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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of File No. EB-04-IH-0517
)
Unicom Communications, L.L.C. NAL/Acct. No. 200632080154
)
Apparent Liability for Forfeiture FRN No. 0014994602
)
)
)
ORDER
Adopted: June 9, 2008 Released: June 11, 2008
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Unicom Communications,
L.L.C. ("Unicom"). The Consent Decree cancels a Notice of Apparent
Liability for Forfeiture ("NAL") by the Bureau against Unicom for its
apparent violation of a Commission order by willfully and repeatedly
failing to respond to a Bureau directive, issued pursuant to sections
4(i), 4(j), 218, and 403 of the Communications Act of 1934, as amended
("the Act"), to provide certain information and documents. In
addition, the Consent Decree terminates an investigation of Unicom for
possible violations of sections 9, 225, 251, and 254 of the Act,
relating to universal service and other programs, and, among others,
sections 1.1154, 1.1157, 52.17, 54.706, 54.711, 64.604, and 64.1195 of
the Commission's rules, relating to regulatory fees, the North
American Numbering Plan ("NANP") cost recovery mechanism, the
Universal Service Fund ("USF"), the Telecommunications Relay Service
("TRS") Fund, and carrier registration.
2. The Bureau and Unicom have negotiated the terms of the Consent Decree
that resolve this matter. A copy of the Consent Decree is attached
hereto and incorporated by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree which terminates the investigation and
cancels the NAL.
4. In the absence of material new evidence relating to this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether Unicom possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to sections 4(i) and 503(b)
of the Communications Act of 1934, as amended, and sections 0.111 and
0.311 of the Commission's Rules, the Consent Decree attached to this
Order IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED and the Notice of Apparent Liability for Forfeiture IS
CANCELLED.
7. IT IS FURTHER ORDERED that Unicom Communications, L.L.C. shall make
its voluntary contribution to the United States Treasury, as specified
in the Consent Decree, by mailing a check or similar instrument
payable to the order of the Federal Communications Commission, to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code).
8. IT IS FURTHER ORDERED that Unicom Communications, L.L.C. will file
reports with the Commission ninety days after the Effective Date,
twelve months after the Effective Date, and twenty-four months after
the Effective Date. Each report shall include a compliance certificate
from an officer, as an agent of Unicom Communications, L.L.C., stating
that the officer has personal knowledge that Unicom Communications,
L.L.C. has established operating procedures intended to ensure
compliance with this Consent Decree, together with an accompanying
statement explaining the basis for the officer's compliance
certification. All reports shall be submitted to Hillary S. DeNigro,
Chief, Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission, 445 12th Street, S.W., Washington,
D.C. 20554.
9. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Tony S. Lee, Venable LLP, Counsel for Unicom
Communications, L.L.C., 575 7th Street, Washington, DC 20004.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of File No. EB-04-IH-0517
)
Unicom Communications, L.L.C. NAL/Acct. No. 200632080154
)
Apparent Liability for Forfeiture FRN No. 0014994602
)
)
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and Unicom Communications, L.L.C.
("Unicom"), by their authorized representatives, hereby enter into
this Consent Decree for the purpose of cancelling the NAL issued for
Unicom's apparent violation of a Commission order by willfully and
repeatedly failing to respond to a Bureau directive, issued pursuant
to sections 4(i), 4(j), 218, and 403 of the Communications Act of
1934, as amended ("the Act"), to provide certain information and
documents. This Consent Decree also terminates the Enforcement
Bureau's investigation into whether Unicom violated sections 9, 225,
251, and 254 of the Act, relating to universal service and other
programs, and, among others, sections 1.1154, 1.1157, 52.17, 54.706,
54.711, 64.604, and 64.1195 of the Commission's rules, relating to
regulatory fees, the North American Numbering Plan ("NANP") cost
recovery mechanism, the Universal Service Fund ("USF"), the
Telecommunications Relay Service ("TRS") Fund, and carrier
registration.
I. DEFINITIONS
2. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C.
S: 151 et seq.
b. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
c. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
d. "Compliance Plan" means the program described in this Consent Decree
at paragraph 13.
e. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
f. "Investigation" means the investigation commenced by the Bureau's
October 28, 2004 Letter of Inquiry ("LOI") to Unicom regarding
possible violations of the requirements of sections 9, 225, 251, and
254 of the Act and sections 1.1154, 1.1157, 52.17, 54.706, 54.711,
64.604, and 64.1195 of the Commission's rules, relating to regulatory
fees, the North American Numbering Plan ("NANP") cost recovery
mechanism, the Universal Service Fund ("USF"), the Telecommunications
Relay Service ("TRS") Fund, and carrier registration.
g. "Unicom" means Unicom Communications, L.L.C. and its
predecessors-in-interest and successors-in-interest.
h. "NAL" means the Notice of Apparent Liability for Forfeiture and Order
that the Bureau issued on April 27, 2006.
i. "Order" or "Adopting Order" means an Order of the Commission adopting
the terms of this Consent Decree without change, addition, deletion,
or modification.
j. "Parties" means Unicom Communications, L.L.C. and the Bureau.
k. "Rules" means the Commission's regulations found in Title 47 of the
Federal Regulations.
II. BACKGROUND
3. Pursuant to section 64.1195(a) of the Commission's rules and
Commission orders, all carriers that provide interstate
telecommunications service and certain other providers of interstate
telecommunications must register with the Commission through
submission of FCC Form 499-A. In addition, section 254(d) of the Act
and sections 54.706, 54.711, and 54.713 of the rules require
telecommunications carriers that provide interstate telecommunications
services to file annual and quarterly Telecommunications Reporting
Worksheets (FCC Form 499-A and FCC Form 499-Q) and contribute to the
Universal Service Fund ("USF") on the basis of their interstate and
international end-user telecommunications revenues.
4. Pursuant to section 251(e) of the Act and section 52.17 of the rules,
all telecommunications carriers are required to contribute to the
costs of establishing administration for the North American Numbering
Plan ("NANP") based on information contained in FCC Form 499-A and FCC
Form 499-Q.
5. Pursuant to section 225(b)(1) of the Act and section 64.604 of the
rules, telecommunications carriers that provide interstate
telecommunications services are required to contribute to the
Telecommunications Relay Service ("TRS") Fund, based on information
contained in FCC Form 499-A and FCC Form 499-Q.
6. Pursuant to section 9(a)(1) of the Act and sections 1.1151, 1.1154,
and 1.1157(b)(1) of the Commissions rules, interstate
telecommunications carriers are required to pay regulatory fees.
7. Pursuant to sections 4(i), 4(j), 218, and 403 of the Act, interstate
telecommunications carriers are required to respond to directives by
the Commission to provide information to enable it to perform its
duties under the Act.
8. Unicom is a division of Smoky Mountains Systems, Inc., a North
Carolina firm offering a variety of regulated telecommunications
services. Unicom itself is a local and long distance carrier that has
been providing interstate telecommunications service in North Carolina
and Florida since 1998. On April 27, 2006, the Bureau issued a Notice
of Apparent Liability for Forfeiture and Order finding that Unicom
apparently violated a Commission order and directive by failing, after
multiple opportunities, to respond fully to Bureau Letters of Inquiry
pertaining to Unicom's compliance with its universal service and
related obligations. The NAL proposed that Unicom be held liable for
a forfeiture of $20,000 under section 503(b)(1)(B) of the Act and
ordered Unicom to respond fully to the Bureau inquiry letters. Unicom
registered with the Commission by filing an initial Form 499-A on May
16, 2006, and, as of the Effective Date, it has made all necessary
filings and paid all invoiced amounts relating to the USF, TRS Fund,
NANPA cost recovery mechanism, and regulatory fees. Moreover, Unicom
responded to the NAL on May 26, 2006. At the same time, Unicom also
requested that the Bureau agree to a Consent Decree with a Compliance
Plan resolving the investigation. On June 30, 2006, Unicom filed a
supplemental response to the NAL and a response to the Bureau inquiry
letters.
III. TERMS OF AGREEMENT
9. The Parties agree that the provisions of this Consent Decree shall be
subject to final approval by the Bureau by incorporation of such
provisions by reference in the Adopting Order without change,
addition, modification, or deletion.
10. Unicom agrees that the Bureau has jurisdiction over it and the matters
contained in this Consent Decree and has the authority to enter into
and adopt this Consent Decree.
11. The Parties agree that this Consent Decree shall become binding on the
Parties on the Effective Date. Upon release, the Adopting Order and
this Consent Decree shall have the same force and effect as any other
order of the Bureau. Any violation of the Adopting Order or of the
terms of this Consent Decree shall constitute a violation of a Bureau
order.
12. In express reliance on the covenants and representations in this
Consent Decree and to avoid further expenditure of public resources,
the Bureau agrees to terminate its investigation and to cancel the
NAL. In consideration for the termination of said investigation and
cancellation of the NAL, Unicom agrees to the terms, conditions, and
procedures contained herein. The Bureau further agrees that in the
absence of new material evidence, the Bureau will not use the facts
developed in this investigation through the Effective Date of the
Consent Decree, or the existence of this Consent Decree, to institute,
on its own motion, or recommend to the Commission, any new proceeding,
formal or informal, or take any action on its own motion against
Unicom concerning the matters that were the subject of the
investigation. The Bureau also agrees that it will not use the facts
developed in this investigation through the Effective Date of this
Consent Decree, or the existence of this Consent Decree, to institute
on its own motion, or recommend to the Commission, any proceeding,
formal or informal, or, on its own motion, or recommend that the
Commission, take any action against Unicom with respect to Unicom's
basic qualifications, including its character qualifications, to be a
Commission licensee or authorized common carrier.
13. For purposes of settling the matters set forth herein, Unicom agrees
to maintain a Compliance Plan related to future compliance with the
Act, the Commission's rules, and the Commission's orders. The
Compliance Plan shall be comprised of the following components:
a. Compliance Training Program. Unicom will establish an FCC compliance
training program for any employee who engages in activities related to
FCC regulation of Unicom. Training sessions will be conducted annually
for such employees to ensure compliance with the Act and the FCC's
regulations and policies and, for new employees who are engaged in
such activities, within the first thirty (30) days of employment.
b. Designated Contact. Unicom will designate one employee or consultant
as the point of contact for all telecommunications compliance matters.
c. Review and Monitoring. Unicom will review its FCC Compliance Training
Program annually to ensure it is maintained in a proper manner and
continues to address the objectives set forth therein.
d. Termination. Unicom's obligations under this Paragraph 13 shall expire
twenty-four (24) months after the Effective Date.
14. Unicom will file compliance reports with the Commission ninety days
after the Effective Date, twelve months after the Effective Date, and
twenty-four months after the Effective Date. Each compliance report
shall include a compliance certificate from an officer, as an agent of
Unicom, stating that the officer has personal knowledge that Unicom
has established operating procedures intended to ensure compliance
with this Consent Decree, together with an accompanying statement
explaining the basis for the officer's compliance certification. All
compliance reports shall be submitted to Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications
Commission, Room 4-C330, 445 12th Street, S.W., Washington, D.C.
20554.
15. Unless stated otherwise, the requirements of this Consent Decree will
expire on the later of twenty-four months after the Effective Date or
the date Unicom makes its final Voluntary Contribution installment
payment.
16. Unicom agrees that it will make a voluntary contribution to the United
States Treasury in the amount of $25,000 in 48 installments of $520.83
each. The first payment will be made within thirty (30) days after the
Effective Date of the Adopting Order with subsequent payments made
monthly thereafter by the 15th day of each month. Each payment must be
made by check or similar instrument, payable to the order of the
Federal Communications Commission. The payment must include the
NAL/Account Number and FRN Number referenced in the caption to the
Adopting Order. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payments by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code).
17. The Parties waive any and all rights they may have to seek
administrative or judicial reconsideration, review, appeal or stay, or
to otherwise challenge or contest the validity of this Consent Decree
and the Order adopting this Consent Decree, provided the Commission
issues an Order adopting the Consent Decree without change, addition,
modification, or deletion. Unicom shall retain the right to challenge
Commission interpretation of the Consent Decree or any terms contained
herein. If either Party (or the United States on behalf of the
Commission) brings a judicial action to enforce the terms of the
Adopting Order, neither Unicom nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and Unicom shall
waive any statutory right to a trial de novo. Unicom hereby agrees to
waive any claims it may otherwise have under the Equal Access to
Justice Act, 5 U.S.C. S: 504 and 47 C.F.R. S: 1.1501 et seq., relating
to the matters addressed in this Consent Decree.
18. The Parties agree that if any of the provisions of the Adopting Order
or the Consent Decree shall be invalid or unenforceable, such
invalidity or unenforceability shall not invalidate or render
unenforceable the entire Adopting Order or Consent Decree, but rather
the entire Adopting Order or Consent Decree shall be construed as if
not containing the particular invalid or unenforceable provision or
provisions, and the rights and obligations of the Parties shall be
construed and enforced accordingly. In the event that this Consent
Decree in its entirety is rendered invalid by any court of competent
jurisdiction, it shall become null and void and may not be used in any
manner in any legal proceeding.
19. The Parties agree that if any provision of the Consent Decree
conflicts with any subsequent rule or order adopted by the Commission
(except an order specifically intended to revise the terms of this
Consent Decree to which Unicom does not expressly consent) that
provision will be superseded by such Commission rule or order.
20. Except as set forth herein, Unicom agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
21. The Parties agree and acknowledge that this Consent Decree shall
constitute a final settlement between the Parties. The Parties further
agree that this Consent Decree does not constitute either an
adjudication on the merits or a factual or legal finding or
determination regarding any compliance or noncompliance with the
requirements of the Act or the Commission's Rules and Orders. The
Parties agree that this Consent Decree is for settlement purposes only
and that by agreeing to this Consent Decree, Unicom does not admit or
deny liability for violating any statute, regulation, or
administrative rule in connection with the matters that are the
subject of this Consent Decree.
22. This Consent Decree cannot be modified without the advance written
consent of both Parties.
23. Each party represents and warrants to the other that it has full power
and authority to enter into this Consent Decree.
24. This Consent Decree may be signed in any number of counterparts
(including by facsimile), each of which, when executed and delivered,
shall be an original, and all of which counterparts together shall
constitute one and the same fully executed instrument.
________________________________
Kris Anne Monteith
Chief
Enforcement Bureau
________________________________
Date
________________________________
Charles D. D'Ascoli
Managing Partner
Unicom Communications, L.L.C.
________________________________
Date
47 U.S.C. S:S: 154(i), 1544(j), 218, 403.
47 U.S.C. S:S: 9, 225, 251, 254.
47 C.F.R. S:S: 1.1154, 1.1157, 52.17, 54.706, 54.711, 64.604, 64.1195.
47 U.S.C. S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S:S: 154(i), 154(j), 218, 403.
47 U.S.C. S:S: 9, 225, 251, 254.
47 C.F.R. 47 C.F.R. S:S: 1.1154, 1.1157, 52.17, 54.706, 54.711, 64.604,
64.1195.
See Letter from Hillary S. DeNigro, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, FCC, to Charles D. D'Ascoli,
Managing Partner, Unicom Communications, L.L.C., dated October 28, 2004
("October 28, 2004 LOI").
47 U.S.C. S:S: 159, 225, 251, 254(d).
47 C.F.R. 47 C.F.R. S:S: 1.1154, 1.1157, 52.17, 54.706, 54.711, 64.604,
64.1195.
See Unicom Communications, L.L.C., Notice of Apparent Liability for
Forfeiture and Order, 21 FCC Rcd 4361 (Enf. Bur. 2006) ("NAL").
See Universal Service Contribution Methodology, Federal-State Joint Board
on Universal Service, 1998 Biennial Regulatory Review - Streamlined
Contributor Reporting Requirements Associated with Administration of
Telecommunications Relay Service, North American Numbering Plan, Local
Number Portability, and Universal Service Support Mechanisms,
Telecommunications Services for Individuals with Hearing and Speech
Disabilities, and the Americans with Disabilities Act of 1990,
Administration of the North American Numbering Plan and North American
Numbering Plan Cost Recovery Contribution Factor and Fund Size, Number
Resource Optimization, Telephone Number Portability, Truth-In-Billing and
Billing Format, IP-Enabled Services, Report and Order and Notice of
Proposed Rulemaking, WC Docket Nos. 06-122 and 04-36, CC Docket Nos.
96-45, 98-171, 90-571, 92-237, 99-200, 95-116, and 98-170, 21 FCC Rcd
7518, 7548-49, para. 61 (2006).
See www.unicomcommunications.com (June 5, 2008).
See NAL, note 7, supra.
See 47 U.S.C. S: 503(b)(1)(B).
See id., 21 FCC Rcd at 4366, P:P: 16, 18.
Unicom Communications, L.L.C. Request for Cancellation or Reduction of
Proposed Forfeiture, filed May 26, 2006 ("May 26, 2006 NAL Response").
See Unicom Communications, L.L.C. Supplement to Request for Cancellation
or Reduction of Proposed Forfeiture, filed June 30, 2006.
Federal Communications Commission DA 08-1336
2
Federal Communications Commission DA 08-1336