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                                             Federal Communications Commission                       FCC 19-25 
                                                          Before the 
                                             Federal Communications Commission 
                                                    Washington, DC 20554 
                
                                                                       
               In the Matter of                                 )     File No.:  EB-TCD-14-00017401 
                                                                )     NAL/Acct. No.:  201532170015  
               Long Distance Consolidated Billing Company       )     FRN:  0004337499  
                                                                )      
                                                                 
                                                    FORFEITURE ORDER 
                
               Adopted:  March 19, 2019                                                Released:  March 21, 2019 
                
               By the Commission: Commissioner O’Rielly approving in part, dissenting in part, and issuing a separate 
               statement. 
                
               I.      INTRODUCTION 
                       1.     We impose a penalty of $2,320,000 against Long Distance Consolidated Billing 
               Company (LDCB or Company) for changing consumers’ long distance carriers without proper 
               authorization, a practice commonly known as “slamming,” and charging consumers for service that they 
               never authorized, a practice commonly known as “cramming.”  In addition, we find that LDCB’s 
               telemarketers engaged in deceptive marketing practices by impersonating consumers’ existing long 
               distance carriers and misrepresenting the true nature of their sales calls.  Slamming and cramming are 
               deceptive business practices that result in consumers paying for services they never requested and then 
               expending great time and personal effort to return to their preferred carriers.  These practices are made 
               even more egregious where, as here, they are coupled with deceptive marketing.  After reviewing 
               LDCB’s response to the Notice of Apparent Liability for Forfeiture (NAL), we find reason to reduce the 
               proposed penalty by $80,000 and we therefore assess a forfeiture of $2,320,000.     
               II.     BACKGROUND 
                       2.     The Federal Communications Commission’s (Commission’s or FCC’s) Enforcement 
               Bureau (Bureau) initiated an investigation of LDCB1
                                                                after reviewing more than 70 complaints filed 
               against the Company by consumers, many of whom are small businesses.  The complaints alleged a 
               pattern of misconduct whereby LDCB misrepresented its identity or the nature of its sales calls when 
               marketing its long distance service to consumers.  LDCB used the “authorizations” fraudulently obtained 
               through this misconduct to change the consumers’ long distance carriers and bill them for LDCB’s 
               service.   
                       3.     On July 30, 2015, the Commission unanimously adopted an NAL2
                                                                                           proposing a 
               $2,400,000 forfeiture against LDCB for willful and repeated violations of Sections 201(b) and 258 of the 
               Communications Act of 1934, as amended (Act), and Section 64.1120 of the Commission’s rules 
               (Rules).3
                         In the NAL, the Commission found that the Company apparently violated Section 201(b) of the 
               Act by:  (i) deceptively marketing its long distance service to consumers by misrepresenting itself as the 
                                                                     
               1
                 LDCB is a non-facilities based interexchange carrier with offices at 4010 W. Walton Blvd, Suite B, Waterford, MI 
               48329.  LDCB’s President is Jan M. Lowe.  
               2
                 The NAL includes a more complete discussion of the facts and history of this case and is incorporated herein by 
               reference.  See Long Distance Consolidated Billing Company, Notice of Apparent Liability for Forfeiture, 30 FCC 
               Rcd 8664, 8664-65, paras. 2-3 (2015) (NAL). 
               3
                 Id.  See 47 U.S.C. §§ 201(b), 258; 47 CFR § 64.1120. 
                                                                
                                                         Federal Communications Commission                                       FCC 19-25               
                    
                    
                                                                                                                                       4 and 
                   consumer’s existing carrier and/or otherwise misrepresenting the purpose of the telemarketing call;
                   (ii) placing unauthorized charges for service on consumers’ local telephone bills.5  In addition, the 
                   Commission found that LDCB apparently violated Section 258 of the Act and Section 64.1120 of the 
                   Rules by submitting requests to switch consumers’ long distance service providers without their 
                   authorization.6
                                      The NAL ordered LDCB to, within 30 days, either pay the proposed forfeiture amount, or 
                   submit evidence or arguments in response to the NAL that no forfeiture should be imposed or that some 
                                                           7
                   lesser amount should be assessed.    
                             4.       On September 28, 2015, LDCB filed a response to the NAL, arguing that the NAL should 
                                                               8
                   be canceled or the forfeiture reduced.   The Company contends that:  (i) its telemarketers acted beyond 
                   the scope of their authority when making misrepresentations to consumers;9 (ii) imposing liability on 
                   LDCB for the improper sales pitches of its telemarketers is problematic from a First Amendment 
                   perspective, as the Commission “seeks to enforce content-based restrictions on speech;”10 (iii) it did not 
                   slam consumers because its third party verification (TPV) recordings comply with the Rules;11 (iv) it 
                   should not be liable for cramming violations because the TPV recordings show that consumers authorized 
                   a carrier change;12 (v) the Commission’s enforcement action violates due process requirements;13 and (vi) 
                                                                                                     14
                   five of the forty-nine violations are barred by the statute of limitations.   LDCB also argues that the 
                                                                                                               15
                   proposed forfeiture is excessive and disproportionate to LDCB’s ability to pay.  
                             5.       The Commission proposed a forfeiture in this case in accordance with Section 503(b) of 
                   the Communications Act of 1934, as amended (Act),16 Section 1.80 of the Commission’s rules (Rules),17 
                                                                         
                   4
                     NAL, 30 FCC Rcd at 8666-68, paras. 5-12. 
                   5
                     Id. at 8669-70, paras. 17-19. 
                   6
                     Id. at 8668-69, paras. 13-16. 
                   7
                     Id. at 8672-73, para. 25. 
                   8
                     See Statement of Long Distance Consolidated Billing Co. Seeking Cancellation or Substantial Reduction of 
                   Proposed Forfeiture (Sept. 28, 2015) (on file in EB-TCD-14-00017401) (NAL Response).  LDCB requested and was 
                   granted an extension of time, until September 28, 2015, to file a response to the NAL.  See E-mail from Erica 
                   McMahon, Attorney Advisor, Telecommunications Consumers Division, FCC Enforcement Bureau, to Cheng-yi 
                   Liu, Fletcher, Heald & Hildreth, P.L.C., Counsel for Long Distance Consolidated Billing Company (Aug. 4, 2015, 
                   15:40 ET).  LDCB filed a supplement to its NAL Response on May 13, 2016, and although the supplement was filed 
                   after the 30-day filing deadline, we address the additional arguments raised in the supplement.  See Supplement to 
                   Statement Seeking Cancellation or Substantial Reduction of Proposed Forfeiture (May 13, 2016) (on file in EB-
                   TCD-14-00017401) (Supplemental NAL Response). 
                   9
                     NAL Response at 1-14; Supplemental NAL Response at 1-6.  
                   10 Supplemental NAL Response at 6. 
                   11 NAL Response at 1-7.  
                   12 Id. at 8-9. 
                   13 Supplemental NAL Response at 9-11. 
                   14 NAL Response at 9-10.  
                   15 Id. at 14-16. 
                   16 47 U.S.C. § 503(b). 
                   17 47 CFR § 1.80. 
                                                                                2 
                    
                                                         Federal Communications Commission                                      FCC 19-25              
                    
                    
                   and the Commission’s Forfeiture Policy Statement.18  When we assess forfeitures, Section 503(b)(2)(E) 
                   requires that we take into account 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.”19   
                   III.      DISCUSSION 
                             6.       We have fully considered LDCB’s response to the NAL.  Based on the preponderance of 
                   the evidence, including the consistent statements from consumers who filed complaints against LDCB, 
                   we conclude that LDCB violated Section 201(b) of the Act by making misrepresentations to 11 
                   consumers20 and placing unauthorized charges on 23 consumers’ telephone bills.21  We also affirm the 
                   findings in the NAL that LDCB violated Section 258 of the Act and Section 64.1120(c)(3) of the Rules by 
                   failing to follow the Commission’s TPV requirements with respect to 15 consumers.22  With the exception 
                   of LDCB’s argument that two slamming violations occurred outside of the Commission’s one-year statute 
                   of limitations, we find none of them persuasive.    We therefore assess a forfeiture of $2,320,000 for these 
                   violations. 
                             A.       LDCB Violated Section 201(b) of the Act 
                             7.       Section 201(b) of the Act states, in pertinent part, that “[a]ll charges, practices, 
                   classifications, and regulations for and in connection with [interstate or foreign] communication service 
                   [by wire or radio], shall be just and reasonable, and any such charge, practice, classification, or regulation 
                   that is unjust or unreasonable is declared to be unlawful.”23 
                                      1.       LDCB Violated Section 201(b) of the Act by Deceptively Marketing its 
                                               Service to Consumers 
                             8.       The Commission has held that unfair and deceptive marketing practices by interstate 
                   common carriers, including misrepresentations about a carrier’s identity or the nature of its service that 
                   are made to obtain a consumer’s authorization to change his or her preferred long distance carrier, are 
                   unjust and unreasonable practices under Section 201(b) of the Act.24  We affirm the findings of the NAL 
                                                                         
                   18 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 (1997) (Forfeiture Policy Statement), recons. denied, 
                   Memorandum Opinion and Order, 15 FCC Rcd 303 (1999).  
                   19 47 U.S.C. § 503(b)(2)(E). 
                   20 NAL, 30 FCC Rcd at 8665-68, paras. 5-12.  
                   21 Id. at 8669–70, paras. 17-19.  LDCB caused the charges to be placed on consumers’ AT&T, CenturyLink, and 
                   Verizon telephone bills through its contract with billing aggregator, BSG Clearing Solutions.  AT&T, CenturyLink, 
                   and Verizon placed the charges on the telephone bills of their customers.  Section 201(b) applies whether a carrier 
                   places the charges on a consumer’s telephone bill directly or indirectly through the billing carrier. 
                   22 Id. at 8668–69, paras. 13-16.   
                   23 47 U.S.C. § 201(b).  
                   24 See, e.g., Advantage Telecommunications Corp., Forfeiture Order, 32 FCC Rcd 3723, 3725, para. 7 (2017) 
                   (Advantage Forfeiture Order); Preferred Long Distance, Inc., Forfeiture Order, 30 FCC Rcd 13711, 13718, para. 16 
                   (2015) (Preferred Forfeiture Order); Business Discount Plan, Inc., Order of Forfeiture, 15 FCC Rcd 14461, 14469, 
                   para. 17 (2000) (BDP Forfeiture Order); Preferred Long Distance, Inc., Notice of Apparent Liability for Forfeiture, 
                   27 FCC Rcd 16489, 16491, para. 7 (2012) (Preferred NAL); United Telecom, Inc., Notice of Apparent Liability for 
                   Forfeiture, 27 FCC Rcd 16499, 16502, para. 9 (2012) (United NAL); Silv Communication Inc., Notice of Apparent 
                   Liability for Forfeiture, 25 FCC Rcd 5178, 5180–82, paras. 5–7 (2010) (Silv NAL).  Consistent with prior 
                   Commission decisions, our Section 201(b) authority relevant here to address the telemarketing practices of an 
                   interexchange carrier, for or in connection with its telecommunications service, is not limited by the enactment of 
                   Section 258 of the Act.  See, e.g., Implementation of the Subscriber Carrier Selection Changes Provisions of the 
                                                                                                                              (continued….) 
                                                                               3 
                    
                                                         Federal Communications Commission                                      FCC 19-25              
                    
                    
                   that LDCB violated Section 201(b) by engaging in deceptive marketing practices in an effort to obtain 
                   authorization to change the long distance carriers of 11 consumers.25  The contents of the 11 consumer 
                   complaints show, by a preponderance of the evidence,26 that LDCB (through its telemarketers) violated 
                   Section 201(b).  We find that the complainants’ statements about their experiences with LDCB’s 
                   telemarketers constitute reliable evidence of LDCB’s Section 201(b) violations.27   
                             9.       LDCB does not directly refute this evidence; instead the Company argues that the 
                   apparent misrepresentations, “if true,” are the result of the unauthorized actions of its third-party 
                   “independent contractors” acting beyond the scope of their authority.28  The Company maintains that it 
                   provides a policy manual and sales script to its telemarketers to ensure that they market LDCB’s service 
                   lawfully.29  LDCB argues that Section 217 of the Act provides that a carrier can only be liable for the acts 
                   of its agent “acting within the scope of his employment;”30
                                                                                       that imposing liability on LDCB is barred by 
                   “common principles of agency law” because the telemarketers were independent contractors, not 
                   employees of LDCB, and did not have either actual or apparent authority to engage in deceptive 
                   marketing.31  LDCB also contends that, upon becoming made aware of a problem, it took corrective 
                   action by directing a “rogue” telemarketing company to terminate sales representatives suspected of 
                   misrepresenting LDCB’s service to consumers.32  Finally, LDCB argues that its TPV recordings are 
                   evidence that the consumers’ allegations of misrepresentations are “potentially suspect,” and that 
                   consumers had not been deceived to believe the transaction “involved anything other than a carrier 
                   change to LDCB.”33  We find none of these arguments persuasive and accordingly reject all of them.  
                             10.      The Commission has repeatedly held that carriers are responsible for the conduct of third 
                   parties acting on the carrier’s behalf,34 including telemarketers who are independent contractors.35  LDCB 
                   (Continued from previous page)                                                             
                   Telecommunications Act of 1996; Policies and Rules Concerning Unauthorized Changes of Consumers Long 
                   Distance Carriers, Second Report and Order and Further Notice of Proposed Rulemaking, 14 FCC Rcd 1508, 1554-
                   55, para. 77 (1998) (in the context of a rulemaking implementing Section 258, interpreting Section 201(b) authority 
                   to remain available to address deceptive sales tactics); see also Preferred Forfeiture Order, 30 FCC Rcd at 13718 & 
                   n.54. 
                   25 NAL, 30 FCC Rcd at 8665–68, paras. 5–12. 
                   26 The use of the “preponderance of the evidence” standard is the traditional standard in civil and administrative 
                   proceedings and is the one contemplated by the Administrative Procedure Act.  5 U.S.C. § 556(d).  See 47 CFR § 
                   1.80(f)(4) (the Commission may issue a forfeiture order upon consideration of all relevant information available to 
                   it); SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589, 7591, para. 4 (2002) (applying preponderance 
                   of the evidence standard in reviewing Bureau-level NAL). 
                   27 See, e.g., Preferred Forfeiture Order, 30 FCC Rcd at 13719, 13722-23, paras. 17, 23 (finding that consumer 
                   complaints were reliable because they were “detailed, consistent but not duplicative, and specific”).  
                   28 NAL Response at 11. 
                   29 Id. at 12. 
                   30 Id.  
                   31 Supplemental NAL Response at 1-5.   
                   32 NAL Response at 13. 
                   33 Id. at 13-14.  Specifically, LDCB argues that its verifiers:  “(1) disclosed that the purpose of the verification call 
                   was to ‘obtain authorization for a carrier change to [LDCB], . . . ’; (2) confirmed that the caller was ‘authorized to 
                   make this carrier change . . . ’; (3) confirmed an intention to make a carrier change; (4) confirmed authorization for 
                   the carrier changes; and (5) informed the caller that ‘[t]he call you received was made by a representative of [LDCB] 
                   which is independent of your local telephone company.’”  
                   34 See Eure Family Ltd. Partnership, Memorandum Opinion and Order, 17 FCC Rcd 21861, 21863-64, para. 7 
                   (2002); Long Distance Direct, Inc., Memorandum Opinion and Order, 15 FCC Rcd 3297, 3300, para. 9 (2000) 
                                                                                                                              (continued….) 
                                                                               4 
                    
                                                         Federal Communications Commission                                      FCC 19-25              
                    
                    
                   is not relieved of liability simply because it provided its telemarketers with a policy manual and sales 
                   script and directed its telemarketers to market its service “through lawful means.”36  LDCB essentially 
                   argues that its telemarketers must not have followed its sales script because the script contained no 
                   misrepresentations.37  That issue may be a dispute between LDCB and its contractors,38 but it is not a 
                   defense to a statutory or rule violation.  Section 217 of the Act deems “the act, omission or failure of any . 
                   . . person acting for or employed by” any carrier to be the act, omission or failure of that carrier.39  This 
                   language extends to entities acting on behalf of LDCB in marketing the Company’s services.  The 
                   question under Section 217 is not whether these individuals were acting consistently with LDCB policy 
                   manuals, but whether they were acting “within the scope of their employment” as LDCB’s agents.  To 
                   hold that Section 217 does not extend to independent contractors acting inconsistently with the carrier’s 
                                                                                                                                   40
                   policy would create a loophole in the requirements of the Act and frustrate clear legislative intent.   The 
                   evidence shows that despite LDCB’s policy manual and “mandatory, approved sales script,”41 LDCB’s 
                   telemarketers misrepresented their identity and the purpose of their sales calls to at least 11 consumers.42  
                   They did so on behalf of LDCB in an effort to switch consumers’ carriers to LDCB.  The 
                   misrepresentations by LDCB’s telemarketers were made for the benefit of LDCB and within the scope of 
                   their engagement with LDCB (to enroll new customers).  We therefore hold LDCB responsible for such 
                   misrepresentations.   
                             11.      We also reject LDCB’s claim that the Commission cannot hold LDCB liable for 
                   deceptive marketing because it cannot demonstrate that LDCB was aware of its telemarketers’ 
                   (Continued from previous page)                                                             
                   (LDDI MO&O); Vista Services Corp., Order of Forfeiture, 15 FCC Rcd 20646, 20650, para. 9 (2000) (Vista 
                   Forfeiture Order); American Paging, Inc. of Virginia, Memorandum Opinion and Order, 12 FCC Rcd 10417, 
                   10420, para. 11 (1997); Triad Broadcasting Co., Inc., Memorandum Opinion and Order, 96 FCC 2d 1235, 1244, 
                   para. 21 (1984); see also Silv NAL, 25 FCC Rcd at 5180, para. 5 & n.18. 
                   35 See, e.g., Vista Forfeiture Order, 15 FCC Rcd at 20650, para. 9; Preferred Forfeiture Order, 30 FCC Rcd at 
                   13724, para. 26; United NAL, 27 FCC Rcd at 16502, para. 8 (each holding that licensees and other Commission 
                   regulatees are responsible for the acts and omissions of their employees and independent contractors); Silv NAL, 25 
                   FCC Rcd at 5185, para. 14 (“[T]he Commission has held carriers to be responsible for the failures of their 
                   telemarketers and third party verification companies to obtain proper authorization and verification for changes 
                   made to consumers’ primary carriers.”).   
                   36 See NAL Response at 12. 
                   37 See id. at 7-8. 
                   38 See Independent Contractor Agreements Attach. 27, Letter from Cheng-yi Lui, Fletcher, Heald & Hildreth, 
                   P.L.C., Counsel for Long Distance Consolidated Billing Company, to Mika Savir, Attorney Advisor, 
                   Telecommunications Consumers Division, FCC Enforcement Bureau (Dec. 22, 2014) (on file in EB-TCD-14-
                   00017401). 
                   39 See 47 U.S.C. § 217 (“[T]he act, omission, or failure of any . . . agent[ ] or other person acting for or employed by 
                   any common carrier . . . within the scope of his employment, shall in every case be also deemed to be the act, 
                   omission, or failure of such carrier . . . .”); see also LDDI MO&O, 15 FCC Rcd at 3300, para. 9; Silv NAL, 25 FCC 
                   Rcd at 5180, para. 5 & n.18.   
                   40 See LDDI MO&O, 15 FCC Rcd at 3300, para. 9 (“Congress’s clear intent in enacting section 217 was to ensure 
                   that common carriers not flout their statutory duties by delegating them to third parties”); Vista Forfeiture Order, 15 
                   FCC Rcd at 20650, para. 9. 
                   41 NAL Response at 12. 
                   42 Additional consumers whose complaints pre-dated the NAL also alleged that LDCB’s telemarketers 
                   misrepresented their identity and the purpose of the call.  See Consumer complaints against LDCB on file in EB-
                   TCD-14-00017401.  
                                                                               5 
                    
                                                       Federal Communications Commission                                    FCC 19-25              
                    
                    
                   misconduct.43  The evidence shows that LDCB, in fact, had knowledge that its telemarketers were acting 
                   improperly.  LDCB received numerous complaints from consumers informing LDCB that its 
                   telemarketers told them they were calling on behalf of or were affiliated with those consumers’ current 
                   providers.  In June 2014, a representative of Power Pro filed a complaint against LDCB stating:  
                            I received a call from this company telling me that Century Link was moving everyone to 
                            consolidated billing and that since I already had everything through Century Link nothing 
                            would change on my bill.  I very specifically asked at least twice if they were Century 
                            Link because I didn’t want to change companies and he assured me they were . . . I am 
                            very upset that Long Distance Consolidated Billing Co. out right lied to me. . . .44   
                   Months later, consumers were still complaining about LDCB’s deceptive marketing practices.  In January, 
                   2015, Houston Duplicator Services explained that LDCB’s telemarketer called the business and pretended 
                   to be calling from AT&T: 
                            I received a call from a gentleman who posed as a representative of AT&T.  He said that 
                            I needed to go through the phone verification process for my long distance phone service.  
                            Then, he connected me with the service to record my responses.  When I did not hear 
                            AT&T in the recording, I stopped the process and was reconnected with the gentleman 
                            who had initially called me.  He reassured me that, even though the name wasn't AT&T, 
                            that it really was AT&T that was being represented, just trust him.  So, I was reconnected 
                            with the phone verification process and proceeded with the recording . . . I immediately 
                            called AT&T and told them how I’d been ‘tricked’ into changing my LD service.45 
                            12.        Further, an alleged lack of knowledge regarding its telemarketers’ conduct or any 
                   precautions LDCB claims it has taken does not relieve the Company of liability.46  As the Commission 
                   explained in the Vista Forfeiture Order, “[n]either Vista’s alleged lack of knowledge or suspicions 
                   regarding its telemarketers’ conduct nor the fact that Vista may have taken steps to prevent fraudulent 
                   schemes, exonerates the company. . . . ‘[W]illfully,’ as employed in section 503(b) of the Act, does not 
                                                                                             47
                   require a demonstration that Vista knew it was acting unlawfully.”   Thus, LDCB’s alleged lack of 
                   knowledge would not relieve the Company of liability, but this lack of knowledge is not supported by the 
                   evidence in the record.  After receiving similar complaints over the course of more than one year,48 there 
                   is no evidence that LDCB took action to ensure the misrepresentations stopped.  Instead, and despite the 
                   fact that LDCB was on notice of such misrepresentations, LDCB continued to do business with the 
                   telemarketing company involved.  In response to complaints, LDCB said that while it “recognize[d] that 
                   there can sometimes be certain problems associated with telemarketing,” the Company had a TPV 
                   recording evidencing the consumer’s authorization to switch carriers to LDCB.49  After the Bureau 
                                                                         
                   43 Supplemental NAL Response at 4–6. 
                   44 Complaint from Power Pro, Inc. (filed June 23, 2014).  See Complaint from Platinum Auto Works (filed Jan. 8, 
                   2014) (stating that LDCB misrepresented themselves to the company). 
                   45 Complaint from Houston Duplicator Services (filed Jan. 29, 2015).  
                   46 See Vista Forfeiture Order, 15 FCC Rcd at 20650, para. 10. 
                   47 Id. (footnotes omitted). 
                   48 See generally Complaints on file in EB-TCD-14-00017401, most of which were either received by a regulatory 
                   agency and sent to LDCB or were received by LDCB directly from consumers.  Although the violations involving 
                   misrepresentations discussed in the NAL occurred between August 11, 2014, and February 19, 2015 (See NAL, 30 
                   FCC Rcd at 8675, Appendix), the record includes complaints alleging misrepresentations by LDCB’s telemarketers 
                   going back to January 2014.    
                   49 See, e.g., Letter from April Copeman, Regulatory Compliance Director, LDCB, to Veronica Etheridge, Analyst, 
                   FCC Consumer & Governmental Affairs Bureau at 2 (June 8, 2015) (on file in EB-TCD-14-00017401); Letter from 
                                                                                                                          (continued….) 
                                                                             6 
                    
                                                         Federal Communications Commission                                      FCC 19-25               
                    
                    
                             14.      We also find unpersuasive LDCB’s argument that its TPV recordings demonstrate that 
                   consumers were not deceived.60  As noted above, LDCB hired telemarketers to solicit consumers to 
                   switch from their existing long distance carriers to LDCB.61  After a telemarketer allegedly obtained a 
                   consumer’s consent to switch carriers, the call was transferred to a third party to verify the switch.  LDCB 
                   asserts that the recordings of the verification call (which do not include the sales portion of the call) 
                   “serve as evidence that the allegations of apparent misrepresentations are potentially suspect” and 
                   “uncorroborated.”62   
                             15.      We disagree with LDCB that the TPV recordings it submitted to the Commission 
                   automatically disprove that unlawful misrepresentations were made during the separate telemarketing 
                   calls.  First, and most importantly, this argument suggests that a misrepresentation constitutes a violation 
                   of Section 201(b) only if a consumer is actually deceived or harmed.  Section 201(b), however, has no 
                   requirement that a practice must create actual deception or cause harm in order to find that it is unjust or 
                   unreasonable.63  A practice is unjust or unreasonable based on the conduct at issue, not a subjective 
                   examination of its impact on each individual consumer or whether a particular consumer was in fact 
                   misled.  Finding violations based on the impact of the misconduct on each individual customer, would 
                   create unacceptable uncertainty about whether or not a practice would violate the law in regard to a 
                   particular consumer.  Thus, a violation of Section 201(b) turns on the question of whether a carrier’s 
                   practice (in the instant case, that a misrepresentation was made) is an unjust or unreasonable practice “in 
                   connection with” a communications service.64   
                             16.      Even if we were to accept the argument that the TPV call “cleared up” the original 
                   misrepresentation in the minds of affected consumers as to the identity of the carrier, it does not change 
                   the fact that, through its telemarketers, LDCB engaged in an unjust and unreasonable practice in the first 
                   instance and the violation of the Act could not be “cured” by the reliance on the subsequent TPV call.  
                   Regardless, the record in this case underscores that the TPV calls did not cure the initial 
                   misrepresentation.  Specifically, we affirm the finding in the NAL that the complaints themselves 
                   demonstrate that the verifier did not cure or clarify the misrepresentations in the consumers’ minds.65 
                   These complaints are reliable, in part, because while they contain unique descriptions of consumers’ 
                   interactions with LDCB or its contractors, they are detailed, consistent but not duplicative, and specific.66
                                                                                                                                              
                                                                         
                   60 See NAL Response at 13-14; Supplemental NAL Response at 8-11.  TPV is one method a carrier may use to 
                   verify and record a consumer’s authorization to change his or her preferred long distance carrier.  TPV must comply 
                   with Section 64.1120(c)(3) of the Rules.  See 47 CFR § 64.1120(c)(3). 
                   61 See supra para. 8. 
                   62 NAL Response at 13. 
                   63 See 47 U.S.C. § 201(b). 
                   64 Moreover, enforcement matters arising under Section 503 likewise have no “actual harm” requirement—all that is 
                   needed to support a forfeiture penalty in a Section 503 proceeding is a determination that the Company has willfully 
                   or repeatedly failed to comply with a provision of the Act or an FCC order.  See 47 U.S.C. § 503(b)(1)(B); see also 
                   Madison Communications, Inc., Order, 8 FCC Rcd 1759, 1760, para. 7 (1993) (“The fact that no actual harm was 
                   demonstrated does not affect our determination that this was a serious violation justifying a significant forfeiture.”).  
                   Furthermore, we note that forfeiture proceedings are distinct from complaint proceedings.  The issue of whether 
                   consumers are deceived by a misrepresentation may be relevant in complaint proceedings in determining the amount 
                   of damages, but that issue is not necessarily relevant in the enforcement context.  As opposed to damages assessed in 
                   the complaint context, which are intended to make a particular member of the public whole, fines for wrongful 
                   conduct assessed in the enforcement context are designed to protect the public.   
                   65 NAL, 30 FCC Rcd at 8667-68, paras. 11-12. 
                   66 Id.  See Advantage Forfeiture Order, 32 FCC Rcd at 3725, para. 7; Preferred Forfeiture Order, 30 FCC Rcd at 
                   13722-23, para. 23 (each finding that the consumer complaints were credible because they were detailed, consistent, 
                   and specific).   
                                                                                8 
                    
                                                       Federal Communications Commission                                    FCC 19-25             
                    
                    
                   As we explained in the NAL, the complaints show that “LDCB, through its telemarketers, apparently 
                   misrepresented itself to be AT&T, CenturyLink, or other carriers . . . and is evidence that LDCB was 
                   engaged in deceptive conduct.”67  In their complaints, the consumers allege that they changed carriers 
                   based on LDCB’s misrepresentations, and the TPV recordings contain no evidence that consumers 
                   believed LDCB was a separate entity from their existing carriers.  Thus, the TPV recordings do not 
                   disprove the violation of Section 201(b) stemming from these misrepresentations.  
                            17.      Accordingly, based on the preponderance of the evidence, including consistent statements 
                   from credible consumers who filed contemporaneous complaints against LDCB, we affirm the findings in 
                   the NAL that LDCB made misrepresentations to 11 consumers, in violation of Section 201(b) of the Act. 
                                     2.       LDCB Violated Section 201(b) of the Act by Placing Unauthorized Charges 
                                              on Consumers’ Telephone Bills 
                            18.      Cramming can occur either when third parties place or cause unauthorized charges to be 
                   placed on consumers’ local telephone bills, or when billing carriers place unauthorized charges on the 
                   telephone bills of their customers for their services or those of a third party.68  In either case, any 
                   assessment of an unauthorized charge or fee on a telephone bill or for a telecommunications service is an 
                   “unjust and unreasonable” practice under Section 201(b) of the Act.69  
                            19.      The Commission found in the NAL that LDCB placed unauthorized charges on 23 
                   consumers’ local telephone bills.70  Each of the 23 complainants maintained that they neither requested 
                   nor agreed to service provided by LDCB, and therefore that they were billed for service that they never 
                   authorized.  The Commission noted in the NAL that a carrier that engages in an initial slam that leads to a 
                   subsequent cram violates both Sections 258 and 201(b) of the Act for slamming and cramming.71  In such 
                                                                                                                 72
                   cases we may exercise our authority to assess forfeitures for both types of violations.   
                                                                         
                   67 NAL, 30 FCC Rcd at 8667, para. 11. 
                   68 See Advantage Forfeiture Order, 32 FCC Rcd at 3728, para. 14; see also Empowering Consumers to Prevent and 
                   Detect Billing for Unauthorized Charges (“Cramming”), Report and Order and Further Notice of Proposed 
                   Rulemaking, 27 FCC Rcd 4436, 4437, 4439, paras. 1, 6 (2012); Main Street Telephone Company, LLC, Notice of 
                   Apparent Liability for Forfeiture, 26 FCC Rcd 8853, 8853-54, para. 2 (2011) (Main Street NAL). 
                   69 See, e.g., LDDI MO&O, 15 FCC Rcd at 3302, para. 14 (finding the company’s practice of cramming membership 
                   and other unauthorized fees on consumer telephone bills was an unjust and unreasonable practice in connection with 
                   communication services); see also Telseven, LLC, Notice of Apparent Liability for Forfeiture, 27 FCC Rcd 15558, 
                   15564, 15567, paras. 12, 16 (2012); Cheap2Dial Telephone, LLC, Notice of Apparent Liability for Forfeiture, 26 
                   FCC Rcd 8863, 8870, para. 22 (2011); Main Street NAL, 26 FCC Rcd at 8859, para. 21; Norristown Telephone 
                   Company, LLC, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 8844, 8849, para. 20 (2011);V  oiceNet 
                   Telephone, LLC, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 8874, 8880, para. 21 (2011).  
                   70 See NAL, 30 FCC Rcd at 8669-70, paras. 17-19. 
                   71 See Optic Internet Protocol, Inc., Notice of Apparent Liability for Forfeiture, 29 FCC Rcd 9056, 9063, para. 19 
                   (2014), Forfeiture Order, 30 FCC Rcd 2539 (2015); Advantage Telecommunications Corp., Notice of Apparent 
                   Liability for Forfeiture, 28 FCC Rcd 6843, 6850, para. 18 n.48 (2013)( Advantage NAL), Forfeiture Order, 32 FCC 
                   Rcd 3723.        
                   72 See Central Telecom Long Distance, Inc., Notice of Apparent Liability for Forfeiture, 29 FCC Rcd 5517, 5529, 
                   para. 25 & n.83, Forfeiture Order, 31 FCC Rcd 10392 (2016) (Central Forfeiture Order); U.S. Telecom Long 
                   Distance, Inc., Notice of Apparent Liability for Forfeiture, 29 FCC Rcd 823, 835-36, para. 24 & n.93, Forfeiture 
                   Order, 31 FCC Rcd 10413 (2016) (USTLD Forfeiture Order); Consumer Telcom, Inc., Notice of Apparent Liability 
                   for Forfeiture, 28 FCC Rcd 17196, 17208, para. 26 & n.78, Forfeiture Order, 31 FCC Rcd 10435 (2016) (CTI 
                   Forfeiture Order).  For those consumers whose slams took place outside the one-year statute of limitations period, 
                   the Commission proposed a forfeiture based only on the unlawful cramming that took place within the 12 months 
                   from the release date of the NAL.         
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                                                          Federal Communications Commission                                       FCC 19-25               
                     
                     
                             20.       The only evidence LDCB offers as proof that it obtained authorization from consumers to 
                    charge them are its TPV recordings.73  LDCB argues that because its TPV recordings show that LDCB 
                    did not slam consumers, it therefore could not have crammed such consumers.74  As discussed in detail 
                    below, we find that LDCB’s TPV recordings did not comply with the Commission’s verification rules, 
                    which are meant to verify that a consumer previously authorized a carrier change.75  In addition, in this 
                    case, each of the complainants denies that he or she wanted to switch their business’ long distance service 
                    providers to LDCB,76 and many of them allege LDCB’s telemarketer lied to them about who they were 
                    and why they were calling, immediately before the “verification” recording.  Thus, based on a 
                    preponderance of the evidence, we affirm the findings in the NAL that LDCB placed unauthorized charges 
                    on 23 consumers’ telephone bills, in violation of Section 201(b) of the Act.77
                                                                                                               
                             B.        LDCB Violated Section 258 of the Act and Section 64.1120 of the Rules by 
                                       Slamming Consumers 
                             21.       Section 258 of the Act makes it unlawful for any telecommunications carrier to “submit 
                    or execute a change in a subscriber’s selection of a provider of telephone exchange service or telephone 
                    toll service except in accordance with such verification procedures as the Commission shall prescribe.”78  
                    Section 64.1120 of the Rules prohibits carriers from submitting a request to change a consumer’s 
                    preferred provider of telecommunications services before verifying authorization from the consumer; 
                    carriers can verify that authorization in one of three specified ways, including TPV.79  If a carrier relies on 
                    TPV, the verifier must be independent of the carrier and, among other things, must confirm that the 
                    consumer with whom the verifier is speaking:  (i) has the authority to change the carrier associated with 
                    the telephone number in question; (ii) in fact wishes to change carriers; and (iii) understands that he or she 
                    is authorizing a carrier change.80 
                             22.       LDCB argues that it did not violate Section 258 of the Act or Section 64.1120 of the 
                    Rules because “the context provided by the sequence of questions contained in LDCB’s TPV script leaves 
                    no room for confusion that consumers authorized a carrier change for regional toll service.”81  
                    Specifically, LDCB argues that its verifier makes a number of statements and asks certain questions to 
                                                                                                                  82
                    “set the stage” for confirming a carrier change to LDCB for regional toll service.   LDCB contends that 
                    the Commission is imposing an “improper burden” on LDCB by requiring the Company to ask a 
                    consumer during the verification process whether he or she authorizes a “carrier change,” rather than a 
                                                                          
                    73 NAL Response at 14.  
                    74 Supplemental NAL Response at 7-8.  LDCB contends that the Commission relies on unsworn “self-serving 
                    statements” from complainants which are contradicted by LDCB’s TPV recordings.  Id. at 9.  As the Commission 
                    has stated on several occasions, it need not rely on sworn statements when enforcing the Act and, as discussed 
                    above, we find the complainants’ statements credible.  See supra para. 7. 
                    75 See infra paras. 21-22.  
                    76 As noted in the NAL, in many cases, LDCB did not complete the carrier switch and therefore was not providing 
                    any service to the consumer, yet the Company billed them on a monthly basis anyway.  NAL, 30 FCC Rcd at 8670, 
                    para. 19 & n.42. 
                    77 Id. at 8669-70, paras. 17-19. 
                    78 47 U.S.C. § 258(a).      
                    79 47 CFR § 64.1120(c)(1)-(3). 
                    80
                      Id. § 64.1120(c)(3)(iii). 
                    81 NAL Response at 3. 
                    82 Id. at 4. 
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                                                        Federal Communications Commission                                      FCC 19-25              
                    
                    
                   “service change.”83  It also contends that its verifier asking consumers if they “also authorize [LDCB] to 
                   provide service for your regional toll calls?” was not misleading as the NAL asserts.84  We disagree.  As 
                   discussed above, Section 64.1120(c)(3) of the Rules sets forth detailed procedures for carriers using TPV 
                   to verify consumer authorization.  The carrier’s verifier must confirm that the person on the call wants 
                   and authorizes a carrier change—not just an upgrade to existing service, bill consolidation, or any other 
                   transaction, including a change in service.85     
                            23.       As we discussed in the NAL, the purpose of the verification procedures is to confirm that 
                   the consumer has authorized a carrier change.86  Verifying authorization to provide “service” is not 
                                                                                                    87
                   sufficient to confirm that the consumer wants to make a carrier change.   The Commission has explained 
                   that “some carriers introduce ambiguity into what should be a straightforward interaction by describing 
                   the carrier change offer as a mere ‘upgrade’ to existing service or in other ways that obscure the true 
                   purpose.”88
                                  Thus, “the scripts used by the independent third party verifier should clearly and 
                   conspicuously confirm that the subscriber has previously authorized a carrier change.”89  LDCB’s 
                   characterization of the Commission’s findings as “flawed” because the Commission is requiring LDCB to 
                   use the words “carrier change”90 does not persuade us to alter our finding that LDCB’s TPVs did not 
                   comply with these Rules.  Providing “context” for the consumer through other questions and statements 
                   does not elicit the consumer’s authorization for a carrier change as the Rules require.  As we have stated 
                   on numerous occasions, this rule is crucial to protect consumers particularly where the complainants 
                   contend that they did not intend to change carriers at all.91  We therefore affirm the findings in the NAL 
                   that LDCB violated Section 258 of the Act and Section 64.1120(c)(3) of the Rules by failing to follow all 
                   of the Commission’s third party verification requirements with respect to 15 consumers.  
                            C.        LDCB Was Not Denied Due Process 
                            24.       LDCB argues that the Commission’s enforcement action against LDCB is “arbitrary and 
                   capricious” and poses “due process problems.”92  LDCB contends that in two orders dating back to 2010, 
                                                                         
                   83 Id. at 2.  
                   84 Id. at 4.  In support of its argument, LDCB states that when contacting complainants to discuss their complaints, 
                   the Bureau used a script that referred to “an unauthorized switch of your telephone service.”  It therefore maintains 
                   that its verifier’s characterization of the switch on the TPV call as a change in service could not have been 
                   misleading.  NAL Response at 5–6.  LDCB is confusing excerpts of statements made by staff to consumers in 
                   discussing their slamming complaints (after the slam had occurred and the consumer filed the complaint) with the 
                   specific requirements in the Commission’s rules regarding the verification of a carrier change.  The conversations 
                   between Bureau staff and consumers regarding their experiences with LDCB are not relevant to whether LDCB’s 
                   TPVs complied with the Commission’s specific verification requirements at the time of the sales call. 
                   85 47 CFR § 64.1120(c)(3)(iii). 
                   86 NAL, 30 FCC Rcd at 8668-69, para. 14. 
                   87 Id. 
                   88 Implementation of the Subscriber Carrier Selection Changes Provisions of the Telecommunications Act of 1996; 
                   Policies and Rules Concerning Unauthorized Changes of Consumers’ Long Distance Carriers, Fourth Report and 
                   Order, 23 FCC Rcd 493, 501, para. 19 (2008). 
                   89 Id. (quoting Implementation of the Subscriber Carrier Selection Changes Provisions of the Telecommunications 
                   Act of 1996; Policies and Rules Concerning Unauthorized Changes of Consumers’ Long Distance Carirers, Second 
                   Report and Order and Further Notice of Proposed Rulemaking, 14 FCC Rcd 1508, 1553, para. 72 (1998)).  
                   90 NAL Response at 2-4. 
                   91 See, e.g., Silv NAL, 25 FCC Rcd at 5184, para. 12. 
                   92 Supplemental NAL Response at 9-10. 
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                                                         Federal Communications Commission                                      FCC 19-25               
                    
                    
                   the Commission’s Consumer & Governmental Affairs Bureau (CGB) found a valid authorized carrier 
                   change when analyzing TPV recordings identical to those at issue in the NAL.93  Thus, LDCB contends 
                   that imposing liability on LDCB would violate the Due Process Clause of the Fifth Amendment because 
                                                                                                      94
                   the Commission failed to give fair notice that its conduct was unlawful.   We disagree.  To satisfy the 
                   due process requirements of the Fifth Amendment95 when a punishment is being imposed, the statute or 
                   regulation in question must include standards that can be enforced equitably, as well as “provide a person 
                   of ordinary intelligence fair notice of what is prohibited. . . .”96  In the NAL, the Commission explained 
                   that in each of the TPVs at issue, “LDCB’s verifier asks the person on the call if he or she authorized 
                   LDCB to provide ‘service’ for regional toll calls and at no time confirmed whether he or she authorized a 
                   carrier change for regional toll service.”97  The NAL explained that in 2013, CGB found such language to 
                                                                             98
                   violate the Commission’s verification procedures.   LDCB argues that the 2013 CGB order referenced in 
                   the NAL does not find fault with the particular question cited in the NAL.99  However, the primary point of 
                   the 2013 CGB order, which superseded any prior precedent, was to make clear to LDCB that confirming 
                   a change in service is not the equivalent to confirming a carrier change.  Specifically, CGB stated:   
                             The Commission’s rules require that the verification elicit, amongst other things, 
                             confirmation that the person on the call is “authorized to make the carrier change.”  In 
                             each of the TPVs at issue, the verifier instead asks the person on the call “are you the 
                             authorized person to have Long Distance Consolidated Billing provide this new long 
                             distance service for the business location?” A switch from one carrier to another carrier 
                                                                                                     100
                             differs from merely making changes to the customer’s service.              
                   Consequently, this 2013 CGB order put LDCB on notice that it needed to change its TPVs to bring them 
                   into compliance.  We therefore conclude that LDCB was on notice since 2013 that its verification 
                   language violated the Commission’s rules, and we reject its argument that it was denied due process.   
                             25.      LDCB further contends that it was denied due process because the Commission relied on 
                   unsworn statements from complainants, rather than on the TPV recordings LDCB produced.101
                                                                                                                                  We 
                   disagree.  The NAL was primarily based on consumer complaints the Bureau reviewed—a process similar 
                                                                         
                   93 NAL Response at 6-7. 
                   94 Id. at 7 & n.26. 
                   95 U.S. Const. amend. V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a 
                   presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when 
                   in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice 
                   put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be 
                   deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, 
                   without just compensation.”). 
                   96 FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012) (citing United States v. Williams, 553 U.S. 285, 304 
                   (2008)). 
                   97 NAL, 30 FCC Rcd at 8669, para. 15. 
                   98 Id. (citing Long Distance Consolidated Billing Co., Complaints Regarding Unauthorized Changed of Subscriber’s 
                   Telecommunications Carrier, Order, 28 FCC Rcd 3387, 3389, para. 4 (CGB 2013) (granting five complaints) (2013 
                   CGB Order)). 
                   99 NAL Response at 6. 
                   100
                       2013 CGB Order, 28 FCC Rcd at 3389, para. 4 (footnotes omitted). 
                   101
                       Supplemental NAL Response at 9-10. 
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                                                                                              102
                   to that used in other recent slamming and cramming investigations.             We disagree with LDCB’s 
                   characterization of the violations as “bogus cramming allegations on top of bogus slamming 
                   allegations.”103
                                     LDCB had more than enough information about the complaints upon which the NAL’s 
                   proposed forfeiture was based to allow it to rebut the NAL’s findings and contest the complainants’ 
                   assertions in its NAL Response.  Nonetheless, the Company did not submit evidence refuting those 
                   complaints.  We also considered LDCB’s TPV recordings and determined that they were defective and 
                   invalid for failing to comply with the Commission’s verification procedures.  We therefore found, based 
                   on a preponderance of the evidence, that consumers did not authorize LDCB’s service and that LDCB 
                   had, in fact, slammed them.   
                            26.      LDCB also questions the fairness of the Commission’s “system” because, according to 
                   LDCB, the Bureau contacted complainants to discuss their complaints, using a script that contains an 
                   “underlying presumption” that the complainant was slammed.104  We disagree.  The Bureau initiated its 
                   investigation of LDCB, and the Commission made its apparent findings in the NAL, based on consumers’ 
                   statements in their complaints and other evidence in the record regarding LDCB’s switching of 
                   consumers’ carriers and charges it placed on their telephone bills.  LDCB possessed all of the complaints; 
                   in fact, LDCB provided many of the complaints in response to the Bureau’s Letter of Inquiry.  The 
                   Bureau contacted consumers after reviewing their complaints in an effort to assess the credibility of the 
                   complainants and to gather additional information, such as copies of any telephone bills, or to determine 
                   whether the consumer paid the LDCB bill or received a refund of the LDCB charges.105  For example, 
                   following up on his complaint, S. Yoss of Miller Studios e-mailed the Bureau stating,  
                            I was the person who originally received the call from [LDCB] . . . As I previously 
                            indicated I was lead to believe that the party calling was a representative of Time Warner 
                            Business Class.  We have been a long time customer of Time Warner . . . and with our 
                            current contract have unlimited free long distance service within the continental United 
                            States.  With this kind of arrangement we would have no reason to change long distance 
                            providers.  This has now become a nightmare trying to get the lines back with Time 
                            Warner.  As of this writing we have not had long distance service now for four days, 
                                                                         
                   102
                      See, e.g., Central NAL, 29 FCC Rcd at 5518, para. 3; Advantage NAL, 28 FCC Rcd at 6845, para. 6; United NAL, 
                   27 FCC Rcd at 16500, para. 3; Preferred NAL, 27 FCC Rcd at 16489, para. 2; Silv NAL, 25 FCC Rcd at 5179, para. 
                   2. 
                   103
                      Supplemental NAL Response at 12. 
                   104
                      Supplemental NAL Response at 11.  LDCB incorrectly states that LDCB obtained information regarding the 
                   Commission’s interactions with complainants due to a Freedom of Information Act request.  In fact, after the NAL 
                   was issued, LDCB e-mailed its request for materials evidencing the Bureau’s communications with complainants, 
                   and the Bureau provided the information to LDCB to ensure that the Company had the complete investigative record 
                   in order to respond to the NAL.  See Letter from Erica McMahon, Attorney Advisor, Telecommunications 
                   Consumers Division, FCC Enforcement Bureau, to Cheng-yi Liu, Fletcher, Heald & Hildreth, P.L.C., Counsel for 
                   Long Distance Consolidated Billing Company (Aug. 25, 2015) (on file in EB-TCD-14-00017401).   
                   105
                      For instance, the owner of Hi-Tech confirmed for Bureau staff that LDCB had changed her carrier on three 
                   separate occasions but that the company had received a credit for the unauthorized charges and was no longer being 
                   billed by LDCB.  See E-mail from Latashia Middleton, Enforcement Analyst, Telecommunications Consumers 
                   Division, FCC Enforcement Bureau, to Karen Tom, Hi-Tech (Apr. 15, 2015; 18:09 ET) (on file in EB-TCD-14-
                   00017401 and provided to LDCB).  Similarly, the owner of Asset Management Group e-mailed, saying, “[a]ttached 
                   are December through February billings from USBI on behalf of LDCB.  They started billing us last July and there 
                   were no charges on our March 2015 AT&T bill.  We received a $45 credit on the February billing, so they took us 
                   for $75.  I know it’s not a lot of money, but the fact that they represented themselves as AT&T employees is just not 
                   right.”  See E-mail from Tom Potter, Asset Management Group, to Erica McMahon, Attorney Advisor, 
                   Telecommunications Consumers Division, FCC Enforcement Bureau (Apr. 21, 2015, 19:18 ET) (on file in EB-
                   TCD-14-00017401 and provided to LDCB). 
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                            which is a big problem for a manufacturing company.  My only hope is that something 
                            can be done with this organization, and their ability to scam/slam other companies is 
                            eliminated.106   
                   Mr. Yoss’s e-mail and similar communications from complainants reinforced what they had previously 
                   stated in their complaints.  Accordingly, we find that the Commission’s enforcement process has been fair 
                   to LDCB, that LDCB had sufficient information to respond to the NAL’s apparent findings, and that 
                   LDCB was not denied due process.    
                            D.       The Forfeiture Amount 
                            27.      After considering the evidence in the record, the relevant statutory factors, the 
                   Commission’s Forfeiture Policy Statement,107
                                                                        and the arguments advanced by LDCB in its NAL 
                   Response, we find that LDCB is liable for a total forfeiture of $2,320,000.  As explained in the NAL, the 
                   Commission applied the $40,000 base forfeiture amount to each of the 38 apparent cramming and 
                   slamming violations which resulted in a total forfeiture of $1,520,000.108
                                                                                                       The Commission then proposed 
                   to triple the base forfeiture for each of the 11 crams and slams that involved misrepresentations—making 
                   the penalty for each such violation $120,000.109                                                                   110
                                                                           This increased the proposed forfeiture to $2,400,000.           
                   LDCB argues that the Commission’s proposed forfeiture of $2,400,000 is excessive, that LDCB is unable 
                   to pay the forfeiture, and that “a substantial reduction of the proposed forfeiture is necessary to account 
                   for LDCB’s size and inability to pay.”111  We disagree for the reasons set forth below. 
                            28.      Section 503(b)(1) of the Act provides, in relevant part, 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.112
                                                                                                         In this case, Section 
                   503(b)(2)(B) of the Act and Section 1.80 of the Rules authorized the Commission to assess a forfeiture of 
                   up to $160,000 for each violation, or each day of a continuing violation, up to a statutory maximum of 
                   $1,575,000 for a single act or failure to act by common carriers.113  In exercising our forfeiture authority, 
                   we are required to take into account “the nature, circumstances, extent, and gravity of the violation and, 
                                                                         
                   106
                      E-mail from S. Yoss, Miller Studios, to Mika Savir, Attorney Advisor, Telecommunications Consumers 
                   Division, FCC Enforcement Bureau (Oct. 31, 2014, 17:02 ET) (on file in EB-TCD-14-00017401 and provided to 
                   LDCB). 
                   107
                      See Forfeiture Policy Statement, 12 FCC Rcd at 17100, para. 27. 
                   108
                      NAL, 30 FCC Rcd at 8671, para. 21. 
                   109
                      Id. at 8672, para. 22. 
                   110
                      Id. 
                   111
                      NAL Response at 15-16. 
                   112
                      See 47 U.S.C. § 503(b)(1)(B); see also 47 CFR § 1.80(a)(2).   
                   113
                      See 47 U.S.C. § 503(b)(2)(B); 47 CFR § 1.80(b)(2).  Although the Commission most recently adjusted its 
                   penalties to account for inflation in 2018, here we apply the adjusted penalties in effect at the time the NAL was 
                   issued.  See Amendment of Section 1.80(b) of the Commission’s Rules, Adjustment of Civil Monetary Penalties to 
                   Reflect Inflation, Order, 28 FCC Rcd 10785 (EB 2013).  Accordingly, these amounts reflect the 2013 inflation 
                   adjustments to the forfeitures specified in Section 503(b)(2)(B) ($100,000 per violation or per day of a continuing 
                   violation and $1,000,000 per any single act or failure to act).  The Federal Civil Penalties Inflation Adjustment Act 
                   of 1990, Pub. L. No. 101-410, 104 Stat. 890, as amended by the Debt Collection Improvement Act of 1996, Pub. L. 
                   No. 104-134, Sec. 31001, 110 Stat. 1321 (DCIA), requires the Commission to adjust its forfeiture penalties 
                   periodically for inflation.  See 28 U.S.C. § 2461.  The Commission most recently amended its relevant rules on 
                   January 5, 2018, effective February 1, 2018.  See Amendment of Section 1.80(b) of the Commission’s Rules, 
                   Adjustment of Civil Monetary Penalties to Reflect Inflation, Order, DA 18-12, 33 FCC Rcd 46 (EB 2018); see also 
                   Adjustment of Civil Monetary Penalties to Reflect Inflation, 83 Fed. Reg. 4600-01 (Feb. 1, 2018).   
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                                                        Federal Communications Commission                                    FCC 19-25              
                    
                    
                   with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and 
                                                                   114
                   such other matters as justice may require.”         The Commission carefully considered these factors in the 
                         115
                   NAL,  and we do so again here.   
                                     1.       A Reduction in the Forfeiture is Appropriate for Two of the Slamming 
                                              Violations 
                            29.      Section 503(b)(6) of the Act authorizes the Commission to assess a forfeiture for 
                                                                                                       116
                   violations that occurred within one year preceding the issuance of an NAL.               LDCB argues that the 
                   violations associated with five complainants occurred prior to the one-year statute of limitations period 
                   and thus, no forfeiture may be imposed for those violations.117  Specifically, LDCB asserts that its 
                   marketing calls (and thus the misrepresentations made by LDCB’s telemarketers) for three complainants 
                   occurred before July 30, 2014, the date that is one year prior to the release date of the NAL, and thus were 
                   outside of the one-year statute of limitations.  LDCB also asserts that the dates on which the Company 
                   submitted the carrier change requests for two complainants were more than one year prior to the issuance 
                   of the NAL.118
                                     
                                       pon further review of the evidence in the record, we agree with LDCB that the slams it 
                            30.      U
                   perpetrated on Just Glocks, Inc. and                                        
                                                                                               occurred more than a year before the 
                   release of the NAL.  While we find that LDCB submitted the requests to change the carriers of Just Glocks 
                   and                       without the businesses’ authorization verified in compliance with the Rules, it did 
                   so outside of the Commission’s one-year statute of limitations period; thus, we cannot assess forfeitures 
                   associated with those two violations.119
                                                                 We therefore reduce the proposed forfeiture by $80,000, resulting 
                   in an amount of $2,320,000.   
                            31.      We find, however, that the timing of the Section 201(b) misrepresentation violations 
                   associated with the complaints filed by Controlled Hydronics, Your T-Shirt Man, and Mabel’s, LLC, 
                   have no bearing on our assessment of the underlying proposed forfeiture for those complaints.  As 
                   explained in the NAL, the Commission proposed the base forfeiture amount of $40,000 for each slam and 
                   cram by LDCB.120
                                         Controlled Hydronics was crammed on September 1, 2014; Your T-Shirt Man was 
                   crammed on September 22, 2014; and Mabel’s, LLC was crammed on February 19, 2015 (all within the 
                   one-year statute of limitations). The Commission did not propose a separate forfeiture for LDCB’s 
                   misrepresentations associated with the complaints; rather, the Commission upwardly adjusted the base 
                   forfeiture to account for the Company’s deceptive marketing conduct.121  In fashioning the penalty to 
                   apply for LDCB’s slamming and cramming violations, the Commission took into account the Company’s 
                   misconduct that occurred at earlier times.122
                                                                       
                                                                         
                   114
                      47 U.S.C. § 503(b)(2)(E). See 47 CFR § 1.80(b)(4); Forfeiture Policy Statement, 12 FCC Rcd at 17100-01, para. 
                   27. 
                   115
                      NAL, 30 FCC Rcd at 8670-72, paras. 20-22. 
                   116
                      47 U.S.C. § 503(b)(6). 
                   117
                      NAL Response at 9-10 & Exh. I. 
                   118
                      Id.  
                   119
                      The NAL also found that LDCB crammed charges onto the telephone bills of Just Glocks within the one-year 
                   statute of limitations period; thus, the Commission can assess a forfeiture for the Section 201(b) cramming violation 
                   associated with the Just Glocks complaint.   
                   120
                      NAL, 30 FCC Rcd at 8671, para. 21. 
                   121 Id. at 8672, para. 22. 
                   122 See Sandhill Communications, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 17762, 17769 & n.45 
                   (EB 2010) (“Section 503(b)(6) does not . . . bar the Commission from assessing whether . . . conduct prior to [the 
                                                                                                                           (continued….) 
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                                                         Federal Communications Commission                                       FCC 19-25               
                    
                    
                              129
                   require.”      As explained in the NAL, we find LDCB’s actions egregious, as evidenced by the fact that it 
                   repeatedly deceived consumers in order to facilitate changing their preferred long distance providers 
                   without authorization verified in compliance with the Commission’s rules and placing unauthorized 
                                                                                 130
                   charges for its service on consumers’ telephone bills.             In 11 of the complaints included in the NAL, 
                   LDCB misled consumers to believe that the Company was calling on behalf of the consumers’ current 
                   carriers.  Additional consumers alleged similar deceptive misconduct by LDCB that occurred prior to the 
                   time period covered by the NAL.131
                                                              LDCB received these consumer complaints, yet the record shows that 
                   the Company took little action to correct the deceptive behavior or terminate its relationship with the 
                   telemarketing company.  The complaints regarding LDCB’s deceptive marketing spanned the course of 
                   over a year; therefore, it appears that LDCB was aware of and benefited financially from its 
                   telemarketers’ acts.  We have found this same type of willful and repeated use of deceptive marketing 
                                                                                         132
                   practices to be particularly egregious in other investigations.            LDCB was on notice that such 
                   misrepresentations to consumers may result in substantial forfeiture amounts.133  In addition, we must 
                   consider the substantial harm LDCB caused consumers.  LDCB forced consumers to spend significant 
                   time and energy to return to their preferred carriers, obtain refunds to which they were entitled, and 
                   respond to collections agencies.134   
                             34.       Finally, we must consider LDCB’s history of noncompliance.  In 2005, the Bureau 
                   initiated an investigation of LDCB based on complaints from consumers who alleged LDCB had changed 
                   their preferred carriers without authorization.135
                                                                            The Bureau subsequently entered into a consent decree 
                   with LDCB, which was signed by LDCB’s President Jan Lowe, requiring that LDCB’s sales 
                   representatives will make no misleading statements to consumers and that its sales scripts will alert the 
                                                                                                   136
                   consumers that their long distance service providers will be changed.                The same type of slams by 
                   LDCB in 2005 are also at issue here, revealing a pattern of violations by LDCB.  That the conduct by 
                   LDCB at issue in this enforcement action was expressly prohibited in the 2006 consent decree137
                                                                                                                                    is 
                   evidence that LDCB’s conduct is egregious, continuous, and repeated. 
                                                                         
                   129
                       47 U.S.C. § 503(b)(2)(E). See 47 CFR § 1.80(b)(4); Forfeiture Policy Statement, 12 FCC Rcd at 17100-01, para. 
                   27. 
                   130
                       See Preferred Forfeiture Order, 30 FCC Rcd at 13725, para. 29 (finding the company’s actions egregious, as 
                   evidenced by the fact that it repeatedly engaged in misrepresentation and changed consumers’ preferred long 
                   distance providers without properly verifying their authorization). 
                   131
                       See consumer complaints on file in EB-TCD-14-00017401. 
                   132
                       See, e.g., Central Forfeiture Order, 31 FCC Rcd at 10408-09, paras. 40-41; CTI Forfeiture Order, 31 FCC Rcd at 
                   10451-54, paras. 39-42; Preferred Forfeiture Order, 30 FCC Rcd at 13725, para. 29; United NAL, 27 FCC Rcd at 
                   16505-06, paras. 17-18 (finding the company’s deceptive conduct particularly egregious because it repeatedly 
                   misled consumers into believing it was calling on behalf of their current carriers); Silv NAL, 25 FCC Rcd at 5186, 
                   para. 16 (finding company’s conduct particularly egregious in light of the misrepresentations made by the 
                   company’s telemarketers).  
                   133
                       See Preferred NAL, 27 FCC Rcd 16489, 16494-95, paras. 14-15; United NAL, 27 FCC Rcd at 16505-06, paras. 
                   17-18; Silv NAL, 25 FCC Rcd at 5186, para. 16.  
                   134
                       See, e.g., Main Street NAL, 26 FCC Rcd at 8859, 8861, paras. 19-20, 24 (in calculating the proposed forfeiture 
                   the Commission considered the difficulty consumers experienced in attempting to obtain refunds).  
                   135
                       See Long Distance Consolidated Billing Co., Verification of Orders for Telecommunications Service, Order and 
                   Consent Decree, 21 FCC Rcd 11907 (2006) (on file in EB-04-TC-147). 
                   136
                       Id. at 11910, paras. 8-9. 
                   137
                       Id. at 11910-11, paras. 8-13. 
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                                                         Federal Communications Commission                                      FCC 19-25               
                    
                    
                             35.      We have previously rejected inability to pay claims in similar cases where it is 
                   outweighed by a pattern of recurring misconduct or otherwise egregious violations.138  In such cases, 
                                                                                                                                    139
                   forfeitures must also be sufficient to protect the interests of consumers and deter future violations.                
                   Carriers cannot expect that paying forfeitures will simply be the cost of doing business.  This is the 
                   second time the Commission has had to expend resources to investigate and address egregious 
                   misconduct by LDCB.  Therefore, in light of LDCB’s egregious and repeated misconduct of the same 
                   rules that were the subject of the 2006 consent decree, a higher forfeiture relative to LDCB’s gross 
                                              
                   revenues is warranted. 
                             36.      Accordingly, after weighing the various factors described above, we determine that the 
                   forfeiture proposed in the NAL should be adjusted as discussed above, and we assess a forfeiture of 
                   $2,320,000 for LDCB’s willful and repeated violations of Sections 201(b) and 258 of the Act and Section 
                   64.1120 of the Rules.  We find that, based on the evidence in the record, the amount appropriately reflects 
                   the nature, circumstances, extent, and gravity of LDCB’s violations, as well as its history of prior 
                   offenses.  Notwithstanding the arguments advanced by LDCB, we find that the statutory factors were 
                   appropriately applied in this case.  Our decision not to downward adjust based on inability to pay is 
                   consistent with prior precedent140
                                                           and reflects the circumstances present in this case.  
                   IV.       CONCLUSION 
                             37.      Based on the record before us and in light of the applicable statutory factors, we conclude 
                   that LDCB willfully and repeatedly violated Sections 201(b) and 258 of the Act and Section 64.1120 of 
                   the Rules by changing the preferred carriers of 15 consumers without authorization verified in accordance 
                   with the Commission’s verification procedures; charging 23 consumers for service without authorization, 
                   and, in 11 of those instances, making misrepresentations to the consumers.  Accordingly, we assess a 
                   forfeiture of $2,320,000.   
                   V.        ORDERING CLAUSES 
                             38.      Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act,141
                                                                                                                                 and 
                   Section 1.80 of the Rules,142
                                                     Long Distance Consolidated Billing Company IS LIABLE FOR A 
                   MONETARY FORFEITURE in the amount of two million three hundred twenty thousand dollars 
                   ($2,320,000) for willfully and repeatedly violating Sections 201(b) and 258 of the Act and Section 
                                             
                   64.1120 of the Rules. 
                             39.      Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the 
                   Rules within thirty (30) calendar days after the release date of this Forfeiture Order.143  If the forfeiture is 
                                                                         
                   138
                       See, e.g., CTI Forfeiture Order, 31 FCC Rcd at 10454, para. 43; Central Forfeiture Order, 31 FCC Rcd at 10411, 
                   para. 44; USTLD Forfeiture Order, 31 FCC Rcd at 10433, para. 43 (each rejecting inability to pay claims in light of 
                   the carriers’ egregious misconduct which included slamming, cramming, and deceptive marketing); Purple 
                   Communications, Inc., Forfeiture Order, 30 FCC Rcd 14892, 14903-904, paras 32-33 (2015) (acknowledging that 
                   “standing alone, Purple’s financial documents might support a reduction” but finding after applying the balancing 
                   factors no reduction was warranted). 
                   139 See, e.g., Advantage Forfeiture Order, 32 FCC Rcd at 3736-37, para. 34; NOS Communications, Inc., Notice of 
                   Apparent Liability for Forfeiture, 16 FCC Rcd 8133, 8142, para. 19 (2001) .
                   140
                       See, e.g., Abramovich Forfeiture Order, 33 FCC Rcd at 4680, para. 48; CTI Forfeiture Order, 31 FCC Rcd at 
                   10454, para. 43; Central Forfeiture Order, 31 FCC Rcd at 10411, para. 44; USTLD Forfeiture Order, 31 FCC Rcd 
                   at 10433, para. 43. 
                   141 47 U.S.C. § 503(b). 
                   142 47 CFR § 1.80. 
                   143 Id. 
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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                not paid within the period specified, the case may be referred to the U.S. Department of Justice for 
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                enforcement of the forfeiture pursuant to Section 504(a) of the Act.144   
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         40.                                                                                                                                                                                                                                                                                                                                                                     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.  Long Distance 
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Consolidated Billing Company shall send electronic notification of payment to Lisa Williford at 
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 lisa.williford@fcc.gov on the date said payment is made.  Regardless of the form of payment, a 
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 completed FCC Form 159 (Remittance Advice) must be submitted.145  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 that should be followed based 
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 on the form of payment selected: 
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Payment by check or money order must be made payable to the order of the Federal