Skip Navigation

Federal Communications Commission

English Display Options

Commission Document Attachment

DA-13-371A2

image01-00.jpg612x792

Federal Communications Commission

DA 13-371

Before the

Federal Communications Commission

Washington, D.C. 20554

)

In the Matter of

)

File No.: EB-12-IH-0087

)

Level 3 Communications, LLC

)

Acct. No.: 201332080014

)

)

FRN: 0017585993

CONSENT DECREE

The Enforcement Bureau of the Federal Communications Commission and Level 3

Communications, LLC (Level 3), by their respective authorized representatives, hereby enter into this

Consent Decree for the purpose of terminating the Bureau’s investigation into possible violations of

Sections 201(b) and 202(a) of the Communications Act of 1934, as amended,1 with respect to Level 3’s

call completion practices to rural areas, including its use and monitoring of intermediate providers.

I.

DEFINITIONS

1.

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.

§§ 151 et seq.

(b) “Adopting Order” means an order of the Bureau adopting the terms of this

Consent Decree without change, addition, deletion, or modification.

(c)

“Benchmark Call Completion Rate” means, with respect to Enterprise

Customer Calls or Wholesale Customer Calls, the Call Completion Rate to

Non-rural Incumbent Locations on the Legacy Level 3 network for each such

category of traffic.

(d) “Bureau” means the Enforcement Bureau of the Federal Communications

Commission.

(e)

“Call Completion Rate” means, for Enterprise Customer Calls, a completion

rate calculated by dividing the total number of calls completed by the total

number of call attempts. For Wholesale Customer Calls, “Call Completion

Rate” means a completion rate calculated by dividing the total number of

calls completed by the total number of call attempts, after first subtracting all

calls handed by Level 3 back to the entity delivering them to Level 3 for

termination. For purposes of this definition, a completed call is a call that

was answered by or on behalf of the called party (including calls completed

1 47 U.S.C. §§ 201(b), 202(a).

1

image02-00.jpg612x792

Federal Communications Commission

DA 13-371

to devices, services or parties that answer the call such as an interactive voice

response, answering service, voicemail or call-forwarding system).

(f)

“Commission” and “FCC” mean the Federal Communications Commission

and all of its bureaus and offices.

(g) “Communications Laws” means, collectively, the Act, the Rules, and the

published and promulgated orders and decisions of the Commission to which

Level 3 is subject by virtue of its business activities.

(h) “Compliance Plan” means the compliance program, obligations, and

procedures described in Paragraph 16 of this Consent Decree.

(i)

“Covered Employees” means all employees and agents of Level 3 who

supervise, oversee, or manage the performance of duties that relate to Level

3’s compliance obligations under this Consent Decree.

(j)

“Effective Date” means the date on which the Bureau releases the Adopting

Order.

(k)

“Enterprise Customer Calls” means interexchange calls from Level 3

customers that are not (i) Wholesale Customer Calls, or (ii) determined by

Level 3 to be originating from telemarketers, as defined in 47 C.F.R.

§ 64.1200(f)(11), or other mass-dialers.

(l)

“Intermediate Provider” has the meaning provided in 47 C.F.R. § 64.1600(f),

but excludes a tandem provider to which the terminating carrier subtends or a

carrier to which the terminating carrier requires an indirectly interconnecting

carrier to deliver traffic.

(m) “Investigation” means the investigation commenced by the Bureau’s January

30, 2012 letter of inquiry in File No. EB-12-IH-0087 pertaining to possible

violations of Sections 201 and 202 of the Act and the Commission’s

prohibition on unreasonable call blocking by carriers.

(n) “Legacy Global Crossing” means the North American voice network owned

and operated by Global Crossing Telecommunications, Inc. before its parent

company Global Crossing Limited’s transaction with Level 3

Communications Inc.

(o) “Legacy Level 3” means the North American voice network owned and

operated by Level 3 Communications, LLC, before its parent company

Level 3 Communications Inc.’s transaction with Global Crossing Limited.

(p)

“Level 3” or “Company” means Level 3 Communications, LLC, and any

subsidiaries or affiliates, as defined in 47 U.S.C. § 153(1), providing

domestic interexchange telecommunications services or interconnected VoIP

services within the United States, except for newly acquired networks

excluded by Paragraph 27 of this Consent Decree.

(q)

“Local Exchange Carrier” has the meaning provided in 47 U.S.C. §153(32).

2

image03-00.jpg612x792

Federal Communications Commission

DA 13-371

(r)

“Network Failure” means an outage reportable under the FCC’s outage

reporting requirements, 47 C.F.R. Part 4.

(s)

“Non-rural Incumbent Locations” means locations that: (i) are not Rural

Incumbent Locations; and (ii) are served by an Incumbent Local Exchange

Carrier as defined in 47 U.S.C. § 251(h).

(t)

“Operating Procedures” means the standard, internal operating procedures

and compliance policies established by Level 3 to implement the Compliance

Plan.

(u) “Parties” means Level 3 and the Bureau, each of which is a “Party.”

(v)

“Post-Dial Delay” means the period starting when the address information

required for setting up a call is received by the network (recognized on the

calling user's access line) and finishing when the called party busy tone,

ringing tone, or answer signal is received by the calling party (i.e.,

recognized on the calling user's access line).

(w) “Price Cap LEC” means a Price Cap Local Exchange Carrier as defined in 47

C.F.R. § 61.3(bb).

(x) “Rules” means the Commission’s regulations found in Title 47 of the Code

of Federal Regulations.

(y)

“Rural Call Completion Rate” means the Call Completion Rate for calls

destined for Rural Incumbent Locations.

(z)

“Rural Call Quality Commitment” means the performance standard

described in Paragraph 16(b) of this Consent Decree.

(aa) “Rural Incumbent Locations” means locations served by a Rural Incumbent

Local Exchange Carrier, as defined at 47 C.F.R. § 54.5, that is not an affiliate

of a Price Cap LEC.

(bb) “Termination Date” means the date on which the compliance obligations in

this Consent Decree terminate, as provided in Paragraph 19.

(cc)

“Wholesale” means voice telecommunications sold by Level 3 to customers

that purchase the service and incorporate it into their own offerings of

telecommunications services, interconnected VoIP services (as defined in 47

C.F.R. § 9.3) that are terminated on the public switched telephone network,

or non-interconnected VoIP services (as defined in 47 C.F.R. § 14.10(q)) that

are terminated on the public switched telephone network.

(dd) “Wholesale Customer Calls” mean interexchange calls from Level 3

Wholesale customers that are not determined by Level 3 to be originating

from telemarketers, as defined in 47 C.F.R. § 64.1200(f)(11), or other mass-

dialers.

3

image04-00.jpg612x792

Federal Communications Commission

DA 13-371

II.

BACKGROUND

2.

Section 201(b) of the Act provides, “All charges, practices, classifications, and

regulations for and in connection with [interstate and foreign] communication service, shall be just and

reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is

hereby declared to be unlawful.”2 Section 202(a) states, “It shall be unlawful for any common carrier to

make any unjust or unreasonable discrimination in charges, practices, classifications, regulations,

facilities, or services for or in connection with like communication service, directly or indirectly, by any

means or device, . . . or to subject any particular person, class of persons, or locality to any undue or

unreasonable prejudice or disadvantage.”3

3.

The Commission has emphasized that “it is vital that our Nation maintains a

communications network that offers reliable and resilient service.”4 The Commission has also recognized

that “permitting blocking or the refusal to deliver voice telephone traffic, whether as a means of ‘self-

help’ to address perceived unreasonable intercarrier compensation charges or otherwise, risks

‘degradation of the country’s telecommunications network.’”5 To prevent that, the Commission has

consistently held that telecommunications carriers, including interexchange carriers, generally may not

“‘block, choke, reduce, or restrict traffic in any way.’”6

4.

In June 2011, a coalition of trade associations representing rural local exchange carriers

(rural LECs) sent a letter to the Bureau concerning “a nationwide and industry-wide epidemic” of calls to

rural areas failing to complete or having poor call quality.7 In September 2011, the Commission

announced that it had created a Rural Call Completion Task Force “to investigate and address the growing

problem of calls to rural customers that are being delayed or that fail to connect.”8 The Bureau

subsequently initiated several rural call completion investigations.

5.

Level 3 offers a variety of telecommunications services throughout the United States,

including interexchange (long distance) voice service. In September 2011, the Commission approved the

transfer of control of Commission licenses and authorizations from Global Crossing Limited to Level 3

2 47 U.S.C. § 201(b).

3 Id. § 202(a).

4 Reliability and Continuity of Communications Networks, Including Broadband Technologies, Notice of Inquiry, 26

FCC Rcd 5614, 5616, para. 5 (2011); see also Establishing Just and Reasonable Rates for Local Exchange Carriers,

Declaratory Ruling and Order, 22 FCC Rcd 11629, para. 1 (Wireline Comp. Bur. 2007) (Call Blocking Declaratory

Ruling) (“the ubiquity and reliability of the nation’s telecommunications network is of paramount importance to the

explicit goals of the Communications Act”).

5 Connect America Fund, Report and Order and Further Notice of Proposed Rulemaking, 26 FCC Rcd 17663,

18029, para. 973 (2011) (quoting Access Charge Reform, Seventh Report and Order and Further Notice of Proposed

Rulemaking, 16 FCC Rcd 9923, 9933, para. 24 (2001) (Universal Service/Intercarrier Compensation Reform

Order)).

6 Id. at 17903, para. 734 (quoting Call Blocking Declaratory Ruling, 22 FCC Rcd at 11631, para. 6).

7 Letter from Michael Romano, National Telecommunications Cooperative Association, et al., to Theresa Z.

Cavanaugh, Acting Chief and Margaret Dailey, Attorney Advisor, Investigations & Hearings Division, FCC

Enforcement Bureau at 3 (filed June 13, 2011, in EB-12-IH-0087).

8 FCC Launches Rural Call Completion Task Force to Address Call Routing and Termination Problems in Rural

America, News Release, 2011 WL 4454097 (Sept. 26, 2011), http://www.fcc.gov/document/fcc-launches-rural-call-

completion-task-force-sets-oct-18-workshop. The Task Force conducted a workshop on rural call completion issues

on October 18, 2011. See http://www.fcc.gov/events/rural-call-completion-workshop.

4

image05-00.jpg612x792

Federal Communications Commission

DA 13-371

Communications, Inc.9 Like all major interexchange carriers, Level 3 must rely on Intermediate

Providers (sometimes referred to as “least cost routers”) to complete a portion of its calls.

6.

On January 30, 2012, the Bureau sent a letter of inquiry (LOI) to Level 3 seeking

information about its performance, and the performance of its Intermediate Providers, in completing long

distance calls.10 Among other issues, the LOI asked whether, in the ordinary course of business, Level 3

tracked call completion rates for outgoing long distance calls.11

7.

On February 6, 2012, the Wireline Competition Bureau (WCB) clarified in a declaratory

ruling that “it is an unjust and unreasonable practice in violation of section 201 of the Act for a carrier that

knows or should know that it is providing degraded service to certain areas to fail to correct the problem

or to fail to ensure that intermediate providers, least-cost routers, or other entities acting for or employed

by the carrier are performing adequately.”12 WCB further clarified that “adopting or perpetuating routing

practices that result in lower quality service to rural or high-cost localities than like service to urban or

lower cost localities (including other lower cost rural areas) may, in the absence of a persuasive

explanation, constitute unjust or unreasonable discrimination in practices, facilities, or services and

violate section 202 of the Act.”13

8.

On February 24, 2012, Level 3 notified the Bureau that although the Company monitored

its own call completion and Intermediate Provider performance, it did not, in the regular course of

business, maintain the call completion data requested in the LOI in a manner conducive to useful

production.14 Nevertheless, Level 3 worked cooperatively with the Bureau to develop alternative call

completion data. In particular, Level 3 proposed conducting a traffic study of randomly selected months

that would show call attempts and completion statistics for calls initiated by Level 3 customers terminated

to rural and non-rural telephone company exchanges.15 Level 3 proposed differentiating calls to rural

areas from calls to non-rural areas based on the operating company numbers of terminating carriers.16

9 Applications Filed by Global Crossing Limited and Level 3 Communications, Inc. for Consent to Transfer Control,

Memorandum Opinion and Order and Declaratory Ruling, 26 FCC Rcd 14056, 14057, para. 1 (2011).

10 Letter from Theresa Cavanaugh, Acting Chief, Investigations & Hearings Division, FCC Enforcement Bureau, to

Neil Eckstein, Senior Vice President, Level 3 Communications, Inc. (Jan. 30, 2012) (on file in EB-12-IH-0087).

11 Id. at 3.

12 Developing an Unified Intercarrier Compensation Regime, Declaratory Ruling, 27 FCC Rcd 1351, 1355–56, para.

12 (Wireline Comp. Bur. 2012) (footnote omitted).

13 Id. at 1357-58, para. 14.

14 E-mail from John Nakahata, Wiltshire & Grannis LLP, to Margaret Dailey, Attorney Advisor, Investigations &

Hearings Division, FCC Enforcement Bureau (Feb. 24, 2012, 17:14 EST; see also Letter from John Nakahata,

Wiltshire & Grannis LLP, to Marlene Dortch, Secretary, FCC (Feb. 29, 2012) (on file in EB-12-IH-0087) (LOI

Response).

15 Id.

16 Id. An operating company number (OCN) is an alphanumeric code that uniquely identifies providers of local

telecommunications service.

See, e.g., http://www.atis.org/glossary/definition.aspx?id=8448" title="http://www.atis.org/glossary/definition.aspx?id=8448">http://www.atis.org/glossary/definition.aspx?id=8448. OCNs are used in

billing records to identify local telecommunications providers. See Universal Service/Intercarrier Compensation

Reform Order, 26 FCC Rcd at 17899 n.1251. By segregating long distance calls to rural LECs from calls to non-

rural LECs based on OCNs, Level 3 reasonably could identify calls to rural and non-rural areas.

5

image06-00.jpg612x792

Federal Communications Commission

DA 13-371

9.

Level 3 provided its initial response to the LOI on February 29, 2012.17 After further

discussion, the parties agreed that Level 3 would conduct the traffic study and provide the results to the

Bureau.18 In August 2012, Level 3 produced study results for Legacy Level 3, Legacy Global Crossing,

and the Intermediate Providers they used to deliver traffic.19 In September and October, 2012, Level 3

advocated additional refinements to the study methodology and produced additional study results

regarding Legacy Level 3’s call completion performance to incumbent local exchange carriers.20

10.

Level 3 and the Bureau have worked cooperatively for nearly a year to develop a

mechanism by which the Bureau can track Level 3’s rural call completion and ensure that Level 3’s

performance demonstrably meets the requirements of Sections 201(b) and 202(a). Level 3 has committed

to invest capital and other resources in systems and processes to develop and implement a benchmark

process for rural call completion.

III.

TERMS OF AGREEMENT

11.

Adopting Order. The Parties agree that the provisions of this Consent Decree shall be

subject to final approval by the Bureau by incorporation of such provisions by reference in the Adopting

Order. The Parties agree that this Consent Decree shall become effective on the Effective Date as defined

herein.

12.

Jurisdiction. Level 3 agrees that the Bureau has jurisdiction over it and the matters

contained in this Consent Decree and that the Bureau has the authority to enter into and adopt this

Consent Decree.

13.

Effective Date; Violations. The Parties agree that this Consent Decree shall become

effective on the Effective Date except as otherwise provided. As of the Effective Date, the Adopting

Order and this Consent Decree shall have the same force and effect as any other order of the Commission.

Any violation of the Adopting Order or of the terms of this Consent Decree, excluding violations of

Paragraph 16(b) for which remedies are prescribed in Paragraph 20(b), 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.

17 See LOI Response. Level 3 provided supplemental responses on March 14 and April 13, 2012. See Letters from

John Nakahata, Wiltshire & Grannis LLP, to Margaret Dailey, Attorney Advisor, Investigations & Hearings

Division, FCC Enforcement Bureau (March 14, 2012; April 13, 2012) (on file in EB-12-IH-0087). The Bureau

submitted supplemental questions to Level 3 on May 18, 2012. See E-mail from Margaret Dailey, Attorney

Advisor, Investigations & Hearings Division, FCC Enforcement Bureau, to John Nakahata, Wiltshire & Grannis

LLP (May 18, 2012, 17:19 EDT). Level 3 responded to those questions on June 1 and June 13, 2012. See E-mail

from Patrick O’Donnell, Wiltshire & Grannis LLP, to Margaret Dailey, Attorney Advisor, Investigations &

Hearings Division, FCC Enforcement Bureau (June 1, 2012, 16:54 EDT); E-mail from Erin Galliher, Wiltshire &

Grannis LLP, to Margaret Dailey, Attorney Advisor, Investigations & Hearings Division, FCC Enforcement Bureau

(June 13, 2012, 11:17 EDT).

18 See E-mail from Patrick O’Donnell, Wiltshire & Grannis LLP, to Margaret Dailey, Attorney Advisor,

Investigations & Hearings Division, FCC Enforcement Bureau (Mar. 9, 2012, 13:52 EST).

19 See E-mail from Patrick O’Donnell, Wiltshire & Grannis LLP, to Margaret Dailey, Attorney Advisor,

Investigations & Hearings Division, FCC Enforcement Bureau (August 9, 2012, 9:51 EDT). The study results

covered both interstate and intrastate long distance calls.

20 See, e.g., E-mail from Mike Carlson, Wiltshire & Grannis LLP, to Margaret Dailey, Attorney Advisor,

Investigations & Hearings Division, FCC Enforcement Bureau (October 16, 2012, 17:40 EDT).

6

image07-00.jpg612x792

Federal Communications Commission

DA 13-371

14.

Termination of Investigation. In express reliance on the covenants and representations

in this Consent Decree and to avoid further expenditure of public resources, the Bureau agrees to

terminate the Investigation. In consideration for the termination of the Investigation, Level 3 agrees to the

terms, conditions, and procedures contained herein. The Bureau further agrees that in the absence of new

material evidence, the Bureau will not use the facts developed in the Investigation through the Effective

Date, 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 Level 3 concerning the matters that were the

subject of the Investigation. The Bureau also agrees that in the absence of new material evidence it will

not use the facts developed in the Investigation through the Effective Date, 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 Level 3 with respect to Level 3’s basic qualifications, including its character

qualifications, to be a Commission licensee or to hold Commission licenses or authorizations.

15.

Compliance Officer. Within thirty (30) calendar days after the Effective Date, Level 3

shall designate a senior corporate manager with the requisite corporate and organizational authority to

serve as a Compliance Officer and to discharge the duties set forth below. The person designated as the

Compliance Officer shall be responsible for developing, implementing, and administering the Compliance

Plan and ensuring that Level 3 complies with the terms and conditions of the Compliance Plan and this

Consent Decree. The Compliance Officer shall have general knowledge of the Communications Laws

necessary to discharge his/her duties under this Consent Decree.

16.

Compliance Plan. For purposes of settling the matters set forth herein, Level 3 agrees

that it shall develop and implement a Compliance Plan designed to ensure that Level 3’s Rural Call

Completion Rates meet the terms and conditions of this Consent Decree and thus demonstrably comply

with the requirements of Sections 201(b) and 202(a) of the Act and current rules. The Compliance Plan

will ensure future compliance with the Communications Laws and with the terms and conditions of this

Consent Decree, and shall include the following components:

(a)

Operating Procedures. Within sixty (60) calendar days after the Effective Date,

Level 3 shall establish detailed Operating Procedures to ensure Level 3’s compliance

with this Consent Decree and Sections 201(b) and 202(a) of the Act with respect to

Rural Call Completion Rates.

(b) Rural Call Quality Commitment. As further detailed below, Level 3 will maintain

a Call Completion Rate for each category of: (i) Wholesale Customer Calls to Rural

Incumbent Locations, and (ii) Enterprise Customer Calls to Rural Incumbent

Locations that is no lower than five percent (500 basis points) below the Benchmark

Call Completion Rate for each category, respectively. Level 3 will also, to the extent

commercially reasonable, maintain an Enterprise Customer Call Completion Rate to

Rural Incumbent Locations that is at least equal to the Benchmark Call Completion

Rate for Enterprise Customer Calls. For purposes of this commitment, Level 3 will

measure and monitor Call Completion Rates as described and reported pursuant to

Paragraph 17(a) and (c) below.

(c) Network Changes to Facilitate Monitoring and Routing for Enterprise and

Wholesale Customer Calls. Level 3 will adopt network configurations that will

allow it to monitor Rural and Benchmark Call Completion Rates for Enterprise

Customer Calls and Wholesale Customer Calls originating on both the Legacy

Level 3 and Legacy Global Crossing networks. Level 3 will utilize the following

route options on a commercially reasonable basis:

7

image08-00.jpg612x792

Federal Communications Commission

DA 13-371

(i)

The Legacy Level 3 Feature Group Network;

(ii)

Legacy Level 3’s Co-carrier Network; or

(iii)

Select Intermediate Providers. Intermediate Providers used to route

Enterprise and Wholesale Customer Calls will be monitored and, to the

extent commercially reasonable, will be included in these route options only

if a vendor maintains a Call Completion Rate adequate to allow Level 3 to

meet its commitments under this Consent Decree.

(d) Intermediate Provider Monitoring and Follow Up. Level 3 will monitor the

performance of Intermediate Providers used to route Wholesale Customer Calls

placed through the Legacy Level 3 network, and Enterprise Customer Calls placed

through the Legacy Level 3 network and the Legacy Global Crossing network,

downstream from Level 3 as follows:

(i)

Level 3 will develop Intermediate Provider scorecards that will contain

measurements of Intermediate Provider performance in the areas of Post-Dial

Delay, Network Failure, and Call Completion Rates.

(ii)

Level 3 will identify problematic routes to Intermediate Providers no less

frequently than once per calendar month. If an Intermediate Provider does

not provide adequate performance on a particular route (as reasonably

determined by Level 3 in light of its obligations under this Consent Decree),

it will be taken out of the route options for that location in Level 3’s Least

Cost Routing Engine, provided that other Intermediate Providers offer

commercially reasonable options for reaching that location.

(iii)

If an Intermediate Provider demonstrates sustained inadequate performance

(as reasonably determined by Level 3 in light of its obligations under this

Consent Decree), Level 3 shall remove that Intermediate Provider from all

routes, provided other commercially reasonable Intermediate Provider

options exist to the routes served by that Intermediate Provider and such

removal is commercially reasonable. If Level 3 finds that it is not

commercially reasonable to remove an Intermediate Provider with sustained

inadequate performance from all routes, Level 3 will notify the Bureau

within ten (10) days of making that finding. Level 3 will not reinstate any

Intermediate Provider removed under this Paragraph until it receives the

Intermediate Provider’s assurance that it has identified and remedied the

cause of its previous sustained inadequate performance. Level 3 will

carefully monitor any such Intermediate Providers following reinstatement.

Level 3 shall take all commercially reasonable steps to ensure that its

relationships with Intermediate Providers are consistent with its obligations

under this Consent Decree.

(iv)

Level 3 will notify any service provider it has reason to believe is causing

call completion problems, and will work cooperatively with each such

service provider in analyzing and resolving such problems as soon as

practicable.

(e)

Testing. Level 3 will cooperate with the FCC and with rural carriers to undertake

commercially reasonable steps to establish test points and uniform test criteria to

8

image09-00.jpg612x792

Federal Communications Commission

DA 13-371

evaluate rural call completion when monitoring data or when complaints suggest

potential rural call completion problems.

(f)

Compliance Manual. Within sixty (60) calendar days after the Effective Date, the

Compliance Officer shall develop and distribute a Compliance Manual to all Covered

Employees. The Compliance Manual shall explain Level 3’s obligations under this

Consent Decree and shall detail the compliance procedures and methods discussed

above. Level 3 shall periodically review and revise the Compliance Manual as

necessary to ensure that the information set forth therein remains current and

complete. Level 3 shall distribute any revisions to the Compliance Manual promptly

to all Covered Employees.

(g) Compliance Training Program. Level 3 shall establish and implement a

Compliance Training Program on compliance with the Operating Procedures,

Compliance Plan, and the other terms of this Consent Decree. As part of the

Compliance Training Program, Covered Employees shall be advised of Level 3’s

obligation to report noncompliance under paragraph 18 of this Consent Decree and

shall be instructed on how to disclose noncompliance to the Compliance Officer.

Any new Covered Employee shall be similarly trained.

17.

Compliance Reports. Level 3 will begin work to implement Paragraphs 16(a) through

16(d) immediately. Paragraph 16(b) shall be effective beginning October 1, 2013. Paragraphs 16(c) and

16(d) shall be effective beginning one-hundred and twenty (120) days after the Effective Date. Level 3

shall file Compliance Reports with the Bureau as follows:

(a)

Level 3 will report to the Enforcement Bureau its Rural and Benchmark Call

Completion Rates as described in Paragraph 16(b) pursuant to the following

schedule:

(i)

The first report shall be submitted on or before January 31, 2014, and will

cover the period from October 1, 2013 through December 31, 2013. To the

extent practicable, Level 3 will also provide a preliminary report of data for

the Legacy Level 3 network only for the period from July 1, 2013 through

September 30, 2013 (submitted on or before October 31, 2013).

(ii)

For quarterly periods beginning after January 1, 2014, through the

Termination Date, Level 3 shall submit reports as follows: on or before April

30, for the preceding January through March; on or before July 31, for the

preceding April through June; on or before October 31, for the preceding

July through September, and on or before January 31, for the preceding

October through December.

(b) In addition to the information required by the Rural Call Quality Commitment in

Paragraph 16(b), Level 3 will also provide, as part of those reports, Rural and

Benchmark Call Completion Rates for the following sub-categories: (i) calls routed

through Intermediate Providers; and (ii) calls not routed through Intermediate

Providers. These sub-categories will not be used in applying the Rural Call Quality

Commitment.

9

image10-00.jpg612x792

Federal Communications Commission

DA 13-371

(c)

The methodology Level 3 will use to implement this Paragraph 17 is described in

Appendix A to this Consent Decree. Level 3 will submit any proposed refinements

to this methodology for approval to the Bureau, and agrees to meet with the Bureau

at a mutually convenient time should any methodology problems arise.

(d)

For so long as Paragraphs 17(a) and (b) remain in effect, Level 3 will comply with

and not object to any administrative subpoena from the Bureau requiring it to

produce the following information concerning Intermediate Providers used by

Level 3: (i) Intermediate Provider scorecards prepared pursuant to Paragraph

16(d)(i); and (ii) Intermediate Provider Call Completion Rates, in the form set forth

in Appendix B of this Consent Decree, for the reporting periods set forth in

Paragraph 17(a). Level 3 may request confidential treatment, pursuant to 47 C.F.R.

§ 0.459, of any such information produced. Notwithstanding the foregoing, Level 3

consents to the Bureau’s disclosure of any information provided in response to such

an administrative subpoena to the Intermediate Provider to which that information

pertains. The Parties shall meet and confer regarding the information provided

pursuant to this Paragraph 17(d), by telephone or in person, at a mutually convenient

time.

18.

Reporting Noncompliance. Level 3 shall report any noncompliance with Paragraph

16(d) through 16(g) of this Consent Decree within fifteen (15) calendar days after discovery of such

noncompliance. Such reports shall include a detailed explanation of (i) each instance of noncompliance;

(ii) the steps that Level 3 has taken or will take to remedy such noncompliance; (iii) the schedule on

which such remedial actions will be taken; and (iv) the steps that Level 3 has taken or will take to prevent

the recurrence of any such noncompliance. All reports of noncompliance shall be submitted to the Chief,

Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission, Room

3-C330, 445 12th Street, S.W. Washington, D.C. 20554, with a copy submitted electronically to Theresa

Z. Cavanaugh at Terry.Cavanaugh@fcc.gov and Margaret Dailey at Margaret.Dailey@fcc.gov.

19.

Termination Date. Unless stated otherwise, the obligations set forth in Paragraphs 15

through 18 in this Consent Decree shall expire either (a) when Level 3 has satisfied the Rural Call Quality

Commitment for eight (8) consecutive reporting periods (two (2) years) or (b) three (3) years after the

Effective Date, whichever shall occur first.

20.

Voluntary Contribution. Level 3 agrees that it will make voluntary contributions to the

United States Treasury as follows:

(a)

Level 3 shall make a voluntary contribution (Voluntary Contribution) in the

aggregate amount of nine hundred and seventy-five thousand dollars ($975,000) in

three installments (Installment Payments), each in the amount of three hundred

twenty-five thousand dollars ($325,000), on the following payment schedule: the

first Installment Payment is due within thirty (30) calendar days after the Effective

Date; the second Installment Payment is due within one hundred eighty (180)

calendar days after the Effective Date; and the third Installment Payment is due

within one year of the Effective Date.

(b)

For each quarterly reporting period described in Paragraph 17(a) beginning on or

after October 1, 2013, if Level 3 fails to meet the Rural Call Quality Commitment

under Paragraph 16(b), Level 3 shall make an additional voluntary contribution to the

United States Treasury (Additional Voluntary Contribution) of one million dollars

10

image11-00.jpg612x792

Federal Communications Commission

DA 13-371

($1,000,000) within thirty (30) days after the filing of the report pursuant to

Paragraph 17(a) documenting such failure.

(c)

Level 3 acknowledges and agrees that upon execution of this Consent Decree, the

Voluntary Contribution and each Installment Payment shall become a “Claim” or

“Debt” as defined in 31 U.S.C. § 3701(b)(1).21 Level 3 further acknowledges and

agrees that each Additional Voluntary Contribution shall become a “Claim” or

“Debt” as defined in 31 U.S.C. § 3701(b)(1) on the date Level 3 files a quarterly

report under Paragraph 17(a) documenting that it failed to meet the Rural Call

Quality Commitment in Paragraph 16(b). Upon an Event of Default (as defined in

Paragraph 21 below), all procedures for collection as permitted by law may, at the

Commission’s discretion, be initiated. In addition, Level 3 agrees that it will make

the first and all subsequent Installment Payments and Additional Voluntary

Contributions in United States Dollars without further demand or notice by the dates

specified above.

(d)

Level 3 shall also send electronic notification of each payment to Theresa Z.

Cavanaugh at Terry.Cavanaugh@fcc.gov and Margaret Dailey at

Margaret.Dailey@fcc.gov on the date said payment is made. The payment must be

made by check or similar instrument, wire transfer, or credit card, and must include

the Account number and FRN referenced above. Regardless of the form of payment,

a completed FCC Form 159 (Remittance Advice) must be submitted.22 When

completing the FCC Form 159, enter the Account Number in block number 23A (call

sign/other ID) and enter the letters “FORF” in block number 24A (payment type

code). Below are additional instructions Level 3 will follow based on the form of

payment it selects:

Payment by check or money order must be made payable to the order of the

Federal Communications Commission. Such payments (along with the

completed Form 159) must be mailed to Federal Communications Commission,

P.O. Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S.

Bank – Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza,

St. Louis, MO 63101.

Payment by wire transfer must be made to ABA Number 021030004, receiving

bank TREAS/NYC, and Account Number 27000001. To complete the wire

transfer and ensure appropriate crediting of the wired funds, a completed Form

159 must be faxed to U.S. Bank at (314) 418-4232 on the same business day the

wire transfer is initiated.

Payment by credit card must be made by providing the required credit card

information on FCC Form 159 and signing and dating the Form 159 to authorize

the credit card payment. The completed Form 159 must then be mailed to

Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-

9000, or sent via overnight mail to U.S. Bank – Government Lockbox #979088,

SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.

21 Debt Collection Improvement Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321, 1358 (Apr. 26, 1996).

22 An FCC Form 159 and detailed instructions for completing the form may be obtained at

http://www.fcc.gov/Forms/Form159/159.pdf.

11

image12-00.jpg612x792

Federal Communications Commission

DA 13-371

Questions regarding payment procedures should be addressed to the Financial Operations Group Help

Desk by phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.

21.

Event of Default. Level 3 agrees that an Event of Default shall occur upon the failure by

Level 3 to pay the full amount of any Installment Payment under Paragraph 20(a) or Additional Voluntary

Contribution under Paragraph 20(b) on or before the due date specified in this Consent Decree.

22.

Interest, Charges for Collection, and Acceleration of Maturity Date. After an Event

of Default has occurred under this Consent Decree, the then-unpaid amount of the Voluntary Contribution

or Additional Voluntary Contribution shall accrue interest, computed using the U.S. Prime Rate in effect

on the date of the Event of Default plus 4.75 percent, from the date of the Event of Default until payment

in full. Upon an Event of Default, the then-unpaid amount of the Voluntary Contribution or Additional

Voluntary Contribution, together with interest, as aforesaid, any penalties permitted and/or required by

the law, including but not limited to 31 U.S.C. § 3717 and administrative charge(s), plus the costs of

collection, litigation, and attorneys’ fees, shall become immediately due and payable, without notice,

presentment, demand, protest, or notice of protest of any kind, all of which are waived by Level 3.

23.

Section 208 Complaints; Subsequent Investigations. 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 Level 3 or its affiliates for alleged violations of the Communications Laws,

or for any other type of alleged misconduct, regardless of when such misconduct took place. The

Commission’s adjudication of any such complaints 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 Level 3 or its affiliates with the

Communications Laws. Notwithstanding the foregoing, for the duration of this Consent Decree and

except to the extent specific provisions may be invalidated pursuant to Paragraph 25 or superseded

pursuant to Paragraph 26, unless Level 3 violates the terms of this Consent Decree and the Adopting

Order, the Commission will not initiate another investigation of Level 3 or its affiliates for violations of

Section 201(b) or 202(a) of the Act with respect to Rural Call Completion Rates and associated practices

in the absence of evidence of impermissible intentional call blocking, except that, notwithstanding the

foregoing, this Consent Decree does not limit the Commission’s ability to investigate any newly acquired

network covered by Paragraph 27 below.

24.

Waivers. Level 3 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 Adopting Order, provided the Bureau issues an Adopting Order as defined herein.

Level 3 shall retain the right to challenge Commission interpretation of the Consent Decree or any terms

contained herein. If any Party (or the United States on behalf of the Commission) brings a judicial action

to enforce the terms of the Adopting Order, Level 3 and the Commission shall not contest the validity of

the Consent Decree or of the Adopting Order, and Level 3 shall waive any statutory right to a trial de

novo. Level 3 hereby agrees to waive any claims it may have under the Equal Access to Justice Act, 5

U.S.C. § 504 and 47 C.F.R. § 1.1501 et seq., relating to the matters addressed in this Consent Decree.

25.

Invalidity. In the event that this Consent Decree in its entirety is rendered invalid by any

court of competent jurisdiction, it shall become null and void and may not be used in any manner in any

legal proceeding.

26.

Subsequent Rule or Order. The Parties agree that if any provision of the Consent

Decree conflicts with any subsequent Rule or order adopted by the Commission (except an order

specifically intended to revise the terms of this Consent Decree to which Level 3 does not expressly

consent), that provision will be superseded by such Rule or Commission order. In particular, the Parties

12

image13-00.jpg612x792

Federal Communications Commission

DA 13-371

agree that should the Commission adopt any subsequent Rule or order establishing performance standards

for Rural Call Completion Rates, Level 3 will be held to the same standards (unless specifically waived),

and Paragraphs 16(b) and 20(b) of this Consent Decree shall be superseded as of the date the non-waived

performance standards in the Commission Rule or order become effective. If the Commission establishes

generally applicable requirements by Rule or order establishing Rural Call Completion reporting

requirements, Level 3 will comply with those requirements.

At Level 3’s request, the Commission and

Level 3 will meet to discuss and determine whether reporting obligations in this Consent Decree are no

longer necessary or are unduly burdensome in light of any such new, industry-wide mandatory reporting

requirements, and Level 3 may petition for a waiver of any such reporting obligations in this Consent

Decree.

27.

Successors and Assigns; Subsequent Mergers and Acquisitions. Level 3 agrees that

the provisions of this Consent Decree shall be binding on its successors, assigns, and transferees. If

Level 3 acquires all or a part of another company’s network after the Effective Date, the obligations in

this Consent Decree shall not apply to the newly acquired network, regardless of the form of any such

acquisition.

28.

Force Majeure. If a cause beyond Level 3’s reasonable control prevents Level 3 from

meeting any obligation under this Consent Decree, Level 3 shall not be liable to the Commission or in

default or breach of this Consent Decree for any delay or failure in performance of any part of this

Consent Decree but only insofar as such default or breach is caused by such force majeure. If Level 3

claims that an event releases it from any obligation of the Consent Decree under this Paragraph, Level 3

will notify the Commission in writing within sixty (60) days of the event’s occurrence.

29.

Final Settlement. The Parties agree and acknowledge that this Consent Decree shall

constitute a final settlement between the Parties with respect to the Investigation. The Parties further

agree that this Consent Decree does not constitute either an adjudication on the merits or a factual or legal

finding or determination regarding any compliance or noncompliance with the Communications Laws. By

agreeing to this Consent Decree, Level 3 does not admit noncompliance, violation or liability for violating

the Communications Laws in connection with the matters that are the subject of this Consent Decree, and

the Bureau does not concede that Level 3 complied with the Communications Laws or that the

Investigation was not well founded.

30.

Modifications. This Consent Decree cannot be modified without the advance written

consent of both Parties.

31.

Paragraph Headings. The headings of the paragraphs in this Consent Decree are

inserted for convenience only and are not intended to affect the meaning or interpretation of this Consent

Decree.

32.

Authorized Representative. The individual signing this Consent Decree on behalf of

Level 3 represents and warrants that he is authorized by Level 3 to execute this Consent Decree and to

bind Level 3 to the obligations set forth herein. The FCC signatory represents that she is signing this

Consent Decree in her official capacity and that she is authorized to execute this Consent Decree.

13

image14-00.jpg612x792

Federal Communications Commission

DA 13-371

33.

Counterparts. This Consent Decree may be signed in any number of counterparts

(including by facsimile), each of which, when executed and delivered, shall be an original, and all of

which counterparts together shall constitute one and the same fully executed instrument.

____________________________

P. Michele Ellison

Chief

Enforcement Bureau

____________________________

Date

____________________________

John Ryan

Chief Legal Officer

Level 3 Communications, LLC

____________________________

Date

14

image15-00.jpg612x792

Federal Communications Commission

DA 13-371

APPENDIX A

INITIAL CALL COMPLETION METHODOLOGY

I.

Call Completion Formulas

Level 3 will use the following formulas to determine Call Completion Rates.

A.

Enterprise Customer Call Completion Formula

Expressed as a Percentage:

100 x Completed Calls / Call Attempts

B.

Wholesale Customer Call Completion Formula

Expressed as a Percentage:

100 x Completed Calls / (Call Attempts – Returned Calls)

II.

Identification of Call Attempts, Completed Calls and Returned Calls

Call

Network Communication that contains a valid Domestic US Area Code

Attempts

(as applicable) (NPA), a valid Exchange (NXX) and Station Code received

from a Level 3 Customer via either dual-tone multi-frequency signaling, a

SS7 Initial Address Message or SIP Invite Message, that requests a

communications path to a customer of an Incumbent Telephone Carrier.

Completed Call

Any Call Attempt that receives an SS7 Answer Notification Message

(ANM).

Returned Call

Any Call Attempt that is released back to a Wholesale Customer with one

of the following Release Case or SIP Response Codes:

Q.931 Release

Description

SIP

SIP Reason Code

Cause Code

Reason

Description

Code

2

No Route To Specified Transit Network

3

No Route To Destination

34

No Circuit / Channel Available

38

Network Out Of Order

502

Bad Gateway

41

Temporary Failure

400

Bad Request

41

Temporary Failure

481

Call/Transaction

Does Not Exist

41

Temporary Failure

500

Server Internal

Error

41

Temporary Failure

503

Service Unavailable

41

Temporary Failure

504

Server Time-out

15

image16-00.jpg612x792

Federal Communications Commission

DA 13-371

42

Switching Equipment Congestion

44

Requested Circuit Channel Not Available

47

Resource Unavailable, Unspecified

128

[SONUS] Resources Allocation Failure [Mapped

to Q.931 34]

130

[SONUS] Insufficient Destination Resources

[Mapped to Q.931 34]

135

[SONUS] Collision Reattempt Exhausted

[Mapped to Q.931 41]

140

[SONUS] Circuit Endpoint Resource Allocation

Failure [Mapped to Q.931 34]

III.

Identification of Mass-Dialer Customers

“Mass-dialer” means an entity that purchases service from Level 3 where the service is used in

generating calls through an autodialer as defined at 47 C.F.R. § 64.1200(f)(2) (2013) or software

providing substantially the same functionality, or any other practice resulting in a large volume of short-

duration calls, such as a telemarketing “boiler-room” operation. Level 3 will identify as a mass-dialer any

entity that (1) self-identifies as using such an autodialer or software or (2) Level 3 reasonably determines

to be placing a large volume of short-duration calls.

IV.

Identification of Wholesale Customers

Paragraph 1(dd) of the Consent Decree defines “Wholesale Customer Calls” to mean “interexchange calls

from Level 3 Wholesale customers that are not determined by Level 3 to be originating from

telemarketers or other mass-dialers.” Paragraph 1(cc) defines “Wholesale” to mean voice

telecommunications sold by Level 3 to customers that purchase the service and incorporate it into their

own offerings of telecommunications services, interconnected VoIP services (as defined in 47 C.F.R. §

9.3) that are terminated on the public switched telephone network, or non-interconnected VoIP services

(as defined in 47 C.F.R. § 14.10(q)) that are terminated on the public switched telephone network.

Level 3 will identify Wholesale customers according to whether, for the service for which Level 3 is

arranging for the termination of that customer’s traffic, (1) Level 3 receives a Federal Universal Service

Fund Reseller Certification stating that the customer is purchasing service for resale; or (2) Level 3,

through other means, has a reasonable expectation that the customer is purchasing Level 3’s service to

incorporate them into the Wholesale customer’s own offerings of telecommunications services,

interconnected VoIP services that are terminated on the public switched telephone network, or non-

interconnected VoIP services that are terminated on the public switched telephone network.

V.

Identification of Enterprise Customers

Enterprise Customers are persons or entities that purchase voice interexchange service from Level 3 that

are not identified as Mass-Dialer Customers or Wholesale customers.

16

image17-00.jpg612x792

Federal Communications Commission

DA 13-371

APPENDIX B

Month A

Month B

Calls

Calls

% Calls

Calls

Calls

% Calls

Attempted

Answered

Answered

Attempted

Answered

Answered

Intermediate

x,xxx,xxx

y,yyy,yyy

zz.z%

x,xxx,xxx

y,yyy,yyy

zz.z%

Provider

Intermediate

Provider A

Non-rural

xx,xxx

yy,yyy

zz.z%

xx,xxx

yy,yyy

zz.z%

Rural

xx,xxx

yy,yyy

zz.z%

xx,xxx

yy,yyy

zz.z%

Intermediate

Provider B

Non-rural

xx,xxx

yy,yyy

zz.z%

xx,xxx

yy,yyy

zz.z%

Rural

xx,xxx

yy,yyy

zz.z%

xx,xxx

yy,yyy

zz.z%

17

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, , or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.