Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-05-IH-2502
In the Matter of
) NAL/Acct. No. 200632080165
FPL FiberNet, LLC
) FRN No. 0008338683
)
ORDER
Adopted: July 28, 2006 Released: July 31, 2006
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") of the Federal
Communications Commission and FPL FiberNet, LLC ("FPL"). The Consent
Decree terminates the enforcement proceeding initiated by the Bureau
against FPL for possible violations of section 254 of the
Communications Act of 1934, as amended ("the Act"), relating to
universal service, and, among others, sections 1.1157, 52.17, 54.706,
54.711, 64.604, and 64.1195 of the Commission rules relating
to carrier registration, revenue reporting, and contribution to
certain regulatory programs.
2. The Bureau and FPL have negotiated the terms of a Consent Decree that
resolves this matter. A copy of the Consent Decree is attached hereto
and incorporated by reference.
3. Based on the record before us, and in the absence of material new
evidence relating to this matter, we conclude that there are no
substantial or material questions of fact as to whether FPL possesses
the basic qualifications, including those related to character, to
hold or obtain any Commission license or authorization.
4. After reviewing the terms of the Consent Decree, we find that the
public interest will be served by adopting the Consent Decree.
5. Accordingly, IT IS ORDERED that, pursuant to section 4(i) of the
Communications Act of 1934, as amended, the Consent Decree attached to
this Order IS ADOPTED.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, DC 20554
)
) File No. EB-05-IH-2502
In the Matter of
) NAL/Acct. No. 200632080165
FPL FiberNet, LLC
) FRN No. 0008338683
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") of the Federal Communications
Commission (the "Commission" or "FCC") and FPL FiberNet, LLC ("FPL" or
the "Company"), by their authorized representatives, hereby enter into
this Consent Decree for the purpose of terminating the Bureau's
investigation into whether FPL violated section 254 of the
Communications Act of 1934, as amended (the "Act"), relating to
universal service, and certain of the Commission's rules relating
to carrier registration, universal service, the Telecommunications
Relay Services, the North American Numbering Plan Administration, and
regulatory fees.
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. "Commission" and "FCC" mean the Federal Communications Commission, and
all of its bureaus and offices.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "FPL" means FPL FiberNet, LLC and its predecessors-in-interest and
successors-in-interest.
e. "Parties" means FPL and the Bureau.
f. "Order" or "Adopting Order" means an Order of the Bureau adopting the
terms of this Consent Decree without change, addition, deletion, or
modification.
g. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
h. "Investigation" means the investigation commenced by the Bureau's
December 19, 2005 Letter of Inquiry regarding whether FPL violated the
requirements of section 254 of the Act and/or sections 1.1157, 52.17,
54.706, 54.711, 64.604, and 64.1195 of the Commission's rules relating
to carrier registration, universal service, the Telecommunications
Relay Service, the North American Numbering Plan Administration, and
regulatory fees.
I. BACKGROUND
3. Pursuant to section 64.1195(a) of the Commission's rules, all carriers
that provide interstate telecommunications service must register with
the Commission through submission of FCC Form 499-A. In addition,
pursuant to section 254(d) of the Act and sections 54.706(a) and
54.711(a) of the Commission's rules, telecommunications carriers that
provide interstate telecommunications services and private service
providers that provide interstate telecommunications services are
required to file annual and quarterly Telecommunications Reporting
Worksheets (FCC Forms 499-A and 499-Q) and contribute to the Universal
Service Fund.
4. Section 225(b)(1) of the Act codifies Title IV of the Americans with
Disabilities Act of 1990. In support of that Act, section 64.604 of
the Commission's rules requires every carrier that provides interstate
telecommunications services to file Telecommunications Reporting
Worksheets and contribute to the Telecommunications Relay Services
Fund based upon its interstate and international end-user revenues.
5. Section 251(e) of the Act directs the Commission to ensure the
availability of telephone numbers on an equitable basis, and that the
costs of establishing numbering administration are borne by all
carriers on a competitively neutral basis. To this end, section 52.17
of the Commission's rules requires that all telecommunications
carriers file Telecommunications Reporting Worksheets and contribute
toward the costs of numbering administration on the basis of their
end-user telecommunications revenues for the prior calendar year.
6. Pursuant to section 9(a)(1) of the Act and section 1.1151 of the
Commission's rules, interstate telecommunications and other providers
must pay regulatory fees to the Commission to recover the costs of
certain regulatory activities. In particular, sections 1.1154 and
1.1157(b)(1) of the Commission's rules require that interstate
telecommunications carriers pay regulatory fees on the basis of their
interstate and international end-user revenues.
7. FPL is a seller of private line and related dedicated services and
began to provide interstate telecommunications service in January,
2000. On December 19, 2005, the Bureau issued a letter of inquiry to
FPL. The December 19, 2005 LOI directed FPL, among other things, to
submit a sworn written response to a series of questions relating to
the apparent failure of FPL to register, file Telecommunications
Reporting Worksheets, and make mandated federal telecommunications
regulatory program payments. After an extension of time in which to
respond that was granted on January 31, 2006, FPL timely responded to
the December 19, 2005 LOI on February 14, 2006.
II. AGREEMENT
8. The Parties agree that the provisions of this Consent Decree shall be
subject to final approval by the Bureau, through entry of the Order,
which shall immediately resolve and terminate the Investigation.
9. The Parties 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, FPL does not admit or
deny liability for violating any statute, regulation, or
administrative rule in connection with matters that are the subject of
this Consent Decree.
10. FPL agrees that it will make a voluntary contribution to the United
States Treasury in the amount of $150,000 within thirty (30) calendar
days of the Effective Date of the Adopting Order. The payment must be
made by check or similar instrument, payable to the order of the
Federal Communications Commission. The payment must include "Acct. No.
200632080165" and "FRN No. 0008338683." Payment by check or money
order may be mailed to Federal Communications Commission, P.O. Box
358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may be
sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account number
911-6106.
11. For purposes of settling the matters set forth herein, FPL agrees to
maintain a compliance program related to future compliance with the
Act, the Commission's rules, and the Commission's orders. The program
will include, at a minimum, the following components:
a. Compliance Manual. The Company shall create, maintain and update an
FCC Compliance Manual. Company personnel shall have ready access to
the Compliance Manual and are to follow the procedures contained in
it. The Compliance Manual will, among other things, describe the
regulatory fee, universal service, Telecommunications Relay Service
and North American Numbering Plan Administration rules and
requirements as they apply to FPL, including the Company's reporting
and payment obligations triggered by revenues from resellers that do
not contribute to the Universal Service Fund. The Compliance Manual
shall set forth a schedule of filing and payment dates associated with
these regulatory programs, and FPL will create compliance
notifications that alert the Company to upcoming filing and payment
dates. The Compliance Manual will encourage personnel to contact the
Company's Designated Contact, attorneys, the Company's Chief Executive
and/or the Company's Chief Financial Officer with any questions or
concerns that arise with respect to the Company's FCC compliance. The
Company shall submit to the Bureau a final version of its Compliance
Manual thirty (30) days after the Effective Date.
b. Compliance Training Program. FPL will establish an FCC compliance
training program for any employee who engages in activities related to
FCC regulation of FPL. Training sessions will be conducted at least
annually for such employees to ensure compliance with the Act and the
FCC's regulations and policies. For new employees who are engaged in
such activities, the training sessions will be conducted within the
first thirty (30) days of employment.
c. Designated Contact. FPL will designate one employee as the point of
contact for all telecommunications compliance matters.
d. Verification of Registration by Carrier-Customers. The Company,
through its Designated Contact, will ensure that carrier-customers of
the Company who are also resellers are registered as required by 47
C.F.R. S 64.1195.
e. Review and Monitoring. FPL will review the FCC Compliance Manual and
FCC Compliance Training Program annually to ensure that they are
maintained in a proper manner and continue to address the objectives
set forth therein.
f. Audits. FPL will ensure that any audit reviews specifically consider
compliance with FCC regulatory requirements.
g. Termination. FPL's obligations under this Paragraph 11 shall expire
twenty-four (24) months after the Effective Date.
12. In express reliance on the covenants and representations contained
herein, and to avoid the potential expenditure of additional public
resources, the Bureau agrees to terminate the Investigation.
13. The Bureau agrees that it 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, any
new proceeding, formal or informal, or take any action on its own
motion against FPL 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 any proceeding, formal or informal, or take any
action on its own motion against FPL with respect to FPL's basic
qualifications, including its character qualifications, to be a
Commission licensee or authorized common carrier.
14. Nothing in this Consent Decree shall prevent the Commission or its
delegated authority from adjudicating complaints filed pursuant to
section 208 of the Act against FPL or its affiliates for alleged
violations of the Act, or for any other type of alleged misconduct,
regardless of when such misconduct took place. The Commission's
adjudication of any such complaint will be based solely on the record
developed in that proceeding. Except as expressly provided in this
Consent Decree, this Consent Decree shall not prevent the Commission
from investigating new evidence of noncompliance by FPL of the Act,
the rules, or the Order.
15. FPL waives any and all rights it may have to seek administrative or
judicial reconsideration, review, appeal or stay, or to otherwise
challenge or contest the validity of this Consent Degree and the Order
adopting this Consent Decree, provided the Bureau issues an Order
adopting the Consent Decree without change, addition, modification, or
deletion. FPL shall retain the right to challenge Bureau's
interpretation of the Consent Decree or any terms contained herein.
16. FPL's decision to enter into this Consent Decree is expressly
contingent upon the Bureau's issuance of an Order that is consistent
with this Consent Decree, and which adopts the Consent Decree without
change, addition, modification, or deletion.
17. In the event that this Consent Decree 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.
18. 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 FPL nor the Commission shall contest the validity of the
Consent Decree or the Adopting Order, and FPL shall waive any
statutory right to a trial de novo.
19. Any violation of the Consent Decree or the Adopting Order will
constitute a separate violation of a Commission order, entitling the
Commission to exercise any rights or remedies authorized by law
attendant to the enforcement of a Commission order.
20. The Parties also 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 FPL does not expressly consent) that provision
will be superseded by such Commission rule or order.
21. FPL 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.
22. This Consent Decree may be signed in counterparts.
_____ ___________________________
Kris Anne Monteith
Chief, Enforcement Bureau
Federal Communications Commission
________________________________
Date
______ __________________________
David Eckmann
Director - Contracts & Regulatory Affairs
FPL FiberNet, LLC
________________________________
Date
47 U.S.C. S 254.
47 C.F.R. SS 1.1157, 52.17, 54.706, 54.711, 64.604, 64.1195.
47 U.S.C. S 154(i).
47 U.S.C. S 254(d).
See Letter from Hillary S. DeNigro, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, FCC to David Eckmann, Director of
Business Development, FPL FiberNet, LLC, dated December 19, 2005
("December 19, 2005 LOI").
47 U.S.C. S 254(d).
47 C.F.R. SS 1.1157, 52.17, 54.706, 54.711, 64.604, 64.1195.
47 C.F.R. S 64.1195(a).
47 U.S.C. S 254(d); 47 C.F.R. SS 54.706(a), 54.711(a).
47 U.S.C. S 225(b)(1).
47 C.F.R. S 64.604(c)(5)(iii)(A).
47 U.S.C. S 251(e).
47 C.F.R. S 52.17(a).
47 U.S.C. S 159(a)(1); 47 C.F.R. S 1.1151.
See 47 C.F.R. SS 1.1154, 1.1157(b)(1).
See December 19, 2005 LOI.
See Letter from Hillary S. DeNigro, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, FCC to David Eckmann, Director of
Business Development, FPL FiberNet, LLC, dated January 31, 2006.
See FPL FiberNet, L.L.C.'s Response to the Enforcement Bureau's December
19, 2005, Inquiry, filed February 14, 2006 ("February 14, 2006 LOI
Response").
Federal Communications Commission DA 06-1512
2
Federal Communications Commission DA 06-1512