Legal Alerts and Articles
FCC CPNI Action
On February 25, 2009, the FCC's Enforcement Bureau released an Omnibus Notice of Apparent Liability for Forfeiture ("Omnibus Notice") citing a large number of specifically-named telecommunications service providers for apparently violating the FCC's rules requiring the submission of an annual Customer Proprietary Network Information ("CPNI") Compliance Certificate on or before March 1, 2008. These companies were each assessed a proposed forfeiture penalty in the amount of $20,000.
Through a series of separate, individual Notices of Apparently Liability for Forfeiture, the Bureau also additionally assessed proposed forfeitures in varying smaller amounts against several companies which, although they filed requisite CPNI Compliance Certificates by the deadline, submitted deficient Certificates.
Forfeitures for Failure to File CPNI Certifications by March 1, 2008
The Bureau's Omnibus Notice finds that approximately 650 companies failed to file CPNI Compliance Certifications on or before March 1, 2008, covering the 2007 calendar year. The Bureau found this to be a violation of Section 222 of the Communications Act of 1934, as amended, and Section 64.2009(e) of the Commission's Rules, among other things. The Omnibus Notice indicates that the Enforcement Bureau sent letters of inquiry to many of these companies asking them to supply evidence of their annual CPNI Certification filings.
A copy of the Omnibus Notice containing an appendix listing the specific sanctioned companies can be accessed at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-09-426A1.pdf.
The Bureau's Omnibus Notice assesses a proposed forfeiture or financial penalty in the amount of $20,000 against each cited company. This represents a revised forfeiture approach since previously the Bureau had been utilizing standard forfeiture amounts of $100,000 against carriers for violations of the Commission's CPNI rules. While the Omnibus Notice indicates that this new approach is based on a number of factors, one of those factors is that the vast majority of companies affected are smaller companies.
Forfeitures for Companies Submitting Deficient CPNI Certifications
Separate Notices of Apparent Liability for Forfeiture find that while some companies did submit CPNI Compliance Certifications by March 1, 2008, such Certifications were deficient in that they failed to comply with the specifics of the FCC's CPNI filing obligations. These actions levy proposed penalties of up to $10,000 against each cited company.
Deadline for Response
Cited companies either failing to file CPNI Certifications by the March 1, 2008 deadline or submitting deficient Certifications have until March 26, 2009 to either a) pay the proposed forfeiture amount (payment instructions are set forth in the Omnibus Notice); or b) file with the FCC a formal written statement seeking either cancellation or reduction of the proposed forfeiture. The FCC has previously recognized that there are several grounds upon which it may reduce a proposed forfeiture. It should be noted that these matters constitute formal Enforcement Bureau proceedings, and specific rules and requirements apply to the filing of a response.
According to FCC Acting Chairman Michael J. Copps, who issued a separate statement, "[c]arriers' obligation to annually certify that they have implemented a CPNI protection plan is essential to ensuring their compliance with the Commission's rules as well as our ability to monitor their compliance. The broad nature of this enforcement action hopefully will ensure substantial compliance with our CPNI rules going forward as the Commission continues to make consumer privacy protection a top priority."
Please do not hesitate to contact us if you are interested in our assistance in submitting a formal written statement contesting any of the above forfeitures, or if you have questions. For background information with respect to the FCC's CPNI rules, please see http://www.xchangemag.com/articles/ensuring-compliance-with-fcc-privacy-rules.html.
February 2009