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Circle Telephone Company

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Released: October 19, 2010

Federal Communications Commission

DA 10-1582

Before the

Federal Communications Commission

Washington, D.C. 20554

)
File No. EB-08-TC-3421
In the Matter of
)
)
NAL/Acct. No. 200932170293
Circle Telephone Company
)
)
FRN: 0005068135

ORDER

Adopted: August 24, 2010

Released: August 25, 2010

By the Acting Chief, Telecommunications Consumers Division, Enforcement Bureau:
1.
In this Order, we adopt the attached Consent Decree entered into between the
Enforcement Bureau (“Bureau”) of the Federal Communications Commission (“FCC” or “Commission”)
and Circle Telephone Company (“Circle Telephone” or “Company”). The Consent Decree terminates an
investigation and Notice of Apparent Liability for Forfeiture (“NAL”) by the Bureau against Circle
Telephone for possible violation of section 222 of the Communications Act of 1934, as amended
(“Communications Act” or “Act”), 47 U.S.C. § 222, section 64.2009(e) of the Commission’s rules, 47
C.F.R. § 64.2009(e), and the Commission’s EPIC CPNI Order,1 regarding Circle Telephone’s apparent
failure to timely file a compliant annual customer proprietary network information (“CPNI”) certification
pursuant to section 64.2009(e).
2.
The Bureau and Circle Telephone have negotiated the terms of the Consent Decree that
resolve this matter. A copy of the Consent Decree is attached hereto and incorporated by reference.
3.
After reviewing the terms of the Consent Decree and evaluating the facts before us, we
find that the public interest would be served by adopting the Consent Decree, terminating the
investigation and cancelling the NAL.
4.
In the absence of material new evidence relating to this matter, we conclude that our
investigation raises no substantial or material questions of fact as to whether Circle Telephone possesses
the basic qualifications, including those related to character, to hold or obtain any Commission license or
authorization.
5.
Accordingly,

IT IS ORDERED

that, pursuant to sections 4(i) and 503(b) of the
Communications Act of 1934, as amended,2 and sections 0.111 and 0.311 of the Commission’s rules,3 the
Consent Decree attached to this Order

IS ADOPTED

.


1 Implementation of the Telecommunications Act of 1996: Telecommunications Carriers’ Use of Customer
Proprietary Network Information and Other Customer Information; IP-Enabled Services
, CC Docket No. 96-115;
WC Docket No. 04-36, Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 6927, 6953
(2007) (“EPIC CPNI Order”); aff’d sub nom. Nat’l Cable & Telecom. Assoc. v. FCC, No. 07-132, (D.C. Cir.
decided Feb. 13, 2009).
2 47 U.S.C. §§ 154(i), 503(b).
3 47 C.F.R. §§ 0.111, 0.311.

Federal Communications Commission

DA 10-1582

6.

IT IS FURTHER ORDERED

that the above-captioned investigation

IS

TERMINATED

and the Notice of Apparent Liability for Forfeiture

IS CANCELLED

.
FEDERAL COMMUNICATIONS COMMISSION
Kurt A. Schroeder
Acting Chief
Telecommunications Consumers Division
Enforcement Bureau
2

Federal Communications Commission

DA 10-1582

Before the

Federal Communications Commission

Washington, D.C. 20554

)
File No. EB-08-TC-3421
In the Matter of
)
)
NAL/Acct. No. 200932170293
Circle Telephone Company
)
)
FRN: 0005068135

CONSENT DECREE

1.
The Enforcement Bureau (“Bureau”) and Circle Telephone Company (“Circle Telephone”
or the “Company”), by their authorized representatives, hereby enter into this Consent Decree for the
purpose of cancelling the Notice of Apparent Liability (“NAL”) and terminating the Enforcement
Bureau’s investigation into Circle Telephone’s possible noncompliance with the requirements of section
222 of the Communications Act of 1934, as amended (“Communications Act” or “Act”), 47 U.S.C. §
222, section 64.2009(e) of the Commission’s rules, 47 C.F.R. § 64.2009(e), and the Commission’s EPIC
CPNI Order
.1

I.

DEFINITIONS

2.
For the purposes of this Consent Decree, the following definitions shall apply:
(a) “Act” means the Communications Act of 1934, as amended, 47 U.S.C. § 151 et seq.
(b) “Adopting Order” means an Order of the Commission adopting the terms of this Consent
Decree without change, addition, deletion, or modification.
(c) “Bureau” means the Enforcement Bureau of the Federal Communications Commission.
(d) “Commission” and “FCC” mean the Federal Communications Commission and all of its
bureaus and offices.
(e) “Compliance Plan” means the program described in this Consent Decree at paragraph 10.
(f) “Effective Date” means the date on which the Commission releases the Adopting Order.
(g) “Investigation” means the investigation commenced by the Bureau’s letter of inquiry2
regarding whether Circle Telephone violated the requirements of section 222 of the


1 Implementation of the Telecommunications Act of 1996: Telecommunications Carriers’ Use of Customer
Proprietary Network Information and Other Customer Information; IP-Enabled Services
, CC Docket No. 96-115;
WC Docket No. 04-36, Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 6927, 6953
(2007) (“EPIC CPNI Order”); aff’d sub nom. Nat’l Cable & Telecom. Assoc. v. FCC, No. 07-132, (D.C. Cir.
decided Feb. 13, 2009).
2 See Letter from Marcy Greene, Deputy Division Chief, Telecommunications Consumers Division, Enforcement
Bureau, FCC, to Circle Telephone (Sept. 5, 2008) (“LOI”).

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DA 10-1582

Communications Act and section 64.2009(e) of the Commission’s rules by failing to file
a compliant customer proprietary network information (“CPNI”) certification.3
(h) “Circle Telephone” means Circle Telephone Company and its predecessors-in-interest
and successors-in-interest.
(i) “NAL” means Notice of Apparent Liability for Forfeiture.
(j) “Parties” means Circle Telephone and the Bureau.
(k) “Rules” means the Commission’s regulations found in Title 47 of the Code of Federal
Regulations.

II.

BACKGROUND

3.
Section 222 imposes the general duty on all telecommunications carriers to protect the
confidentiality of their subscribers’ proprietary information.4 The Commission has issued rules
implementing section 222 of the Act.5 The Commission required carriers to establish and maintain a
system designed to ensure that carriers adequately protected their subscribers’ CPNI. Section 64.2009(e)
is one such requirement.
4.
In 2006, some companies, known as “data brokers,” advertised the availability of records
of wireless subscribers’ incoming and outgoing telephone calls for a fee.6 Data brokers also advertised


3 47 C.F.R. 64.2009(e).
4 Section 222 of the Communications Act, 47 U.S.C § 222, provides that: “Every telecommunications carrier has a
duty to protect the confidentiality of proprietary information of, and relating to, other telecommunications carriers,
equipment manufacturers, and customers, including telecommunication carriers reselling telecommunications
services provided by a telecommunications carrier.” Prior to the 1996 Act, the Commission had established CPNI
requirements applicable to the enhanced services operations of AT&T, the Bell Operating Companies (“BOCs”),
and GTE, and the customer premises equipment (“CPE”) operations of AT&T and the BOCs, in the Computer II,
Computer III, GTE Open Network Architecture (“ONA”), and BOC CPE Relief proceedings. See Implementation
of the Telecommunications Act of 1996: Telecommunications Carriers’ Use of Customer Proprietary Network
Information and Other Customer Information and Implementation of Non-Accounting Safeguards of Sections 271
and 272 of the Communications Act of 1934, as amended
, CC Docket Nos. 96-115 and 96-149, Second Report and
Order and Further Notice of Proposed Rulemaking, 13 FCC Rcd 8061, 8068-70, para. 7 (1998) (“CPNI Order”)
(describing the Commission’s privacy protections for confidential customer information in place prior to the 1996
Act.
5 See CPNI Order. See also Implementation of the Telecommunications Act of 1996: Telecommunications Carriers'
Use of Customer Proprietary Network Information and Other Customer Information and Implementation of the
Non-Accounting Safeguards of Sections 271 and 272 of the Communications Act of 1934, as amended
, CC Docket
Nos. 96-115 and 96-149, Order on Reconsideration and Petitions for Forbearance, 14 FCC Rcd 14409 (1999);
Implementation of the Telecommunications Act of 1996: Telecommunications Carriers’ Use of Customer
Proprietary Network Information and Other Customer Information and Implementation of the Non-Accounting
Safeguards of Sections 271 and 272 of the Communications Act of 1934, as amended, CC Docket Nos. 96-115 and
96-149; 2000 Biennial Regulatory Review -- Review of Policies and Rules Concerning Unauthorized Changes of
Consumers’ Long Distance Carriers, CC Docket No. 00-257
, Third Report and Order and Third Further Notice of
Proposed Rulemaking, 17 FCC Rcd 14860 (2002); EPIC CPNI Order.
6 See, e.g., http://www.epic.org/privacy/iei/.
2

Federal Communications Commission

DA 10-1582

the availability of certain landline toll calls.7 On April 2, 2007, the Commission strengthened its privacy
rules with the release of the EPIC CPNI Order,8 which adopted additional safeguards to protect CPNI
against unauthorized access and disclosure. The EPIC CPNI Order was directly responsive to the actions
of databrokers, or pretexters, to obtain unauthorized access to CPNI.9 The EPIC CPNI Order requires
that all companies subject to the CPNI rules file annually, on or before March 1, a certification with the
Commission pursuant to amended rule 47 C.F.R. § 64.2009(e).10 Additionally, companies must now
provide, with their certification, “an explanation of any actions taken against data brokers and a summary
of all customer complaints received in the past year concerning the unauthorized release of CPNI.”11
5.
The Bureau sent a Letter of Inquiry (“LOI”) to Circle Telephone on September 5, 2008,
asking it to provide copies and evidence of its timely filed CPNI compliance certificate for 2007, which
was due by March 1, 2008, pursuant to section 64.2009(e) of the Commission’s rules or an explanation as
to why no certification was filed.12 Circle Telephone submitted a response to the LOI on September 17,
2008.13 The Bureau concluded that Circle Telephone failed to submit satisfactory evidence of its timely
filing of the annual CPNI compliance certification.14 Accordingly, on February 24, 2009, the Bureau
released the Omnibus NAL against numerous companies, including Circle Telephone, proposing a
monetary forfeiture of twenty thousand dollars ($20,000) for its apparent failure to comply with section
64.2009(e) of the Commission's rules,15 and the Commission’s EPIC CPNI Order, and ordered the
Company either to pay the proposed forfeiture or file a written response within thirty (30) days of the
release date stating why the proposed forfeiture should be reduced or canceled. Circle Telephone
submitted a response to the Omnibus NAL; subsequently, Circle Telephone and the Bureau entered into
settlement discussions.


7 See id.
8 EPIC CPNI Order, 22 FCC Rcd 6927. Specifically, pursuant to section 64.2009(e): A telecommunications carrier
must have an officer, as an agent of the carrier, sign and file with the Commission a compliance certificate on an
annual basis. The officer must state in the certification that he or she has personal knowledge that the company has
established operating procedures that are adequate to ensure compliance with the rules in this subpart. The carrier
must provide a statement accompanying the certification explaining how its operating procedures ensure that it is or
is not in compliance with the rules in this subpart. In addition, the carrier must include an explanation of any actions
taken against data brokers and a summary of all customer complaints received in the past year concerning the
unauthorized release of CPNI. This filing must be made annually with the Enforcement Bureau on or before March
1 in EB Docket No. 06-36, for data pertaining to the previous calendar year. 47 C.F.R. § 64.2009(e).
9 Id. at 6928.
10 Id. at 6953; 47 C.F.R. § 64.2009(e).
11 EPIC CPNI Order, 22 FCC Rcd at 6953.
12 See note 2, supra.
13 See email from Julie Donn to Robert Somers (Sept. 12, 2008).
14 Annual CPNI Certification, Omnibus Notice of Apparent Liability for Forfeiture, 24 FCC Rcd 2299 (Enf. Bur.
2009) (“Omnibus NAL”).
15 Id.
3

Federal Communications Commission

DA 10-1582

III.

TERMS OF AGREEMENT

6.

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 without change, addition, modification, or deletion.
7.

Jurisdiction.

Circle Telephone agrees that the Bureau has jurisdiction over it and the
matters contained in this Consent Decree and has the authority to enter into and adopt this Consent
Decree.
8.

Effective Date; Violations.

The Parties agree that this Consent Decree shall become
effective on the date on which the FCC releases the Adopting Order. Upon release, the Adopting Order
and this Consent Decree shall have the same force and effect as any other Order of the Bureau. Any
violation of the Adopting Order or of the terms of this Consent Decree shall constitute a separate violation
of a Bureau Order, entitling the Bureau to exercise any rights and remedies attendant to the enforcement
of a Bureau Order.
9.

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 its investigation and to cancel the NAL. In consideration for the termination of said
investigation and cancellation of the NAL, Circle Telephone 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 this investigation through the Effective Date of the Consent
Decree, or the existence of this Consent Decree, to institute, on its own motion, any new proceeding,
formal or informal, or take any action on its own motion against Circle Telephone concerning the matters
that were the subject of the investigation. The Bureau also agrees that it will not use the facts developed
in this investigation through the Effective Date of this Consent Decree, or the existence of this Consent
Decree, to institute on its own motion any proceeding, formal or informal, or take any action on its own
motion against Circle Telephone’s basic qualifications, including its character qualifications, to be a
Commission licensee or authorized common carrier or hold Commission authorizations.
10.

Compliance Plan.

For purposes of settling the matters set forth herein and to help ensure
compliance with the Commission’s CPNI rules, Circle Telephone agrees to take all measures necessary to
achieve full compliance with section 64.2009(e) of the Commission’s rules. Circle Telephone agrees that
within thirty (30) days its personnel will be trained as to when they are and are not authorized to use
CPNI. Circle Telephone further agrees to have an express disciplinary process in place for the
unauthorized use of CPNI within thirty (30) days. Additionally, Circle Telephone agrees to submit a
copy of its annual section 64.2009(e) compliance certificate, which it is required to file annually in EB
Docket 06-36, for each of two (2) years following the Effective Date of this Consent Decree to the Chief,
Telecommunications Consumers Division, Enforcement Bureau, Federal Communications Commission,
445 12th Street, S.W. Room 4-C244, Washington, D.C. 20554, and must include the file number listed
above. Circle Telephone will also send an electronic copy of its certification to other
Telecommunications Consumers Division staff as directed by the Division Chief. This Consent Decree
will expire two (2) years after the Effective Date or upon the termination of the certification requirement
set forth in section 64.2009(e) of the Commission’s rules, 47 C.F.R. § 64.2009(e), whichever is earlier.
11.

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 Circle Telephone or its affiliates for alleged violations of the Act, or for any
other type of alleged misconduct, regardless of when such misconduct took place. The Commission’s
adjudication of any such complaint will be based solely on the record developed in that proceeding.
4

Federal Communications Commission

DA 10-1582

Except as expressly provided in this Consent Decree, this Consent Decree shall not prevent the
Commission from investigating new evidence of noncompliance by Circle Telephone of the Act, the
rules, or the Order.
12.

Voluntary Contribution.

Circle Telephone agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $500. The contribution will be made within
thirty (30) calendar days after the Effective Date of the Adopting Order. Payment must be made by check
or similar instrument, payable to the order of the Federal Communications Commission. The payment
must include the NAL/Account Number and FRN Number referenced in the caption to the Adopting
Order. Payment by check or money order may be mailed to Federal Communications Commission, P.O.
Box 979088, St. Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S. Bank –
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment
by wire transfer may be made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account number in block number 23A
(call sign/other ID), and enter the letters “FORF” in block number 24A (payment type code). Circle
Telephone will also send electronic notification on the date said payment is made to
johnny.drake@fcc.gov.
13.

Waivers.

Circle Telephone 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 Commission issues an Adopting Order adopting
the Consent Decree without change, addition, modification, or deletion. Circle Telephone shall retain the
right to challenge Commission interpretation of the Consent Decree or any terms contained herein. 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 Circle Telephone nor the Commission shall contest the validity of
the Consent Decree or the Adopting Order, and Circle Telephone shall waive any statutory right to a trial
de novo. Circle Telephone hereby agrees to waive any claims it may otherwise 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.
14.

Severability.

The Parties agree that if any of the provisions of the Adopting Order or the
Consent Decree shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate
or render unenforceable the entire Adopting Order or Consent Decree, but rather the entire Adopting
Order or Consent Decree shall be construed as if not containing the particular invalid or unenforceable
provision or provisions, and the rights and obligations of the Parties shall be construed and enforced
accordingly. 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.
15.

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 Circle Telephone does not
expressly consent) that provision will be superseded by such Commission rule or Order.
16.

Successors and Assigns.

Circle Telephone agrees that the provisions of this Consent
Decree shall be binding on its successors, assigns, and transferees.
17.

Final Settlement.

The Parties agree and acknowledge that this Consent Decree shall
constitute a final settlement between the Parties. 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
5

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DA 10-1582

any compliance or noncompliance with the requirements of the Act or the Commission’s rules and
Orders.
18.

Modifications.

This Consent Decree cannot be modified without the advance written
consent of both Parties.
19.

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.
20.

Authorized Representative.

Each party represents and warrants to the other that it has
full power and authority to enter into this Consent Decree.
21.

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.
________________________________
Kurt A. Schroeder
Acting Chief
Telecommunications Consumers Division
Enforcement Bureau
________________________________
Date
________________________________
Richard Hutchison
Partner
Circle Telephone Company
________________________________
Date
6

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