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FCC Dismisses Diogenes' Application for Review for Lack of Standing

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Released: June 4, 2014

Federal Communications Commission

FCC 14-70

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of



Application for Review of an


File No.: EB-TCD-12-00000337

Order and Consent Decree of the


Enforcement Bureau by


Acct. No.: 201332170011


Diogenes Telecommunications Project


FRN: 0005193701




Adopted: June 3, 2014

Released: June 4, 2014

By the Commission:




On May 7, 2013, the Enforcement Bureau (Bureau) of the Federal Communications

Commission (Commission) adopted a Consent Decree resolving and terminating its investigation of

AT&T, Inc. (AT&T or Company), for alleged misconduct in providing Telecommunications Relay

Service (TRS) and in seeking compensation from the fund that supports TRS. By its terms, the Consent

Decree constitutes a final settlement of the investigation, and in exchange for that finality, AT&T has

adopted certain compliance measures designed to deter future misconduct and paid a combined total of

$18,250,000 to the U.S. Treasury and to reimburse the TRS Fund. On June 4, 2013, Diogenes

Telecommunications Project (DTP)—which was not a party to, or in any way involved in or affected by,

the investigation or its resolution—filed an Application for Review (AFR), asking the Commission to set

aside the Consent Decree and investigate the matter anew. As explained below, DTP has no standing to

challenge the Consent Decree, and we accordingly dismiss the AFR for the reasons discussed below.




TRS is a telephone transmission service that enables persons who are deaf, hard of

hearing, or deaf-blind, as well as those with speech disabilities, to communicate by wire or radio with

hearing individuals in a manner that is functionally equivalent to voice communication services utilized

by those without such disabilities.1 The Commission has approved various forms of TRS, including

traditional Text Telephone, Video Relay Service (VRS), and Internet Protocol Relay Service (IP Relay).2

Section 225 of the Communications Act of 1934, as amended (Act), directs the Commission to adopt

implementing regulations,3 and to this end, the agency has, among other things, adopted a numbering

system to assign ten-digit numbers to TRS users, allowing such users to more easily make and receive

1 See 47 U.S.C. § 225(a)(3). See also 47 C.F.R. § 64.601(a)(22).

2 See 47 U.S.C. § 64.601.

3 See 47 U.S.C. § 225.


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FCC 14-70

calls, ensuring direct and automatic routing of emergency calls,4 and reducing the misuse of IP Relay.5

Related to this numbering system, the Commission has required TRS providers to register new users and

assign them a ten-digit number before providing any service.6 Further, the Commission requires that TRS

providers verify information provided by users during registration, including the user’s name and address,

and to obtain a self-certification whereby the user verifies that he or she has a medically recognized

hearing or speech disability necessitating his or her use of TRS.7


The Bureau issued a Letter of Inquiry (LOI) and Supplemental LOI to AT&T seeking

detailed information concerning the Company’s VRS and IP Relay service offerings, including the

handling of emergency calls and the registration and verification of users, among other things.8 Along

with the Supplemental LOI, the Bureau simultaneously issued a subpoena to AT&T for certain records

related to TRS reimbursement requests.9 AT&T timely filed responses to these inquiries. AT&T

approached the Bureau about the possibility of settlement and, after negotiating the terms, on May 7,

2013, the Bureau released the Order and Consent Decree (Consent Decree or AT&T Order/CD) settling

the investigation.10


The AT&T Order/CD resolved the enforcement investigation.

The financial terms of the

Consent Decree required AT&T to reimburse the TRS Fund $7,000,000 and to pay $11,250,000 to the

U.S. Treasury. The non-financial terms required the Company to develop a compliance plan, which

obligated the Company, among other things, to establish and maintain certain operating procedures,

install a compliance officer, and train personnel. At this time, AT&T no longer provides VRS and IP

Relay services.


On June 4, 2013, DTP filed an AFR seeking Commission review of the AT&T

Order/CD.11 The AFR alleges, among other things, that the AT&T Order/CD “is in conflict with

4 See Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech

Disabilities, Report and Order and Further Notice of Proposed Rulemaking, 23 FCC Rcd 11591, 11592, para. 1


5 See Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech

Disabilities, Second Report and Order and Order on Reconsideration, 24 FCC Rcd 791, 809–810, para. 38 (2008)

(Second Internet-Based TRS Order).

6 See id. at 801–802, para. 21. With respect to existing users, the prohibition applied after November 12, 2009.

Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech

Disabilities, Order, 24 FCC Rcd 8000 (2009) (extending the initial deadline from June 30, 2009 to November 12,


7 Second Internet-Based TRS Order, 24 FCC Rcd at 809, para. 37. The Commission recently prohibited Internet-

based TRS providers from handling calls made by new users prior to taking reasonable measures to verify users’

registration information, i.e., eliminating the “guest-user” policy. See Misuse of Internet Protocol (IP) Relay

Service, First Report and Order, 27 FCC Rcd 7866 (2012).

8 See Letter from Richard A. Hindman, Chief, TCD, FCC Enforcement Bureau, to Celia Nogales, Assistant Vice

President, AT&T Services, Inc. (Mar. 11, 2011) (on file in EB-TCD-12-00000337); Letter from Richard A.

Hindman, Chief, TCD, FCC Enforcement Bureau, to Jackie Flemming, Assistant Vice President, External Affairs

Regulatory, AT&T Services, Inc. (Jan. 23, 2012) (on file in EB-TCD-12-00000337).

9 See Subpoena from Richard A. Hindman, Chief, TCD, FCC Enforcement Bureau, to Jackie Flemming, Assistant

Vice President, External Affairs Regulatory, AT&T Services, Inc. (Jan. 23, 2012) (on file in EB-TCD-12-


10 AT&T Inc., Order and Consent Decree, 28 FCC Rcd 5994 (Enf. Bur. 2013).

11 Diogenes Telecommunications Project, Application for Review (filed June 4, 2013) (AFR).



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established Commission rule, policy and practice, commits prejudicial procedural error and exceeds the

authority delegated to the Enforcement Bureau.”12




Section 1.115(a) of the Commission’s rules (Rules) specifically provides that “[a]ny

person aggrieved by any action taken pursuant to delegated authority may file an application requesting

review of that action by the Commission.”13 However, Section 1.115(a) makes plain that “[a]ny

application for review which fails to make an adequate showing in this respect will be dismissed.”14 In

the present case, in order to establish standing, DTP “must allege facts sufficient to demonstrate” that

allowing the AT&T Order/CD to stand “would cause it to suffer a direct injury.”15 Moreover, DTP “must

demonstrate a causal link between the claimed injury and the challenged action. To demonstrate a causal

link, [DTP] must establish that the injury can be traced to the challenged action and the injury would be

prevented or redressed by the relief requested.”16 As a threshold matter, DTP was not a party to the

Bureau’s case against AT&T and fails to show that it is “aggrieved” by the Bureau’s action, as required

by our Rules. Consequently, and as discussed more fully below, DTP lacks standing, and we therefore

dismiss the AFR.


DTP Cannot Demonstrate a Direct or Personal Injury


The AFR does not allege any direct or personal injury to DTP as an organization or to

any of its members. Instead, it offers only a generalized and purely hypothetical injury. Namely, DTP

requests that the Commission review and set aside the AT&T Order/CD, and it speculates that there might

possibly be some injury to one of its members (Ms. Laschuk, in her capacity as a subscriber to AT&T

Mobility) from the Bureau’s resolution of the enforcement action.17 However, the AFR does not allege

that Ms. Laschuk—or anyone else—paid more or less to AT&T after the AT&T Order/CD was adopted.

In fact, DTP fails to demonstrate any injury at all to itself or its members, let alone an actual or threatened

injury directly resulting from the AT&T Order/CD.


DTP also asserts that there may have been an injury to the TRS Fund. However, that

would not be a direct injury to itself or its members and, like the alleged harm to Ms. Laschuk, is wholly

speculative.18 In other words, even if DTP had a plausible claim that the TRS Fund had been injured,

nothing in the AFR supports the suggestion that an injury to the TRS Fund is tantamount to an injury to

DTP or its members.


In addition, DTP repeatedly complains about the amount of detail contained in the AT&T

Order/CD, declaring that it “falls far short of the standard of openness required for actions of the

Commission . . . .”19 To the extent DTP is arguing that it suffered some sort of procedural injury because

the negotiated Consent Decree does not contain more information, its allegations take the form of bald

12 AFR at 1.

13 47 C.F.R. § 1.115(a).


15 See, e.g., Applications of AT&T Inc. & Deutsche Telecom AG, 27 FCC Rcd 4423, 4425, para. 8 (2012) (denying

an Application for Review filed by Diogenes for lack of standing).

16 See id. (DTP “may meet these standards in its own right or may demonstrate that one or more of its members

meets these requirements.”).

17 See AFR at 2 (“To the extent DTP members . . . are made to pay more than required to support the TRS fund, i.e.

overcharged, they are harmed . . . .”) (emphasis added).

18 Id. at 3 (“. . . the extent to which the TRS Fund was harmed. . .”) (emphasis added).

19 Id. at 7.



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statements unsupported by case law, regulations, statutes, or any other authority.20 DTP does not and

cannot point to any authority delineating the referenced “standard of openness” DTP asserts governs a

consent decree, nor has it identified any source suggesting that DTP has a personal right to such



More generally, DTP has no right to participate in the Bureau’s settlement with AT&T.

Neither the Act nor the Rules give any third parties such as DTP a right to be notified of the

Commission’s settlement efforts, let alone a right to participate in them.22 In fact, confidentiality rules

generally prevent the Commission from releasing to the public information provided to the Commission

in a law enforcement investigation.23


DTP Has Not Suffered an Injury Caused by the AT&T Order/CD


DTP never alleges (let alone describes with particularity) any causal connection between

the speculative, generalized harm it asserts in the AFR and the Consent Decree. In fact, DTP admits it

cannot make any causal connection between the Consent Decree and one of the harms it alleges,

conceding that “its members have no way of knowing whether the Consent Decree afforded adequate

reimbursement to the TRS Fund . . . .”24 In other words, the AT&T Order/CD may have resulted in a

greater dollar amount for taxpayers than would have been recovered through litigation or other means.25


Setting Aside the AT&T Order/CD Will Not Prevent or Redress any Alleged Injury


DTP also makes no effort to show that the relief sought (Commission action setting aside

the AT&T Order/CD and opening a new proceeding) would in any way ameliorate any hypothetical

injury. AT&T has already paid the $18.25 million required under the Consent Decree.26 Nothing in the

AFR suggests how its members would benefit (or how any alleged injury would be ameliorated) if we

were to set aside the AT&T Order/CD, return the money to AT&T, and initiate an enforcement

proceeding against AT&T.


Moreover, DTP does not provide any authority for the Commission to create the type of

proceeding requested. The AFR outlines a new, unorthodox proceeding in requesting that “the

20 DTP also argues that the Bureau exceeded its delegated authority by entering into the Consent Decree. AFR at

11–12. This argument fails. The Bureau’s investigation, its findings, and its decision to settle the investigation via

consent decree are all squarely within the authority delegated to the Bureau pursuant to Section 0.111 of the Rules.

See 47 C.F.R. § 0.111(a). Indeed, the Bureau’s decision to enter into a consent decree is generally not even

reviewable by the courts. Courts have found that “the FCC’s decisions about the initial scope of the enforcement

action and its decision to enter into [a] Consent Decree are committed to the agency’s nonreviewable discretion . . .

.” New York State Dept. of Law v. FCC, 984 F.2d 1209, 1211 (D.C. Cir. 1993). “[F]ederal agencies are presumed to

have the discretion to settle or dismiss an enforcement action” and the AT&T Order/CD is “an appropriate exercise

of the Commission’s broad discretion to settle enforcement actions.” U.S. Cellular Corp. Constructed Tower Near

Fries, Virginia, Order, 24 FCC Rcd. 8729, 8737–38, paras. 25–26 (2009).

21 See AFR at 7–9.

22 See, e.g., 47 U.S.C. § 503; 47 C.F.R. § 1.80.

23 See 47 C.F.R. §§ 0.459, 19.735–203.

24 AFR at 2.

25 DTP discusses another lawsuit involving the government and AT&T. See AFR 5–7. However, the Commission

was not a party to that case and the AT&T Order/CD did not resolve it. Any circumstances or findings in that

unrelated case create no connection between the AT&T Order/CD and DTP’s purported injury.

26 AT&T has also paid an additional $3.5 million to resolve any remaining liability related to TRS violations under

the False Claims Act. See Press Release, Department of Justice, AT&T Agrees to Settle Allegations Involving IP

Relay Servs. Provided to Hearing- and Speech-Impaired Persons (Nov. 7, 2013) (on file with author).



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Commission initiate a proceeding on AT&T’s apparent rule violations in which the public is given notice

and the opportunity to participate.”27


Accordingly, we find that DTP has failed to show, as required by our Rules, that it or its

member Ms. Laschuk was “aggrieved” in any manner by the Bureau’s action. And, pursuant to Section

1.115(a) of the Rules, “[a]ny application for review which fails to make an adequate showing in this

respect will be dismissed.”28 Therefore we decline to review or set aside the AT&T Order/CD and

dismiss the AFR for lack of standing.29




Accordingly, IT IS ORDERED, pursuant to Sections 4(i) and 5(c) of the

Act,30 and Section 1.115 of the Rules,31 that the Application for Review filed by Diogenes

Telecommunications Project on June 4, 2013, IS DISMISSED.


Marlene H. Dortch


27 AFR at 12 (emphasis added).

28 47 C.F.R. § 1.115(a).

29 See Friends of the Earth, Inc., Memorandum Opinion and Order, 18 FCC Rcd. 23622, 23622-23, paras. 2–3


30 47 U.S.C. §§ 154(i), 155(c).

31 47 C.F.R. § 1.115.


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