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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Net One International ) File No.: EB-11-TC-063
Net One, LLC ) NAL/Acct. No.: 201232170002
Farrahtel International, LLC ) FRN: 0004337556
Apparent Liability for Forfeiture )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: December 9, 2011 Released: December 9, 2011
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Net One International, Net One, LLC, and Farrahtel
International, LLC (collectively, Net One) apparently violated an
Enforcement Bureau (Bureau) order to produce certain information and
documents in response to a Bureau Letter of Inquiry (LOI) relating to
an investigation into possible violations of the Communications Act of
1934, as amended (the Communications Act or Act). Based upon our
review of the facts and circumstances before us, we find that Net One
is apparently liable for a forfeiture of $25,000. Furthermore, we
direct Net One to submit, not later than ten calendar days after the
release of this NAL, full and complete responses to the Bureau's LOI.
II. BACKGROUND
2. The Bureau initiated an investigation of Net One to determine whether
it had violated the Communications Act in connection with its billing
practices and its offering of prepaid calling card services. As part
of the investigation, on July 15, 2011, the Bureau sent Net One the
LOI, which ordered Net One to provide certain information and
documents. The Bureau directed Net One to respond within twenty (20)
calendar days from the date of the LOI. The Bureau sent the LOI via
certified mail with a return receipt requested to Net One's
headquarters. Net One received and signed for the LOI on July 19,
2011. Net One failed to respond to the LOI by the August 4, 2011 due
date. On August 29, 2011, the Bureau sent an email to Net One advising
that the due date for the LOI response had passed and giving Net One
until September 8, 2011 to respond. Net One failed to respond to the
August 29, 2011 email, and to date has still not responded to the LOI.
III. DISCUSSION
A. Apparent Violation
3. Under section 503(b) of the Act, any person who is determined by the
Commission to have willfully or repeatedly failed to comply with any
of the provisions of the Act, or any rule or order issued by the
Commission under the Act, shall be liable for a forfeiture penalty. In
order to impose such a forfeiture penalty, the Commission must issue a
notice of apparent liability, the notice must be received, and the
person against whom the notice has been issued must have an
opportunity to show, in writing, why no such forfeiture penalty should
be imposed.
4. Sections 4(i), 218, and 403 of the Act give the Commission broad power
to compel carriers such as NetOne to provide the information and
documents sought by the Bureau's LOI. Section 4(i) authorizes the
Commission to "issue such orders, not inconsistent with this Act, as
may be necessary in the execution of its functions." Section 218
authorizes the Commission to "obtain from ... carriers ... full and
complete information necessary to enable the Commission to perform the
duties and carry out the objects for which it was created." Section
403 states: "The Commission shall have the same powers and authority
to proceed with any inquiry ... including the power to make and
enforce any order or orders in the case, or relating to the matter or
thing concerning which the inquiry is had."
5. The LOI the Bureau directed to Net One served as a legal order of the
Commission to produce the requested documents and information. Net One
received the LOI, as evidenced by the return receipt provided. Net
One's failure to provide the documents and information sought within
the time and manner specified constitutes a violation of a Commission
order.
B. Forfeiture Amount
6. Section 503(b)(2)(B) of the Act authorizes the Commission to assess a
forfeiture of up to $150,000 for each violation, or each day of a
continuing violation, up to a statutory maximum of $1,500,000 for a
single act or failure to act. In determining the appropriate
forfeiture amount, we consider the factors enumerated in section
503(b)(2)(E) of the Act, including "the nature, circumstances, extent,
and gravity of the violation and, with respect to the violator, the
degree of culpability, any history of prior offenses, ability to pay,
and such other matters as justice may require." Our forfeiture
guidelines set forth the base amount for certain kinds of violations,
and identify criteria, consistent with the section 503(b)(2)(E)
factors, that may influence whether we adjust the base amount downward
or upward. For example, we may adjust a penalty upward for
"[e]gregious misconduct," or whether the subject of an enforcement
action has engaged in an "[i]ntentional violation" or "[r]epeated or
continuous violation."
7. Pursuant to section 1.80 of the Commission's rules and the
Commission's Forfeiture Policy Statement, the base forfeiture amount
for failure to respond to Commission communications is $4,000. Using
our discretion to adjust the base forfeiture as circumstances warrant,
however, we have imposed penalties that are many times higher for
failing to respond properly to LOIs. For example, we have imposed
substantial forfeitures for completely failing to respond to an LOI,
for failing to respond fully to an LOI, and for failing to certify to
the accuracy of an LOI. We adjusted the base forfeiture upward in
part because "[m]isconduct of this type exhibits contempt for the
Commission's authority, and threatens to compromise the Commission's
ability to adequately investigate violations of its rules."
8. We find that Net One's apparent failure to respond to the Bureau's LOI
in the circumstances presented here warrants a forfeiture of $25,000
because its misconduct appears egregious, intentional, and continuous.
Net One failed to respond to the LOI after receiving and signing for
it on July 19, 2011, and after receiving a follow-up email from Bureau
staff reiterating the need for it to respond and warning it of the
consequences of failing to do so. Such apparent disregard for the
Commission's authority and investigatory process appears egregious,
intentional, and continuous, and therefore supports an adjustment
upward for the base forfeiture.
9. We also direct Net One to respond fully to the LOI within ten days of
the date of this NAL. Failure to do so may constitute an additional,
continuing violation subjecting Net One to future enforcement action,
proposing substantially greater forfeitures and revocation of Net
One's operating authority. Consistent with our past precedent, other
parties that engage in activities subject to the Communications Act
and our rules are on notice that failure to respond properly to Bureau
LOIs constitute violations of Commission orders and are subject to
enforcement action. The penalties we will propose in a given situation
will be based on our application of the section 503(b)(2)(E) factors
and our forfeiture guidelines.
IV. ORDERING CLAUSES
* 10. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Act, as amended, 47 U.S.C. S: 503(b)(5), and section 1.80 of the
Commission's rules, 47 C.F.R. S: 1.80, Net One International, Net One,
LLC, and Farrahtel International, LLC are hereby NOTIFIED of this
APPARENT LIABILITY FOR FORFEITURE in the amount of $25,000 for
willfully violating an Enforcement Bureau directive to respond to a
Bureau letter of inquiry.
11. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the
Commission's rules, within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture and Order, Net One
International, Net One, LLC, and Farrahtel International, LLC SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
12. IT IS FURTHER ORDERED that Net One International, Net One, LLC, and
Farrahtel International, LLC SHALL FULLY RESPOND, not later than ten
calendar days from the release date of this NAL, to the Bureau's
Letter of Inquiry dated July 15, 2011, in accordance with the delivery
instructions set forth therein.
13. Payment of the forfeiture 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 referenced above.
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). Net One International, Net One,
LLC, and Farrahtel International, LLC will also send electronic
notification on the date said payment is made to johnny.drake@fcc.gov.
Requests for full payment under an installment plan should be sent
to: Chief Financial Officer -- Financial Operations, 445 12th Street,
S.W., Room 1-A625, Washington, D.C. 20554. Please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
14. The response, if any, must be mailed both to: Marlene H. Dortch,
Secretary, Federal Communications Commission, 445 12th Street, SW,
Washington, DC 20554, ATTN: Enforcement Bureau - Telecommunications
Consumers Division; and to Richard A. Hindman, Division Chief,
Telecommunications Consumers Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, SW, Washington, DC 20554,
and must include the NAL/Acct. No. referenced in the caption.
Documents sent by overnight mail (other than United States Postal
Service Express Mail) must be addressed to: Marlene H. Dortch,
Secretary, Federal Communications Commission, Office of the Secretary,
9300 East Hampton Drive, Capitol Heights, MD 20743. Hand or
messenger-delivered mail should be directed, without envelopes, to:
Marlene H. Dortch, Secretary, Federal Communications Commission,
Office of the Secretary, 445 12th Street, SW, Washington, DC 20554
(deliveries accepted Monday through Friday 8:00 a.m. to 7:00 p.m.
only). See www.fcc.gov/osec/guidelines.html for further instructions
on FCC filing addresses.
15. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices; or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.
16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by Certified Mail Return
Receipt Requested and First Class mail to Net One International, Net
One, LLC, and Farrahtel International, LLC c/o Samer Charani, 6931
University Blvd., Winter Park, FL 32792.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
According to our records and publicly available information, Net One
International, Net One, LLC, and Farrahtel International, LLC have offices
at 6931 University Blvd., Winter Park, FL 32792. Accordingly, all
references herein to Net One also encompass the captioned companies, all
d/b/a companies and entities of Net One, and the all principals and
officers of Net One.
47 U.S.C. S:S: 4(i), 4(j), 218, 403.
See Letter from Richard A. Hindman, Chief, Telecommunications Consumers
Division, Enforcement Bureau, Federal Communications Commission, to Net
One, July 15, 2011.
The Winter Park, FL post office stamped the return receipt card July 19,
2011. The card was apparently signed by El Bachir Alaoui Hichami, the
Treasurer of Net One.
See Email from Mika Savir, Attorney, Telecommunications Consumers
Division, Enforcement Bureau, FCC, to El Bachir Alaoui Hichami (Aug. 29,
2011).
47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(a).
47 U.S.C. S: 503(b)(4); 47 C.F.R. S: 1.80(f).
47 U.S.C. S: 154(i).
Id. S: 218.
Id.
47 U.S.C. S: 503(b)(2)(B); see also 47 C.F.R. S: 1.80(b)(2); Amendment of
Section 1.80 of the Commission's Rules and Adjustment of Forfeiture Maxima
to Reflect Inflation, Order, 23 FCC Rcd 9845 (2008) (inflation adjustment
to $150,000/$1,500,000).
47 U.S.C. S: 503(b)(2)(E); see also The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087, 17100 (1997) (Forfeiture Policy
Statement); recon. denied 15 FCC Rcd 303 (1999); 47 C.F.R. S: 1.80(b)(4).
47 C.F.R. S: 1.80(b)(4) note.
47 C.F.R. S: 1.80; Forfeiture Policy Statement, 12 FCC Rcd at 17114,
Appendix A, Section I.
See, e.g., BigZoo.com Corp., Forfeiture Order, 20 FCC Rcd 3954 (Enf. Bur.
2005) (imposing $20,000 penalty for failure to respond to LOI).
See, e.g., Fox Television Stations, Notice of Apparent Liability for
Forfeiture, 25 FCC Rcd 7074 (2010) (imposing $25,000 penalty for failure
to respond fully to LOI) (Fox NAL).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589
(2002) (imposing $100,000 penalty for failing to submit a sworn written
response).
Fox NAL, 25 FCC Rcd at 7081.
47 C.F.R. S: 1.80(b)(4) note; Forfeiture Policy Statement, 12 FCC Rcd at
17100, 17116, Appendix A, Section II.
See 1st Source Information Specialists, Inc., d/b/a Locatecell.com, Notice
of Apparent Liability for Forfeiture, 21 FCC Rcd 8193, 8196-97, para. 13
(2006), affirmed, 1st Source Information Specialists, Inc., d/b/a
Locatecell.com, Forfeiture Order, 22 FCC Rcd 431 (2007).
47 C.F.R. S: 1.80.
(Continued from previous page)
Federal Communications Commission DA 11-1998
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Federal Communications Commission DA 11-1998