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Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of Amvensys Capital Group, LLC ) ) ) ) ) ) File No.:
EB-12-IH-0194 NAL/ Acct. No.: 201332080012 FRN: 0020383865
ORDER
Adopted: February 6, 2013 Released: February 7, 2013
By the Chief, Enforcement Bureau:
1. In this Order, we adopt a Consent Decree entered into between the
Enforcement Bureau (Bureau) and Amvensys Capital Group, LLC
(Amvensys). The Consent Decree terminates the Bureau's investigation
into possible violations of Section 214 of the Communications Act of
1934, as amended (Act), and Sections 63.03 and 63.04 of the
Commission's rules.^
2. A copy of the Consent Decree negotiated by the Bureau and Amvensys is
attached hereto and incorporated herein by reference.
3. After evaluating the facts before us and reviewing the terms of the
Consent Decree, 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 Amvensys possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authority.
5. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) of the Act^
and Sections 0.111 and 0.311 of the Commission's rules,^ the Consent
Decree attached to this Order IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to John J. Heitmann, Counsel for Amvensys Capital Group,
LLC, Kelley Drye & Warren LLP, 3050 K Street, NW, Washington, DC
20007.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief
Enforcement Bureau
Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of Amvensys Capital Group, LLC ) ) ) ) ) ) File No.:
EB-12-IH-0194 NAL/ Acct. No.: 201332080012 FRN: 0020383865
CONSENT DECREE
1. The Enforcement Bureau of the Federal Communications Commission and
Amvensys Capital Group, LLC by their authorized representatives hereby
enter into this Consent Decree for the purposes of terminating the
Bureau's investigation into whether Amvensys violated of Section 214
of the Communications Act of 1934, as amended, and Sections 63.03 and
63.04 of the Commission's rules.^
I. DEFINITIONS
8. 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. "Amvensys" or "Company" means Amvensys Capital Group, LLC and its
affiliates, subsidiaries, predecessors-in-interest, and
successors-in-interest.
d. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
e. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
f. "Communications Laws" means collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to
which Amvensys is subject by virtue of its business activities.
g. "Compliance Plan" means the plan described in this Consent Decree at
paragraph 13.
h. "Covered Employees" means all employees and agents of Amvensys who
perform, or supervise, oversee, or manage the performance of, duties
that relate to Amvensys's responsibilities under the Communication
Laws, including the Section 214 Rules.
i. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
j. "Investigation" means the investigation initiated by the Bureau in
File No. EB-12-IH-0194 regarding possible violations of the Section
214 Rules.
k. "Operating Procedures" means the standard, internal operating
procedures and compliance policies established by Amvensys to
implement the Compliance Plan.
l. "Parties" means Amvensys and the Bureau, each of which is a "Party."
m. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
n. "Section 214 Rules" means Section 214 of the Act and other
Communications Laws governing the construction, acquisition, or
operation of lines of communication, including any Rules implementing
Section 214 and any related Commission orders.
II. BACKGROUND
9. 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, and before discontinuing, reducing, or
impairing service to a community.^ In accordance with Sections 63.03
of the Rules, any "substantial" transfer of control of a carrier's
domestic lines or of domestic Section 214 authority requires
application to and prior approval from the Commission.^ Section 63.04
of the Rules sets forth the information that must be included in
domestic transfer of control applications.^
10. Amvensys is a Texas limited liability company.^ Amvensys is the direct
parent of Unity Telecom, LLC f/k/a dPi Teleconnect, LLC (Unity).^
Unity holds blanket domestic Section 214 authority by operation of the
Rules;^ and provides local and long distance services on a resale
basis to residential customers in 31 states.^
11. On November 17, 2009, Amvensys acquired Unity from Rent-A-Center East,
Inc. (RAC).^ Amvensys and RAC failed to obtain Commission consent to
transfer its Section 214 authorization from Unity to Amvensys prior to
its consummation.
12. On February 3, 2012, Amvensys and Unity filed an application, pursuant
to Section 63.03 of the Rules, requesting Commission consent to
transfer its Section 214 authorization from Unity to Amvensys.^
Amvensys and Unity also filed an application for special temporary
authority (STA) to continue providing domestic telecommunications
services,^ which the Commission's Wireline Competition Bureau (WCB)
granted on February 9, 2012.^ WCB then referred the matter to the
Bureau for investigation. On February 7, 2013, WCB approved the
application to transfer control of Unity to Amvensys.^
13. On June 15, 2012, EB commenced an investigation by sending a letter of
inquiry (LOI) to Amvensys regarding its transaction with RAC.^
Amvensys filed its response on July 13, 2012.^ The parties thereafter
entered into settlement discussions.
III. TERMS OF AGREEMENT
14. 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.
15. Jurisdiction. Amvensys 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.
16. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the Effective Date. Upon release, the
Adopting Order and this Consent Decree shall have the same force and
effect as any other Order of the Commission. Any violation of the
Adopting Order or of the terms of this Consent Decree shall constitute
a separate violation of a Commission Order, entitling the Bureau to
exercise any rights and remedies attendant to the enforcement of a
Commission Order.
17. 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, Amvensys agrees to the terms, conditions, and
procedures contained herein. The Bureau further agrees that, in the
absence of new material evidence, the Bureau will not use the facts
developed in this Investigation through the Effective Date, or the
existence of this Consent Decree, to institute, on its own motion, any
new proceeding, formal or informal, or take any action on its own
motion against Amvensys concerning the matter that was 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 Amvensys
with respect to Amvensys's basic qualifications, including its
character qualifications, to be a Commission licensee or hold
Commission authority.
18. Compliance Officer. Within thirty (30) calendar days after the
Effective Date, Amvensys shall designate a senior corporate manager
with the requisite corporate and organizational authority to serve as
a Compliance Officer and to discharge the duties set forth below. The
person designated as the Compliance Officer shall be responsible for
developing, implementing, and administering the Compliance Plan and
ensuring that Amvensys complies with the terms and conditions of the
Compliance Plan and this Consent Decree. In addition to the general
knowledge of the Communications Laws necessary to discharge his/her
duties under this Consent Decree, the Compliance Officer shall have
specific knowledge of the Section 214 Rules prior to assuming his/her
duties.
19. Compliance Plan. For purposes of settling the matters set forth
herein, Amvensys agrees that it shall, within sixty (60) calendar days
after the Effective Date, develop and implement a Compliance Plan
designed to ensure future compliance with the Communications Laws,
including the Section 214 Rules, and with the terms and conditions of
this Consent Decree. The Compliance Plan shall include, without
limitation, the following components:
a. Operating Procedures. Within sixty (60) calendar days after the
Effective Date, Amvensys shall establish Operating Procedures that all
Covered Employees shall follow to help ensure Amvensys's compliance
with the Section 214 Rules. Amvensys's Operating Procedures shall
include internal procedures and policies specifically designed to
ensure that Amvensys complies with the Section 214 Rules. Amvensys
shall also develop a Compliance Checklist that describes the steps
that a Covered Employee must follow to ensure compliance with those
Rules.
b. Compliance Manual. Within sixty (60) calendar days after the Effective
Date, the Compliance Officer shall develop and distribute a Compliance
Manual to all Covered Employees. The Compliance Manual shall explain
the Section 214 Rules and set forth the Operating Procedures that
Covered Employees shall follow to help ensure Amvensys's compliance
with those Rules. Amvensys shall periodically review and revise the
Compliance Manual as necessary to ensure that the information set
forth therein remains current and accurate. Amvensys shall distribute
any revisions to the Compliance Manual promptly to Covered Employees.
The Compliance Manual will require personnel, including Covered
Employees, to contact Amvensys's Compliance Officer and, if
appropriate, regulatory legal counsel, with any questions or concerns
that arise with respect to Amvensys's obligations under the Section
214 Rules.
c. Compliance Training Program. Amvensys shall establish and implement a
Compliance Training Program on compliance with the Section 214 Rules
and the Operating Procedures. As part of the Compliance Training
Program, Covered Employees shall be advised of Amvensys's obligation
to report any noncompliance with the Section 214 Rules under paragraph
14 of this Consent Decree and shall be instructed on how to disclose
noncompliance to the Compliance Officer. All Covered Employees shall
be trained pursuant to the Compliance Training Program within sixty
(60) calendar days after the Effective Date, except that any person
who becomes a Covered Employee at any time after the Effective Date
shall be trained within thirty (30) calendar days after the date such
person becomes a Covered Employee. Amvensys shall repeat the
compliance training on an annual basis, and shall periodically review
and revise the Compliance Training Program as necessary to ensure that
it remains current and complete and to enhance its effectiveness.
d. Termination Date. The requirements of this Compliance Plan shall
expire twenty-four (24) months after the Effective Date.
20. Reporting Noncompliance. Amvensys shall report any noncompliance with
the Section 214 Rules and with the terms and conditions of this
Consent Decree within fifteen (15) calendar days after discovery of
such noncompliance. Such reports shall include a detailed explanation
of (i) each instance of noncompliance; (ii) the steps that Amvensys
has taken or will take to remedy such noncompliance; (iii) the
schedule on which such remedial actions will be taken; and (iv) the
steps that Amvensys has taken or will take to prevent the recurrence
of any such noncompliance. All reports of noncompliance shall be
submitted to the Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, Room 3-C330,
445 12th Street, SW, Washington, DC 20554, with a copy submitted
electronically to Theresa Z. Cavanaugh at Terry.Cavanaugh@fcc.gov,
Pamela S. Kane at Pamela.Kane@fcc.gov, William Kehoe at
William.Kehoe@fcc.gov, and Pam Slipakoff at Pam.Slipakoff@fcc.gov. The
reporting obligations set forth in this paragraph shall expire
twenty-four (24) months after the Effective Date.
21. Compliance Reports. Amvensys shall file Compliance Reports with the
Commission ninety (90) calendar days after the Effective Date, twelve
(12) months after the Effective Date, and twenty-four (24) months
after the Effective Date.
a. Each Compliance Report shall include a detailed description of
Amvensys's efforts during the relevant period to comply with the terms
and conditions of this Consent Decree and the Section 214 Rules. In
addition, each Compliance Report shall include a certification by the
Compliance Officer, as an agent of and on behalf of Amvensys, stating
that the Compliance Officer has personal knowledge that Amvensys (i)
has established and implemented the Compliance Plan; (ii) has utilized
the Operating Procedures since the implementation of the Compliance
Plan; and (iii) is not aware of any instances of noncompliance with
the terms and conditions of this Consent Decree, including the
reporting obligations set forth in paragraph 14 of this Consent
Decree.
b. The Compliance Officer's certification shall be accompanied by a
statement explaining the basis for such certification and shall comply
with Section 1.16 of the Rules^ and be subscribed to as true under
penalty of perjury in substantially the form set forth in Section
1.16.
c. If the Compliance Officer cannot provide the requisite certification,
the Compliance Officer, as an agent of and on behalf of Amvensys,
shall provide the Commission with a detailed explanation of the
reason(s) why and describe fully (i) each instance of noncompliance;
(ii) the steps that Amvensys has taken or will take to remedy such
noncompliance, including the schedule on which proposed remedial
actions will be taken; and (iii) the steps that Amvensys has taken or
will take to prevent the recurrence of any such noncompliance,
including the schedule on which such preventive action will be taken.
d. All Compliance Reports shall be submitted to the Chief, Investigations
and Hearings Division, Enforcement Bureau, Federal Communications
Commission, Room 4-C330, 445 12th Street, SW, Washington, DC 20554,
with a copy submitted electronically to Theresa Z. Cavanaugh at
Terry.Cavanaugh@fcc.gov, Pamela S. Kane at [1]Pamela.Kane@fcc.gov,
William Kehoe at William.Kehoe@fcc.gov, and Pam Slipakoff at
Pam.Slipakoff@fcc.gov.
22. 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 Amvensys 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 Amvensys with the Communications Laws.
23. Voluntary Contribution. Amvensys agrees that it will make a voluntary
contribution to the United States Treasury in the amount of seven
thousand dollars ($7,000) within thirty (30) calendar days after the
Effective Date. Amvensys shall also send electronic notification of
payment to Theresa Z. Cavanaugh at Terry.Cavanaugh@fcc.gov, Pamela S.
Kane at Pamela.Kane@fcc.gov, William Kehoe at William.Kehoe@fcc.gov,
and Pam Slipakoff at Pam.Slipakoff@fcc.gov on the date said payment is
made. The payment must be made by check or similar instrument, wire
transfer, or credit card, and must include the NAL/Account number and
FRN referenced above. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted.^ When completing
the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions regarding the
form of payment:
* 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.
Questions regarding payment procedures should be addressed to the
Financial Operations Group Help Desk by phone, 1-877-480-3201, or by
e-mail, ARINQUIRIES@fcc.gov.
24. Waivers. Amvensys waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal, or stay,
or to otherwise challenge or contest the validity of this Consent
Decree and the Adopting Order, provided the Bureau issues the Adopting
Order as defined in this Consent Decree. Amvensys 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 Amvensys nor the Commission shall
contest the validity of the Consent Decree or the Adopting Order, and
Amvensys shall waive any statutory right to a trial de novo. Amvensys
hereby agrees to waive any claims it may otherwise have under the
Equal Access to Justice Act,^ relating to the matters addressed in
this Consent Decree.
25. 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.
26. 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 Amvensys does not expressly
consent) that provision will be superseded by such Commission rule or
order.
27. Successors and Assigns. Amvensys agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
28. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further agree that this Consent Decree does not constitute
either an adjudication on the merits or a factual or legal finding or
determination regarding any compliance or noncompliance with the
requirements of the Communications Laws.
29. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
30. 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.
1. Authorized Representative. The individual signing this Consent Decree
on behalf of
Amvensys represents and warrants that he is authorized by Amvensys to
execute this Consent Decree and to bind Amvensys to the obligations set
forth herein. The FCC signatory represents that she is signing this
Consent Decree in her official capacity and that she is authorized to
execute this Consent Decree.
2. Counterparts. This Consent Decree may be signed in counterpart
(including by facsimile). Each counterpart, when executed and
delivered, shall be an original, and all of the counterparts together
shall constitute one and the same fully executed instrument.
________________________________ P. Michele Ellison Chief Enforcement
Bureau ________________________________ Date
________________________________ Greg S. Blair SVP, General Counsel
Amvensys Capital Group, LLC ________________________________ Date
^ 47 U.S.C. S 214; 47 C.F.R. SS 63.03, 63.04.
^ 47 U.S.C. S 154(i).
^ 47 C.F.R. SS 0.111, 0.311.
^ 47 U.S.C. S 214; 47 C.F.R. SS 63.03, 63.04.
^ See 47 U.S.C. S 214(a). 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.
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 and
Order in AAD File No. 98-43, 14 FCC Rcd 11364, 11365-66, para. 2 (1999)
(Section 402 Implementation Order). This authority does not extend to the
provision of international services. See id.
^ See 47 C.F.R. S 63.03. A transfer of control of domestic lines or of a
domestic Section 214 authority is considered "substantial" if it results
in a change in ultimate ownership or control of those lines or that
authority. See 47 C.F.R. S 63.03(d).
^ See 47 C.F.R. S 63.04.
^ See Letter from John J. Heitmann, Esq. and Joan M. Griffin, Esq., Kelley
Drye & Warren LLP, Counsel for Amvensys Capital Group, LLC, to Marlene
Dortch, Secretary, Federal Communications Commission, at 2 (filed July 13,
2012, in EB-12-IH-0194) (LOI Response).
^ Id. at 5.
^ See 47 C.F.R. S 63.01 (2004); see also Section 402 Implementation Order
(granting all carriers blanket authority under Section 214 to provide
domestic interstate services and to construct, acquire, or operate any
domestic transmission line).
^ Application Filed for the Transfer of Control of dPi Teleconnect, LLC to
Amvensys Capital Group, LLC, f/k/a Amvensys Telecom Holdings, LLC, WC
Docket No. 12-32, Public Notice, DA 12-175 (rel. Feb. 9, 2012).
^ Id. at 4.
^ dPi Teleconnect, LLC, Application for Consent Nunc Pro Tunc to Transfer
Control of a Company Holding Blanket Domestic Section 214 Authority
Pursuant to Section 214 of the Communications Act of 1934, as Amended, WC
Docket No. 12-32 (filed Feb. 3, 2012) (Transfer of Control Application).
^ See Domestic 214 Application Filed for the Transfer of Control of dPi
Teleconnect, LLC to Amvensys Capital Group, LLC, f/k/a Amvensys Telecom
Holdings, LLC, WC Docket No. 12-32, Request for Special Temporary
Authority at 2-3 (filed Feb. 8, 2012).
^ See Domestic Section 214 Authorization Granted, WC Docket No. 12-32,
Public Notice, DA 13-133 at n.1 (rel. Feb. 7, 2013).
^ Id.
^ See Letter from Theresa Z. Cavanaugh, Chief, Investigations & Hearings
Division, Enforcement Bureau, FCC, to Mr. John Heitmann, Esq. and Ms. Joan
M. Griffin, Esq., Kelley Drye & Warren LLP, Counsel for Amvensys Capital
Group, LLC, dated June 15, 2012 (LOI).
^ See Letter from Mr. John Heitmann, Esq. and Ms. Joan M. Griffin, Esq.,
Counsel for Amvensys Capital Group, LLC, Kelley Drye & Warren LLP, to
Marlene Dortch, Secretary, Federal Communications Commission, dated July
13, 2012 (LOI Response).
^ 47 C.F.R. S 1.16.
^ 47 U.S.C. S 208.
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 5 U.S.C. S 504; 47 C.F.R. Part 1, Subpart K.
(Continued from previous page)
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References
Visible links
1. mailto:Pamela.Kane@fcc.gov