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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
NOS COMMUNICATIONS, INC. ) File No. EB-05-TC-055
Compliance with the Commission's ) NAL/Acct. No. 200832170004
Rules and Regulations Governing ) FRN: 0004321006
the National Do-Not-Call Registry )
)
)
ORDER
Adopted: November 7, 2007 Released: November 9, 2007
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau of the Federal Communications
Commission ("FCC" or "Commission") and NOS Communications, Inc.
("NOS"). The Consent Decree terminates an investigation initiated by
the Enforcement Bureau regarding potential non-compliance by NOS with
the National Do-Not-Call Requirements contained in Section 227 of the
Communications Act of 1934, as amended (the "Act") and Section 64.1200
of the Commission's rules.
2. The Enforcement Bureau and NOS have negotiated the terms of a Consent
Decree that would resolve this matter and terminate the investigation.
A copy of the Consent Decree is attached hereto and incorporated by
reference.
3. After reviewing the terms of the Consent Decree, we find that the
public interest would be served by adopting the Consent Decree and
terminating the investigation.
4. Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, and the authority delegated by
sections 0.111 and 0.311 of the Commission's rules, that the attached
Consent Decree IS ADOPTED.
5. NOS shall make its voluntary contribution to the United States
Treasury by mailing payment by check or money order to Forfeiture
Collection Section, Finance Branch, Federal Communications Commission,
P.O. Box 358340, Pittsburgh, Pennsylvania 15251. Payment by overnight
mail may be sent to Mellon Client Service Center, 500 Ross Street,
Room 670, Pittsburgh, Pennsylvania 15262-0001, Attn: FCC Module
Supervisor. Payment by wire transfer may be made to: ABA Number
043000261, receiving bank Mellon Bank, and account number 911-6229.
Include your NAL/Acct. No. with your wire transfer remittance.
1. IT IS FURTHER ORDERED that the above-captioned Commission
investigation into the matters described herein is terminated.
FEDERAL COMMUNICATIONS COMMISSION
Kris A. Monteith
Chief, Enforcement Bureau
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
)
)
In the Matter of )
NOS COMMUNICATIONS, INC. ) File No. EB-05-TC-055
Compliance with the Commission's ) NAL/Acct. No. 200832170004
Rules and Regulations Governing ) FRN: 0004321006
the National Do-Not-Call Registry )
)
)
CONSENT DECREE
I. INTRODUCTION
1. The Enforcement Bureau ("Bureau") of the Federal Communications
Commission (the "FCC" or "Commission") and NOS Communications, Inc.
("NOS"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
into possible noncompliance by NOS with the requirements of Section 227 of
the Communications Act of 1934, as amended (the "Act") and Section
64.1200(c) of the Commission's Rules.
2. The Telephone Consumer Protection Act ("TCPA") was enacted in 1991 as
Section 227 of the Communications Act of 1934, as amended ("the Act"), to
restrict certain telemarketing practices. The TCPA requires the Commission
to adopt rules governing such practices, including the delivery of
telephone solicitations to residential telephone lines. Consistent with
this statutory mandate, the Commission first adopted rules to implement
the TCPA in 1992, establishing a company-specific do-not-call regime
whereby residential telephone consumers may register do-not-call requests
to companies whose telephone solicitations they do not want to receive.
Following considerable changes in the telemarketing industry, and further
statutory requirements, the FCC amended its TCPA rules in 2003. While
retaining the company-specific do-not-call option to prevent telemarketing
calls from particular entities, the amended rules, inter alia, expand this
system to establish a National Do-Not-Call Registry that provides
residential consumers with a one-step option to prohibit unwanted
telephone solicitations.
II. BACKGROUND
3. NOS is a nationwide telecommunications service provider offering
domestic and international voice services to businesses, residential
customers, and other carriers. NOS provides all of its services by
reselling services of other telecommunications carriers. NOS holds
authorizations to provide telecommunications services from both the FCC
and state public utility commissions. As a matter of company policy, NOS
authorizes telemarketing to potential customers directly through both an
in-house marketing staff and outside third party telemarketing companies.
In November 2003, NOS hired a third party telemarketing company, Beyond
Media Ventures, to conduct telemarketing on its behalf, which in turn,
subcontracted its call center function to an affiliated outsource provider
of telemarketing services, Ameco Tech, in Cairo, Eqypt. In July, NOS
terminated its contract with Beyond Media Ventures. Since that time, NOS
has maintained only a small, in-house telemarketing operation focused
primarily on offering facilities-based, carrier-to-carrier wholesale
service.
4. In a letter of inquiry ("LOI") to NOS dated March 8, 2006, the Bureau
commenced an investigation concerning NOS' telemarketing practices to
residential consumers in connection with calls reportedly made on behalf
of the company to consumers who had registered their telephone numbers on
the National Do-Not-Call Registry.
5. During the course of the Investigation, NOS filed written responses to
the LOI. NOS represents that it had developed and implemented an internal
system consistent with the TCPA designed to ensure that no telemarketing
calls would be placed to consumers who had placed their names on the
National Do-Not-Call Registry, and it submitted a description of its
internal system and procedures for implementing the National Do-Not-Call
requirements. Further, NOS established that it had paid for and properly
accessed the National Do-Not-Call Registry database as soon as it became
available.
III. DEFINITIONS
6. For purposes of this Consent Decree, the following definitions shall
apply:
a. "Act" means the Communications Act of 1934, as amended.
b. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
c. "Commission" means the Federal Communications Commission.
d. "Effective date" means the date on which the Bureau releases the
Adopting Order.
e. "Inbound marketing" means marketing performed during inbound calls
received by employees of NOS or Third Party Telemarketing Companies
for the purpose of encouraging the purchase, or rental of, or
investment in, property, goods, or services.
f. "Investigation" means this investigation and any related proceedings
commenced by the Bureau's Letter of Inquiry, dated March 8, 2006, to
NOS regarding possible noncompliance by NOS with the requirements
contained in Section 227 of the Act and Section 64.1200(c) of the
Commission's Rules during the period of May 2005 through November
2005, which shall include, for purposes of this Consent Decree, all
complaints that were or could have been made against NOS for
telemarketing calls made during the same period.
g. "Order" or "Adopting Order" means an Order of the Bureau adopting the
terms and conditions of this Consent Decree without change, addition,
or modification, and formally terminating the above-captioned
Investigation.
h. "Parties" means NOS and the Bureau.
i. "NOS" means NOS Communications, Inc. and any telecommunications
carrier subsidiary, successor, or telecommunications carrier
controlled by NOS Communications, Inc.
j. "Telemarketing" means the initiation of a telephone call or message
for the purpose of encouraging the purchase or rental of, or
investment in, property, goods, or services, which is transmitted to
any person.
k. "Telephone solicitation" means the initiation of a telephone call or
message for the purpose of encouraging the purchase or rental of, or
investment in, property, goods, or services, which is transmitted to
any person, but such term does not include a call or message:
i. To any person with that person's prior express invitation or
permission;
ii. To any person with whom the caller has an established business
relationship; or
iii. By or on behalf of a tax-exempt nonprofit organization.
k. "Third Party Telemarketing Company" means any third party telemarketing
company employed by, or otherwise engaged on behalf of, NOS, to conduct
outbound telemarketing on NOS' behalf, including outside call center
vendors handling internal call center operations that conduct
telemarketing campaigns on NOS' behalf.
IV. AGREEMENT
7. NOS agrees that the Bureau, by delegated authority of the Commission,
has jurisdiction over it and the subject matter contained in this Consent
Decree and the authority to enter into and adopt this Consent Decree.
8. The Parties agree and acknowledge that this Consent Decree shall
constitute a final settlement of the Investigation between NOS and the
Bureau. In express reliance on the covenants and representations contained
herein, the Bureau agrees to terminate the Investigation. In consideration
for the termination of this Investigation and in accordance with the terms
of this Consent Decree, NOS agrees to the terms, conditions and procedures
contained herein.
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 by NOS with the
requirements of the Act or the Commission's rules or orders. The Parties
agree that this Consent Decree is for settlement purposes only, and that
by agreeing to this Consent Decree, NOS does not admit or deny any
noncompliance, violation, or liability associated with or arising from its
actions or omissions involving the Act or the Commission's rules that are
the subject of this Consent Decree.
10. In consideration for the termination of the Investigation in
accordance with the terms of this Consent Decree, NOS agrees to
voluntarily implement a Compliance Program consisting of the components
delineated below.
a. Not later than thirty (30) days after the Effective Date, NOS will
adopt written policies and procedures for, at minimum: complying with the
requirements of the National Do-Not-Call Registry rules; maintaining NOS'
internal Do-Not-Call list; managing outbound telemarketing campaigns; and
creating, approving, and distributing to both its in-house marketing staff
and Third Party Telemarketing Companies engaged by NOS, lists of potential
customers and telephone numbers ("Call Lists"). NOS' written policies and
procedures shall be available upon request, and will be memorialized in a
Telemarketing Compliance Manual, which will include the following
requirements:
i. All Call Lists shall be scrubbed against a version of the National
Do-Not-Call Registry that has been obtained from the administrator of the
Registry not more than thirty-one (31) days prior to the date of any call
made on NOS' behalf and a version of NOS' in-house do-not-call list ("NOS
Do-Not-Call List") that has been updated by NOS not more than thirty (30)
days prior to the date of any call made on NOS' behalf;
ii. No outbound telemarketing campaign may be initiated on NOS' behalf
without prior written authorization from NOS confirming that the Call
Lists have been scrubbed against the National Do-Not-Call Registry and
the NOS Do-Not-Call List;
iii. The Third Party Telemarketing Company shall generate and transmit to
NOS on a daily basis compliance reports containing data on all
Do-Not-Call complaints and requests received by such vendor; and
iv. Each outbound telemarketing campaign shall be monitored for compliance
by NOS through the audit procedures described in Para. 10(h), below.
b. Not later than thirty (30) days after the Effective Date, NOS will
commence the training of all employees of NOS involved in telemarketing or
inbound marketing and all employees of Third Party Telemarketing Companies
involved in telemarketing or inbound marketing on behalf of NOS. NOS will
require such employees to acknowledge in writing that they have read,
understand, and will abide by the policies and procedures in the
Telemarketing Compliance Manual.
c. Before employees of NOS involved in telemarketing or inbound marketing
or employees of Third Party Telemarketing Companies involved in
telemarketing or inbound marketing on behalf of NOS make telephone
solicitations to residential telephone subscribers, the representative
will receive thorough Do-Not-Call training. Such training will include
educating the representative concerning federal and state Do-Not-Call
rules, including, at a minimum, the requirements of the TCPA and
associated federal rules currently in effect and as revised in the future.
d. Not later than thirty (30) days after the Effective Date, NOS will
commence the training of all employees of NOS involved in telemarketing or
inbound marketing and all employees of Third Party Telemarketing Companies
involved in telemarketing or inbound marketing on behalf of NOS. Not later
than sixty (60) days after the Effective Date, NOS will complete the
training of all employees of NOS involved in telemarketing or inbound
marketing and all employees of Third Party Telemarketing Companies
involved in telemarketing or inbound marketing on behalf of NOS. The
training for all such employees will include the following components:
i. Distribution to employees of written training materials, including but
not limited to: NOS' Telemarketing Compliance Manual; a "FAQs" document
providing answers to frequently asked questions about the National
Do-Not-Call Registry rules and the NOS Do-Not-Call List; flow charts
depicting the process employees of NOS involved in telemarketing or
inbound marketing and employees of Third Party Telemarketing Companies
involved in telemarketing or inbound marketing on behalf of NOS are
required to follow when receiving a Do-Not-Call request or complaint; and
a copy of NOS' written policy for complying with National Do-Not-Call
rules and maintaining the NOS Do-Not-Call List.
ii. A training session given by the NOS Do-Not-Call Team (which consists
of NOS' Vice President for Customer Care, Systems Administrator, Marketing
Manager, and Regulatory Attorney), which will explain NOS' policies and
procedures for telemarketing compliance and permit its employees to ask
questions about the policies and procedures. NOS will require all
employees in attendance to acknowledge in writing that they have attended
the training session and understand and will abide by NOS' policies and
procedures.
iii. NOS will require all new employees involved in telemarketing or
inbound marketing and all employees of Third Party Telemarketing Companies
involved in telemarketing or inbound marketing on behalf of NOS to
complete such training within the first week of employment. NOS will
require all such employees to attend refresher training at least once a
year.
e. NOS will develop and implement a certification process for all in-house
telemarketing agents and employees of Third Party Telemarketing Companies
who perform telemarketing or inbound marketing on behalf of NOS. NOS will
require its own principal(s) and principals of Third Party Telemarketing
Companies to certify on an annual basis that they acknowledge, understand,
and abide by all NOS policies concerning telemarketing. Such principals
will also certify that all sales managers, their supervisors, and staff
have received copies of all NOS' policies concerning telemarketing within
five (5) business days of the certification, and have been trained with
respect to NOS' policies.
f. Not later than thirty (30) days after the Effective Date, NOS will
prepare and distribute an Escalation Alert document that will identify the
criteria by which NOS will evaluate Third Party Telemarketing Company
Reports or Customer Care Reports (see Para. 10(h) below), and, if such
criteria are met, will trigger escalation of the report to the next level
of telemarketing compliance management. The Escalation Alert document will
identify for each level of escalation the NOS manager (and an alternate)
to whom such report shall be forwarded and the maximum timeframe within
which notification shall be made. The Escalation Alert document will
identify a clear path of successive levels of escalation, to ensure that
NOS can promptly identify and respond to data indicating a failure or
potential failure of telemarketing compliance. The Escalation Alert
process will be administered by NOS.
g. NOS' contracts with Third Party Telemarketing Companies will provide
that:
i. The Third Party Telemarketing Company shall comply with all applicable
federal and state telemarketing laws, rules and requirements, including
the requirement that the Third Party Telemarketing Company use a process
to prevent unauthorized use of the National Do-Not-Call database and
refrain from participating in cost-sharing arrangements;
ii. The Third Party Telemarketing Company shall comply with NOS' policies
and procedures set forth in NOS' Telemarketing Compliance Manual,
including the requirement that the Third Party Telemarketing Company
maintain and preserve all reports and records required by law, and all
supplemental instructions from NOS;
iii. The Third Party Telemarketing Company shall transmit to NOS, on a
daily basis, reports that identify and provide data for each complaint or
request relating to Do-Not-Call and other telemarketing issues ("Third
Party Telemarketing Company Reports");
iv. The Third Party Telemarketing Company shall not utilize telemarketing
equipment that permits a residential phone number database field to be
edited without authorization from a management level employee responsible
for compliance with applicable federal and state telemarketing laws and
requirements; and,
v. NOS will take appropriate action in the event that any Third Party
Telemarketing Company Report, or any other source, establishes that a
Third Party Telemarketing Company has failed to follow its legal
obligations or NOS' policies with respect to the Commission's Do-Not- Call
rules. Violation of such legal obligations and NOS' policies shall be
grounds for termination of the Third Party Telemarketing Company's
contract with NOS.
h. Not later than sixty (60) days after the Effective Date, NOS will
implement procedures to audit compliance with the Commission's Do-Not-Call
rules, through the following procedures and additional measures to be
determined by NOS:
i. Third Party Telemarketing Company Reports. NOS will require its Third
Party Telemarketing Companies to provide the NOS Do-Not-Call Team a daily
written report containing data for each and every complaint or request
relating to do-not-call and other telemarketing issues received by the
Third Party Telemarketing Company.
ii. Customer Care Reports. NOS will require a management-level employee to
provide the NOS Do-Not-Call Team a weekly report containing data for each
and every Do-Not-Call complaint and request to be placed on the NOS
Do-Not-Call List received by NOS' customer service representatives. iii.
Telemarketing Campaign Management Reports. NOS will require its NOS
Do-Not-Call Team to issue to the Legal Department a weekly report
summarizing the status of compliance for each active telemarketing
campaign, which report shall be based upon the daily Third Party
Telemarketing Company Reports and weekly Customer Care Reports.
iv. "Failsafe" mechanisms designed to prevent noncompliance due to human
error. These mechanisms may include, but not be limited to, "seeding" Call
Lists with names of NOS representatives who are registered on the National
Do-Not-Call Registry and/or the NOS Do-Not-Call List; the testing/auditing
of the Third Party Telemarketing Company's response to verbal requests by
NOS employees not to be called again and to be placed on NOS' Do-Not-Call
list; and monitoring of the Third Party Telemarketing Company's responses
to questions about the Do-Not-Call requirements.
i. Not later than thirty (30) days after the Effective Date, NOS will
create a register that contains, in an orderly manner, all compliance
reports and telemarketing agreements associated with each NOS
telemarketing campaign. NOS will designate a register manager, who will be
responsible for maintaining and updating the register.
j. NOS will continue to monitor do-not-call complaints, and will promptly
investigate any unusual patterns in those activations that suggest
unauthorized telemarketing may be occurring.
k. NOS will formally establish an internal process to promptly investigate
and resolve inquiries and informal complaints alleging unauthorized
telemarketing, as follows:
i. All written complaints forwarded by a government agency will be
investigated by or under the supervision of NOS' Legal Department.
ii. In all cases, except where not practicable, investigation will be
completed within thirty (30) days of NOS' receipt of the complaint.
iii. Investigation results for written complaints forwarded by a
government agency, to the extent those are requested, will be included in
a response to the agency at the close of the investigation (typically
within thirty (30) days from receipt of complaint).
iv. NOS will ensure that at least one member of NOS' in-house Legal
Department is specifically trained and responsible for handling
telemarketing complaints as those matters arise from both in-house
telemarketing and telemarketing conducted on its behalf by Third Party
Telemarketing Companies, including up to one hundred percent (100%) of
this person's time as warranted. Should one person be unable to handle
such complaints within thirty (30) days, NOS will add additional
responsible staff as necessary.
v. All written complaints that NOS receives directly from consumers will
be screened by NOS' customer care staff and those complaints that do not
appear to involve collections activity will be forwarded to NOS' Legal
Department.
l. NOS will implement a communications program regarding compliance with
federal Do-Not Call regulations directed toward both in-house marketing
staff and Third Party Telemarketing Companies with which it contracts.
This program will include regular reminders of its Do-Not-Call policies.
m. NOS will reach out to consumers about how they can take steps to
prevent unauthorized telemarketing by including information on its web
site on how to report telemarketing complaints.
n. NOS will implement a Quality Control Monitoring Program for its
Telemarketing Program, memorialized in its Telemarketing Compliance
Manual.
i. For at least two (2) years from the Effective Date, NOS will perform
quality control monitoring of the compliance by its telemarketing
representatives and those of NOS' Third Party Telemarketing Companies with
the obligation to accept Do-Not-Call requests by residential customers and
appropriately transmit them for implementation on the NOS Do-Not-Call
list.
ii. In connection with paragraph (n)(i), NOS will monitor, on a random
basis across all in-house and Third Party Telemarketing operations, at
least seven percent (7%) of telemarketing calls per month, which number
shall increase or decrease proportionately to the extent that NOS' number
of monthly telemarketing calls increases or decreases from its current
monthly telemarketing volume, and in response to data received as part of
the audit and compliance procedures herein.
iii. NOS will retain the results and all documents related to its quality
control monitoring, and any remedial action taken, for at least four (4)
years from the Effective Date, and shall make such results and all related
documents available to the Commission within twenty (20) days after the
Commission submits a request for such results to NOS.
o. To the extent that such quality control monitoring may disclose that
NOS' telemarketing representatives (or those of its Third Party
Telemarketing Companies) have failed accurately to record and/or
appropriately to transmit for implementation a Do-Not-Call request made by
any customer, NOS will promptly correct its Do-Not-Call list to reflect
that request.
p. NOS will take appropriate disciplinary action and/or require
supplemental training in the event that its quality control monitoring or
any other source establishes that any telemarketing representative has
failed to follow legal obligations or NOS policies and procedures with
respect to Do-Not-Call requests. In the case of a knowing and intentional
failure by a telemarketing representative employed by one of its Third
Party Telemarketing Companies, NOS will direct its Third Party
Telemarketing Company to ensure that the representative no longer performs
telemarketing on NOS' behalf. In the case of a knowing and intentional
failure by an NOS employee, NOS will take such disciplinary action to the
extent permitted under collective bargaining agreements and applicable
law.
q. NOS shall not perform telemarketing or allow telemarketing to be
performed on its behalf until the Telemarketing Compliance Program has
been implemented, as described herein.
r. Nothing in this Compliance Plan shall alter NOS' obligation to
otherwise comply with the Act and with the Commission's rules and orders.
s. Not later than sixty (60) days after the Effective Date, and every one
hundred eighty (180) days thereafter, NOS will submit a written report to
the Bureau of its compliance with this Consent Decree, including in the
first report, its progress in implementing its Compliance Program.
t. NOS will maintain and make available to the Bureau, within fourteen
(14) days of receipt of any specific request from the Bureau, business
records documenting its compliance with the terms and provisions of this
Consent Decree.
u. Should NOS change its telemarketing policy, NOS will notify the Bureau
in writing within thirty (30) days of any modification to its
Telemarketing Compliance Program.
v. NOS will give the Bureau thirty (30) days prior written notice of any
change in its legal status, including a name change, a change of control,
merger, reorganization, or dissolution.
11. NOS agrees to make a voluntary contribution to the United States
Treasury, without further protest or recourse to a trial de novo, in the
amount of $500,000.00. Of this amount, $100,000.00 will be paid within ten
(10) business days after the Effective Date of the Adopting Order.
Additional payments of $50,000.00 will be made, in the manner described
below, by the first day of each quarter, starting with the first full
quarter following the Effective Date, until the full amount is paid. The
payment must be made by check or money order and mailed to Forfeiture
Collection Section, Finance Branch, Federal Communications Commission,
P.O. Box 358340, Pittsburgh, Pennsylvania 15251. Payment by overnight mail
may be sent to Mellon Client Service Center, 500 Ross Street, Room 670,
Pittsburgh, Pennsylvania 15262-0001, Attn: FCC Module Supervisor. Payment
by wire transfer may be made to: ABA Number 043000261, receiving bank
Mellon Bank, and account number 911-6229. Include your NAL/Acct. No. with
your wire transfer remittance.
12. The Bureau agrees that, in the absence of new material evidence, 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 initiate, on its own motion, any new proceeding, formal or
informal, or take any action on its own motion against NOS, concerning the
matters that were the subject of the Investigation, provided that NOS
satisfies all of its obligations under this Consent Decree. The Bureau
also agrees that, in the absence of new material evidence, 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 NOS with respect to NOS' basic
qualifications, including its character qualifications, to be a Commission
licensee or authorized common carrier. Nothing in this Consent Decree
will prevent the Bureau from instituting or recommending to the Commission
any new investigation or enforcement proceeding against NOS in the event
of any alleged future misconduct involving violation of this Consent
Decree, or violation of the Act or the Commission's rules. Nothing in
this Consent Decree shall prevent the Commission or its delegated
authority from adjudicating complaints filed pursuant to section 208 of
the Act, 47 U.S.C. S: 208, against NOS 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.
13. NOS' 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 or modification.
14. 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 NOS nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and NOS and the Commission will waive any
statutory right to a trial de novo with respect to the issuance of the
Adopting Order and shall consent to a judgment incorporating the terms of
this Consent Decree.
15. Provided that the Bureau issues an Order adopting the Consent Decree
without change, addition or modification, NOS waives any and all rights it
may have to seek administrative or judicial reconsideration, review,
appeal or stay, or to otherwise challenge or contest the validity of this
Consent Decree and the Order adopting this Consent Decree.
16. In the event that this Consent Decree is rendered invalid by a court
of competent jurisdiction, it shall become null and void and may not be
used in any manner in any legal proceeding.
17. By this Consent Decree, NOS neither waives nor alters its right to
assert and seek protection from disclosure of any privileged or otherwise
confidential and protected documents and information, or to seek
appropriate safeguards of confidentiality for any competitively sensitive
or proprietary information.
18. NOS agrees that any violation of the Order or of this Consent Decree
shall constitute a separate violation of a Commission order, entitling the
Commission to exercise any rights and remedies attendant to the
enforcement of a Commission order.
19. The Parties agree that if any provision of this 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 NOS does not consent), that provision will be superseded
by such Commission rule or order.
20. The Parties agree that the requirements of this Consent Decree shall
expire thirty-six (36) months from the Effective Date.
21. This Consent Decree may be signed in counterparts.
For: NOS Communications, Inc.
__________________________ ____________________________
Date NOS Communications, Inc.
For: Enforcement Bureau
Federal Communications Commission
_____________________ ____________________________
Date Kris A. Monteith Chief, Enforcement Bureau
NOS Communications, Inc. is a Maryland Corporation that provides local and
long distance telephone service, including international and calling card
services, to both business and residential customers throughout the United
States. NOS also conducts business under other names, including:
International Plus, 011 Communications, INETBA, iVantage Network
Solutions, and Blue Ridge Telecom Systems. Mr. Joseph Koppy serves as the
company's Chief Executive Officer. The headquarters for NOS
Communications, Inc. is located at 4380 Boulder Highway, Las Vegas, Nevada
89121.
47 U.S.C. S: 227; 47 C.F.R. S: 64.1200.
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
NOS Communications, Inc. is a Maryland Corporation that provides local and
long distance telephone service, including international and calling card
services, to both business and residential customers throughout the United
States. NOS also conducts business under other names, including:
International Plus, 011 Communications, INETBA, iVantage Network
Solutions, and Blue Ridge Telecom Systems. Mr. Joseph Koppy serves as the
company's Chief Executive Officer. The headquarters for NOS
Communications, Inc. is located at 4380 Boulder Highway, Las Vegas, Nevada
89121.
47 U.S.C. S: 227; 47 C.F.R. S: 64.1200(c).
Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 Stat.
2394 (1991), codified at 47 U.S.C. S: 227. The TCPA amended Title II of
the Communications Act of 1934, 47 U.S.C. S: 201 et seq. Section 227(c)(1)
requires the Commission to conduct a rulemaking proceeding "concerning the
need to protect residential telephone subscribers' privacy rights to avoid
receiving telephone solicitations to which they object."
See Rules and Regulations Implementing the Telephone Consumer Protection
Act of 1991, Report and Order, 7 FCC Rcd 8752 (1992) (1992 TCPA Order);
see also 47 C.F.R. S: 64.1200. Pursuant to petitions for reconsideration,
the Commission adopted amendments to the TCPA rules in 1995 and 1997.
Rules and Regulations Implementing the Telephone Consumer Protection Act
of 1991, Memorandum Opinion and Order, 10 FCC Rcd 12391 (1995) (1995 TCPA
Reconsideration Order); Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, Order on Further Reconsideration, 12 FCC
Rcd 4609 (1997) (1997 TCPA Reconsideration Order).
See Rules and Regulations Implementing the Telephone Consumer Protection
Act of 1991, Report and Order, 18 FCC Rcd 14014, 14021-22 (2003) (2003
TCPA Order) (describing expansion of telemarketing industry since 1992).
Do-Not-Call Implementation Act, Pub. L. No. 108-10, 117 Stat. 557 (2003),
codified at 15 U.S.C. S: 6101 (Do-Not-Call Act). The Do-Not-Call Act,
inter alia, directs the FCC to adopt rules that maximize consistency with
those of the Federal Trade Commission ("FTC"). In 2003, the FTC had also
amended its telemarketing rule, 16 C.F.R. S: 310 et seq., to include a
National Do-Not-Call Registry.
2003 TCPA Order, 18 FCC Rcd at 14014.
Letter from Danny E. Adams and Joseph Price, Counsel for NOS
Communications, Inc., to Colleen Heitkamp, Chief, Telecommunications
Consumers Division, Enforcement Bureau, Federal Communications Commission,
dated May 15, 2006 ("NOS' May 15, 2006 Response"), attachment at 2-6.
NOS' May 15, 2006 Response," attachment at 3-6.
NOS' May 15, 2006 Response at 2, and attachment at 3-4. Neither NOS, or
its affiliated companies, nor its officers, directors or shareholders,
have any ownership or other interest in either BMV or Ameco Tech.
NOS' May 15, 2006 Response, attachment at 3-6.
During the period from May 2005 through November 2005, the Commission and
the FTC together received numerous complaints from consumers who allegedly
received telephone solicitation calls from NOS. See Letter from Colleen
Heitkamp, Chief, Telecommunications Consumers Division, Enforcement
Bureau, Federal Communications Commission, to NOS Communications, Inc.,
dated March 8, 2006.
Letter from Danny E. Adams and Joseph Price, Counsel for NOS
Communications, Inc., to Colleen Heitkamp, Chief, Telecommunications
Consumers Division, Enforcement Bureau, Federal Communications Commission,
dated May 15, 2006; Letter from Danny E. Adams and Joseph Price, Counsel
for NOS Communications, Inc., to Colleen Heitkamp, Chief,
Telecommunications Consumers Division, Enforcement Bureau, Federal
Communications Commission, dated July 11, 2006; Letter from Danny E. Adams
and Joseph Price, Counsel for NOS Communications, Inc., to Colleen
Heitkamp, Chief, Telecommunications Consumers Division, Enforcement
Bureau, Federal Communications Commission, dated September 6, 2006.
47 U.S.C S: 227(a)(3); see also 47 C.F.R. S: 64.1200(f)(10).
47 U.S.C S: 227(a)(3); see also 47 C.F.R. S: 64.1200(f)(12).
Section 64.1200(c)(2)(ii) of the Commission's rules requires that prior
express invitation or permission "must be evidenced by a signed, written
agreement between the consumer and seller which states that the consumer
agrees to be contacted by this seller and includes the telephone number to
which the calls may be placed." 47 C.F.R. S: 64.1200(c)(2)(ii).
For do-not-call purposes, the term "established business relationship"
means "a prior or existing relationship formed by a voluntary two-way
communication between a person or entity and a residential subscriber with
or without an exchange of consideration, on the basis of the subscriber's
purchase or transaction with the entity within the eighteen (18) months
immediately preceding the date of the telephone call or on the basis of
the subscriber's inquiry or application regarding products or services
offered by the entity within the three months immediately preceding the
date of the call, which relationship has not been previously terminated by
either party." 47 C.F.R. S: 64.1200(f)(4).
47 U.S.C S: 227(a)(3).
See 47 C.F.R. S:S: 0.111, 0.311.
Federal Communications Commission DA 07-4552
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Federal Communications Commission DA 07-4552