oversight or inadvertence is not a
mitigating factor warranting a downward adjustment of a forfeiture.
Likewise, a violator's lack of knowledge or erroneous beliefs is not a
mitigating factor warranting reduction of a forfeiture."). This case is
different than where the rule was recently modified and the violation was
due to a licensee's lack of actual knowledge of the rule change. Prior to
adoption of the annual CPNI certification filing requirement, our CPNI
rules already required telecommunications carriers such as 88 Telecom to
have a CPNI compliance program and to have an officer of the company
certify annually that the company was in compliance with our CPNI rules.
See EPIC CPNI Order, 22 FCC Rcd at 6953, P: 52. As discussed in paragraph
8, 88 Telecom failed to show it had complied with the certification
filings under the old rules let alone the new filing requirement. Thus,
any lack of knowledge in the instant case does not warrant a downward
adjustment.
Omnibus NAL, 24 FCC Rcd at 2302, P: 7. This prior rule is discussed in the
EPIC CPNI Order: "each telecommunications carrier must have an officer, as
an agent of the carrier, sign a compliance certificate on an annual basis
stating that the officer has personal knowledge that the company has
established operating procedures that are adequate to ensure compliance
with the Commission's CPNI rules and to make that certification available
to the public." EPIC CPNI Order, 22 FCC Rcd at 6953, P: 52 (citation
omitted).
Omnibus NAL, 24 FCC Rcd at 2302, P: 7.
The 2007 CPNI compliance certification 88 Telecom submitted to the Bureau
was dated Sept. 24, 2008. 88 Telecom has failed to show that it had an
earlier CPNI compliance certification.
Moreover, in a number of recent actions, the Commission has held that the
failure to file forms is a continuing violation until cured. See Annual
CPNI Certification, Omnibus Notice of Apparent Liability for Forfeiture
and Order, 26 FCC Rcd 2160, 2162, P: 8 (Enf. Bur. 2011); STI Prepaid, LLC,
Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 17836, 17845, P:
20 (Enf. Bur. 2010); Champaign Telephone Company d/b/a CT Communications,
Inc., Order and Notice of Apparent Liability for Forfeiture, 25 FCC Rcd
17814, 17818-18, P: 9 (Spec. Enf. Div. 2010); Lightyear Network Solutions,
LLC, Order and Notice of Apparent Liability for Forfeiture, 25 FCC Rcd
16212, 16217, P: 12 (Spec. Enf. Div. 2010); Alpheus Communications, LP,
Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 8993, 8998, P: 12
(Enf. Bur. 2010); Compass Global, Inc., Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 6125, 6138-39, P: 31 (2008); Telrite Corp., Notice
of Apparent Liability for Forfeiture and Order, 23 FCC Rcd 7231, 7244, P:
30 (2008); VCI Company, Notice of Apparent Liability for Forfeiture and
Order, 22 FCC Rcd 15933, 15940, P: 20 (2007). Thus, 88 Telecom continued
to violate the certification filing requirement for calendar year 2007
until it filed the certification.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 11-999
5
Federal Communications Commission DA 11-999