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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No.: EB-08-IH-0728
In the Matter of )
Acct. No.: 201232080031
Communication Options, Inc. )
FRN: 0003735230
)
)
ORDER
Adopted: September 21, 2012 Released: September 24, 2012
By the Chief, Enforcement Bureau:
1. In this Order, we adopt a Consent Decree entered into between the
Enforcement Bureau (Bureau) and Communication Options, Inc. (COI). The
Consent Decree terminates an investigation by the Bureau against COI
for possible violations of Section 251(b)(2) of the Communications Act
of 1934, as amended (Act), concerning COI's porting of its customers'
telephone numbers to new service providers.
2. A copy of the Consent Decree negotiated by the Bureau and COI is
attached hereto and incorporated herein by reference.
3. After evaluating the facts before us and reviewing the terms of the
Consent Decree, including its three year compliance plan, 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 our investigation raises no substantial or material
questions of fact as to whether COI possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 503(b)
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 first class mail and certified mail, return receipt
requested, to Steve Augustino, Esq., Kelley Drye & Warren LLP,
Washington Harbour, Suite 400, 3050 K Street, N.W., Washington, D.C.
20007-5108.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-08-IH-0728
In the Matter of
) Acct. No.: 201232080031
Communication Options, Inc.
) FRN: 0003735230
)
CONSENT DECREE
1. The Enforcement Bureau of the Federal Communications Commission and
Communication Options, Inc., by their authorized representatives,
hereby enter into this Consent Decree for the purpose of terminating
the Enforcement Bureau's investigation into whether Communication
Options, Inc. violated Section 251(b)(2) of the Communications Act of
1934, as amended, concerning the company's porting of its customers'
telephone numbers to new service providers.
I. 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 Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "COI" or "Company" means Communication Options, Inc. and its
predecessors-in-interest and successors-in-interest.
e. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
f. "Communications Laws" means collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to
which COI is subject by virtue of its business activities.
g. "Compliance Plan" means the plan described in this Consent Decree at
paragraph 10.
h. "Covered Employees" means all employees and agents of COI who perform,
or supervise, oversee, or manage the performance of, duties that
relate to COI's responsibilities under the Communications Laws,
including the LNP Rules.
i. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
j. "Investigation" means the investigation initiated by the Bureau in
File No. EB-08-IH-0728 regarding possible violations of Section
251(b)(2) of the Act.
k. "LNP" means Local Number Portability.
l. "LNP Rules" means federal regulatory obligations concerning the
porting of customers' telephone numbers from one service provider to
another.
m. "Operating Procedures" means the standard, internal operating
procedures and compliance policies established by COI to implement the
Compliance Plan.
n. "Parties" means Communication Options, Inc. and the Bureau, each of
which is a "Party."
o. "Rules" means the Commission's regulations found in Title 47 of the
Federal Regulations.
II. BACKGROUND
3. Local Number Portability (LNP) is "the ability of users of
telecommunications services to retain, at the same location, existing
telephone numbers without impairment of quality, reliability, or
convenience when switching from one telecommunications carrier to
another." Under the Act, all telecommunications service providers have
a duty to provide, to the extent technically feasible, number
portability in accordance with requirements prescribed by the
Commission. During the period relevant to the Investigation, the
Commission required that wireline carriers generally complete ports
within four business days. The Commission also precluded service
providers from obstructing or delaying the transfer of their
customers' telephone numbers to new service providers. Porting out
service providers may request information reasonably necessary to
validate and implement port requests, but may not demand "information
necessary to settle the customer's account or otherwise enforce any
provisions of the customer's contract." Porting out service providers
also may notify a customer of the consequences of terminating service,
but in the process of doing so may not refuse to port a customer's
number.
4. COI is an Ohio-based provider of communications services, offering
business and residential customers local and long distance telephone,
messaging, and Internet access services. After receiving a complaint
from another telecommunications service provider that COI was refusing
to port a customer's number due to a billing dispute between COI and
the customer, the Bureau issued a letter of inquiry to COI requesting
information concerning COI's number porting practices. COI responded
to the LOI on April 1 and April 9, 2008.
III. TERMS OF AGREEMENT
5. 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.
6. Jurisdiction. COI agrees that the Bureau has jurisdiction over it and
the matters contained in this Consent Decree and that the Bureau has
the authority to enter into and adopt this Consent Decree.
7. 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 Commission. Any violation of the
Adopting Order or of the terms of this Consent Decree shall constitute
a separate violation of a Commission Order, entitling the Bureau to
exercise any rights and remedies attendant to the enforcement of a
Commission Order.
8. 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, COI 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
this 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 COI concerning the matters that were the subjects 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 COI with
respect to COI's basic qualifications, including its character
qualifications, to be a Commission licensee or hold Commission
authorizations.
9. Compliance Officer. Within thirty (30) calendar days after the
Effective Date, COI shall designate a senior corporate manager with
the requisite corporate and organizational authority to serve as a
Compliance Officer and to discharge the duties set forth below. The
person designated as the Compliance Officer shall be responsible for
developing, implementing, and administering the Compliance Plan and
ensuring that COI complies with the terms and conditions of the
Compliance Plan and this Consent Decree. In addition to the general
knowledge of the Communications Laws necessary to discharge his/her
duties under this Consent Decree, the Compliance Officer shall have
specific knowledge of the LNP Rules prior to assuming his/her duties.
10. Compliance Plan. For purposes of settling the matters set forth
herein, COI agrees that it shall within sixty (60) calendar days
after the Effective Date, develop and implement a Compliance Plan
designed to ensure future compliance with the Communications Laws,
including the LNP Rules, and with the terms and conditions of this
Consent Decree. The Compliance Plan shall implement the following
procedures:
a. Operating Procedures. Within sixty (60) calendar days after the
Effective Date, COI shall establish Operating Procedures that all
Covered Employees shall follow to help ensure COI's compliance with
the LNP Rules. COI's Operating Procedures shall include internal
procedures and policies specifically designed to ensure that COI ports
numbers within the time frames set forth in those rules. COI shall
also develop a Compliance Checklist that describes the steps that a
Covered Employee must follow to ensure compliance with the LNP Rules.
b. Compliance Manual. Within sixty (60) calendar days after the Effective
Date, the Compliance Officer shall develop and distribute a Compliance
Manual to all Covered Employees. The Compliance Manual shall explain
the Communications Laws that apply to COI, including the LNP Rules,
and set forth the Operating Procedures that Covered Employees shall
follow to help ensure COI's compliance with the LNP Rules. COI shall
periodically review and revise the Compliance Manual as necessary to
ensure that the information set forth therein remains current and
accurate. COI shall distribute any revisions to the Compliance Manual
promptly to Covered Employees. The Compliance Manual will require
personnel, including Covered Employees, to contact COI's Compliance
Officer and, if appropriate, regulatory legal counsel, with any
questions or concerns that arise with respect to COI's obligations
under the LNP Rules.
c. Compliance Training Program. COI shall establish and implement a
Compliance Training Program on compliance with the Communications
Laws, including the LNP Rules, and the Operating Procedures. As part
of the Compliance Training Program, Covered Employees shall be advised
of COI's obligation to report any noncompliance with the LNP Rules
under paragraph 11 of this Consent Decree and shall be instructed on
how to disclose noncompliance to the Compliance Officer. All Covered
Employees shall be trained pursuant to the Compliance Training Program
within ninety (90) calendar days after the Effective Date, except
that any person who becomes a Covered Employee at any time after the
Effective Date shall be trained within thirty (30) calendar days after
the date such person becomes a Covered Employee. COI shall repeat the
compliance training on an annual basis, and shall periodically review
and revise the Compliance Training Program as necessary to ensure that
it remains current and complete and to enhance its effectiveness.
d. Termination Date. Unless stated otherwise, the requirements of this
Compliance Plan shall expire thirty-six (36) months after the
Effective Date.
11. Reporting Noncompliance. COI shall report any noncompliance with the
LNP Rules and with the terms and conditions of this Consent Decree
within fifteen (15) calendar days after discovery of such
noncompliance. Such reports shall include a detailed explanation of
(i) each instance of noncompliance; (ii) the steps that COI has taken
or will take to remedy such noncompliance; (iii) the schedule on which
such remedial actions will be taken; and (iv) the steps that COI has
taken or will take to prevent the recurrence of any such
noncompliance. All reports of noncompliance shall be submitted to the
Chief, Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission, Room 4-C330, 445 12th Street, S.W.
Washington, D.C. 20554, with a copy submitted electronically to
Theresa Z. Cavanaugh at Terry.Cavanaugh@fcc.gov, Pamela S. Kane at
Pamela.Kane@fcc.gov, and David Janas at David.Janas@fcc.gov. The
reporting obligations set forth in this paragraph shall expire
thirty-six (36) months after the Effective Date.
12. Compliance Reports. COI shall file Compliance Reports with the
Commission ninety (90) calendar days after the Effective Date, twelve
(12) months after the Effective Date, twenty-four (24) months after
the Effective Date, and thirty-six (36) months after the Effective
Date.
a. Each Compliance Report shall include a detailed description of COI's
efforts during the relevant period to comply with the terms and
conditions of this Consent Decree and the LNP Rules. In addition, each
Compliance Report shall include a certification by the Compliance
Officer, as an agent of and on behalf of COI, stating that the
Compliance Officer has personal knowledge that COI (i) has established
and implemented the Compliance Plan; (ii) has utilized the Operating
Procedures since the implementation of the Compliance Plan; and (iii)
is not aware of any instances of noncompliance with the terms and
conditions of this Consent Decree, including the reporting obligations
set forth in paragraph 11 of this Consent Decree.
b. The Compliance Officer's certification shall be accompanied by a
statement explaining the basis for such certification and shall comply
with Section 1.16 of the Rules and be subscribed to as true under
penalty of perjury in substantially the form set forth in Section
1.16.
c. If the Compliance Officer cannot provide the requisite certification,
the Compliance Officer, as an agent of and on behalf of COI, shall
provide the Commission with a detailed explanation of the reason(s)
why and describe fully (i) each instance of noncompliance; (ii) the
steps that COI has taken or will take to remedy such noncompliance,
including the schedule on which proposed remedial actions will be
taken; and (iii) the steps that COI has taken or will take to prevent
the recurrence of any such noncompliance, including the schedule on
which such preventive action will be taken.
d. All Compliance Reports shall be submitted to the Chief, Investigations
& Hearings Division, Enforcement Bureau, Federal Communications
Commission, Room 4-C330, 445 12th Street, S.W., Washington, D.C.
20554, with a copy submitted electronically to Theresa Z. Cavanaugh at
Terry.Cavanaugh@fcc.gov, Pamela S. Kane at Pamela.Kane@fcc.gov, and
David Janas at David.Janas @fcc.gov.
13. Section 208 Complaints: Subsequent Investigations. Nothing in this
Consent Decree shall prevent the Commission or its delegated authority
from adjudicating complaints filed pursuant to Section 208 of the Act
against COI or its affiliates for alleged violations of the Act, or
for any other type of alleged misconduct, regardless of when such
misconduct took place. The Commission's adjudication of any such
complaint will be based solely on the record developed in that
proceeding. Except as expressly provided in this Consent Decree, this
Consent Decree shall not prevent the Commission from investigating new
evidence of noncompliance by COI with the Communications Laws.
14. Voluntary Contribution. COI agrees that it will make a voluntary
contribution to the United States Treasury in the amount of sixty-five
thousand dollars ($65,000) (Voluntary Contribution). Due to inability
to make a lump sum payment, such Voluntary Contribution shall be made
in installments (each an Installment Payment). The first Installment
Payment in the amount of two thousand seven hundred eight dollars and
thirty-three cents ($2,708.33) is due within thirty (30) calendar days
after the Effective Date. The balance of the Voluntary Contribution
will be made in twenty-two consecutive monthly payments of two
thousand seven hundred eight dollars and thirty-three cents
($2,708.33), followed by a final installment of two thousand seven
hundred eight dollars and forty-one cents ($2,708.41), payable on the
first day of each month beginning with the second month following the
Effective Date. The final payment is due on the first day of the
twenty-fifth month following the Effective Date (Maturity Date). COI
acknowledges and agrees that upon execution of this Consent Decree,
the Voluntary Contribution and each Installment Payment shall become a
"Claim " or "Debt" as defined in 31 U.S.C. S: 3701(b)(1). Upon an
Event of Default, all procedures for collection permitted by law may,
at the Commission's discretion, be initiated. In addition, COI agrees
that it will make the first and all subsequent Installment Payments in
United States Dollars without further demand or notice by the dates
specified above. COI shall also send electronic notification of
payment to Theresa Z. Cavanaugh at Terry.Cavanaugh@fcc.gov, Pamela S.
Kane at Pamela.Kane@fcc.gov, and David Janas at David.Janas@fcc.gov on
the date said Installment Payments are made. The Installment Payments
must be made by check or similar instrument, wire transfer, or credit
card, and must include the NAL/Account number and FRN referenced
above. Regardless of the form of payment, a completed FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the Account Number in block number 23A (call sign/other ID)
and enter the letters "FORF" in block number 24A (payment type
code). Below are additional instructions you should follow based on
the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
If you have questions regarding payment procedures, please contact the
Financial Operations Group Help Desk by phone, 1-877-480-3201, or by
e-mail, ARINQUIRIES@fcc.gov.
15. Event of Default. COI agrees that an Event of Default shall occur upon
the failure by COI to pay the full amount of any Installment Payment
on or before the due date specified in this Consent Decree.
16. Interest, Charges for Collection, and Acceleration of Maturity Date.
After an Event of Default has occurred under this Consent Decree, the
then unpaid amount of the Voluntary Contribution shall accrue
interest, computed using the U.S. Prime Rate in effect on the date of
the Event of Default plus 4.75 percent, from the date of the Event of
Default until payment in full. Upon an Event of Default, the then
unpaid amount of the Voluntary Contribution, together with interest,
as aforesaid, any penalties permitted and/or required by the law,
including but not limited to 31 U.S.C. S: 3717, and administrative
charge(s), plus the costs of collection, litigation, and attorneys'
fees, shall become immediately due and payable, without notice,
presentment, demand, protest, or notice of protest of any kind, all of
which are waived by COI.
17. Waivers. COI 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 the Adopting Order
as defined in this Consent Decree. COI 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 COI nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and COI shall
waive any statutory right to a trial de novo. COI hereby agrees to
waive any claims it may otherwise have under the Equal Access to
Justice Act, relating to the matters addressed in this Consent Decree.
18. 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.
19. 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 COI does not expressly consent)
that provision will be superseded by such Commission rule or order.
20. Successors and Assigns. COI agrees that the provisions of this Consent
Decree shall be binding on its successors, assigns, and transferees.
21. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further agree that this Consent Decree does not constitute
either an adjudication on the merits or a factual or legal finding or
determination regarding any compliance or noncompliance with the
requirements of the Communications Laws.
22. Termination Date. The requirements of this Consent Decree shall expire
thirty-six (36) months after the Effective Date.
23. Modifications. This Consent Decree cannot be modified without the
advance 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 counterpart
(including by facsimile). Each counterpart, when executed and
delivered, shall be an original, and all of the counterparts together
shall constitute one and the same fully executed instrument.
________________________________
P. Michele Ellison
Chief
Enforcement Bureau
________________________________
Date
________________________________
Scott Halliday
Secretary and Treasurer
Communication Options, Inc.
________________________________
Date
47 U.S.C. S: 251(b)(2).
47 U.S.C. S:S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S: 251(b)(2).
47 U.S.C. S: 153(30); see also 47 C.F.R. S: 52.21(l). The Commission has
interpreted this language to mean that "consumers must be able to change
carriers while keeping their telephone number as easily as they may change
carriers without taking their telephone number with them." Telephone
Number Portability - Carrier Requests for Clarification of
Wireless-Wireless Porting Issues, Memorandum Opinion and Order, 18 FCC Rcd
20971, 20975, para. 11 (2003) (subsequent history omitted).
47 U.S.C. S: 251(b)(2).
See Telephone Number Portability; CTIA Petitions for Declaratory Ruling on
Wireline-Wireless Porting Issues, Memorandum Opinion and Order and Further
Notice of Proposed Rulemaking, 18 FCC Rcd 23697, 23713-13, para. 38 (2003)
(subsequent history omitted) (stating that "the current four business day
porting interval represents the outer limit of what we would consider to
be a reasonable amount of time in which wireline carriers may complete
ports"); see also Telephone Number Requirements for IP-Enabled Services
Providers; Local Number Portability Porting Interval and Validation
Requirements; IP-Enabled Services; Telephone Number Portability; CTIA
Petition for Declaratory Ruling on Wireline-Wireless Porting Issues, Final
Regulatory Flexibility Analysis, Numbering Resource Optimization, Report
and Order, Declaratory Ruling, Order on Remand, and Notice of Proposed
Rulemaking, 22 FCC Rcd 19531, 19562, para. 61 (2007) (Porting Information
Order, Declaratory Ruling, and NPRM) (subsequent history omitted). The
Commission subsequently reduced the porting intervals for simple
wireline-to-wireline and simple intermodal ports to one business day
absent the new provider's or the customer's request for a longer interval.
See 47 C.F.R. S: 52.35.
Porting Information Order, Declaratory Ruling, and NPRM, 22 FCC Rcd at
19553-58, paras. 42-49.
Id. at 19554, para. 42.
Id. at 19555, para. 43.
Id.
See Communication Options, Inc. Homepage, http://www.coi.net/ (last
visited June 26, 2012).
See Letter of Inquiry from Trent B. Harkrader, Deputy Chief,
Investigations and Hearings Division, FCC Enforcement Bureau, to Stephen
K. Vogelmeier, President, Communication Options, Inc. (Mar. 24, 2008) (on
file in EB-08-IH-0728) (LOI).
Letter from Stephen K. Vogelmeier, President, Communication Options, Inc.,
to David Janas, Special Counsel, Investigations and Hearings Division, FCC
Enforcement Bureau (Apr. 1, 2008) (LOI Response); Letter from Stephen K.
Vogelmeier, President, Communication Options, Inc., to David Janas,
Special Counsel, Investigations and Hearings Division, FCC Enforcement
Bureau (Apr. 9, 2008) (Supplemental LOI Response).
47 C.F.R. S: 1.16.
47 U.S.C. S: 208.
Debt Collection Improvement Act of 1996, Pub. L. No. 104-134, 110 Stat.
1321, 1358 (Apr. 26, 1996).
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 5 U.S.C. S: 504; 47 C.F.R. Part 1, Subpart K.
Federal Communications Commission DA 12-1489
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Federal Communications Commission DA 12-1489