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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
) File No.: EB-08-SE-548
In the Matter of
) Acct. No.: 201232100027
Level 3 Communications, LLC
) FRN: 0003723822
)
)
ORDER
Adopted: June 14, 2012 Released: June 14, 2012
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau (Bureau) of the Federal Communications
Commission and Level 3 Communications, LLC (Level 3). The Consent
Decree resolves and terminates the Bureau's investigation into Level
3's compliance with Section 4.9 of the Commission's rules (Rules)
pertaining to the reporting of network outages.
2. The Bureau and Level 3 have negotiated a Consent Decree that resolves
this matter. A copy of the Consent Decree is attached hereto and
incorporated herein 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 new material evidence relating to this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether Level 3 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
Communications Act of 1934, as amended, 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 Gregory T. Diamond, Corporate Counsel, Level 3
Communications, LLC, 1025 Eldorado Boulevard, Broomfield, CO 80021, as
well as to Frank Lamancusa, Esq., counsel for Level 3 Communications,
LLC, Bingham McCutchen LLP, 2020 K Street, N.W., Washington, DC
20006-1806.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No.: EB-08-SE-548
In the Matter of )
Acct No.: 201232100027
Level 3 Communications, LLC )
FRN: 0003723822
)
)
CONSENT DECREE
8. The Enforcement Bureau of the Federal Communications Commission and
Level 3 Communications, LLC, by their respective authorized
representatives, hereby enter into this Consent Decree for the purpose
of terminating the Enforcement Bureau's investigation into whether
Level 3 Communications, LLC violated Section 4.9 of the Commission's
Rules, 47 C.F.R. S: 4.9, regarding the reporting of network outages.
I. DEFINITIONS
9. 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. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
e. "Compliance Plan" means the compliance obligations and compliance
program described in this Consent Decree at paragraph 9.
f. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
g. "Investigation" means the investigation commenced by the Bureau's June
24, 2008 letter of inquiry regarding Level 3's compliance with the
reporting requirements under Section 4.9 of the Rules, 47 C.F.R. S:
4.9.
h. "Level 3" or the "Company" means Level 3 Communications, LLC and its
subsidiaries, affiliates, predecessors-in-interest and
successors-in-interest.
i. "Parties" means Level 3 and the Bureau, and each is a "Party."
j. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
10. Pursuant to Section 4.9(f) of the Rules, wireline service providers
must report to the Commission an outage of at least 30 minutes
duration that: (1) potentially affects at least 900,000 user minutes
of either telephony or paging; (2) affects at least 1,350 DS3 minutes;
(3) potentially affects any special offices and facilities; or (4)
potentially affects a 911 special facility. Upon discovery of such an
outage, wireline service providers must file an electronic
Notification within 120 minutes, an Initial Communications Outage
Report within 72 hours, and a Final Communications Outage Report
within 30 days.
11. On June 24, 2008, the Bureau issued a letter of inquiry (LOI) to Level
3. The LOI directed Level 3 to submit a sworn written response to a
series of questions relating to Level 3's compliance with the
Commission's network outage reporting rules. Level 3 responded to the
LOI on July 24, 2008 (LOI Response). Level 3 supplemented its LOI
Response on September 23, 2008. The Bureau issued a follow-up letter
of inquiry to Level 3 on November 17, 2009, to which Level 3 responded
on January 8, 2010. Level 3 supplemented that response on May 4, 2011.
Level 3 and the Bureau executed tolling agreements to toll the statute
of limitations.
III. TERMS OF AGREEMENT
12. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order.
13. Jurisdiction. Level 3 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.
14. Effective Date; Violations. The Parties agree that this Consent
Decree shall become effective on the Effective Date as defined herein.
As of the Effective Date, 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 Commission to exercise any rights and
remedies attendant to the enforcement of a Commission order.
15. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate the
Investigation. In consideration for the termination of the
Investigation, Level 3 agrees to the terms, conditions, and procedures
contained herein. The Bureau further agrees that in the absence of new
material evidence, the Bureau will not use the facts developed in the
Investigation through the Effective Date, or the existence of this
Consent Decree, to institute on its own motion any new proceeding,
formal or informal, or take any action on its own motion against Level
3 concerning the matters that were the subject of the Investigation.
The Bureau also agrees that in the absence of new material evidence,
it will not use the facts developed in the 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 Level 3 with respect to Level 3's
basic qualifications, including its character qualifications, to be a
Commission licensee or hold Commission licenses or authorizations.
16. Compliance Plan. In response to the Bureau's Investigation, Level 3
represents that it initiated certain remedial measures and, for
purposes of settling the matters herein, agrees to maintain a
Compliance Plan intended to ensure future compliance with the Act, the
Rules, and the Commission's orders. The Compliance Plan will include,
at a minimum, the following components:
a. Compliance Officer. Level 3 shall designate a Compliance Officer
within thirty (30) days of the Effective Date. The Compliance Officer
shall be responsible for administering the Compliance Plan and shall
be the senior corporate manager whose business unit is most directly
responsible for reporting network outages to the FCC.
b. Compliance Process.
i. Level 3 certifies that, since the onset of the Investigation, it
has implemented changes to improve the accuracy and timeliness of
its outage reporting process. Specifically, Level 3 has
consolidated the responsibilities for reporting most wireline and
wireless service outages into a single operations center and
implemented new report tracking tools that employ automated
notifications, as well as escalations and reminders. Additionally,
Level 3 has implemented a periodic review (at least monthly and
sometimes more frequently) with key stakeholders to drive further
improvements in the reporting process.
ii. Level 3 agrees to maintain these outage reporting process
measures for the duration of the Compliance Plan and shall review
and revise these measures as appropriate, including in the event
of any changes in the network outage reporting Rules.
c. Compliance Training Program. Level 3 certifies that, as a result of
this Investigation, it has implemented a network outage reporting
training program. Level 3 shall maintain for the duration of this
Compliance Plan a Compliance Training Program as detailed below.
i. Level 3's Compliance Training Program shall address, at a minimum,
the Rules governing the reporting of network outages, the
information and calculations necessary to determine whether an
outage is reportable under the Rules, and the time periods during
which notifications and reports of reportable outages must be
submitted to the Commission. Level 3's Compliance Training Program
shall also address the methods and procedures adopted by Level 3
to identify and report those network outages that meet the
Commission's reporting criteria, including network outage events
related to unprotected DS3 circuits. The Compliance Training
Program shall also include information on the potential internal
and regulatory consequences of failing to comply with the
Commission's outage reporting requirements and/or Level 3's
methods and procedures.
ii. Within sixty (60) days of the Effective Date, Level 3 shall
ensure that training and compliance materials regarding the
Commission's network outage reporting requirements are provided
to all of its employees who are responsible for gathering and/or
analyzing information regarding Level 3's network outages,
entering that information into any Level 3 database and/or record
that forms the basis of Level 3's reporting of network outages to
the Commission, or compiling and/or submitting Level 3's outage
reports to the Commission, as well as any managers overseeing
such employees. This training shall be provided on an annual
basis. Additionally, Level 3 shall update the Compliance Training
Program as necessary and appropriate, and in the event of changes
and/or additions to Section 4.9 of the Rules, shall update the
Compliance Training Program within fifteen (15) days after the
effective date of any such change or addition. Level 3 will also
train new and reassigned employees responsible for these
activities within thirty (30) days of their assuming these
responsibilities.
d. Outage Reporting. Beginning sixty (60) calendar days after the
Effective Date and thereafter, Level 3 shall include in any network
outage report filed with the Commission the date and time that Level 3
discovered the outage was reportable using the following two separate
fields: (1) Date Outage Determined Reportable and (2) Local Time
Outage Determined Reportable (24 hr clock (nnnn)).
e. Compliance Report. Level 3 shall file Compliance Reports with the
Bureau six (6) months after the Effective Date, twelve (12) months
after the Effective Date, and twenty-four (24) months after the
Effective Date.
i. Each Compliance Report shall affirm that Level 3:
1. has established and implemented the Compliance Plan and operating
procedures intended to ensure compliance with the terms and
conditions of this Consent Decree and with Section 4.9 of the
Rules, together with an accompanying statement explaining the basis
for the assertion;
2. has been utilizing these procedures for the entire term of the
Compliance Plan;
3. has disclosed in the Compliance Report any known instances of
non-compliance with this Compliance Plan discovered during the
reporting period;
4. has taken steps to identify any late-filed outage reports; and
5. has addressed any instances of late-filed outage reports and taken
steps to remedy the cause of the late filings.
i. Each Compliance Report will be supported by the declaration of the
Compliance Officer as an agent of and on behalf of Level 3 with
personal knowledge of the representations provided in the report,
verifying the truth and accuracy of the information. The declaration
will comply with Section 1.16 and be subscribed to as true under
penalty of perjury in substantially the same form set forth therein.
ii. Any instance of non-compliance with the Compliance Plan disclosed in
the report shall provide:
1. a detailed explanation of the non-compliance;
2. the steps Level 3 has taken to remedy the non-compliance and
ensure future compliance; and
3. the schedule on which the proposed remedial actions will be
taken.
f. Filing. All Compliance Reports shall be submitted to the Chief,
Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C.
20554, with a copy submitted electronically to Kevin M. Pittman at
Kevin.Pittman@fcc.gov and JoAnn Lucanik at JoAnn.Lucanik@fcc.gov.
g. Progress Assessment. Beginning on the Effective Date, Level 3 shall,
at the request of the Bureau, meet with the Bureau once each 60-day
period during the term of the Compliance Plan to discuss Level 3's
adherence to the Compliance Plan and its performance under the Part 4
Rules. Level 3 agrees to provide the Bureau with information the
Bureau requests concerning these topics.
h. Termination. The provisions of this paragraph shall remain in effect
for two (2) years from the Effective Date.
17. 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 Level 3 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 Level 3 with the Act, the Rules, or
Commission orders.
18. Voluntary Contribution. Level 3 agrees that it will make a voluntary
contribution to the United States Treasury in the amount of
sixty-eight thousand dollars ($68,000). The contribution will be made
within thirty (30) calendar days after the Effective Date. 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 Number 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 TREAS/NYC, and account number 27000001.
Regardless of the form of payment, an 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). Level 3 will also send
electronic notification on the date said payment is made to
JoAnn.Lucanik@fcc.gov, Kevin.Pittman@fcc.gov, and Sam.Peoples@fcc.gov.
19. Waivers. Level 3 waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or stay, or
to otherwise challenge or contest the validity of this Consent Decree
and the Adopting Order, provided the Bureau issues an Adopting Order
as defined herein. Level 3 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 Level 3 nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and Level 3
shall waive any statutory right to a trial de novo. Level 3 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.
20. 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.
21. 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 Level 3 does not expressly
consent) that provision will be superseded by such Rule or Commission
order.
22. Successors and Assigns. Level 3 agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
23. 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, the Rules, or Commission orders and that by
agreeing to this Consent Decree Level 3 does not admit or deny
noncompliance, violation or liability for violating the Act or rules
in connection with the matters that are the subject of this Consent
Decree.
24. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
25. 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.
26. Authorized Representative. Each Party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree. Each person signing this Consent Decree on behalf of a Party
hereby represents that he or she is fully authorized by the Party to
execute this Consent Decree and to bind the Party to its terms and
conditions.
27. 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
________________________________
Date
________________________________
Michael Mooney
General Counsel, Regulatory Policy
Level 3 Communications, LLC
________________________________
Date
47 C.F.R. S: 4.9.
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
FCC Enforcement Bureau, to William P. Hunt III, Vice President, Public
Policy, Level 3 Communications, LLC (June 24, 2008).
"User minutes" are defined as "[a]ssigned telephone number minutes ... for
telephony and for those paging networks in which each individual user is
assigned a telephone number" or "the mathematical result of multiplying
the duration of an outage, expressed in minutes, by the number of end
users potentially affected by the outage for all other forms of
communication." 47 C.F.R. S: 4.7(e).
"DS3 minutes" are defined as "the mathematical result of multiplying the
duration of an outage, expressed in minutes, by the number of previously
operating DS3 circuits that were affected by the outage." 47 C.F.R. S:
4.7(d).
"Special offices and facilities" include major military installations, key
government facilities, nuclear power plants, and certain airports. 47
C.F.R. S: 4.5(b)-(d).
See 47 C.F.R. S: 4.5(e).
See 47 C.F.R. S: 4.9(f).
See supra n. 1.
Letter from William P. Hunt III, Vice President, Public Policy, Level 3
Communications, LLC, to JoAnn Lucanik, Deputy Chief, Spectrum Enforcement
Division, FCC Enforcement Bureau (July 24, 2008).
Letter from William P. Hunt III, Vice President, Public Policy, Level 3
Communications, LLC, to JoAnn Lucanik, Deputy Chief, Spectrum Enforcement
Division, FCC Enforcement Bureau (Sept. 23, 2008).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
FCC Enforcement Bureau, to William P. Hunt III, Vice President, Public
Policy, Level 3 Communications, LLC (Nov. 17, 2009).
Letter from William P. Hunt III, Vice President, Public Policy, Level 3
Communications, LLC, to JoAnn Lucanik, Deputy Chief, Spectrum Enforcement
Division, FCC Enforcement Bureau (Jan. 8, 2010).
Letter from Frank G. Lamancusa, Counsel for Level 3 Communications, LLC,
to Ricardo Durham, Acting Chief, Spectrum Enforcement Division, FCC
Enforcement Bureau (May 4, 2011).
See, e.g., Tolling Agreement Extension, File No. EB-08-SE-548, executed by
and between John D. Poutasse, Acting Chief, Spectrum Enforcement Division,
FCC Enforcement Bureau, and Gregory T. Diamond, Regulatory Counsel, Level
3 Communications, LLC (Sept. 15, 2011).
Federal Communications Commission DA 12-902
2
Federal Communications Commission DA 12-902