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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No.: EB-09-IH-1945
Unipoint Technologies, Inc. ) NAL/Acct. No.: 201332080001
Apparent Liability for Forfeiture ) FRN: 0016749186
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 9, 2012 Released: October 11, 2012
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Unipoint Technologies, Inc. d/b/a Comfi.com (Unipoint or the
Company) apparently violated Section 214(a) of the Communications Act
of 1934, as amended (Act), and Sections 43.61, 52.17(b), 52.32(b),
54.711, 63.18, and 64.604(c)(5)(iii)(A)-(B) of the Commission's rules
(Rules) by willfully or repeatedly failing to: (1) apply for and
obtain authorization from the Commission to provide international
telecommunications service; (2) file its Telecommunications Reporting
Worksheet (Form 499-A); (3) contribute fully to the Telecommunications
Relay Service (TRS) Fund; and (4) file annual traffic and revenue
reports for service between the United States and overseas points.
Based on our review of the facts and circumstances surrounding this
matter, and for the reasons discussed below, we find that Unipoint is
apparently liable for forfeiture penalties totaling one hundred
seventy-nine thousand dollars ($179,000).
II. BACKGROUND
2. Section 214(a) of the Act prohibits any carrier from constructing,
extending, acquiring, or operating any line, and from engaging in
transmission through any such line, without first obtaining a
certificate of authorization from the Commission (Section 214
authority). Although the Commission has granted "blanket" Section 214
authority to carriers providing domestic service, meaning that such
carriers do not need to seek Commission approval before providing
domestic service, the Commission has not done the same for providers
of international telecommunications services. Instead, a carrier must
seek and obtain Section 214 authority from the Commission prior to
providing such services. The Commission has explained that the
international Section 214 authority review process enables the
Commission to review applications for risks to competition,
particularly in situations where the applicant has an affiliation with
a foreign carrier that possesses market power on the foreign end of
the route. The Commission's concern is that the carrier may be able to
leverage that market power to discriminate against U.S. competitors to
the detriment of U.S. consumers. The Commission's international
Section 214 application review process also includes consultation with
Executive Branch agencies regarding national security, law
enforcement, foreign policy, and trade concerns that may be unique to
the provision of international service.
3. Section 63.18 of the Rules requires any carrier that seeks Section 214
authority "for provision of common carrier communication services
between the United States, its territories or possessions, and a
foreign point" to request such authority by formal application. This
application requirement applies to carriers that resell the
international services of another authorized carrier, as well as to
facilities-based international services providers. The applicant must
provide the Commission with, among other items, contact information,
ownership information, information on any affiliations the applicant
may have with foreign carriers, certification that it will comply with
the Rules, and certification that the applicant is not subject to
denial of Federal benefits pursuant to the Anti-Drug Abuse Act of
1988. Section 63.18(e)(2) establishes specific requirements for
parties "applying for authority to resell the international services
of authorized common carriers," and Section 63.23 of the Rules, in
turn, identifies the conditions that apply to "carriers authorized to
resell the international services of other authorized carriers."
4. In addition to requiring that telecommunications carriers obtain
international Section 214 authority, the Act charges the Commission
with establishing, administering, and maintaining various
telecommunications regulatory programs, and with funding these
programs through assessments on the telecommunications providers that
benefit from them. To help accomplish these goals, the Commission
requires, subject to limited exceptions not applicable here, that all
interstate, international, and intrastate telecommunications providers
file FCC Form 499-A, also known as the annual Telecommunications
Reporting Worksheet (Annual Worksheet or Form 499-A). Certain of the
information reported on this form helps the Commission monitor the
entry and operation of interstate telecommunications providers to
ensure, among other things, that the providers are qualified to
provide telecommunications service, do not engage in fraud, and do not
evade oversight.
5. The Rules also require telecommunications providers to report revenue
information on their Annual Worksheets for the purpose of determining
the providers' Universal Service Fund (USF), TRS, Local Number
Portability (LNP), North American Numbering Plan (NANP)
administration, and regulatory fee payments. These periodic filings
enable the regulatory fund administrators to determine the
contribution amounts, if any, owed to the various funds, and to handle
the subsequent billing and fund payment collection. For example, the
TRS Fund administrator uses the annual filings to determine each
contributor's TRS Fund contribution amount. Carrier contributors must
timely pay their contribution invoices, and the Rules explicitly warn
contributors that failure to file forms or submit payments potentially
subjects them to enforcement action.
6. Section 225(b)(1) of the Act, which codifies Title IV of the Americans
with Disabilities Act of 1990, directs the Commission to "ensure that
interstate and intrastate telecommunications relay services are
available, to the extent possible and in the most efficient manner, to
hearing-impaired and speech-impaired individuals in the United
States." To that end, the Commission established the TRS Fund to
reimburse TRS providers for the costs of providing interstate
telecommunications relay services. Pursuant to Section
64.604(c)(5)(iii)(A) of the Rules, every provider of interstate or
international telecommunications services must contribute to the TRS
Fund based upon its end-user revenues.
7. Section 219(a) of the Act authorizes the Commission to "require annual
reports from all carriers subject to [the Act] . . . ." Section
220(a)(1) of the Act, in pertinent part, gives the Commission
"discretion [to] prescribe the forms of any and all accounts [and]
records to be kept by carriers subject to [the] Act, including . . .
the accounts [and] records . . . of the movement of traffic, as well
as of receipts and expenditures of moneys." Section 43.61(a) of the
Rules requires, in pertinent part, that "[e]ach common carrier engaged
in providing international telecommunications service between the
United States . . . and any country or point outside" the United
States "shall file a report with the Commission not later than July 31
of each year" providing specified traffic and revenue data pertaining
to the common carrier's international telecommunications service
provided in the preceding calendar year.
8. Unipoint is a Massachusetts corporation that, through the trade name
Comfi.com, operates as a prepaid calling card provider that resells
international and domestic telecommunications services. Unipoint
offers "a wide range of calling cards for destinations around the
globe." To become a customer, an end user must register an on-line
account with, and agree to make payment to, Comfi.com. The customer
then receives an access number, a personal identification number
(PIN), and dialing instructions via e-mail. The customer places a call
by dialing his or her access number, followed by the PIN, and then the
phone number of the party that the customer wants to reach. Unipoint
sells refillable and non-refillable cards. A refillable card gives the
customer the ability to reuse a PIN, as well as the option of PIN-less
dialing, by registering a phone number with Comfi.com that is linked
to the customer's Comfi.com account.
9. On April 22, 2009, Unipoint applied for international Section 214
authority. Its application did not address whether Unipoint had been
providing unauthorized international common carrier service. On May 8,
2009, the Commission granted Unipoint international Section 214
authority. On August 17, 2009, Unipoint self-disclosed to the
Commission that the Company may have violated the Act and the Rules.
The Enforcement Bureau (Bureau) initiated an investigation shortly
thereafter. Through its investigation, the Bureau learned that
Unipoint may have begun providing international prepaid calling card
telecommunications services without first obtaining Section 214
authority.
10. The Bureau's investigation also disclosed that Unipoint apparently had
failed to timely file its 2007 Annual Worksheet (reporting 2006
calendar year revenues), timely make its TRS Fund contributions for
2007 and 2008, and timely file its 2008, 2009, and 2011 international
telecommunications traffic reports (for calendar years 2007, 2008, and
2010, respectively):
* Unipoint's 2007 Annual Worksheet was due on April 1, 2007, but was not
filed until September 22, 2009, more than twenty-nine months after its
due date.
* Unipoint was obligated to make a $13,553.05 contribution to the TRS
Fund for 2007 by July 26, 2007, but did not make that contribution
until October 20, 2009, approximately twenty-seven months late.
* Unipoint was obliged to make a $33,614.22 contribution to the TRS Fund
for 2008 by July 28, 2008, but did not make that contribution until
October 20, 2009, approximately fifteen months late.
* Unipoint did not file its 2008 international telecommunications
traffic report until March 31, 2010, approximately 20 months after the
July 31, 2008, due date for that report.
* Unipoint did not file its 2009 international telecommunications
traffic report until March 31, 2010, eight months after its July 31,
2009, due date.
* Unipoint did not file its 2011 international telecommunications
traffic report until August 18, 2011, 18 days after its July 31, 2011,
due date.
III. DISCUSSION
11. Under Section 503(b)(1) of the Act, any person who is determined by
the Commission to have willfully or repeatedly failed to comply with
any provision of the Act or any rule, regulation, or order issued by
the Commission shall be liable to the United States for a forfeiture
penalty. Section 312(f)(1) of the Act defines willful as "the
conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law. The legislative
history to Section 312(f)(1) of the Act clarifies that this definition
of willful applies to both Sections 312 and 503(b) of the Act, and the
Commission has so interpreted the term in the Section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. "Repeated" means that the act was
committed or omitted more than once, or lasts more than one day. To
impose such a forfeiture penalty, the Commission must issue a notice
of apparent liability, and the person against whom the notice has been
issued must have an opportunity to show, in writing, why no such
forfeiture penalty should be imposed. The Commission will then issue a
forfeiture if it finds, based on the evidence, that the person has
violated the Act or a Rule.
12. The issues in this case are whether Unipoint apparently violated the
Act and the Rules by willfully or repeatedly failing to: (1) apply for
and obtain authorization from the Commission to provide international
telecommunications service before providing such service; (2) timely
file its 2007 Annual Worksheet; (3) timely contribute to the TRS Fund;
and (4) timely file its 2008, 2009, and 2011 international
telecommunications traffic reports. We answer these questions in the
affirmative. As set forth below, we conclude that Unipoint is
apparently liable for forfeiture for willful or repeated violations of
Section 214(a) of the Act and Sections 43.61, 52.17(b), 52.32(b),
54.711, 63.18, and 64.604(c)(5)(iii)(A)-(B) of the Rules. Based on the
facts and circumstances before us, we therefore conclude that Unipoint
is apparently liable for forfeiture penalties totaling one hundred
seventy-nine thousand dollars ($179,000).
A. Unipoint Apparently Failed to Obtain an International Section 214
Authorization Before Providing International Telecommunications
Service
13. We find that Unipoint apparently provided international
telecommunications service without Commission authorization in
violation of Section 214 of the Act and Section 63.18 of the Rules.
That unauthorized service appears to have persisted for several years
and apparently did not end until the Commission granted Unipoint
international Section 214 authorization on May 8, 2009. A failure to
obtain an international Section 214 authorization prior to offering
international telecommunications service constitutes a continuing
violation until the violation is cured. Unipoint did not even address
whether it had been providing such service when it finally did submit
an application for international Section 214 authority on April 22,
2009. Nor did Unipoint request or receive Special Temporary Authority
(STA) to offer international service during the pendency of that
application. We therefore conclude, based on a preponderance of the
evidence, that Unipoint apparently has willfully or repeatedly
violated Section 214 of the Act and Section 63.18 of the Rules.
B. Unipoint Apparently Failed to Timely File its 2007 Annual
Telecommunications Reporting Worksheet
14. We conclude that Unipoint violated Sections 52.17(b), 52.32(b),
54.711, and 64.604(c)(5)(iii)(B) of the Rules by failing to timely
file its 2007 Annual Telecommunications Reporting Worksheet. These
Rules require that all telecommunications service providers file an
Annual Worksheet. A failure to file an Annual Worksheet constitutes a
continuing violation until the violation is cured. Unipoint filed its
2007 Annual Worksheet more than twenty-nine months after its April 1,
2007, due date. Based on a preponderance of the evidence, we therefore
find that Unipoint apparently has violated 52.17(b), 52.32(b), 54.711,
and 64.604(c)(5)(iii)(B) of the Rules by willfully or repeatedly
failing to file its 2007 Annual Worksheet.
C. Unipoint Apparently Failed to Timely Make Required TRS Fund
Contributions for 2007 and 2008
15. As a provider of interstate and international telecommunications
services, Unipoint was obligated to contribute to the TRS Fund on the
basis of its interstate and international end-user telecommunications
revenues reported on its Annual Worksheet. The contribution that a
carrier is required to make to the TRS Fund is calculated by applying
a contribution factor (determined annually by the Commission) to the
carrier's revenues for the prior calendar year. Subject carriers must
make TRS contributions on an annual basis, with certain exceptions
that are not applicable to Unipoint. Failures to timely contribute to
the TRS Fund constitute continuing violations until the violations are
cured. Unipoint was obligated to make a $13,553.05 contribution to the
TRS fund for 2007 by July 26, 2007, but did not make that contribution
until October 20, 2009, a delay of approximately 27 months. The
Company was obligated to make a $33,614.22 contribution to the TRS
Fund for 2008 by July 28, 2008, but did not make that contribution
until October 20, 2009, approximately 15 months late. We therefore
conclude, based on a preponderance of the evidence, that Unipoint has
apparently violated Section 64.604(c)(5)(iii)(A) of the Rules by
willfully or repeatedly failing to timely make required TRS
contributions for 2007 and 2008.
D. Unipoint Apparently Failed to Timely File its 2008, 2009, and 2011
International Telecommunications Traffic Reports
16. Section 43.61 of the Rules requires common carriers that provide
international telecommunications services to file reports with the
Commission containing data on overseas traffic. The Commission's
records indicate that Unipoint failed to file its 2008, 2009, and 2011
international telecommunications traffic reports (providing calendar
year 2007, 2008, and 2010 data, respectively) in a timely manner.
Failures to timely file international telecommunications traffic
reports constitute continuing violations until the violations are
cured. Unipoint was obligated to submit its 2008 international
telecommunications traffic report by July 31, 2008, but did not do so
until twenty months later on March 31, 2010. Unipoint was obligated to
file its 2009 international telecommunications traffic report by July
31, 2009, but did not do so until eight months later on March 31,
2010. Unipoint was obliged to file its 2011 international
telecommunications traffic report by July 31, 2011, but did not do so
until August 18, 2011, nearly three weeks late. Notably, Unipoint's
late filing of its 2011 international telecommunications traffic
report occurred while the Company was under investigation concerning
the lateness of its 2008 and 2009 international telecommunications
traffic report. Based on a preponderance of the evidence, we conclude
that Unipoint apparently violated Section 43.61 of the Rules by
willfully or repeatedly failing to timely file its 2008, 2009, and
2011 international telecommunications traffic reports providing data
for calendar years 2007, 2008, and 2010.
E. Proposed Forfeitures
17. Section 503(b)(1) of the Act provides that any person who willfully or
repeatedly fails to comply with any provision of the Act or any rule,
regulation, or order issued by the Commission shall be liable to the
United States for a forfeiture penalty. Section 503(b)(2)(B) of the
Act authorizes the Commission to assess a forfeiture of up to $150,000
for each violation or each day of a continuing violation by a common
carrier, up to a statutory maximum of $1,500,000 for a single act or
failure to act. In determining the appropriate forfeiture amount, we
consider the factors enumerated in Section 503(b)(2)(E) of the Act,
including "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," as well as our forfeiture
guidelines.
18. We conclude that Unipoint apparently failed to obtain an international
Section 214 authorization from the Commission prior to providing
international telecommunications service. Unipoint apparently operated
as an international telecommunications service provider for an
extended period without authorization from the Commission. We
therefore find that this apparent violation of the Act and the Rules
was both willful and repeated. Given the unambiguous language of the
Act, the Commission's Rules and decisions, and the Commission's
website, it should have been apparent to Unipoint that it was required
to obtain Section 214 authority from the Commission prior to providing
international telecommunications service.
19. We view Unipoint's apparent failure to obtain international Section
214 authority prior to offering international telecommunications
service as a serious dereliction of its responsibilities under the Act
and the Rules. The Commission requires applications for international
Section 214 authority so that it may address national security, law
enforcement, foreign policy, and trade concerns that may be associated
with the provision of international service prior to the commencement
of such service. International telecommunications carriers that
operate without Section 214 authority thus may endanger important
public interests. Consistent with Commission precedent, we find that
Unipoint is apparently liable for a forfeiture of one hundred thousand
dollars ($100,000) for its willful or repeated failure to obtain
international Section 214 authority from the Commission prior to
providing international telecommunications service.
20. We conclude that Unipoint apparently failed to timely file its 2007
Annual Worksheet, in apparent willful or repeated violation of
Sections 52.17(b), 52.32(b), 54.711, and 64.604(c)(5)(iii)(B) of the
Rules. We view Unipoint's apparent failure to timely file its Annual
Worksheet as a serious dereliction of its responsibilities under our
Rules. The data filed on an Annual Worksheet are relied upon to
determine a carrier's contributions, if any, to the USF and the TRS
Fund, and to determine a carrier's payments for LNP and NANP cost
recovery. Unipoint's failure to timely file its 2007 Annual Worksheet
thus had serious implications for administration of those programs.
Consistent with Commission precedent, we find that Unipoint is
apparently liable for a forfeiture of fifty thousand dollars ($50,000)
for willful or repeated failure to timely file its 2007 Annual
Worksheet.
21. We also find that Unipoint apparently failed to make timely TRS
contributions for 2007 and 2008. As discussed above, these
contributions were not made until 2009. Where a provider fails to
satisfy its TRS obligations for an extended period of time, it impedes
our efforts to ensure that "telecommunications relay services are
available, to the extent possible and in the most efficient manner, to
hearing-impaired and speech-impaired individuals in the United
States," as Section 225(b)(1) of the Act directs. The Commission has
established a base forfeiture amount of $10,000 for each instance in
which a contributor fails to make required TRS contributions.
Consistent with Commission precedent, we find that Unipoint is
apparently liable for a forfeiture of twenty thousand dollars
($20,000) for failure to timely pay its TRS Fund contributions for
2007 and 2008.
22. Finally, we find that Unipoint apparently willfully or repeatedly
failed to timely file international telecommunications traffic reports
in 2008, 2009, and 2011, as Section 43.61 of our Rules requires. The
Commission has held that the data it receives through international
telecommunications traffic reports are "invaluable" to the discharge
of essential regulatory tasks, including "evaluating applications for
international facilities, considering facility planning options,
monitoring the development and competitiveness of each international
market, formulating policies consistent with the public interest and
gauging the competitive impact of [its] decisions on the market."
Failure to timely file international telecommunications traffic
reports impedes the work of the Commission and hampers the discharge
of its obligations under the Act. The Commission's Forfeiture Policy
Statement and implementing Rules prescribe a base forfeiture of $3,000
for failure to file required forms or information. Therefore, we find
Unipoint is apparently liable for a forfeiture of nine thousand
dollars ($9,000) for its willful or repeated failure to timely file
international telecommunications traffic reports in 2008, 2009, and
2011.
IV. CONCLUSION
23. In light of the seriousness, duration, and scope of the apparent
violations, we propose forfeitures totaling one hundred seventy-nine
thousand dollars ($179,000) against Unipoint, consisting of one
hundred thousand dollars ($100,000) for providing international
telecommunications service without authorization; fifty thousand
dollars ($50,000) for failure to timely file a 2007 Annual Worksheet;
twenty thousand dollars ($20,000) for failure to timely make
contributions to the TRS Fund in 2007 and 2008; and nine thousand
dollars ($9,000) for failure to timely file international
telecommunications traffic reports in 2008, 2009, and 2011.
V. ORDERING CLAUSES
24. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Section 1.80 of the Rules, Unipoint Technologies, Inc. is
hereby NOTIFIED OF ITS APPARENT LIABILITY FOR A FORFEITURE in the
amount of one hundred seventy-nine thousand dollars ($179,000) for
willfully or repeatedly violating Section 214(a) of the Communications
Act of 1934, as amended, 47 U.S.C. S: 214(a), and Sections 43.61,
52.17(b), 52.32(b), 54.711, 63.18, and 64.604(c)(5)(iii)(A)-(B) of the
Commission's rules, 47 C.F.R. S:S: 43.61, 52.17(b), 52.32(b), 54.711,
63.18, 64.604(c)(5)(iii)(A)-(B).
25. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
within thirty (30) calendar days of the release date of this Notice of
Apparent Liability for Forfeiture, Unipoint SHALL PAY the full amount
of the proposed forfeitures or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeitures.
26. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Unipoint shall also send electronic
notification within forty-eight (48) hours of the date said payment is
made to Terry.Cavanaugh@fcc.gov and to Robert.Krinsky@fcc.gov.
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 to follow based on the form
of payment selected:
* 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.
27. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer - Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. 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.
28. The written statement seeking reduction or cancellation of the
proposed forfeitures, if any, must include a detailed factual
statement supported by appropriate documentation and affidavits
pursuant to Sections 1.80(f)(3) and 1.16 of the Commission's Rules.
The written statement must be mailed to Theresa Z. Cavanaugh, Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Room 4-C330,
Washington, D.C. 20554 and must include the NAL/Account number
referenced above. The written statement shall also be e-mailed to
Theresa Z. Cavanaugh at Terry.Cavanaugh@fcc.gov and to Robert B.
Krinsky at Robert.Krinsky@fcc.gov.
29. 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 (GAAP); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.
30. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by first class mail and certified mail,
return receipt requested, to: Dmitriy V.
Lubarsky, Chief Executive Officer, Unipoint Technologies, Inc., 34
Washington Street, Suite 201, Wellesley, MA 02481.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
47 U.S.C. S: 214(a). Comfi.com is also known as Communications Fidelity.
During the period covered by the Commission's investigation, Unipoint has
listed this trade name on its Annual Telecommunications Reporting
Worksheets. See Unipoint Technologies, Inc., 2007-2011 Form 499-A
Telecommunications Reporting Worksheet, at Item 112 (on file in
EB-09-IH-1945) (Unipoint Annual Reporting Worksheets, 2007-2011).
47 C.F.R. S:S: 43.61, 52.17(b), 52.32(b), 54.711, 63.18,
64.604(c)(5)(iii)(A)-(B).
See 47 U.S.C. S: 214(a).
47 C.F.R. S: 63.01(a) (authorizing "[a]ny party that would be a domestic
interstate communications common carrier . . . to provide domestic,
interstate services to any domestic point and to construct or operate any
domestic transmission line as long as it obtains all necessary
authorizations from the Commission for use of radio frequencies").
See Implementation of Section 402(b)(2)(A) of the Telecomm. Act of 1996,
Report and Order in CC Docket No. 97-11, Second Memorandum Opinion & Order
in AAD File No. 98-43, 14 FCC Rcd 11364, para. 2 & n.8 (1999) (grant of
blanket authority is only for domestic services and does not extend to
international services).
47 C.F.R. S: 63.18; see also 47 U.S.C. S: 214(a).
See 1998 Biennial Regulatory Review - Review of International Common
Carrier Regulations, Report and Order, 14 FCC Rcd 4909, 4914-16, paras.
14-16 (1999) (1998 International Biennial Review Order); Personal
Communications Industry Ass'n's Broadband Personal Communications Services
Alliance's Petition for Forbearance for Broadband Personal Communications
Services, Memorandum Opinion and Order and Notice of Proposed Rulemaking,
13 FCC Rcd 16857, 16882-83, para. 50 (1998) (PCIA Forbearance Order).
See 1998 International Biennial Review Order, 14 FCC Rcd at 4915, para.
15; PCIA Forbearance Order, 13 FCC Rcd at 16882, para. 50.
47 C.F.R. S: 63.18.
Id. S: 63.18(e)(1)-(2); see Start Wireless Group, Inc. d/b/a Page Plus
Cellular, Notice of Apparent Liability for Forfeiture, 27 FCC Rcd 350
(Enf. Bur. 2012).
See 47 C.F.R. S: 63.18(e)(1)-(2).
Id. S:S: 63.18(e)(2), 63.23.
See, e.g., 2012 Telecommunications Reporting Worksheet Instructions (FCC
Form 499-A), available at
http://transition.fcc.gov/Forms/Form499-A/499a-2012.pdf (March 2012) (last
visited Aug. 19, 2012); see also 47 C.F.R. S:S: 52.17(b), 52.32(b),
54.711(a), 64.604(c)(5)(iii)(B), 64.1195.
See Implementation of the Subscriber Carrier Selection Changes Provisions
of the Telecommunications Act of 1996, Third Report and Order and Second
Order on Reconsideration, 15 FCC Rcd 15996, 16024-26, paras. 59-62 (2000)
(Carrier Selection Order).
See infra note 58 for citations to the relevant Rules. Upon receipt of a
Form 499-A registration, the Universal Service Administrative Company
(USAC), the administrator of the USF, issues a filer identification number
to the registrant. That number is associated with further filings by the
company and is used to track the provider's contributions and invoices.
See 47 U.S.C. S:S: 225(d)(3), 254(d). In 1999, to streamline the
administration of the programs and to ease the burden on regulatees, the
Commission consolidated the information filing requirements for multiple
telecommunications regulatory programs into the annual Telecommunications
Reporting Worksheet. See 1998 Biennial Regulatory Review - Streamlined
Contributor Reporting Requirements Associated with the Administration of
Telecommunications Relay Services, North American Numbering Plan, Local
Number Portability, and Universal Service Support Mechanisms, Report and
Order, 14 FCC Rcd 16602 (1999).
47 C.F.R. S: 64.604(c)(5)(iii)(B).
See, e.g., id. ("Carriers shall complete and submit, and contributions
shall be based on, a `Telecommunications Reporting Worksheet' (as
published by the Commission in the Federal Register)."); see also ADMA
Telecom, Inc., Notice of Apparent Liability for Forfeiture, 24 FCC Rcd
838, 838-39, paras. 2-3 (2009)(ADMA NAL).
See 47 C.F.R. S: 54.713(a); see id. S: 54.713(c) (stating that the
Commission also may pursue enforcement action against late filers and
delinquent contributors).
47 U.S.C. S: 225(b)(1).
See Telecommunications Relay Services and the Americans with Disabilities
Act of 1990, Third Report and Order, 8 FCC Rcd 5300, para. 3 (1993).
Telecommunications relay services enable persons with hearing and speech
disabilities to communicate by telephone with voice-telephone users. Such
services provide telephone access to a
(continued . . .)
significant number of Americans who, without it, might not be able to make
calls to or receive calls from voice-telephone users. See
Telecommunications Relay Services and Speech-to-Speech Services for
Individuals with Hearing and Speech Disabilities, Report and Order, 15 FCC
Rcd 5140, 5141, 5143, paras. 2, 5 (2000).
47 C.F.R. S: 64.604(c)(5)(iii)(A) (requiring every carrier that provides
"interstate services, including . . . international . . . services" to
contribute to the TRS Fund).
47 U.S.C. S: 219(a).
47 U.S.C. S: 220(a)(1).
47 C.F.R. S: 43.61(a).
See Website of the Commonwealth of Massachusetts, Secretary of the
Commonwealth, Corporations Division, "Unipoint Technologies, Inc. -
Summary Screen," available at
http://corp.sec.state.ma.us/corp/corpsearch/CorpSearchSummary.asp?ReadFromDB=True&UpdateAllowed=&FEIN=000608176
(last visited Aug. 13, 2012) (stating that Unipoint's date of organization
in Massachusetts was March 2, 1998).
See "Unipoint Technologies, Inc. - The Company," available at
http://www.unipointhome.com/company.html, (last visited Aug. 14, 2012);
"Unipoint Technologies, Inc. - Projects," available at
http://www.unipointhome.com/products.html (last visited Aug. 13, 2012)
(stating that ComFi "offers [a] variety of telecommunications services. .
. ."); "Comfi.com Becomes Most Visited Phone Card Site on the Internet!,"
ComFi.com Press Release (Feb. 22, 2007), available at
http://www.comfi.com/references/COMFI-MOST-VISITED-PHONE-CARD-SITE (last
visited Aug. 14, 2012) (ComFi.com Press Release) (stating that "Comfi.com,
a subsidiary of Unipoint Technologies, is now the most visited phone card
site on the Internet"); "About Us - Comfi - Communications Fidelity,"
available at http://www.comfi.com/AboutUs (last visited Aug. 13, 2012).
See Comfi.com Press Release supra note 27; see also "Comfi -
Communications Fidelity International Calling Cards," available at
http://www.comfi.com/?gclid=CJf73Y7J5bECFQJx4AodaFMACQ (last visited Aug.
13, 2012) (listing, among other products, prepaid calling card offerings
for calls placed from the United States to a variety of domestic and
foreign destinations); "Best selection of US phone cards and domestic
calling cards," available at http://www.comfi.com/calling-cards/USA (last
visited Aug. 17, 2012).
See "Registering Online and Creating Your Account" available at
www.comfi.com/p/Help-Registration.html (last visited Aug. 15, 2012);
"Placing and Order and Online Payment," available at
www.comfi.com/p/Help-PlacingOrder.html (last visited Aug. 15, 2012).
See "Receiving Your PIN and Dialing Instructions," available at
www.comfi.com/p/Help-ReceivingPIN.html (last visited Aug. 15, 2012).
Id.
See "Selecting a Card," available at
www.comfi.com/p/Help-SelectingCard.html (last visited Aug. 15, 2012).
Id.
See International Bureau Filing System (IBFS) File No.:
ITC-214-20090422-00173 (filed Apr. 22, 2009), available at
http://licensing.fcc.gov/cgi-bin/ws.exe/prod
/ib/forms/reports/swr031b.hts?q_set=V_SITE_ANTENNA_FREQ.file_numberC/File+Number/%3D/ITC2142009042200173&prepare=&column=V_SITE_ANTENNA_FREQ.file_numberC/File+Number
(last visited Aug. 15, 2012).
Id.
See International Authorization Granted - Section 214 Applications (47
C.F.R. 63.18); Section 310(b)(4) Requests, Public Notice, Report No.
TEL-01361, 24 FCC Rcd 5779 (Int'l Bur. 2009).
See E-mail from Cheng-yi Liu, Counsel for Unipoint Technologies, Inc., Law
Offices of Thomas K. Crowe, P.C., to Trent Harkrader, Deputy Chief,
Investigations and Hearings Division, FCC Enforcement Bureau (Aug. 17,
2009, 5:51 PM EDT).
Although we cannot disclose the specific date on which Unipoint began
providing international telecommunications services because of a pending
request for confidential treatment, that date is well prior to Unipoint's
receipt of international Section 214 authority.
See Universal Service Administrative Company, Unipoint - Form 499 - Search
Form, available at
https://efile.universalservice.org/form499/source/search.asp (last visited
Aug. 29, 2012) (on file in EB-09-IH-1945)
(continued . . .)
(Unipoint 2007-2012 Annual Reporting Worksheet Filing Dates).
See E-mail from Marina Aparicio, National Exchange Carriers Association,
TRS Fund Administrator, to Robert Krinsky, Attorney Advisor,
Investigations and Hearings Division, FCC Enforcement Bureau (Apr. 14,
2010, 11:33 AM EDT) (Aparicio Apr. 14, 2010, E-mail); E-mail from Marina
Aparicio, National Exchange Carriers Association, TRS Fund Administrator,
to Elizabeth Mumaw, Attorney Advisor, Investigations and Hearings
Division, FCC Enforcement Bureau (Mar. 1, 2010, 3:22 PM EDT) (Aparicio
Mar. 1, 2010, E-mail).
See Aparicio Apr. 14, 2010, E-mail supra note 40; Aparicio Mar. 1, 2010,
E-mail supra note 40.
See Letter from Gary Norden, Unipoint Technologies, Inc., to Marlene H.
Dortch, Secretary, FCC (Mar. 31, 2010) (on file in EB-09-IH-1945) (filing
Unipoint's 2008 international telecommunications traffic report).
See Letter from Gary Norden, Unipoint Technologies, Inc., to Marlene H.
Dortch, Secretary, FCC (Mar. 31, 2010) (on file in EB-09-IH-1945) (filing
Unipoint's 2009 international telecommunications traffic report).
See Letter from Cheng-yi Liu, Counsel for Unipoint Technologies, Inc., Law
Offices of Thomas K. Crowe, P.C., to Marlene H. Dortch, Secretary, FCC
(Aug. 18, 2011) (on file in EB-09-IH-1945) (filing Unipoint's 2011
international telecommunications traffic report).
See 47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1).
47 U.S.C. S: 312(f)(1).
See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388, para. 5 (1991) (Southern California
Broadcasting).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision) (issuing an NAL for, inter alia, a cable television
operator's repeated violation of the cable signal leakage rules).
Southern California Broadcasting, 6 FCC Rcd at 4388, para. 5; Callais
Cablevision, 16 FCC Rcd at 1362, para. 9.
47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591, para. 4 (2002).
47 U.S.C. S: 214(a); 47 C.F.R. S:S: 43.61, 52.17(b), 52.32(b), 54.711,
63.18, and 64.604(c)(5)(iii)(A)-(B).
See, e.g., InPhonic, Inc., Order of Forfeiture and Further Notice of
Apparent Liability for Forfeiture, 22 FCC Rcd 8689, 8695, 8706, paras. 13,
41 (2007) (InPhonic Forfeiture Order and Further NAL).
See International Bureau Filing System (IBFS) File No.:
ITC-214-20090422-00173 (filed Apr. 22, 2009), available at
http://licensing.fcc.gov/cgi-bin/ws.exe/prod
/ib/forms/reports/swr031b.hts?q_set=V_SITE_ANTENNA_FREQ.file_numberC/File+Number/%3D/ITC2142009042200173&prepare=&column=V_SITE_ANTENNA_FREQ.file_numberC/File+Number
(last visited Aug. 15, 2012).
See 47 C.F.R. S:S: 1.10016, 63.25.
47 C.F.R. S:S: 52.17(b), 52.32(b), 54.711, 64.604(c)(5)(iii)(B).
See 47 C.F.R. S:S: 52.17(b) (requiring that "[a]ll telecommunications
carriers . . . shall complete and submit a `Telecommunications Reporting
Worksheet' . . . , which sets forth the information needed to calculate"
their NANP contributions); 52.32(b) (requiring that "[a]ll
telecommunications carriers . . . shall complete and submit a
`Telecommunications Reporting Worksheet' . . . , which sets forth the
information needed to calculate" their LNP contributions); 54.711(a)
(requiring that USF "[c]ontributions . . . be calculated . . . in
accordance with the Telecommunications Worksheet which . . . sets forth
information that the contributor must submit to [USAC]);
64.604(c)(5)(iii)(B) (requiring that "[c]arriers shall complete and
submit, and [TRS] contributions shall be based on, a "Telecommunications
Reporting Worksheet"); 2012 Telecommunications Reporting Worksheet
Instructions (FCC Form 499-A) at 2 (stating that "The Commission also uses
the revenue data reported on this Worksheet to calculate and assess
Interstate Telecommunications Service Provider (ITSP) regulatory fees."),
available at http://transition.fcc.gov/Forms/Form499-A/499a-2012.pdf (last
visited Aug. 29, 2012) (2012 Form 499-A Worksheet Instructions); see also,
e.g., 2012 Form 499-A Worksheet Instructions at 2 ("[A]ll intrastate,
interstate, and international providers of telecommunications in the
United States must file this Worksheet. . . .").
See, e.g., Compass Global, Inc., Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 6125, 6138, para. 29 (2008).
See Unipoint's 2007-2012 Annual Reporting Worksheet Filing Dates, supra
note 39.
47 C.F.R. S:S: 52.17(b), 52.32(b), 54.711, 64.604(c)(5)(iii)(B).
47 C.F.R. S: 64.604(c)(5)(iii)(A); see also id. at (c)(5)(iii)(B) (setting
forth methods of computation and payment of contributions to TRS Fund).
Id. at (c)(5)(iii)(B).
Id. Under the Rules, each subject carrier must contribute at least $25 per
year, and providers whose annual contributions are less than $1,200 must
pay the entire amount at the beginning of the contribution period.
Otherwise, providers may divide their contributions into equal monthly
payments. Id. The billing cycle for TRS assessments runs from July 1 to
June 30 of each year, with assessments made based on carriers' reported
revenue information for the corresponding FCC Form 499-A.
See, e.g., RB Communications, Inc., d/b/a Starfone, Notice of Apparent
Liability for Forfeiture and Order, 27 FCC Rcd 4393, 4402, para. 25 (2012)
(Starfone NAL); Omniat International Telecom, LLC d/b/a Omniat Telecom,
Notice of Apparent Liability for Forfeiture and Order, 24 FCC Rcd 4254,
4265-66, paras. 27, 29 (2009) (Omniat NAL).
See Aparicio Apr. 14, 2010, E-mail supra note 40; Aparicio Mar.1, 2010,
E-mail supra note 40.
Id.
47 C.F.R. S: 43.61.
Unipoint timely filed its 2010 and 2012 international telecommunications
traffic reports (providing calendar year 2009 and 2011 data, respectively)
See Letter from Gary Norden, Unipoint Technologies, Inc., to Marlene H.
Dortch, Secretary, FCC (Mar. 31, 2010) (on file in EB-09-IH-1945) (filing
Unipoint's 2010 international telecommunications traffic report); Letter
from Dmitriy Lubarsky, President, Unipoint Technologies, Inc., to Marlene
H. Dortch, Secretary, FCC (Jul. 6, 2012) (on file in EB-09-IH-1945)
(filing Unipoint's 2012 international telecommunications traffic report).
See, e.g., Compass Global NAL, 23 FCC Rcd at 6138, para. 29 (addressing
failure to timely file Telecommunications Reporting Worksheets).
See Letter from Gary Norden, Unipoint Technologies, Inc., to Marlene H.
Dortch, Secretary, FCC (Mar. 31, 2010) (on file in EB-09-IH-1945) (filing
Unipoint's 2008 international telecommunications traffic report); see also
47 C.F.R. S: 43.61 (specifying that the international telecommunications
traffic reports are due "not later than July 31 of each year for service
actually provided in the preceding calendar year").
See Letter from Gary Norden, Unipoint Technologies, Inc., to Marlene H.
Dortch, Secretary, FCC (Mar. 31, 2010) (on file in EB-09-IH-1945) (filing
Unipoint's 2009 international telecommunications traffic report); see also
47 C.F.R. S: 43.61.
See Letter from Cheng-yi Liu, Counsel for Unipoint Technologies, Inc., Law
Offices of Thomas K. Crowe, P.C., to Marlene H. Dortch, Secretary, FCC
(Aug. 18, 2011) (on file in EB-09-IH-1945) (filing Unipoint's 2011
international telecommunications traffic report); see also 47 C.F.R.
S: 43.61.
47 C.F.R. S: 43.61.
47 U.S.C. S: 503(b)(1)(B).
47 U.S.C. S: 503(b)(2)(B); see also 47 C.F.R. S: 1.80(b)(2). The
Commission has amended Section 1.80(b)(2) of the Rules three times to
increase the maximum forfeiture amounts, in accordance with the inflation
adjustment requirements contained in the Federal Civil Penalties Inflation
Adjustment Act of 1990, 28 U.S.C. S: 2461 note, as amended by the Debt
Collection Improvement Act of 1996, 31 U.S.C. S: 3701 note. The most
recent inflation adjustment took effect September 2, 2008 and applies to
violations that occur after that date. See Amendment of Section 1.80(b) of
the Commission's Rules, Adjustment of Forfeiture Maxima to Reflect
Inflation, Order, 23 FCC Rcd 9845 (2008) (adjusting the maximum statutory
amounts for common carriers from $130,000/$1,325,000 to
$150,000/$1,500,000).
47 U.S.C. S: 503(b)(2)(E); see also 47 C.F.R. S: 1.80(b)(6), Note to
paragraph (b)(6): Guidelines for Assessing Forfeitures.
See supra note 38.
47 U.S.C. S: 214(a).
See, e.g., 47 C.F.R. S:S: 63.12, 63.18, 63.20, 63.21, 63.23; see also 1998
International Biennial Review Order, supra at note 7; Regulation of
International Common Carrier Services, Report and Order, 7 FCC Rcd 7331
(1992).
For example, the Commission's website has a list of frequently asked
questions about Section 214 applications for providers of international
telecommunications services. See
http://transition.fcc.gov/ib/pd/pf/214faq.html. Among the questions and
answers are the following: "Question 7: If I am merely reselling the
international services of another carrier, do I have to file a Section 214
application? Answer: Yes, including in the case of mobile international
services. Refer to 47 CFR S: 63.18(e)(2), global resale service." See
"Frequently Asked Questions (FAQs)," available at
http://transition.fcc.gov/ib/pd/pf/214faq.html (last visited Aug. 19,
2012).
See 1998 International Biennial Review Order, 14 FCC Rcd at 4914-16,
paras. 14-16; PCIA Forbearance Order, 13 FCC Rcd at 16882-83, para. 50.
See 1998 International Biennial Review Order, 14 FCC Rcd at 4915-17,
paras. 15-18; id. at 4939-40, paras. 72-74.
See, e.g., ADMA Telecom, Inc., Forfeiture Order, 26 FCC Rcd 4152,
4161-62, paras. 26-27 (2011) (ADMA Forfeiture Order) (assessing a $100,000
forfeiture against a prepaid calling card company for unauthorized
international telecommunications service); Starfone NAL, 27 FCC Rcd at
4400, para. 20-22 (finding an apparent liability for a $100,000 forfeiture
for unauthorized international telecommunications service); Teleplus, LLC,
Notice of Apparent Liability for Forfeiture, 24 FCC Rcd 7666, 7670-77,
para. 12 (2009) (same); Omniat NAL, 24 FCC Rcd at 4264, para. 25 (same);
InPhonic Further NAL 22 FCC Rcd at 8695, 8706, paras. 13, 41 (same).
47 C.F.R. S:S: 52.17(b), 52.32(b), 54.711, 64.604(c)(5)(iii)(B).
47 C.F.R. S:S: 52.17, 52.32, 54.711, 64.604(c)(5)(iii).
See, e.g., ADMA Forfeiture Order, 26 FCC Rcd at 4155, 4162, paras. 9, 28
(assessing a $150,000 forfeiture for failure to timely file three
quarterly Telecommunications Reporting Worksheets); Globcom, Inc., Order
of Forfeiture, 21 FCC Rcd 4710, 4720-21, 4727, paras. 26-28, 31, 45 (2006)
(assessing a $150,000 forfeiture for failure to timely file quarterly or
annual Telecommunications Reporting Worksheets on three occasions)
(Globcom Forfeiture Order).
47 U.S.C. S: 225(b)(1).
See, e.g., ADMA Forfeiture Order, 26 FCC Rcd at 4158, para. 18; Globcom
Forfeiture Order, 21 FCC Rcd at 4721, 4727, paras. 31, 45; Starfone NAL,
27 FCC Rcd at 4402, para. 26.
See, e.g., ADMA Forfeiture Order, 26 FCC Rcd at 4158-59, 4162, paras. 18,
20, 28 (assessing a base forfeiture of $10,000 for each of two failures to
timely make contributions to the TRS Fund ($20,000) and adding an upward
adjustment of $60,706, for a total forfeiture of $80,706); Globcom
Forfeiture Order, 21 FCC Rcd at 4727, para. 45 (assessing a base
forfeiture amount of $10,000 for each of two failures to timely make
contributions to the TRS Fund ($20,000) and adding an upward adjustment of
$5,943, for a total forfeiture of $25,943). Unipoint does not now have an
unpaid TRS balance.
Amendment of Section 43.61 of the Commission's Rules to Update and
Simplify the Required Traffic Data Reports Filed by International
Telecommunications Carriers, Report and Order, 100 FCC 2d 578, 580, paras.
1, 7 (1985); see also Reporting Requirements for U.S. Providers of
International Telecommunications Services - Amendment of Part 43 of the
Commission's Rules, First Report and Order and Further Notice of Proposed
Rulemaking, 26 FCC Rcd 7274, 7275-76, paras. 1-2 (2011) (concluding that
the Commission should continue to require U.S. providers of international
telecommunications services to report information on their international
telecommunications traffic).
See The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087, 17113 (1997) (Forfeiture Policy Statement),
recons. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S: 1.80(b), Note to
paragraph (b)(6) "Section I. Base Amounts for Section 503 Forfeitures."
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
See 47 C.F.R. S:S: 1.80(f)(3), 1.16.
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Federal Communications Commission FCC 12-124