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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-07-IH-4090
In the Matter of
) Acct. No.: 201232080022
InterMetro Communications, Inc.
) FRN: 0015294150
)
ORDER
Adopted: May 4, 2012 Released: May 4, 2012
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau (Bureau) and InterMetro Communications,
Inc. (InterMetro). The Consent Decree terminates an investigation by
the Bureau against InterMetro for possible violation of Section 214 of
the Communications Act of 1934, as amended (Act), and Sections 63.03
and 63.04 of the Commission's rules (Rules), relating to the transfer
of control of domestic Section 214 authority.
2. The Bureau and InterMetro have negotiated the terms of the Consent
Decree that resolve 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 our investigation raises no substantial or material
questions of fact as to whether InterMetro 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 Section 4(i) of the Act,
and Sections 0.111 and 0.311 of the 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 David Olert, InterMetro Communications, Inc., 2685 Park
Center Dr., Building A, Simi Valley, CA 93065.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-07-IH-4090
In the Matter of
) Acct. No.:
InterMetro Communications, Inc.
) FRN: 0015294150
)
CONSENT DECREE
1. The Enforcement Bureau of the Federal Communications Commission and
InterMetro Communications, Inc. (InterMetro), by their authorized
representatives, hereby enter into this Consent Decree for the purpose
of terminating the Enforcement Bureau's investigation into whether
InterMetro violated Section 214 of the Communications Act of 1934, as
amended, and Sections 63.03 and 63.04 of the Commission's rules,
relating to the transfer of control of domestic Section 214 authority.
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. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
c. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
d. "Compliance Officer" means the individual designated in paragraph 14
of this Consent Decree as the person responsible for administration of
the Compliance Plan.
e. "Compliance Plan" means the program described in this Consent Decree
at paragraph 14.
f. "Effective Date" means the date on which the Commission releases the
Adopting Order.
g. "InterMetro" means InterMetro Communications, Inc. and its
predecessors-in-interest and successors-in-interest.
h. "Investigation" means the investigation commenced by the Bureau's June
15, 2007, Letter of Inquiry regarding whether InterMetro violated the
requirements of Section 214 of the Act and Sections 63.03 and 63.04 of
the Rules relating to the transfer of control of domestic Section 214
authority.
i. "Order" or "Adopting Order" means an Order of the Commission adopting
the terms of this Consent Decree without change, addition, deletion,
or modification.
j. "Parties" means InterMetro and the Bureau, and each a "Party."
k. "Rules" means the Commission's regulations found in Title 47 of the
Federal Regulations.
II. BACKGROUND
3. 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 communications, or before discontinuing, reducing or
impairing service to a community. The Commission granted all carriers
blanket authority under Section 214 to provide domestic interstate
services and to construct, acquire, or operate any domestic
transmission line. In accordance with Section 63.03 of the Rules,
however, any domestic carrier seeking to transfer control of lines or
authorization to operate pursuant to Section 214 of the Act must
obtain prior approval from the Commission. Section 63.04 sets forth
the required contents of domestic transfer of control applications.
The Commission employs a public interest standard under Section 214(a)
of the Act that involves the examination of the public interest impact
of a proposed transaction.
4. Advanced Tel, Inc. (Advanced Tel) is a non-dominant switchless
reseller holding Section 214 authority to provide intrastate and
interstate long distance telecommunications services. Advanced Tel was
wholly-owned by Mr. David Singer prior to the transfer of control.
5. InterMetro, a publicly-traded company, is a facilities-based provider
of interstate voice and data transport over a Voice over Internet
Protocol network to other carriers. InterMetro also provides wholesale
voice services to retailers and resellers of voice and data products.
6. On March 31, 2006, Mr. Singer transferred one hundred percent
ownership interest in Advanced Tel to InterMetro. Pursuant to the
ownership transfer, Advanced Tel became a wholly-owned subsidiary of
InterMetro.
7. On March 6, 2007, Advanced Tel and InterMetro filed an application for
consent to transfer control of Advanced Tel's domestic Section 214
authority to InterMetro. The applicants also requested special
temporary authority from the Commission that would allow Advanced Tel
to provide service under the ownership of InterMetro pending approval
of their application for transfer of control.
8. On March 26, 2007, the Wireline Competition Bureau granted Advanced
Tel and InterMetro's request for special temporary authority to allow
Advanced Tel to provide service under the ownership of InterMetro
pending approval of their application for transfer of control. On the
same day, the Wireline Competition Bureau released a Public Notice
accepting the application for streamlined processing under the
Commission's rules. The Wireline Competition Bureau released a Public
Notice granting the application on April 26, 2007.
9. On June 15, 2007, the Bureau issued a letter of inquiry directing
InterMetro, among other things, to submit a sworn written response to
a series of questions relating to the apparent unauthorized transfer
of control of Advanced Tel to InterMetro. InterMetro responded to the
LOI on June 25, 2007.
III. TERMS OF AGREEMENT
10. 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.
11. Jurisdiction. InterMetro 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.
12. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the date on which the FCC releases the
Adopting Order. 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.
13. 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, InterMetro 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 of the
Consent Decree, 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 InterMetro concerning the matters
that were the subject of the investigation. The Bureau also agrees
that it will not use the facts developed in this investigation through
the Effective Date of this Consent Decree, 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 InterMetro
with respect to InterMetro's basic qualifications, including its
character qualifications, to be a Commission licensee or authorized
common carrier or hold Commission authorizations.
14. Compliance Plan. InterMetro agrees to implement a comprehensive
Compliance Plan for purposes of ensuring its compliance with the Act,
the Rules, and the Commission's orders. The Compliance Plan shall
include, at a minimum, the following components:
a. Compliance Officer. InterMetro shall designate a Compliance Officer,
as defined in paragraph 2 of this Consent Decree, within thirty (30)
calendar days after the Effective Date. The Compliance Officer shall
administer the Compliance Plan, supervise InterMetro's compliance with
the Act, the Rules and the Commission's Orders, and serve as the point
of contact on behalf of InterMetro for all FCC-related compliance
matters.
b. Compliance Manual. Within sixty (60) calendar days after the Effective
Date, the Compliance Officer shall develop and distribute a Compliance
Manual to InterMetro's employees and others who perform InterMetro's
federal regulatory reporting and compliance-related tasks, all of whom
shall follow the procedures detailed in the Compliance Manual. The
Compliance Manual will include at a minimum (i) an overview of the
Commission's requirements, including the need for prior approval for
license assignments and substantial transfers of control; (ii) a
description of the regulatory requirements applicable to the accurate
and timely reporting of information in FCC applications; and (iii)
instructions regarding due diligence for FCC applications.
c. Compliance Training Program. Within ninety (90) calendar days after
the Effective Date, and annually thereafter, InterMetro shall
implement and conduct a training program for all employees who perform
duties at InterMetro that trigger or may trigger compliance-related
responsibilities. InterMetro shall ensure that training and compliance
materials are provided to new and reassigned employees who are
responsible for fulfilling those obligations within the first thirty
(30) calendar days of employment or reassignment.
d. Review and Monitoring. InterMetro shall review the Compliance Manual
and Compliance Training Program at least annually to ensure they are
maintained in a proper manner and continue to address InterMetro's
compliance with federal regulatory reporting obligations. InterMetro
shall update the Compliance Manual and Compliance Training Program in
the event of changes and/or additions to the relevant Rules and
related Commission orders.
e. Compliance Reports. InterMetro will 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 upon expiration of this Compliance Plan, i.e.,
three (3) years after the Effective Date. Each compliance report shall
include a compliance certificate from the Compliance Officer, as an
agent of and on behalf of the Company, stating that the Compliance
Officer has personal knowledge that the Company: (i) has established
operating procedures intended to ensure compliance with the terms and
conditions of this Consent Decree and Section 214 of the Act and
Sections 63.03 and 63.04 of the Rules, together with an accompanying
statement explaining the basis for the Compliance Officer's
certification; (ii) has been utilizing those procedures since the
previous Compliance Report was submitted; and (iii) 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, the
Compliance Officer, as an agent of and on behalf of the Company, shall
provide the Commission with a detailed explanation of: (i) any
instances of non-compliance with this Consent Decree and Section 214
of the Act and Sections 63.03 and 63.04 of the Rules; and (ii) the
steps that the Company 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 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 David Janas at david.janas@fcc.gov.
f. Reporting Non-Compliance. InterMetro shall report any non-compliance
with this Consent Decree, or Section 214 of the Act and Sections 63.03
and 63.04 of the Rules, or related Commission orders to the Bureau
within fifteen (15) calendar days after the discovery of
non-compliance.
g. Termination Date of Compliance Plan. The requirements relating to the
Compliance Plan shall expire three (3) years after the Effective Date,
unless stated otherwise.
15. 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 InterMetro 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 InterMetro of the Act, the rules, or the
Order.
16. Voluntary Contribution. InterMetro agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
six thousand dollars ($6,000). The payment must be made by check or
similar instrument, payable to the Order of the Federal Communications
Commission. The payment must 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. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank Federal Reserve Bank of
New York, and account number 27000001. InterMetro will also send
electronic notification within forty-eight (48) hours of the date said
payment is made to Terry Cavanaugh at Terry.Cavanaugh@fcc.gov, and to
David Janas at david.janas@fcc.gov.
17. Waivers. InterMetro 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 Order adopting this Consent Decree, provided the Commission
issues an Order adopting the Consent Decree without change, addition,
modification, or deletion. InterMetro 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 InterMetro nor the Commission shall contest
the validity of the Consent Decree or the Adopting Order, and
InterMetro shall waive any statutory right to a trial de novo.
InterMetro 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.
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 InterMetro does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
20. Successors and Assigns. InterMetro 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 Act or the Commission's Rules and Orders.
22. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
23. 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.
24. Authorized Representative. Each Party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
25. Counterparts. This Consent Decree may be signed in any number of
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.
________________________________
P. Michele Ellison
Chief
Enforcement Bureau
________________________________
David Olert
Chief Financial Officer
InterMetro Communications, Inc.
________________________________
Date
47 U.S.C. S: 214.
47 C.F.R. S:S: 63.03-04.
See 47 U.S.C. S: 154(i).
See 47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S: 214.
47 C.F.R. S:S: 63.03-04.
See Letter from Trent B. Harkrader, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, FCC, to Mr. Vince Arena, Chief
Financial Officer, InterMetro Communications, Inc. (June 15, 2007) (on
file in EB-07-IH-4090) (June 15, 2007 LOI).
47 U.S.C. S: 214.
47 C.F.R. S:S: 63.03-04.
See 47 U.S.C. S: 214(a).
See Implementation of Section 402(b)(2)(A) of the Telecommunications
Act of 1996; Petition for Forbearance of the Independent Telephone &
Telecommunications Alliance, Report and Order and Second Memorandum
Opinion and Order, 14 FCC Rcd 11364 (1999) (1999 Streamlining Order);
47 C.F.R. S: 63.01.
See Implementation of Further Streamlining Measures for Domestic
Section 214 Authorizations, Report and Order, 17 FCC Rcd 5517, 5521,
para. 5 (2002) (2002 Streamlining Order); 47 C.F.R. S: 63.03. See also
47 C.F.R. S: 63.03(d)(1) (excluding all pro forma transactions, which
do not result in a change in the carrier's ultimate ownership or
control, from the domestic Section 214 application and approval
requirements), S: 63.04(d)(2) (requiring that a post-transaction
notice be filed with the Commission within 30 days of a pro forma
transfer of a domestic Section 214 authorization to a trustee, a
debtor-in-possession, or any other party pursuant to any applicable
chapter of the Bankruptcy Code).
See 47 C.F.R. S: 63.04.
See 47 U.S.C. S: 214(a).
The application stated that InterMetro entered into a merger on
December 29, 2006, with Lucy's Cafe, Inc., a publicly-traded shell
company that had no business operations. Pursuant to the merger,
Lucy's Cafe acquired 100 percent ownership and control of InterMetro.
In turn, Mr. Charles Rice, who controlled InterMetro, also assumed
majority voting control of Lucy's Cafe, Inc. See Advanced Tel, Inc.,
Licensee, and InterMetro Communications, Inc., Transferee, Application
(filed Mar. 6, 2007) at
http://fjallfoss.fcc.gov/ecfs/document/view?id=6518912336.
See Domestic Section 214 Application Filed for the Transfer of Control
of Advanced Tel, Inc. to InterMetro Communications, Inc., Public
Notice, DA 07-1425 (WCB, rel. Mar. 26, 2007).
See Notice of Domestic Section 214 Authorizations Granted, Public
Notice, DA 07-1907 (WCB, rel. Apr. 26, 2007).
See June 15, 2007 LOI.
See Letter from Vince Arena, Chief Financial Officer, InterMetro
Communications, Inc., to Diana Lee, Esq., Attorney Advisor,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission (June 25, 2007) (on file in EB-07-IH-4090).
47 U.S.C. S: 214.
47 C.F.R. S:S: 63.03-04.
See id. S: 1.16.
47 U.S.C. S: 214.
47 C.F.R. S:S: 63.03-04.
47 U.S.C. S: 214.
47 C.F.R. S:S: 63.03-04.
See 47 U.S.C. S: 208.
Federal Communications Commission DA 12-653
2
Federal Communications Commission DA 12-653