******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. 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 WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Telecommunications Company ) File No. ENF-95-17 of The Americas, Inc. ) NAL/Acct. No. 516EF0006 ) ORDER Adopted: February 13, 1998 ; Released: February 13, 1998 By the Chief, Common Carrier Bureau: 1. In August of 1995, the Enforcement Division of the Common Carrier Bureau ("Bureau") began an investigation of Telecommunications Company of The Americas, Inc. ("TELCAM"), regarding possible violations of the Commission s policies and rules concerning primary interexchange carrier ("PIC") conversions. 2. On October 6, 1995, the Bureau issued to TELCAM a Notice of Apparent Liability for Forfeiture ("NAL") in the amount of forty thousand dollars ($40,000) based on the Bureau s preliminary determination that TELCAM apparently had willfully violated the Commission s PIC rules and orders. 3. The Bureau and TELCAM, by and through their respective counsel, entered into consent negotiations concerning TELCAM s alleged violation and have reached an agreement that terminates the investigation. The terms and conditions of the agreement are set forth in the attached Consent Decree and such terms and conditions are incorporated herein by reference. 4. We have evaluated the circumstances of this matter and find that approval of the attached Consent Decree is in the public interest. 5. Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the Communications Act, 47 U.S.C.  154(i), and the authority delegated in Sections 0.91 and 0.291 of the Commission s rules, 47 C.F.R.  0.91 and 0.291, that the attached Consent Decree is hereby ADOPTED and that the above-captioned proceeding is thereby terminated. 6. IT IS FURTHER ORDERED that the Acting Chief, Enforcement Division SHALL SIGN the Consent Decree on behalf of the Common Carrier Bureau of the Federal Communications Commission. FEDERAL COMMUNICATIONS COMMISSION A. Richard Metzger, Jr. Chief, Common Carrier Bureau Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Telecommunications Company ) of The Americas, Inc. ) File No. ENF-95-17 ) Apparent Liability for Forfeiture ) NAL/Acct. No. 516EF0006 ) CONSENT DECREE 7. The Common Carrier Bureau ("Bureau") of the Federal Communications Commission ("FCC" or "Commission") and Telecommunications Company of The Americas, Inc. ("TELCAM") by their attorneys or authorized representatives, hereby enter into a Consent Decree terminating a Bureau investigation concerning TELCAM's alleged violations of the Commission s policies and rules regarding primary interexchange carrier ("PIC") conversions. TELCAM is a common carrier that provides interstate interexchange telecommunications services pursuant to tariffs on file with the Commission. 8. On October 6, 1995, the Bureau issued to TELCAM a Notice of Apparent Liability for Forfeiture ("NAL"). The Bureau preliminarily determined that TELCAM had apparently violated Commission rules and orders by changing the PIC designated by Mr. Jimmy D. Coleman without his authorization. After reviewing the facts and circumstances surrounding the alleged violations, the Bureau found TELCAM apparently liable for a forfeiture in the amount of forty thousand dollars ($40,000). The Bureau and TELCAM thereafter entered into negotiations and have agreed to terminate this proceeding pursuant to the terms and conditions set forth herein. 9. For the purposes of this Consent Decree the following definitions shall apply: a. "Commission" or "FCC" means the Federal Communications Commission; b. "Bureau" means the Common Carrier Bureau of the Federal Communications Commission; c. "TELCAM" means Telecommunications Company of The Americas, Inc., or any other affiliated entity, subsidiary, parent, successor, or assign, controlling or controlled by Telecommunications Company of The Americas, Inc.; d. "Parties" means TELCAM and the Bureau; e. "Adopting Order" means an Order of the Bureau adopting the terms and conditions of this Consent Decree; f. "PIC Change" is an order or request transmitted by an interexchange carrier to a local exchange carrier ("LEC") requesting a change of a customer's PIC; g. "Letter of Agency" or "LOA" means a written authorization signed by the customer authorizing a PIC change; h. "Informal Complaint" or "Consumer Complaint" means a complaint filed with the Consumer Protection Branch of the Common Carrier Bureau's Enforcement Division under 47 C.F.R.  1.716. 10. 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 an Adopting Order of the Bureau, and that adoption of such Order by the Bureau shall terminate the captioned proceeding. 11. The Parties agree that this Consent Decree shall become effective the date on which the Adopting Order is released by the Common Carrier Bureau. Upon release, the Adopting Order and this Consent Decree shall have the same force and effect as any other order of the Commission, and any violation of the terms of this Consent Decree shall constitute a violation of a Commission Order entitling the Commission to exercise any and all rights and to seek any and all remedies authorized by law for the enforcement of a Commission Order. 12. TELCAM admits that the Commission has jurisdiction over it and the subject matter of this action. 13. TELCAM agrees to waive any further procedural steps and any rights it may have to seek judicial review or otherwise challenge or contest the validity of the Adopting Order or this Consent Decree. 14. TELCAM agrees to waive any rights it may have under any provision of the Equal Access to Justice Act, 5 U.S.C.  504. 15. The Parties agree and acknowledge that this Consent Decree shall constitute a final settlement between TELCAM and the Commission of the above-captioned NAL proceeding but agree that this Consent Decree is not dispositive of the rights of any complainant who has filed an informal complaint against TELCAM and does not resolve those complaints or any matter(s) within the jurisdiction of any other federal agency. 16. The Parties agree that this Consent Decree is for settlement purposes and that TELCAM does not admit any alleged violation or liability for the specific acts described in the NAL or in any informal complaints received by the Commission on or before the effective date of this Consent Decree. Indeed, TELCAM expressly denies any such violation or liability. 17. TELCAM shall make a voluntary contribution to the United States Treasury in the total amount of $15,000 (fifteen thousand dollars) for the alleged unauthorized conversions. The amount shall be paid in three installments of $5,000 each. The first installment shall be paid within 30 days of the effective date of this Consent Decree, and the second and third installments shall be paid within 60 and 90 days respectively of the effective date of this Consent Decree. 18. TELCAM agrees that it shall not submit to any LEC any PIC change request unless TELCAM has complied with all Commission rules and orders concerning PIC changes, in effect, or as they may be hereafter modified or amended. 19. TELCAM agrees that as of the effective date of the Order adopting the Consent Decree, it shall use either the verification procedure set forth in 47 C.F.R.  64.1100(c), or the verification procedure set forth in 47 C.F.R.  64.1100(d), to verify each and every PIC change requested by any customer in a LOA. TELCAM further agrees that to the extent it utilizes the verification procedure set forth in 47 C.F.R.  64.1100(d), commonly known as the "Welcome Package", it will arrange to confirm by telephone or by positive consumer initiated action an additional 5 percent (5%) sample of all LOAs verified through the Welcome Package procedure. This sampling will be withheld from forwarding to the appropriate local exchange companies for PIC change requests until the order is verified or rejected by TELCAM. Upon identifying any forged or unauthorized LOAs, the offending agent will be barred from soliciting LOAs for TELCAM. 20. TELCAM agrees that it will continue to conduct sight inspections of each LOA. All LOAs received later than thirty (30) days after execution will be automatically rejected. All incomplete LOAs (e.g. missing signature, telephone number, or other required information) will be returned to the independent agent responsible for its collection without being processed to request a PIC change, or TELCAM personnel will call the customer directly to obtain the information required to complete the form and verify that the customer has requested a PIC change. Upon identifying any LOAs with similar signatures, one hundred percent (100%) of the LOAs submitted by that agent will be rejected and that agent will be barred from soliciting LOAs for TELCAM until a determination is made as to the authenticity of the LOAs. 21. TELCAM agrees that it will continue to require any independent agents that it employs to sign an agreement with TELCAM indicating that submission of LOAs which have been altered in any manner by the independent agent will be grounds for immediate termination. 22. TELCAM agrees to provide a copy of every version of the Welcome Package utilized to the Bureau s Enforcement Division for a period of eighteen (18) months, from the effective date of this Consent Decree and to maintain and make available to the Bureau s Enforcement Division, pursuant to paragraph 17 below, certification that the Welcome Package was sent to each and every new customer for whom TELCAM submitted a LOA-generated PIC change request. This certification shall include the name, address, and telephone number of new customers to whom the Welcome Package was sent and the date that it was sent. This certification may be submitted electronically. 23. For two (2) years beginning on the effective date of this Consent Decree, TELCAM agrees to maintain and make available to the Bureau, within fourteen (14) days of the receipt of a written request from the Bureau, business records demonstrating compliance with the terms and provisions of this Consent Decree, including, but not limited to, the certifications required in paragraph 16 above, advertisements, sales scripts, manuals or presentations, written advisories to sales distributors and agents and required responses to those advisories, Letters of Agency, PIC-change records, billing records, and all consumer complaints including those filed directly with TELCAM and those filed against TELCAM in any local, state, or federal jurisdiction served or otherwise submitted to TELCAM. The record of consumer complaints shall include the name, address, and telephone number of each complainant, TELCAM s response, and the final disposition of each complaint. The Bureau will entertain any request made by TELCAM for an extension of time in which to comply with the Bureau s written request described herein. 24. TELCAM agrees that six (6) months after the effective date of this Consent Decree, and every six (6) months thereafter for a period of eighteen (18) months, TELCAM shall submit a report to the Bureau on the effectiveness of its mandatory verification program in reducing incidents of unauthorized conversion of consumers primary interexchange carriers. The report will include, but not be limited to, the number of PIC changes submitted by TELCAM and what percentage of these PIC changes were disputed by the consumer, a classification of the basis for the disputes, a classification of the resolution of those disputes, and a comparison of the number of PIC-change disputes under the random verification program with the number of PIC-change disputes generated before the verification program was initiated. TELCAM reserves the right to claim that this report is non-releasable proprietary information under the Freedom of Information Act, 5 U.S.C.  522(b) and the Trade Secrets Act, 18 U.S.C.  1905. The Bureau agrees to allow TELCAM an opportunity to establish such claims in accordance with the Commission s rules at 47 C.F.R.  0.457, 0.459. 25. TELCAM represents that it has satisfied the complaint filed with the Commission by Jimmy D. Coleman, IC-95-08121, that gave rise to the Bureau s NAL. 26. In light of the covenants and representations contained in this Consent Decree, and in express reliance thereon, the Bureau agrees that adoption of this Consent Decree shall serve to resolve all allegations that are the subject of the NAL issued in the above-captioned proceeding without any finding of liability on the part of TELCAM. The Bureau further agrees that in the absence of substantial additional and material facts, the Bureau shall not on its own motion institute against TELCAM new proceedings of any kind arising out of the PIC change submitted on behalf of Jimmy D. Coleman. 27. The Bureau further agrees that in the absence of substantial additional and material facts, it shall not on its own motion institute forfeiture proceedings against TELCAM based on informal complaints of unauthorized LOA-generated PIC changes occurring before September 1, 1996. Consumer complaints generated prior to this time period will be served on TELCAM under the procedures and rules governing such complaints and TELCAM agrees to resolve these complaints to the extent required by the Communications Act and the Commission s rules and regulations. Except to the extent agreed herein, nothing in this Consent Decree shall prevent the Commission from adjudicating future complaints filed against TELCAM, or from instituting a new investigation or enforcement proceedings against TELCAM in the event of future misconduct, including the revocation of TELCAM's blanket authority to function as a resale carrier. 28. The Parties agree that any provision of the Consent Decree, except for the provisions concerning random verifications, affected by or inconsistent with any subsequent rule or order adopted by the Commission, will be superseded by such Commission rule or order. FOR THE COMMON CARRIER BUREAU FOR TELECOMMUNICATIONS OF THE FEDERAL COMMUNICATIONS COMPANY OF THE COMMISSION: AMERICAS, INC.: /s/ Robert W. Spangler /s/ Terry Miller Robert W. Spangler Terry Miller Acting Chief, Enforcement Division President January 29, 1998 January 13, 1998 Date Date