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Call 911, get an automated message to "hang up and dial 911"
File No.: EB-SED-14-00016210
NAL/Acct. No.: 201432100027
FRN: 0004365334
MEMORANDUM OPINION AND ORDER
Adopted: October 27, 2015 Released: October 27, 2015
By the Chief, Enforcement Bureau:
introduction
We deny the Petition for Reconsideration (Petition) filed by The Hinton
Telephone Company of Hinton, Oklahoma, Inc. (Hinton) seeking reconsideration of
the Forfeiture Order issued by the Enforcement Bureau (Bureau). In the
Forfeiture Order, the Bureau imposed a forfeiture of $100,000 against Hinton for
failing to use reasonable judgment when, for a three-month period, it knowingly
routed 911 calls to an automated operator message that instructed 911 callers to
"hang up and dial 911." Hinton's actions created a significant threat to the
life and property of Caddo County, Oklahoma residents, undermining one of the
bedrock principles of the Communications Act and the Commission's rules - that
reliable 911 service must be available to all Americans at all times.
Upon review of the Petition and the entire record, we dismiss the Petition in
part on procedural grounds and otherwise deny the Petition on the merits,
pursuant to Section 1.106 of the Commission's rules. Reconsideration is
appropriate when the petitioner either demonstrates a material error or omission
in the underlying order or raises additional arguments based on facts not known
or not existing until after the petitioner's last opportunity to present such
matters. With respect to such additional arguments, reconsideration will also be
appropriate if the Commission determines that the public interest requires their
consideration. Hinton raises three new arguments that it could have raised
earlier, and we therefore dismiss the Petition on procedural grounds to the
extent that it relies on those arguments. We also reject Hinton's one
procedurally acceptable new argument on the merits. Moreover, as a separate and
independent basis for our decision, we find that, if we were to consider
Hinton's three procedurally unacceptable new arguments further, we would also
reject them on their merits. Finally, we reject on the merits those arguments
that the Bureau considered and rejected in the Forfeiture Order, and which
Hinton repeats in its Petition. As a result, we uphold the Bureau's findings in
the Forfeiture Order and affirm the $100,000 penalty imposed against Hinton for
its violations of the Commission's 911 rules.
background
On March 18, 2015, the Bureau issued the Forfeiture Order imposing a $100,000
penalty against Hinton for willfully and repeatedly violating Sections 64.3001
and 64.3002(d) of the Commission's rules by
failing to use reasonable judgment
when it knowingly routed 911 calls to an automated operator message. Section
64.3001 of the Commission's rules requires telecommunications carriers to
transmit all 911 calls to a Public Safety Answering Point (PSAP), to a
designated statewide default answering point, or to an appropriate local
emergency authority as set forth in Section 64.3002. Section 64.3002(d) of the
Commission's rules provides that "[w]here no PSAP nor statewide default
answering point has been designated, and no appropriate local emergency
authority has been selected by an authorized state or local entity,
telecommunications carriers shall identify an appropriate local emergency
authority, based on the exercise of reasonable judgment, and complete all
translation and routing necessary to deliver 911 calls to such appropriate local
emergency authority no later than September 11, 2002."
On April 17, 2015, Hinton filed the Petition requesting that the Forfeiture
Order be reconsidered and vacated, and the $100,000 penalty rescinded. The
Petition reiterates arguments previously considered and rejected by the Bureau
that Hinton exercised reasonable judgment in routing 911 calls to the automated
operator and that its purported record of compliance with the Commission's rules
and provision of 911 and E911 services to other counties in Oklahoma warranted
forfeiture cancellation. In addition, Hinton's Petition presents four new
arguments for our consideration: (i) that the Commission erred in ignoring the
applicability of Section 64.3002(e) of the Commission's rules, which Hinton
claims effectively provided it with a nine-month suspension of its Section
64.3002(d) requirement to use reasonable judgment to identify an appropriate
local emergency authority and complete translation and routing of emergency
calls to such authority, (ii) that the Commission improperly exercised
jurisdiction over intrastate 911 calls; (iii) that Hinton's actions were
reasonable because they were consistent with Section 64.3003 of the Commission's
rules; and (iv) that the Bureau exaggerated the significance of Hinton's 1991
violation of Commission rules in failing to consider Hinton's history of rule
compliance as a mitigating factor.
DISCUSSION
The Petition Raises New Arguments that Hinton Could Have Raised Earlier
Under Section 1.106(c) of the Commission's rules, a petition for reconsideration
that relies on facts or arguments not previously presented to the designated
authority may be granted only if (i) the facts or arguments relate to events
that have occurred or circumstances that have changed since the petitioner's
last opportunity to present such matters; (ii) the facts or arguments were
unknown to the petitioner, and could not have been known by the petitioner
through the exercise of ordinary diligence, until after the petitioner's last
opportunity to present such matters; or (iii) the Commission determines that
consideration of such facts or arguments is required in the public interest.
Three of Hinton's four new arguments fail to meet any prong of this test: (i)
the applicability of Section 64.3002(e) of the Commission's rules, (ii) that the
Commission improperly exercised jurisdiction over intrastate 911 calls, and
(iii) that Hinton's operations were consistent with Section 64.3003 of the
Commission's rules. Each of these arguments could have been made at the previous
stage of the proceeding. Moreover, Hinton has not presented any public interest
justification for considering them now, and we see no basis upon which to
conclude that the public interest requires such consideration. We therefore
dismiss these arguments on procedural grounds, pursuant to Section 1.106(c) of
the Commission's rules.
The Petition's Newly Presented Arguments Provide No Basis for Reconsideration of
the Forfeiture Order on the Merits
For the reasons discussed below, we reject Hinton's one procedurally acceptable
new argument on the merits. Moreover, as a separate and independent basis for
our decision above to dismiss Hinton's three procedurally unacceptable new
arguments, we find that, if we were to consider those arguments further, we
would also reject them on their merits.
The Bureau Did Not Exaggerate the Significance of Hinton's 1991 Violation of
Commission Rules in Considering Hinton's History of Rule Compliance as a
Mitigating Factor
Hinton's only procedurally acceptable new argument is that the Forfeiture Order
"erred by characterizing and denigrating Hinton's record of regulatory
compliance as `not spotless' due to an innocent oversight that took place over
23 years ago, and was self-reported" and accordingly the Bureau should not have
considered this minor oversight as a factor in determining whether forfeiture
mitigation was warranted. While Hinton's record of regulatory compliance over
the past 23 years has been commendable, the Forfeiture Order's characterization
of that record is accurate. Under the rules, the Bureau is required to take into
consideration a number of factors in determining the amount of a penalty,
including the extent and gravity of the current violation. The Forfeiture Order
clearly indicated that Hinton's prior violation was not the only factor that
militated against mitigation, stating that Hinton's "successful provision of 911
and E911 services ... does not excuse or mitigate its failure over an extended
period of time to use reasonable judgment in routing 911 calls in Caddo County."
Prior requests for downward adjustments for compliance have been deemed
inappropriate where the nature and extent of the violation was significant, as
here. Also, Hinton has previously enjoyed a downward adjustment for its history
of compliance, and particularly given the nature of the violations at issue in
this case, repeated downward adjustments for further violations is
inappropriate. Accordingly, we find that upon consideration of all the factors
in this case, the Forfeiture Order correctly concluded that Hinton's record of
compliance did not warrant a downward adjustment, and that this new argument
provides no basis for reconsideration.
Hinton Was Required to Deliver 911 Calls to an Appropriate Emergency Authority
under Section 64.3002(d) of the Commission's Rules
Hinton also seeks cancellation of the forfeiture, claiming that the 911 call
translation and routing obligations of Section 64.3002(d) of the Commission's
rules would only apply to it in the absence of a designated PSAP. Hinton argues
that because Caddo County designated a PSAP in December 2012, instead of its
being subject to Section 64.3002(d), it was subject only to Section 64.3002(e),
which states that "[o]nce a PSAP is designated for an area where none had
existed as of December 11, 2001, telecommunications carriers shall complete the
translation and routing necessary to deliver 911 calls to that PSAP within nine
months of that designation." Hinton contends that Section 64.3002(e) provided it
with a nine-month period to complete the translation and routing necessary to
deliver 911 calls to the Caddo County PSAP without regard to any standard of
reasonable conduct during that period.
We find no merit to this argument. Hinton's interpretation of the Commission's
rules would effectively provide telecommunications carriers an automatic
nine-month suspension of the requirement in Section 64.3002(d) to use reasonable
judgment to identify an appropriate local emergency authority and complete
translation and routing of emergency calls to such authority as of the date a
PSAP is designated to receive 911 calls. Instead, Hinton's interpretation
appears to be that during this nine-month period no requirement would apply at
all. We disagree. Section 64.3002 needs to be read in conjunction with Section
64.3001 which imposes a sweeping, affirmative obligation on carriers such as
Hinton to route all 911 calls to "a PSAP, to a designated statewide default
answering point, or to an appropriate local emergency authority as set forth in
§ 64.3002." Section 64.3002, on the other hand, establishes rules for the
transition to 911 as the universal emergency telephone number, by setting out
deadlines by which the carrier must "complete all translation and routing
necessary" to deliver 911 calls to the PSAP or, in the absence of a PSAP, to a
set of prioritized alternatives that turn on what alternative the area in
question offers. In other words, Section 64.3001 establishes the 911
transmission requirement while Section 64.3002 sets forth the methods that
carriers can use to meet the requirement in Section 64.3001, establishes a
hierarchy among those methods, and governs carriers' transition from one method
to the next.
Moreover, Hinton's interpretation also contravenes the plain meaning of Section
64.3002. Subsections (a) through (d) each set forth the obligation to "complete
all translation and routing necessary to deliver 911 calls" to the entity
specified in the rule subsection. Subsection (e), in contrast, provides a
timetable for being able to deliver 911 calls to a PSAP after it is designated
for an area that previously did not have a PSAP designation. Thus, the more
rational interpretation of the relationship between subsections (d) and (e) is
that subsection (e) supplemented, rather than supplanted, Hinton's subsection
(d) obligation to exercise reasonable judgment. Hinton was thus required to
continue to exercise reasonable judgement in its delivery of 911 calls during
the nine month period in which it was establishing the necessary routing and
translation functions to be able to complete calls to the designated PSAP.
Hinton's argument, to the contrary, would call for an unnecessarily strained
textual reading of Section 64.3002, which is also contrary to the Commission's
intent when it created its 911 rules of ensuring the completion of 911 calls.
Accordingly, Hinton's argument provides no basis for reconsideration.
The Commission Has Jurisdiction to Regulate the Provision of Intrastate 911
Calls
Hinton also seeks cancellation of the forfeiture on the basis that the
Commission improperly assumed jurisdiction over intrastate emergency
communications, asserting that the 911 calls that it routed to an automated
message were entirely intrastate. Hinton asserts further that the Commission
exceeded its jurisdiction by failing to defer to advice Hinton claims it
received from the Oklahoma Corporation Commission (OCC) staff. Although a
significant number of issues regarding regulation of 911 services lie within
state jurisdiction, we find that the 911 Act gives the Commission jurisdiction
over the specific issue addressed in the Forfeiture Order. In the 911 Act,
Congress directed the Commission to designate 911 as "the universal emergency
telephone number within the United States for reporting an emergency to
appropriate authorities and requesting assistance." Congress' express intent was
to "encourage and facilitate the prompt deployment throughout the United States
of a seamless, ubiquitous, and reliable end-to-end infrastructure for
communications ... to meet the Nation's public safety ... needs." Pursuant to
the 911 Act, the Commission adopted Sections 64.3001 and 64.3002 to implement
nationwide standards for 911 service. With these rules, the Commission sought
"to ensure that the Congressional goals of the 911 Act for an expanded and
improved nationwide emergency communications system are implemented effectively
and efficiently." The role that Congress envisioned for the Commission and its
rules could not be carried out if the Commission could not require carriers to
have the infrastructure required to permit the transmission, translation, and
routing "necessary to deliver 911 calls" to the appropriate local emergency
authority. Hinton's argument that the Commission lacks jurisdiction would
effectively nullify the 911 Act and the Commission's 911 rules promulgated
thereunder. Accordingly, we disagree with Hinton's assertion that the Commission
lacks the authority to enforce its rules for provisioning 911 calls, and find
that Hinton's argument provides no basis for reconsideration.
Hinton's Compliance with Section 64.3003 of the Commission's Rules Did Not
Thereby Render Its Actions Reasonable under Sections 64.3001 and 64.3002 of the
Commission's Rules
In its Petition, Hinton also argues that "in light of Section 64.3003 of the
Rules" the Commission should have found that it had "exercised reasonable
judgment during the May-August 2013 period" because "Section 64.3003 expressly
permits permissive dialing via seven-or-ten-digit emergency numbers that the
public previously used to reach emergency service providers until the
appropriate State or local jurisdiction determines that it is appropriate to
phase out the use of such seven-or-ten-digit numbers entirely and use 911
exclusively." Hinton further argues that "[g]iven there was no such
determination from the OCC or Caddo County prior to August 5, 2013, Hinton's
actions in providing local emergency number lists ... were compliant with the
requirements of Section 64.3003." While Hinton is correct that some
seven-to-ten-digit emergency service is permitted under some circumstances under
Section 64.3003, that section is not relevant to this proceeding. This is
because, where 911 service is provided, it must be provided in compliance with
Sections 64.3001 and 64.3002. For reasons set forth in the Hinton Forfeiture
Order and this reconsideration order, Hinton's provision of 911 service did not
comply with Sections 64.3001 and 64.3002 during the time in question. Thus this
argument also provides no basis for reconsideration.
The Petition's Previously-Presented Arguments Provide No Basis for
Reconsideration of the Forfeiture Order
Hinton raises a number of arguments that we considered and rejected in the
Forfeiture Order. Among other things, Hinton again challenges the Bureau's
determination that the company violated Sections 64.3001 and 64.3002(d) when it
continued to knowingly route 911 calls to the automated operator, contending
that its alleged unique circumstances in upgrading its switching system, its
actions to explore temporary patches during its then ongoing 911 transition, and
its placement of newspaper and bill insert notices listing telephone numbers of
relevant first responders, as well as construction at the planned PSAP location,
demonstrate it exercised reasonable judgement in its provision of emergency
telecommunications services in Caddo County. In the Forfeiture Order, however,
the Bureau fully considered and rejected Hinton's arguments that these factors
show it had exercised reasonable judgment for the three month period after it
learned that 911 calls were being routed to an automated operator, and we reject
Hinton's arguments in its Petition for Reconsideration for the same reasons.
Hinton also reiterates its argument that, except for its self-disclosed pro
forma transfer of control violation that occurred 23 years ago, its overall
record of regulatory compliance with the Commission's requirements and its
record of providing 911 and/or E911 service in the four other Oklahoma counties
it serves provides a basis for cancellation of the proposed forfeiture. As
noted, however, in the Forfeiture Order the Bureau fully considered and rejected
these arguments, concluding Hinton's compliance record did not excuse or
mitigate its failure over an extended period of time to use reasonable judgment
in routing 911 calls in Caddo County. There is nothing in Hinton's petition that
would provide adequate justification for revisiting this issue. Accordingly, we
reject this argument as merely reiterative of an argument previously raised by
Hinton and fully considered and rejected by the Bureau in its Forfeiture Order.
ORDERING Clauses
Accordingly, IT IS ORDERED that, pursuant to Section 405 of the Communications
Act of 1934, as amended (Act), and Section 1.106 of the Commission's rules, the
Petition for Reconsideration filed by Hinton is hereby DENIED.
IT IS FURTHER ORDERED that, pursuant to Section 503(b) of the Act and Sections
0.111, 0.311, and 1.80 of the Commission's rules, Hinton IS LIABLE FOR A
MONETARY FORFEITURE of one hundred thousand dollars ($100,000) for willfully and
repeatedly violating Sections 64.3001 and 64.3002(d) of the Commission's rules.
Payment of the forfeiture shall be made in the manner provided for in Section
1.80 of the Commission's rules within thirty (30) calendar days after the
release date of this Memorandum Opinion and Order. If the forfeiture is not paid
within the period specified, the case may be referred to the U.S. Department of
Justice for enforcement of the forfeiture pursuant to Section 504(a) of the Act.
Payment of the forfeiture must be made by check or similar instrument, wire
transfer, or credit card, and must include the NAL/Account Number and FRN
referenced above. Hinton shall send electronic notification of payment to JoAnn
Lucanik at JoAnn.Lucanik@fcc.gov and William Reed at william.reed@fcc.gov on the
date said payment is made. Regardless of the form of payment, a completed FCC
Form 159 (Remittance Advice) must be submitted. When completing the FCC Form
159, enter the Account Number in block number 23A (call sign/other ID) and enter
the letters "FORF" in block number 24A (payment type code). Below are additional
instructions that should be followed based on the form of payment selected:
* Payment by check or money order must be made payable to the order of the
Federal Communications Commission. Such payments (along with the completed Form
159) must be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004, receiving bank
TREAS/NYC, and Account Number 27000001. To complete the wire transfer and ensure
appropriate crediting of the wired funds, a completed Form 159 must be faxed to
U.S. Bank at (314) 418-4232 on the same business day the wire transfer is
initiated.
* Payment by credit card must be made by providing the required credit card
information on FCC Form 159 and signing and dating the Form 159 to authorize the
credit card payment. The completed Form 159 must then be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101.
Any request for making full payment over time under an installment plan should
be sent to: Chief Financial Officer -- Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625, Washington, D.C.
20554. Questions regarding payment procedures should be directed to the
Financial Operations Group Help Desk by phone, 1-877-480-3201, or by e-mail,
ARINQUIRIES@fcc.gov.
IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and Order shall be
sent by first class mail and certified mail, return receipt requested, to
Kenneth Doughty, Chief Executive Officer, The Hinton Telephone Company of
Hinton, Oklahoma, Inc., d/b/a Hinton Telephone Company, 200 West Main Street,
Hinton, Oklahoma 73047; Kendall Parrish, Comingdeer & Associates, 6011 North
Robinson Avenue, Oklahoma City, Oklahoma 73118; and to Gerard J. Duffy,
Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP, Suite 300, 2120 L
Street NW, Washington, DC 20037.
FEDERAL COMMUNICATIONS COMMISSION
Travis LeBlanc
Chief
Enforcement Bureau
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