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Communication Options, Inc.

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Released: September 24, 2012

Federal Communications Commission

DA 12-1489

Before the

Federal Communications Commission

Washington, D.C. 20554

)
In the Matter of
)
File No.: EB-08-IH-0728
)
Communication Options, Inc.
)
Acct. No.: 201232080031
)
)
FRN: 0003735230

ORDER

Adopted: September 21, 2012

Released: September 24, 2012

By the Chief, Enforcement Bureau:
1.
In this Order, we adopt a Consent Decree entered into between the Enforcement Bureau
(Bureau) and Communication Options, Inc. (COI). The Consent Decree terminates an investigation by
the Bureau against COI for possible violations of Section 251(b)(2) of the Communications Act of 1934,
as amended (Act),1 concerning COI’s porting of its customers’ telephone numbers to new service
providers.
2.
A copy of the Consent Decree negotiated by the Bureau and COI is attached hereto and
incorporated herein by reference.
3.
After evaluating the facts before us and reviewing the terms of the Consent Decree,
including its three year compliance plan, we find that the public interest would be served by adopting the
Consent Decree and terminating the investigation.
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 COI 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 Act,2
and Sections 0.111 and 0.311 of the Commission’s rules,3 the Consent Decree attached to this Order

IS
ADOPTED

.


1 47 U.S.C. § 251(b)(2).
2 47 U.S.C. §§ 154(i), 503(b).
3 47 C.F.R. §§ 0.111, 0.311.

Federal Communications Commission

DA 12-1489

6.

IT IS FURTHER ORDERED

that the above-captioned investigation

IS

TERMINATED

.
7.

IT IS FURTHER ORDERED

that a copy of this Order and Consent Decree shall be
sent by first class mail and certified mail, return receipt requested, to Steve Augustino, Esq., Kelley Drye
& Warren LLP, Washington Harbour, Suite 400, 3050 K Street, N.W., Washington, D.C. 20007-5108.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief
Enforcement Bureau
2

Federal Communications Commission

DA 12-1489

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
File No.: EB-08-IH-0728
)
Communication Options, Inc.
)
Acct. No.: 201232080031
)
)
FRN: 0003735230

CONSENT DECREE

1.
The Enforcement Bureau of the Federal Communications Commission and
Communication Options, Inc., by their authorized representatives, hereby enter into this Consent Decree
for the purpose of terminating the Enforcement Bureau’s investigation into whether Communication
Options, Inc. violated Section 251(b)(2) of the Communications Act of 1934, as amended,1 concerning
the company’s porting of its customers’ telephone numbers to new service providers.

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 Bureau 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) “COI” or “Company” means Communication Options, Inc. and its predecessors-in-
interest and successors-in-interest.
(e) “Commission” and “FCC” mean the Federal Communications Commission and all of
its bureaus and offices.
(f) “Communications Laws” means collectively, the Act, the Rules, and the published
and promulgated orders and decisions of the Commission to which COI is subject by
virtue of its business activities.
(g) “Compliance Plan” means the plan described in this Consent Decree at paragraph 10.
(h) “Covered Employees” means all employees and agents of COI who perform, or
supervise, oversee, or manage the performance of, duties that relate to COI’s
responsibilities under the Communications Laws, including the LNP Rules.
(i) “Effective Date” means the date on which the Bureau releases the Adopting Order.


1 47 U.S.C. § 251(b)(2).

Federal Communications Commission

DA 12-1489

(j) “Investigation” means the investigation initiated by the Bureau in File No. EB-08-IH-
0728 regarding possible violations of Section 251(b)(2) of the Act.
(k) “LNP” means Local Number Portability.
(l) “LNP Rules” means federal regulatory obligations concerning the porting of
customers’ telephone numbers from one service provider to another.
(m)“Operating Procedures” means the standard, internal operating procedures and
compliance policies established by COI to implement the Compliance Plan.
(n) “Parties” means Communication Options, Inc. and the Bureau, each of which is a
“Party.”
(o) “Rules” means the Commission’s regulations found in Title 47 of the Federal
Regulations.

II.

BACKGROUND

3.
Local Number Portability (LNP) is “the ability of users of telecommunications services to
retain, at the same location, existing telephone numbers without impairment of quality, reliability, or
convenience when switching from one telecommunications carrier to another.”2 Under the Act, all
telecommunications service providers have a duty to provide, to the extent technically feasible, number
portability in accordance with requirements prescribed by the Commission.3 During the period relevant
to the Investigation, the Commission required that wireline carriers generally complete ports within four
business days.4 The Commission also precluded service providers from obstructing or delaying the
transfer of their customers’ telephone numbers to new service providers.5 Porting out service providers
may request information reasonably necessary to validate and implement port requests,6 but may not


2 47 U.S.C. § 153(30); see also 47 C.F.R. § 52.21(l). The Commission has interpreted this language to mean that
“consumers must be able to change carriers while keeping their telephone number as easily as they may change
carriers without taking their telephone number with them.” Telephone Number Portability – Carrier Requests for
Clarification of Wireless-Wireless Porting Issues
, Memorandum Opinion and Order, 18 FCC Rcd 20971, 20975,
para. 11 (2003) (subsequent history omitted).
3 47 U.S.C. § 251(b)(2).
4 See Telephone Number Portability; CTIA Petitions for Declaratory Ruling on Wireline-Wireless Porting Issues,
Memorandum Opinion and Order and Further Notice of Proposed Rulemaking, 18 FCC Rcd 23697, 23713-13, para.
38 (2003) (subsequent history omitted) (stating that “the current four business day porting interval represents the
outer limit of what we would consider to be a reasonable amount of time in which wireline carriers may complete
ports”); see also Telephone Number Requirements for IP-Enabled Services Providers; Local Number Portability
Porting Interval and Validation Requirements; IP-Enabled Services; Telephone Number Portability; CTIA Petition
for Declaratory Ruling on Wireline-Wireless Porting Issues, Final Regulatory Flexibility Analysis, Numbering
Resource Optimization
, Report and Order, Declaratory Ruling, Order on Remand, and Notice of Proposed
Rulemaking, 22 FCC Rcd 19531, 19562, para. 61 (2007) (Porting Information Order, Declaratory Ruling, and
NPRM
) (subsequent history omitted). The Commission subsequently reduced the porting intervals for simple
wireline-to-wireline and simple intermodal ports to one business day absent the new provider’s or the customer’s
request for a longer interval. See 47 C.F.R. § 52.35.
5 Porting Information Order, Declaratory Ruling, and NPRM, 22 FCC Rcd at 19553-58, paras. 42-49.
6 Id. at 19554, para. 42.
2

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DA 12-1489

demand “information necessary to settle the customer’s account or otherwise enforce any provisions of
the customer’s contract.”7 Porting out service providers also may notify a customer of the consequences
of terminating service, but in the process of doing so may not refuse to port a customer’s number.8

4.
COI is an Ohio-based provider of communications services, offering business and
residential customers local and long distance telephone, messaging, and Internet access services.9 After
receiving a complaint from another telecommunications service provider that COI was refusing to port a
customer’s number due to a billing dispute between COI and the customer, the Bureau issued a letter of
inquiry to COI requesting information concerning COI’s number porting practices.10 COI responded to
the LOI on April 1 and April 9, 2008.11

III.

TERMS OF AGREEMENT

5.

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.
6.

Jurisdiction.

COI 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.
7.

Effective Date; Violations.

The Parties agree that this Consent Decree shall become
effective on the Effective Date. Upon release, 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 shall constitute a separate violation of a Commission Order, entitling the
Bureau to exercise any rights and remedies attendant to the enforcement of a Commission Order.
8.

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. In consideration for the termination of said Investigation, COI 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, 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 COI concerning the matters that were the
subjects of the Investigation. 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, or the existence of this
Consent Decree, to institute on its own motion any proceeding, formal or informal, or take any action on


7 Id. at 19555, para. 43.
8 Id.
9 See Communication Options, Inc. Homepage, http://www.coi.net/ (last visited June 26, 2012).
10 See Letter of Inquiry from Trent B. Harkrader, Deputy Chief, Investigations and Hearings Division, FCC
Enforcement Bureau, to Stephen K. Vogelmeier, President, Communication Options, Inc. (Mar. 24, 2008) (on file in
EB-08-IH-0728) (LOI).
11 Letter from Stephen K. Vogelmeier, President, Communication Options, Inc., to David Janas, Special Counsel,
Investigations and Hearings Division, FCC Enforcement Bureau (Apr. 1, 2008) (LOI Response); Letter from
Stephen K. Vogelmeier, President, Communication Options, Inc., to David Janas, Special Counsel, Investigations
and Hearings Division, FCC Enforcement Bureau (Apr. 9, 2008) (Supplemental LOI Response).
3

Federal Communications Commission

DA 12-1489

its own motion against COI with respect to COI’s basic qualifications, including its character
qualifications, to be a Commission licensee or hold Commission authorizations.
9.

Compliance Officer.

Within thirty (30) calendar days after the Effective Date, COI 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 COI complies with the terms and conditions of the Compliance Plan and this
Consent Decree. In addition to the general knowledge of the Communications Laws necessary to
discharge his/her duties under this Consent Decree, the Compliance Officer shall have specific knowledge
of the LNP Rules prior to assuming his/her duties.
10.

Compliance Plan.

For purposes of settling the matters set forth herein, COI agrees that
it shall within sixty (60) calendar days after the Effective Date, develop and implement a Compliance
Plan designed to ensure future compliance with the Communications Laws, including the LNP Rules, and
with the terms and conditions of this Consent Decree. The Compliance Plan shall implement the
following procedures:
(a)

Operating Procedures

. Within sixty (60) calendar days after the Effective Date, COI
shall establish Operating Procedures that all Covered Employees shall follow to help
ensure COI’s compliance with the LNP Rules. COI’s Operating Procedures shall
include internal procedures and policies specifically designed to ensure that COI ports
numbers within the time frames set forth in those rules. COI shall also develop a
Compliance Checklist that describes the steps that a Covered Employee must follow to
ensure compliance with the LNP Rules.
(b)

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 the Communications Laws that
apply to COI, including the LNP Rules, and set forth the Operating Procedures that
Covered Employees shall follow to help ensure COI’s compliance with the LNP Rules.
COI shall periodically review and revise the Compliance Manual as necessary to
ensure that the information set forth therein remains current and accurate. COI shall
distribute any revisions to the Compliance Manual promptly to Covered Employees.
The Compliance Manual will require personnel, including Covered Employees, to
contact COI’s Compliance Officer and, if appropriate, regulatory legal counsel, with
any questions or concerns that arise with respect to COI’s obligations under the LNP
Rules.
(c)

Compliance Training Program.

COI shall establish and implement a Compliance
Training Program on compliance with the Communications Laws, including the LNP
Rules, and the Operating Procedures. As part of the Compliance Training Program,
Covered Employees shall be advised of COI’s obligation to report any noncompliance
with the LNP Rules under paragraph 11 of this Consent Decree and shall be instructed
on how to disclose noncompliance to the Compliance Officer. All Covered Employees
shall be trained pursuant to the Compliance Training Program within ninety (90)
calendar days after the Effective Date, except that any person who becomes a Covered
Employee at any time after the Effective Date shall be trained within thirty (30)
calendar days after the date such person becomes a Covered Employee. COI shall
repeat the compliance training on an annual basis, and shall periodically review and
revise the Compliance Training Program as necessary to ensure that it remains current
and complete and to enhance its effectiveness.
4

Federal Communications Commission

DA 12-1489

(d)

Termination Date.

Unless stated otherwise, the requirements of this Compliance Plan
shall expire thirty-six (36) months after the Effective Date.
11.

Reporting Noncompliance

. COI shall report any noncompliance with the LNP Rules
and with the terms and conditions 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 COI 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 COI 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 4-C330, 445 12th Street, S.W. Washington, D.C. 20554, with a copy submitted
electronically to Theresa Z. Cavanaugh at Terry.Cavanaugh@fcc.gov, Pamela S. Kane at
Pamela.Kane@fcc.gov, and David Janas at David.Janas@fcc.gov. The reporting obligations set forth in
this paragraph shall expire thirty-six (36) months after the Effective Date.
12.

Compliance Reports

. COI shall file Compliance Reports with the Commission ninety
(90) calendar days after the Effective Date, twelve (12) months after the Effective Date, twenty-four (24)
months after the Effective Date, and thirty-six (36) months after the Effective Date.
(a) Each Compliance Report shall include a detailed description of COI’s efforts during
the relevant period to comply with the terms and conditions of this Consent Decree
and the LNP Rules. In addition, each Compliance Report shall include a certification
by the Compliance Officer, as an agent of and on behalf of COI, stating that the
Compliance Officer has personal knowledge that COI (i) has established and
implemented the Compliance Plan; (ii) has utilized the Operating Procedures since
the implementation of the Compliance Plan; and (iii) is not aware of any instances of
noncompliance with the terms and conditions of this Consent Decree, including the
reporting obligations set forth in paragraph 11 of this Consent Decree.
(b) The Compliance Officer’s certification shall be accompanied by a statement
explaining the basis for such certification and shall comply with Section 1.16 of the
Rules12 and be subscribed to as true under penalty of perjury in substantially the form
set forth in Section 1.16.
(c) If the Compliance Officer cannot provide the requisite certification, the Compliance
Officer, as an agent of and on behalf of COI, shall provide the Commission with a
detailed explanation of the reason(s) why and describe fully (i) each instance of
noncompliance; (ii) the steps that COI has taken or will take to remedy such
noncompliance, including the schedule on which proposed remedial actions will be
taken; and (iii) the steps that COI has taken or will take to prevent the recurrence of
any such noncompliance, including the schedule on which such preventive action will
be taken.
(d) All Compliance Reports shall be submitted to the Chief, Investigations & Hearings
Division, Enforcement Bureau, Federal Communications Commission, Room
4-C330, 445 12th Street, S.W., Washington, D.C. 20554, with a copy submitted
electronically to Theresa Z. Cavanaugh at Terry.Cavanaugh@fcc.gov, Pamela S.
Kane at Pamela.Kane@fcc.gov, and David Janas at David.Janas @fcc.gov.


12 47 C.F.R. § 1.16.
5

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DA 12-1489

13.

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 Act13 against COI or its affiliates for alleged violations of the Act, or for any other type
of alleged misconduct, regardless of when such misconduct took place. The Commission’s adjudication
of any such complaint will be based solely on the record developed in that proceeding. Except as
expressly provided in this Consent Decree, this Consent Decree shall not prevent the Commission from
investigating new evidence of noncompliance by COI with the Communications Laws.
14.

Voluntary Contribution

. COI agrees that it will make a voluntary contribution to the
United States Treasury in the amount of sixty-five thousand dollars ($65,000) (Voluntary Contribution).
Due to inability to make a lump sum payment, such Voluntary Contribution shall be made in installments
(each an Installment Payment). The first Installment Payment in the amount of two thousand seven
hundred eight dollars and thirty-three cents ($2,708.33) is due within thirty (30) calendar days after the
Effective Date. The balance of the Voluntary Contribution will be made in twenty-two consecutive
monthly payments of two thousand seven hundred eight dollars and thirty-three cents ($2,708.33),
followed by a final installment of two thousand seven hundred eight dollars and forty-one cents
($2,708.41), payable on the first day of each month beginning with the second month following the
Effective Date. The final payment is due on the first day of the twenty-fifth month following the
Effective Date (Maturity Date). COI 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).14 Upon an Event of Default, all procedures for collection permitted by
law may, at the Commission’s discretion, be initiated. In addition, COI agrees that it will make the first
and all subsequent Installment Payments in United States Dollars without further demand or notice by the
dates specified above. COI shall also send electronic notification of payment to Theresa Z. Cavanaugh at
Terry.Cavanaugh@fcc.gov, Pamela S. Kane at Pamela.Kane@fcc.gov, and David Janas at
David.Janas@fcc.gov on the date said Installment Payments are made. The Installment Payments must
be made by check or similar instrument, wire transfer, or credit card, and must include the NAL/Account
number and FRN referenced above. Regardless of the form of payment, a completed FCC Form 159
(Remittance Advice) must be submitted.15 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 you should follow based on the form of payment
you select:
Ÿ
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.
Ÿ
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.
Ÿ
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.


13 47 U.S.C. § 208.
14 Debt Collection Improvement Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321, 1358 (Apr. 26, 1996).
15 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
6

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DA 12-1489

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.
If you have questions regarding payment procedures, please contact the Financial Operations Group Help
Desk by phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
15.

Event of Default

. COI agrees that an Event of Default shall occur upon the failure by
COI to pay the full amount of any Installment Payment on or before the due date specified in this Consent
Decree.
16.

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 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, 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 COI.
17.

Waivers.

COI 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 the Adopting Order as defined in this
Consent Decree. COI 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 COI nor the Commission
shall contest the validity of the Consent Decree or the Adopting Order, and COI shall waive any statutory
right to a trial de novo. COI hereby agrees to waive any claims it may otherwise have under the Equal
Access to Justice Act,16 relating to the matters addressed in this Consent Decree.
18.

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.
19.

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 COI does not expressly consent)
that provision will be superseded by such Commission rule or order.
20.

Successors and Assigns.

COI agrees that the provisions of this Consent Decree shall be
binding on its successors, assigns, and transferees.
21.

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
any compliance or noncompliance with the requirements of the Communications Laws.
22.

Termination Date.

The requirements of this Consent Decree shall expire thirty-six (36)
months after the Effective Date.


16 See 5 U.S.C. § 504; 47 C.F.R. Part 1, Subpart K.
7

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23.

Modifications.

This Consent Decree cannot be modified without the advance written
consent of both Parties.
24.

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.
25.

Authorized Representative.

Each Party represents and warrants to the other that it has
full power and authority to enter into this Consent Decree.
26.

Counterparts.

This Consent Decree may be signed in counterpart (including by
facsimile). Each counterpart, when executed and delivered, shall be an original, and all of the
counterparts together shall constitute one and the same fully executed instrument.
________________________________
P. Michele Ellison
Chief
Enforcement Bureau
________________________________
Date
________________________________
Scott Halliday
Secretary and Treasurer
Communication Options, Inc.
________________________________
Date
8

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