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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-04-SE-054
)
Sprint Spectrum LP d/b/a Sprint ) NAL/Acct. No. 200532100002
PCS ) FRN No. 0007165210
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 19, 2004 Released: October 20,
2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Sprint Spectrum L.P. d/b/a Sprint PCS
(``Sprint'') has apparently failed to provide Enhanced 911
(``E911'') Phase I service within six months of a request by
Santa Cruz County, Arizona (``Santa Cruz'') on behalf of two
Public Safety Answering Points (``PSAPs'') in willful and
repeated violation of Section 20.18(d) of the Commission's Rules
(``Rules'').1 For the reasons discussed below, we find Sprint
apparently liable for a forfeiture in the amount of fifty
thousand dollars ($50,000).
II. BACKGROUND
2. Under Phase I of the E911 rules, wireless carriers are
required to provide to the designated PSAP the telephone number
of the originator of a 911 call and the location of the cell site
or base station receiving a 911 call from any mobile handset
accessing their systems by April 1, 1998, or within six months of
a valid request by the designated PSAP, whichever is later.2 A
PSAP request for service is deemed valid if the PSAP can
demonstrate that (1) a mechanism is in place for recovering the
PSAP's costs; (2) the PSAP has ordered the equipment necessary to
receive and use the E911 data to be installed no later than six
months following the PSAP's request; and (3) the PSAP has made a
timely request to the appropriate Local Exchange Carrier
(``LEC'') for the necessary trunking and other facilities,
including any necessary Automatic Location Information (``ALI'')
database upgrades.3
3. On February 25, 2004, Santa Cruz filed an informal
complaint against Sprint for failure to provide E911 Phase I
wireless service. The Enforcement Bureau subsequently began an
investigation and, on March 24, 2004, sent a letter of inquiry
(``LOI'') to Sprint seeking additional information concerning
Sprint's compliance with the E911 Phase I rule.4 On April 20,
2004,5 Sprint filed the LOI Response.6
4. In the informal complaint, Santa Cruz asserts that on
August 28, 2003, it sent a letter to Sprint, 15 other wireless
service providers and the local exchange carrier, Qwest
Communications (``Qwest''), requesting Phase I service on behalf
of two PSAPs, the Santa Cruz Sheriff's Office and the Nogales
Police Department.7 In that letter, Santa Cruz stated that the
PSAPs were ready to meet the requirements of Phase I wireless
service and that the funds to support the project had been
allocated in the State's 9-1-1 Revolving Fund. Santa Cruz states
that on October 1, 2003, Sprint returned the ``Business
Activity'' form included in the request for Phase I service,
acknowledging that it does business in Santa Cruz County. On
October 7, 2003, Sprint asked Santa Cruz to provide the
information needed to make routing choices. On October 15, 2003,
Santa Cruz sent Sprint the information it requested. Qwest
completed all necessary modifications to the PSAPs' 911 networks
and equipment in preparation for Phase I service on December 14,
2003. On January 21, 2004, Santa Cruz asked Sprint to schedule a
test and turn-up and reminded Sprint that the Phase I six-month
installation window would close on February 28, 2004. Sprint did
not respond to the communication. On February 17 and 19, 2004,
Santa Cruz contacted Sprint's 911 implementation vendor, Intrado,
and asked if it could schedule Sprint's test and turn-up. On
February 19, 2004, Intrado told Santa Cruz that Sprint did not
appear ready to take that step. Also on February 19, 2004, Santa
Cruz called Sprint to discuss why Sprint had not responded to its
requests for a turn-up date and pricing and network design
information. According to Santa Cruz, Sprint stated that it did
not respond because it had not completed the necessary work
required to deploy Phase I service. Sprint explained that it had
not ordered either the Pseudo-ANIs (``p-ANIs'')8 or the network,
but promised to order the p-ANIs the next day (February 20,
2004), followed by a network request the next week (February 27,
2004). When asked about a possible turn-up date, Sprint stated
that a network order normally takes six weeks, but that it would
attempt to expedite the process.
5. On March 2, 2004, Santa Cruz reported to the
Enforcement Bureau that the other six wireless carriers providing
service in Santa Cruz had begun providing Phase I service to the
two Santa Cruz PSAPs by February 28, 2004. On March 16, 2004,
Santa Cruz reported to the Enforcement Bureau that on March 2,
2004, it had asked Sprint for a reply within 24 hours concerning
the number of trunks that it intended to install (explaining that
it had requested the information several times over the previous
two months), so that Qwest could begin billing for the selective
router portion of their Phase I service, but Sprint did not
reply. Finally, Santa Cruz reported that on March 25, 2004, the
day after the Enforcement Bureau issued its LOI to Sprint, a
Sprint supervisor contacted Santa Cruz ``to get the process
rolling,'' and explained that the delay in deployment stemmed
from a transition from Intrado's Mobile Positioning Center
(``MPC'') to Sprint's own MPC. According to Santa Cruz, the
Sprint supervisor said that Sprint had hoped to put Santa Cruz on
its own MPC and avoid a later migration.
6. In its LOI Response, Sprint asserts that it received
Santa Cruz's request for Phase I service on September 15, 2003.
Sprint indicates that it did not attempt to make a determination
as to whether Santa Cruz's request for Phase I service was valid
or request readiness documentation from Santa Cruz. In this
regard, Sprint states that it does not screen PSAP requests as
valid or invalid, but rather proactively attempts to process all
E911 requests that it receives and establishes an ongoing
communications process with every PSAP. Sprint further states
that although Santa Cruz did not upgrade its equipment until
December 14, 2003, Sprint did not attempt to assert that the PSAP
request was invalid or otherwise attempt to delay deployment.
Sprint asserts that it took the following actions in response to
Santa Cruz's Phase I request. On September 16, 2003, Sprint
faxed the Santa Cruz Phase I request to Intrado. On September
22, 2003, Sprint delivered to Intrado a spread sheet identifying
the cell sites serving the Santa Cruz area and the information
required to develop network recommendations regarding necessary
trunking, switch instructions and other necessary network
modifications. On October 1, 2003, Sprint provided Santa Cruz
contact information for the Sprint analyst who would work with
Intrado to manage the Phase I deployment. On October 8 and 15,
2003, communications occurred regarding the default routing and
other information. On November 13, 2003, Intrado ordered network
recommendations from its internal network group, on December 22,
2003, Intrado notified Sprint that the recommendations needed to
be reordered because the Phase I deployment was state-wide and
required different processing, and on January 9, 2004, Intrado
requested p-ANI assignments from Sprint.
7. Additionally, Sprint states that on January 21, 2004,
Santa Cruz requested an update and a test and turn-up schedule.
Although it asserts that some additional telephone conversations
with Santa Cruz occurred in January and February, Sprint states
that it is clear that its analyst ``failed to appropriately
explain why testing had been delayed.''9 Sprint explains that
while the network recommendations had been ordered on December
22, 2003, they had not been received from Intrado, and the
necessary trunk ordering and network design could not be
completed until these network recommendations were received.
Sprint states that ``[b]ased on review of this matter, Sprint
believes that its analyst should have more aggressively pursued
Intrado to determine the reasons for the delay in receiving the
[network recommendations] and communicated those facts to the
PSAP.''10 Sprint acknowledges that ``it is clear that this did
not occur.''11 Moreover, Sprint admits that on March 2, 2004,
Santa Cruz again complained about the lack of information and
again, the Sprint representative failed to provide appropriate
feedback. Sprint states that on March 24, 2004 upon becoming
aware of Santa Cruz's informal complaint, the manager of Sprint's
E911 group immediately stepped into the process to identify the
reasons for delay. The request for network recommendations was
escalated and upon receipt, trunk orders were placed with Qwest
and also expedited.12 The deployment of Phase I service to Santa
Cruz was completed by April 15, 2004.
III. DISCUSSION
8. Section 20.18(d) of the Rules requires wireless
carriers to provide to the designated PSAP the telephone number
of the originator of a 911 call and the location of the cell site
or base station receiving a 911 call from any mobile handset
accessing their systems by April 1, 1998, or within six months of
a valid request by the designated PSAP, whichever is later.
Sprint states that it received Santa Cruz's request for Phase I
service to the Santa Cruz Sheriff's Office and the Nogales Police
Department on September 15, 2003. Santa Cruz asserted in its
request that the PSAPs were ready to meet the requirements for
Phase I service and that the appropriate supporting funds had
been allocated in the State's 9-1-1 Revolving Fund. Sprint
indicates that it did not attempt to make a determination as to
whether Santa Cruz's request for Phase I service was valid or
request readiness documentation from Santa Cruz,13 but rather
began processing the request. Thus, the six-month period for
implementing Phase I service to the two PSAPs ended on March 15,
2004. However, Sprint did not complete deployment of Phase I
service to the two PSAPs until April 15, 2004, after the
Enforcement Bureau issued its letter of inquiry. Accordingly, we
find that Sprint apparently willfully14 and repeatedly15 violated
Section 20.18(d) of the Rules by failing to provide Phase I
service for a period of a month to two PSAPs within six months of
a request.
9. Although Sprint asserts that Santa Cruz did not
complete the necessary equipment upgrades to receive Phase I
information until December 14, 2003, the Commission has
determined that there is no requirement that a PSAP must be fully
capable of receiving and utilizing the Phase I data at the time
of its request for Phase I service.16 Rather, the PSAP must be
fully capable of receiving and utilizing the Phase I data no
later than six months after making its request. Here, it is
undisputed that the two PSAPs in Santa Cruz were not only
capable, but were in fact, receiving and utilizing Phase I data
from the six other wireless carriers serving Santa Cruz within
six months of Santa Cruz's request for Phase I service.
10. Moreover, we conclude that Sprint has not established
that its failure to complete deployment of Phase I service to the
two PSAPs within the six-month implementation period was due to
factors outside of its control. Sprint explains that a delay in
receiving the network recommendations from Intrado in turn
delayed the necessary trunk ordering and network design.
However, the Commission has repeatedly cautioned carriers that
``an assertion that a vendor, manufacturer, or other entity was
unable to supply compliant products will not excuse
noncompliance'' with the E911 requirements.17 A carrier's
``concrete and timely actions'' taken with a vendor,
manufacturer, or other entity may be considered as possible
mitigation factors in an enforcement context,18 but we do not
believe that Sprint has shown that it exercised the level of
diligence expected of carriers in processing Santa Cruz's request
for Phase I service to warrant mitigation. For example, Sprint
concedes that its analyst ``should have more aggressively pursued
Intrado to determine the reasons for delay in receiving the Net
Recs and communicated those facts to the PSAP.''19 Sprint also
acknowledges that it repeatedly failed to provide appropriate
feedback in response to requests for information from Santa
Cruz.20
11. In light of Sprint's apparent willful and repeated
violation of Section 20.18(d) of the Rules, we find that a
forfeiture appears to be warranted. Section 503(b)(1)(B) of the
Communications Act of 1934, as amended, (``Act'') states 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 for a forfeiture penalty.21
Section 503(b)(2)(B) of the Act authorizes the Commission to
assess a forfeiture of up to $120,000 for each violation by a
common carrier, or each day of a continuing violation, up to a
statutory maximum of $1,200,000 for a single act or failure to
act.22 In determining the appropriate forfeiture amount, we must
consider the factors enumerated in Section 503(b)(2)(D) of the
Act, including ``the nature, circumstances, extent and gravity of
the violation, and, with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay, and
such other matters as justice may require.''23
12. The Commission's Forfeiture Policy Statement and
Section 1.80 of the Rules do not establish a base forfeiture
amount for violation of Section 20.18(d) of the Rules.24
However, we think that a substantial proposed forfeiture for this
violation is warranted. Violation of the E911 rules is extremely
serious because these rules are intended to promote safety of
life.25 Further, the Phase I requirements set forth in Section
20.18(d) have been in effect for over six years.
13. In addition, in the Forfeiture Policy Statement, the
Commission made clear that companies with higher revenues, such
as Sprint,26 could expect forfeitures higher than those reflected
in the base amounts:
[O]n the other end of the spectrum of potential
violations, we recognize that for large or highly
profitable communication entities, the base forfeiture
amounts ... are generally low. In this regard, we are
mindful that, as Congress has stated, for a forfeiture
to be an effective deterrent against these entities,
the forfeiture must be issued at a high level.... For
this reason, we caution all entities and individuals
that, independent from the uniform base forfeiture
amounts ..., we intend to take into account the
subsequent violator's ability to pay in determining the
amount of a forfeiture to guarantee that forfeitures
issued against large or highly profitable entities are
not considered merely an affordable cost of doing
business. Such large or highly profitable entities
should expect in this regard that the forfeiture amount
set out in a Notice of Apparent Liability against them
may in many cases be above, or even well above, the
relevant base amount.27
14. We believe that the factors cited above, the fact that
this was a continuing violation, the public safety nature of the
violation, and the fact that Sprint is a large company with
substantial revenues, justify a substantial proposed forfeiture.
Considering all of the enumerated factors and the particular
circumstances of this case, we conclude that Sprint is apparently
liable for a forfeiture in the amount of $50,000 for its apparent
willful and repeated violation of Section 20.18(d) of the Rules.
IV. CONCLUSION
15. We find that Sprint apparently willfully and repeatedly
violated Section 20.18(d) of the Rules by failing to fulfill a
request for Phase I service to two PSAPs within six months of the
date of the request. We also find that Sprint is apparently
liable for a $50,000 forfeiture for the violation.
V. ORDERING CLAUSES
16. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Section 1.80 of the Rules, the Sprint
Corporation is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of Fifty Thousand Dollars ($50,000) for
willful and repeated violation of Section 20.18(d) of the Rules.
17. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this Notice
of Apparent Liability for Forfeiture, the Sprint Spectrum LP
d/b/a Sprint PCS SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
18. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check or
money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259.28
19. The response if any must be mailed to Office of the
Secretary, Federal Communications Commission, 445 12th Street,
S.W., Washington, DC 20554, ATTN: Enforcement Bureau - Spectrum
Enforcement Division, and must include the NAL/Acct. No.
referenced in the caption.
20. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the petitioner submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices; or (3) some
other reliable and objective documentation that accurately
reflects the petitioner's current financial status. Any claim of
inability to pay must specifically identify the basis for the
claim by reference to the financial documentation submitted. 29
21. IT IS FURTHER ORDERED that a copy of this Notice of
Apparent Liability for Forfeiture shall be sent by first class
mail and certified mail return receipt requested to Luisa L.
Lancetti, Vice President, Wireless Regulatory Affairs, Sprint
Corporation, 401 9th Street, N.W., Suite 400, Washington, D.C.
20004.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 20.18(d).
2 47 C.F.R. § 20.18(d) and (j).
3 Revision of the Commission's Rules to Ensure Compatibility with
Enhanced 911 Emergency Calling Systems, Petition of City of
Richardson, Texas, Order, 16 FCC Rcd 18982, 18986-87 (2001)
(``Richardson Order''), recon. granted in part, denied in part;
Revision of the Commission's Rules to Ensure Compatibility with
Enhanced 911 Emergency Calling Systems, Petition of City of
Richardson, Texas, Order on Reconsideration, 17 FCC Rcd 24282
(2002) (``City of Richardson Reconsideration Order'').
4 Letter from Joseph P. Casey, Chief, Spectrum Enforcement
Division, Enforcement Bureau, to Luisa L. Lancetti, Vice
President, Wireless Regulatory Affairs, Sprint Corporation (March
24, 2004).
5 On April 13, 2004, Sprint requested and was granted a one-week
extension - to April 20, 2004 - in which to file its response to
the LOI. Letter from Charles W. McKee, General Attorney, Sprint
Law & Regulatory Affairs, to Jennifer Burton, Senior Attorney-
Advisor, Spectrum Enforcement Division, Enforcement Bureau (April
13, 2004) (``LOI Response'').
6 Letter from Luisa L. Lancetti, Vice President, Wireless
Regulatory Affairs, Sprint Corporation, to Jennifer Burton,
Senior Attorney Advisor, Spectrum Enforcement Division,
Enforcement Bureau (April 20, 2004).
7 Letter from Penelope E. Meyers, 9-1-1 Project Manager, State of
Arizona, to Greg Garrelts, Manager, 9-1-1, Sprint PCS (Aug. 28,
2003).
8 The automatic number identification (``ANI'') is a caller's 10-
digit phone number (including the 3-digit area code). The Pseudo
ANI, or p-ANI, is the unique 10-digit number that identifies the
cell sector location of the base station handling the call.
9 LOI Response at 3.
10 Id.
11 Id.
12 Id. at 4.
13 Under the tolling rules adopted in the City of Richardson
Reconsideration Order, a wireless carrier may request readiness
documentation from a PSAP within 15 days of receiving the PSAP's
request for Phase I or Phase II service. If the PSAP fails to
provide the necessary documentation within 15 days after service
of the carrier's request, the six-month implementation period
will be tolled. If the carrier declines to seek documentation
during the 15-day period, the six-month implementation period
will continue to run uninterrupted. See City of Richardson
Reconsideration Order, 17 FCC Rcd at 24284; see also 47 C.F.R. §
20.18(j)(3).
14 The term ``willful,'' as used in Section 503(b) of the Act,
means the conscious and deliberate commission or omission of such
act, irrespective of any intent to violate the Commission's
Rules. 47 U.S.C. § 312(f)(2).
15 A violation is ``repeated'' within the meaning of Section
503(b) of the Act if a violation occurs more than once or it
continues for more than one day. 47 U.S.C. § 312(f)(2).
16 Richardson Order, 16 FCC Rcd at 18992.
17 See Revision of the Commission's Rules to Ensure Compatibility
with Enhanced 911 Emergency Calling Systems Request for Waiver by
Sprint Spectrum L.P. d/b/a Sprint PCS, Order, 16 FCC Rcd. 18330,
18340 (2001) (``Sprint Waiver''); see also Revision of the
Commission's Rules to Ensure Compatibility with Enhanced 911
Emergency Calling Systems Request for Waiver by AT&T Wireless
Services, Order, 16 FCC Rcd 18253, 18261 (2001); see also City of
Richardson Reconsideration Order, 17 FCC Rcd at 24287 (carrier's
certification may not be based on circumstances attributable to
its own vendors, manufacturers or third party service providers).
18 Sprint Waiver, 16 FCC Rcd at 18340.
19 LOI Response at 3.
20 Id. at 4.
21 47 U.S.C. § 503(b)(1)(B); see also 47 C.F.R. § 1.80(a)(2).
22 47 U.S.C. § 503(b)(2)(B); see also 47 C.F.R. § 1.80(b)(2). On
June 18, 2004, the Commission amended Section 1.80(b) of the
Rules, 47 C.F.R. § 1.80(b), to increase the maximum penalties
established in order to account for inflation since the last
adjustment to those penalties. The new maximum penalties took
effect on September 7, 2004. Violations which occur after that
date will be subject to the increased forfeiture amounts.
Amendment of Section 1.80(b) of the Commission's Rules,
Adjustment of Forfeiture Maxima to Reflect Inflation, Order, 19
FCC Rcd 10945 (2004).
23 47 U.S.C. § 503(b)(2)(D); see also 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, 17100 (1997) (``Forfeiture Policy Statement''), recon.
denied, 15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80(b)(4).
24 The fact that there is no established base forfeiture amount
for this violation does not indicate that no forfeiture should be
imposed. The Forfeiture Policy Statement states that ``... any
omission of a specific rule violation from the ... [forfeiture
guidelines] ... should not signal that the Commission considers
any unlisted violation as nonexistent or unimportant.''
Forfeiture Policy Statement, 12 FCC Rcd at 17099. The Commission
retains the discretion, moreover, to depart from the Forfeiture
Policy Statement and issue forfeitures on a case?by?case basis,
under its general forfeiture authority contained in Section 503
of the Act. Id.
25 See T-Mobile USA, Notice of Apparent Liability for Forfeiture,
18 FCC Rcd 3501 (2003) (proposed forfeiture of $1.25 million for
E911 violations).
26 In 2003, Sprint and its parent company, the Sprint
Corporation, reported total revenues of $12.7 billion and $26.2
billion, respectively. United States Securities and Exchange
Commission Form 10-K, Annual Report, Sprint Corporation (2004).
27 Forfeiture Policy Statement, 12 FCC Rcd at 17099-100. See
also 47 U.S.C. § 503(b)(2)(D); 47 C.F.R. § 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section
503 Forfeitures.
28 47 C.F.R. § 1.1914.
29 Id.