Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
) File No. EB-02-TC-152
America's Digital Satellite ) NAL/Acct. No.200332170011
Telephone, Inc. ) FRN:0004361168
ORDER
Adopted: January 30, 2004 Released:
February 2, 2004
By the Chief, Enforcement Bureau:
1. In this Order, we terminate an
investigation into potential violations by America's Digital
Satellite Telephone, Inc. (``ADST'') of sections 201(b) and 258
of the Communications Act of 1934, as amended (``the Act''),1 as
well as Commission rules and orders, in connection with changing
the designated preferred carriers of consumers without their
authorization and verification, a practice commonly known as
``slamming.''2
2. The Enforcement Bureau and ADST have negotiated
the terms of a Consent Decree that would terminate the Bureau's
investigation. A copy of the Consent Decree is attached hereto
and is incorporated by reference.
3. We have reviewed the terms of the Consent Decree
and evaluated the facts before us. We believe that the public
interest would be served by approving the Consent Decree and
terminating the investigation.
4. Accordingly, IT IS ORDERED, pursuant to Section
4(i) of the Act, 47 U.S.C. § 154(i), that the attached Consent
Decree is hereby ADOPTED.
5. IT IS FURTHER ORDERED that the above captioned
proceeding is TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
) File No. EB-02-TC-152
America's Digital Satellite ) NAL/Acct. No.200332170011
Telephone, Inc. ) FRN: 0004361168
CONSENT DECREE
I. INTRODUCTION
1. The Enforcement Bureau (the ``Bureau'') of the Federal
Communications Commission (the ``FCC'' or the ``Commission'') and
America's Digital Satellite Telephone, Inc. (``ADST'') hereby
enter into this Consent Decree to resolve an investigation by the
Bureau regarding alleged non-compliance with Section 201(b) of
the Communications Act of 1934, as amended (the ``Act''),
concerning unjust and unreasonable practices, and Section 258 of
the Act and Sections 64.1100-64.1195 of the Commission's rules
concerning the execution of an unauthorized change in the
subscriber's selection of a telecommunications service provider.3
2. Beginning in July, 2002, the Commission began receiving
a high number of consumer complaints against ADST. The
complaints alleged generally that ADST had changed the consumers'
preferred carrier without their authorization. In response to
these complaints, the Commission, along with the Public Utilities
Commission of Ohio and the Indiana Regulatory Commission, began
investigating ADST's alleged slamming practices. The Commission
commenced the investigation pursuant to the provisions of
Sections 4(i) and 403 of the Communications Act.4
II. DEFINITIONS
3. For the purposes of this Consent Decree, the following
definitions shall apply:
(a) The ``FCC'' or the ``Commission'' means the Federal
Communications Commission and all Bureaus and Offices
of the Commission, including the Enforcement Bureau.
(b) ``Bureau'' means the Enforcement Bureau of the Federal
Communications
Commission.
(c) ``ADST'' or the ``Company'' means America's Digital
Satellite Telephone, Inc. or any of its subsidiaries,
affiliates, and successors.
(d) ``Parties'' means ADST and the Bureau.
(e) ``Investigation'' means the investigation initiated by
the Bureau's October 29, 2002
letter of inquiry concerning possible violations of
Sections 201(b) and 258 of the
Act.
(f) ``Slamming'' means the submission or execution of an
unauthorized change in a
subscriber's selection of a telecommunications service
provider.
(g) ``Adopting Order'' means an Order of the Commission or
the Bureau adopting the
terms and conditions of this Consent Decree.
(h) ``Effective Date'' means the date on which the
Commission or the Bureau adopts the Adopting Order.
III. AGREEMENT
4. ADST represents and warrants that it is the properly
named party to this Consent Decree and is solvent and has
sufficient funds available to meet fully all financial and other
obligations set forth herein. ADST further represents and
warrants that it has caused this Consent Decree to be executed by
its authorized representative as a true act and deed, as of the
date affixed next to said representative's signature. Said
representative and ADST respectively affirm and warrant that said
representative is acting in his/her capacity and within his/her
authority as a corporate officer of ADST, and on behalf of ADST
and that by his/her signature said representative is binding
ADST to the terms and conditions of this Consent Decree.
5. ADST agrees that the Bureau has jurisdiction over it
and over the subject matters contained in this Consent Decree and
authority to enter into and adopt this Consent Decree.
6. ADST and the Bureau agree that this Consent Decree does
not constitute an adjudication of the merits, an admission of
wrongdoing on the part of ADST, or any finding on the facts or
law regarding any violations committed by ADST in connection with
the matters that are the subject of this consent decree. ADST
neither admits nor denies the alleged violations.
7. ADST will make a voluntary contribution to the United
States Treasury in the amount of $55,000 of which $10,000 shall
be paid within 10 calendar days after release of the Adopting
Order and the remaining $45,000 shall be paid in nine (9) monthly
installments of $5,000 beginning 30 days thereafter. ADST must
make these payments by check, wire transfer, or money order drawn
to the order of Federal Communications Commission, and each
check, wire transfer, or money order should refer to ``NAL Acct.
No. 200332170011'' If ADST makes these payments by check or
money order, it must mail each check or money order to:
Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois,
60673-7482. If ADST makes these payments by wire transfer, it
must wire each such payment in accordance with Commission
procedures for wire transfer.
8. ADST further agrees that, to the extent it has not
already done so, within 75 days of the effective date of this
Consent Decree, it will file an application with the Commission
pursuant to Section 214 of the Act and Section 63.71 of the
Commission's regulations to discontinue all interstate and
international long distance service. Within that period, to the
extent it has not already done so, it will also file applications
to discontinue intrastate long distance service with all relevant
state authorities which have not already adopted an order which
would result in discontinuance of ADST's intrastate service.
Upon approval of these applications, it shall terminate all
interstate, international and intrastate long distance service
for a period of five years. After that period, neither ADST nor
its principal may provide interstate or international long
distance service without specific Commission authorization
pursuant to Section 214 of the Act. ADST agrees to notify the
Bureau within five (5) days of submitting any application,
registration or request to the Commission for authority to
provide any such service.
9. ADST represents and warrants that it shall not effect
any change in its form of doing business or its organizational
identity or participate directly or indirectly in any activity to
form a separate entity or corporation that engages in acts
prohibited in this Consent Decree or for any other purpose which
would otherwise circumvent any part of this Consent Decree or the
obligations of this Consent Decree. ADST agrees to notify the
Chief, Telecommunications Consumers Division, Enforcement Bureau,
Federal Communications Commission, Washington D.C. 20554, at
least thirty (30) days prior to the effective date of any
material change in ADST's legal status or corporate structure,
including but not limited to any merger, incorporation,
dissolution, or assignment.
10. In express reliance on the covenants and
representations contained herein, the Bureau agrees to terminate
the Investigation concerning compliance with Sections 201(b) and
258 of the Act, and Sections 64.1100-64.1195 of the Commission's
rules.
11. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between ADST and the
Commission of the Investigation. Except as otherwise provided
herein, the Bureau agrees that, in the absence of new material
evidence (which shall not include complaints submitted prior to
the effective date for violations of Sections 201(b) and 258 of
the Act) the Commission shall not institute enforcement
proceedings against ADST, Damian Cipriani or against any
employee, affiliate or agent of ADST, or any successor entity
based on the Investigation or concerning violations of Section
201(b) and 258 of the Act, and Sections 64.1100-64.1195 of the
Commission's rules occurring prior to the Effective Date.
However, nothing in this Consent Decree shall prevent the
Commission from adjudicating any formal complaints that may be
filed against ADST under Section 208 of the Act, or from
instituting new investigations or enforcement proceedings against
ADST in the event of alleged future misconduct. Consistent with
the forgoing, nothing in this Consent Decree limits the
Commission's authority to consider and adjudicate any other
violation of the Act and its rules, including violation of
Sections 54.706, 54.709 and 54.713 of the Commission's rules.
12. ADST 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 Order adopting this Consent Decree,
provided the Order adopts the Consent Decree without change,
addition, or modification.
13. ADST's agreement to enter into this Consent Decree is
expressly contingent upon the issuance of an Order by the Bureau
that is consistent with this Consent Decree, and which adopts the
Consent Decree without change, addition, or modification.
14. In the event that this Consent Decree 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. 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 ADST nor the Commission will contest the
validity of the Consent Decree or Adopting Order, and ADST and
the Commission will waive any statutory right to a trial de novo
with respect to any matter upon which the Adoption Order is
based, and shall consent to a judgment incorporating the terms of
this Consent Decree.
16. ADST waives any rights it may otherwise have under the
Equal Access to Justice Act, Title 5 U.S.C. § 504 and 47 C.F.R. §
1.150 et seq.
17. ADST agrees that any violation of the Consent Decree or
the Adopting Order will constitute a separate violation of a
Commission order, entitling the Commission to exercise any rights
or remedies attendant to the enforcement of a Commission order.
18. This Consent Decree may be signed in counterparts.
For the Enforcement Bureau For America's Digital
Satellite Telephone, Inc.
By:_____________________________
By:____________________________________
David H. Solomon Damian Cipriani,
Chief, Enforcement Bureau President
Federal Communications Commission America's
Digital Satellite Telephone Company
_______________________________
________________________________________
Date Date
_________________________
147 U.S.C. §§ 201(b), 258.
2 ``Slamming'' is the submission or execution of an
unauthorized change in a subscriber's selection of a
telecommunications service provider. See, generally, 47 C.F.R.
§§ 64.1100?64.1195.
3 47 U.S.C. §§ 201(b), 258; 47 C.F.R. §§ 64.1100-64.1195.
4 47 U.S.C. §§ 154(i) and 403.