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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
) File No.: EB-11-TC-105
In the Matter of
) NAL/Acct. No.: 201232170003
LDC Telecommunications, Inc.
) FRN: 0003757390
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: January 17, 2012 Released: January 18, 2012
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that LDC Telecommunications, Inc. (LDC) 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 (Communications Act or Act). Based upon our review of
the facts and circumstances before us, we find that LDC is apparently
liable for a forfeiture of $25,000. Furthermore, we direct LDC to
submit, not later than ten (10) 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 LDC to determine whether it
had violated the Communications Act in connection with its billing
practices. As part of the investigation, on October 13, 2011, the
Bureau sent LDC the LOI, which ordered LDC to provide certain
information and documents. The Bureau directed LDC 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 LDC's
headquarters. LDC received and signed for the LOI on October 17, 2011.
LDC failed to respond to the LOI by the November 2, 2011 due date. On
November 4, 2011, the Bureau sent a letter via certified mail (with a
return receipt requested) to LDC advising that the due date for the
LOI response had passed and giving LDC until November 14, 2011 to
respond. LDC received and signed for the letter on November 7, 2011.
LDC failed to respond to the November 4, 2011 letter, 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 LDC 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 Bureau's LOI directed to LDC was a legal order of the Commission
requiring LDC to produce the requested documents and information. LDC
received the LOI and the follow-up letter, as evidenced by the return
receipts received by the Commission. LDC failed on two separate
occasions to provide the Commission with information necessary for the
Commission to complete its investigation. LDC'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 LDC's apparent failure to respond to the Bureau's LOI in
the circumstances presented here warrants a forfeiture of $25,000. LDC
failed to respond to the LOI after receiving and signing for it on
October 17, 2011, and after receiving a follow-up letter from Bureau
staff reiterating the need for a response 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 for failure to respond to a Commission
communication.
9. We also direct LDC to respond fully to the LOI within ten (10)
calendar days of the date of this NAL. Failure to do so may constitute
an additional, continuing violation subjecting LDC to future
enforcement action, proposing substantially greater forfeitures and
revocation of LDC's operating authority. 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, and section 1.80 of the Commission's rules, LDC
Telecommunications, Inc. is 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) calendar days after the release
date of this Notice of Apparent Liability for Forfeiture and Order,
LDC Telecommunications, Inc. 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 LDC Telecommunications, Inc. SHALL FULLY
RESPOND, not later than ten (10) calendar days from the release date
of this NAL, to the Bureau's Letter of Inquiry dated October 13, 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). LDC Telecommunications, Inc.
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 proposed
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 LDC Telecommunications,
Inc., c/o Sean Connors, 2451 McMullen Booth Road, Suite 200,
Clearwater, FL 33759.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
According to our records and publicly available information, LDC
Telecommunications, Inc. has offices at 2451 McMullen Booth Road, Suite
200, Clearwater, FL 33759. The Company's President is Sean Connors.
Accordingly, all references in this NAL to LDC Telecommunications, Inc.
also encompasses the foregoing individual and all other principals and
officers of this entity, as well as the corporate entity itself.
See Letter from Richard A. Hindman, Chief, Telecommunications Consumers
Division, Enforcement Bureau, Federal Communications Commission, to LDC,
Attn: Sean Connors, Oct. 13, 2011.
The Clearwater, FL post office stamped the return receipt card October 17,
2011.
See Letter from Kimberly A. Wild, Deputy Division Chief,
Telecommunications Consumers Division, Enforcement Bureau, FCC, to LDC,
Attention: Sean Connors (Nov. 4, 2011). The letter stated, "[t]he LOI the
Bureau directed to LDC served as a legal order of the Commission to
produce the requested information and documents. LDC's failure to provide
the requested information and documents sought within the time and manner
specified will be considered a violation of a Commission order and could
result in a Notice of Apparent Liability."
The Clearwater, FL post office stamped the return receipt card November 7,
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. S: 403.
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., Net One International, Net One, LLC, Farrahtel International,
LLC, File No. EB-11-TC-063, Notice of Apparent Liability for Forfeiture
and Order, DA 11-1998 (Enf. Bur. Dec. 9, 2011) (imposing $25,000 penalty
for failure to respond to LOI); 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) (identifying criteria for adjustment to base
forfeitures).
See 1st Source Information Specialists, Inc., d/b/a Locatecell.com, Notice
of Apparent Liability for Forfeiture, 21 FCC Rcd 8193, 8196-97 P: 13
(2006), affirmed, 1st Source Information Specialists, Inc., d/b/a
Locatecell.com, Forfeiture Order, 22 FCC Rcd 431 (2007).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
47 C.F.R. S: 1.80.
(Continued from previous page)
Federal Communications Commission DA 12-53
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Federal Communications Commission DA 12-53