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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-IH-5119
In the Matter of
) NAL/Acct. No. 200832080087
CapRock Communications, Inc.
) FRN No. 0001-6437-66
)
ORDER
Adopted: June 10, 2008 Released: June 10, 2008
By the Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and CapRock Communications,
Inc. ("CapRock"). The Consent Decree terminates an investigation by
the Bureau against CapRock for possible violation of, among other
things, section 254 of the Communications Act of 1934, as amended (the
"Act"), and sections 54.706, 54.711, and 64.1195 of the Commission's
rules relating to registration, regulatory filings and the universal
service fund.
2. The Bureau and CapRock have negotiated the terms of the Consent Decree
that resolve this matter. A copy of the Consent Decree is attached
hereto and incorporated by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and terminating the investigation.
4. In the absence of material new evidence relating to this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether CapRock possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to section 4(i) of the
Communications Act of 1934, as amended, and sections 0.111 and 0.311
of the Commission's Rules, the Consent Decree attached to this Order
IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that CapRock shall make its voluntary
contribution to the United States Treasury, as specified in the
Consent Decree, by mailing a check or similar instrument payable to
the Order of the Federal Communications Commission, 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[s] by wire transfer may be made to ABA Number
021030004, receiving bank Federal Reserve Bank of New York, 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). CapRock shall also send electronic notification of payment of
the voluntary contribution on the date said payment is made to
michele.berlove@fcc.gov.
8. IT IS FURTHER ORDERED that CapRock will file reports with the
Commission ninety days after the effective date of the Consent Decree,
as defined therein ("Effective Date") and twelve months after the
Effective Date. Each report shall include a compliance certificate
from an officer, as an agent of CapRock, stating that the officer has
personal knowledge that CapRock has established operating procedures
intended to ensure compliance with this Consent Decree, together with
an accompanying statement explaining the basis for the officer's
compliance certification. All reports shall be submitted to Hillary S.
DeNigro, Chief, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street, S.W.,
Washington, D.C. 20554. The Company shall also transmit a copy of the
reports via email to hillary.denigro@fcc.gov.
9. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to C. Douglas Jarrett, Keller & Heckman LLP, 1001 G Street,
N.W., Suite 500 West, Washington, D.C. 20001.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-IH-5119
In the Matter of
) NAL/Acct. No. 200832080087
CapRock Communications, Inc.
) FRN No. 0001-6437-66
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and CapRock Communications, Inc.
("CapRock"), by their authorized representatives, hereby enter into
this Consent Decree for the purpose of terminating the Enforcement
Bureau's investigation into whether CapRock violated, among other
things, section 254 of the Communications Act of 1934, as amended (the
"Act") and sections 54.706, 54.711, and 64.1195 of the Commission's
rules relating to registration, regulatory filings and the universal
service fund ("USF").
I. DEFINITIONS
2. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C.
S: 151 et seq.
b. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
c. "CapRock" means CapRock Communications, Inc. and its
predecessors-in-interest and successors-in-interest.
d. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
e. "Compliance Plan" means the program described in this Consent Decree
at paragraph 10.
f. "Effective Date" means the date on which the Commission releases the
Adopting Order.
g. "Investigation" means the investigation commenced by the Bureau's May
24, 2007 Letter of Inquiry regarding whether CapRock violated, among
other things, section 254(d) of the Communications Act of 1934, as
amended (the "Act") and sections 54.706, 54.711, and 64.1195 of the
Commission's rules relating to registration, regulatory filings and
the universal service fund.
h. "Order" or "Adopting Order" means an Order of the Commission adopting
the terms of this Consent Decree without change, addition, deletion,
or modification.
i. "Parties" means CapRock and the Bureau.
j. "Rules" means the Commission's regulations found in Title 47 of the
Federal Regulations.
II. BACKGROUND
3. Pursuant to section 64.1195(a) of the Commission's rules and pursuant
to Commission orders, all carriers that provide interstate
telecommunications service and certain other providers of interstate
telecommunications must register with the Commission through
submission of FCC Form 499-A. In addition, section 254(d) of the Act
and sections 54.706 and 54.711 of the rules require telecommunications
carriers that provide interstate telecommunications services to file
annual and quarterly Telecommunications Reporting Worksheets (FCC Form
499-A and FCC Form 499-Q) and contribute to the USF on the basis of
their interstate and international end-user telecommunications
revenues.
4. CapRock, a Texas-based company, is a niche provider of
telecommunications, offering primarily international satellite
services worldwide to the energy, maritime, construction and mining
industries, as well as for disaster relief and government
applications, but also providing interstate telecommunications in the
United States. CapRock thus is subject to the requirements discussed
in paragraph 3 above.
5. On March 23, 2007, through counsel, CapRock self-disclosed to the
Bureau that it had discovered that it had failed to comply with
certain regulations pertaining to universal service and other
associated reporting and contribution obligations. CapRock also
indicated that it would be submitting its registration, annual and
quarterly Telecommunications Reporting Worksheets for prior reporting
periods, all of which were submitted on April 2, 2007. On May 24,
2007, the Bureau issued a letter of inquiry ("LOI") to CapRock
directing it to provide certain documents and information. CapRock
submitted its response on June 13, 2007. On August 6, 2007, the Bureau
sent a follow-up letter of inquiry to CapRock, to which CapRock
responded on August 27, 2007 and September 12, 2007.
III. TERMS OF AGREEMENT
6. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order
without change, addition, modification, or deletion.
7. Jurisdiction. CapRock agrees that the Bureau has jurisdiction over it
and the matters contained in this Consent Decree and has the authority
to enter into and adopt this Consent Decree.
8. Effective Date: Violations. The Parties agree that this Consent Decree
shall become effective on the date on which the FCC releases the
Adopting Order. Upon release, the Adopting Order and this Consent
Decree shall have the same force and effect as any other Order of the
Bureau. Any violation of the Adopting Order or of the terms of this
Consent Decree shall constitute a separate violation of a Bureau
Order, entitling the Bureau to exercise any rights and remedies
attendant to the enforcement of a Commission Order.
9. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate its
investigation. In consideration for the termination of said
investigation, CapRock agrees to the terms, conditions, and procedures
contained herein. The Bureau further agrees that in the absence of new
material evidence, the Bureau will not use the facts developed in this
investigation through the Effective Date of the Consent Decree, or the
existence of this Consent Decree, to institute, on its own motion, any
new proceeding, formal or informal, or take any action on its own
motion against CapRock concerning the matters that were the subject of
the investigation, nor will the Bureau recommend any such action to
the Commission. The Bureau also agrees that it will not use the facts
developed in this investigation through the Effective Date of this
Consent Decree, or the existence of this Consent Decree, to institute
on its own motion any proceeding, formal or informal, or take any
action on its own motion against CapRock with respect to CapRock's
basic qualifications, including its character qualifications, to be a
Commission licensee or authorized common carrier or hold Commission
authorizations, nor will the Bureau recommend any such action to the
Commission.
10. Compliance Plan. CapRock agrees that it will develop, within sixty
(60) calendar days from the Effective Date, an internal Compliance
Plan to ensure CapRock's future compliance with the Act, the
Commission's rules, and the Commission's orders governing reporting
and USF contribution requirements for providers of telecommunications.
The Compliance Plan includes the following components:
a. Compliance Manual. CapRock shall create, maintain and update a USF
Compliance Manual. CapRock personnel who engage in activities related
to USF compliance and reporting obligations of CapRock will have ready
access to the Compliance Manual and are to follow the procedures
contained therein. The Compliance Manual will, among other things,
describe the rules and requirements as they apply to CapRock regarding
USF compliance and reporting obligations. The Compliance Manual will
set forth a schedule of filing and payment dates associated with the
USF, and CapRock will create compliance notifications that alert
CapRock to upcoming filing and payment dates. The Compliance Manual
will encourage personnel to contact CapRock's Designated Contact and
Regulatory Legal Counsel with any questions or concerns that arise
with respect to CapRock's USF compliance and reporting obligations.
b. Compliance Training Program. CapRock will establish an USF compliance
training program for any employee who engages in activities related to
CapRock's USF compliance and reporting obligations. Training sessions
will be conducted for such employees to ensure such employees are
informed regarding all applicable USF obligations, and, for new
employees who are engaged in such activities, within the first sixty
(60) days of employment.
c. Designated Contact. CapRock will designate one employee as the point
of contact for all USF compliance obligations.
d. Review and Monitoring. CapRock will review the USF Compliance Manual
and USF Compliance Training Program to ensure that they are maintained
in a proper manner and continue to address the objectives set forth
therein.
e. Audits. CapRock will ensure that any internal reviews of this
Compliance Plan, if conducted, specifically consider compliance with
the pertinent USF requirements.
f. Compliance Reports. CapRock will file compliance reports with the
Commission ninety days after the Effective Date and twelve (12) months
after the Effective Date. Each compliance report shall include a
compliance certificate from an officer or responsible official, as an
agent of CapRock, stating that the individual has personal knowledge
that CapRock has established operating procedures intended to ensure
compliance with this Consent Decree, together with an accompanying
statement explaining the basis for the officer's or responsible
official's compliance certification. All compliance reports shall be
submitted to Hillary S. DeNigro, Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W., Washington, D.C. 20554. The Company shall also
transmit a copy of the reports via email to hillary.denigro@fcc.gov.
g. Termination Date: Unless stated otherwise, the compliance requirements
under this Consent Decree will expire twelve (12) months after the
Effective Date.
11. Voluntary Contribution. CapRock agrees that it will make a voluntary
contribution to the United States Treasury in the amount of
one-hundred nine thousand and four hundred dollars ($109,400), to be
paid in three equal installments on July 1, 2008, October 1, 2008 and
January 2, 2009. Each payment must be made by check or similar
instrument, payable to the order of the Federal Communications
Commission. The payment must include the Account Number and FRN Number
referenced in the caption to the Adopting Order. 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. Payments by wire transfer may
be made to ABA Number 021030004, receiving bank Federal Reserve Bank
of New York, and account number 27000001. CapRock will also send
electronic notification within forty-eight (48) hours of the date said
payment is made to michele.berlove@fcc.gov.
12. Waivers. CapRock 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 Commission
issues an Order adopting the Consent Decree without change, addition,
modification, or deletion. CapRock shall retain the right to challenge
Commission interpretation of the Consent Decree or any terms contained
herein. 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 CapRock nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and CapRock
shall waive any statutory right to a trial de novo. CapRock hereby
agrees to waive any claims it may otherwise have under the Equal
Access to Justice Act, 5 U.S.C. S: 504 and 47 C.F.R. S: 1.1501 et
seq., relating to the matters addressed in this Consent Decree.
13. Severability. The Parties agree that if any of the provisions of the
Adopting Order or the Consent Decree shall be invalid or
unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable the entire Adopting Order or
Consent Decree, but rather the entire Adopting Order or Consent Decree
shall be construed as if not containing the particular invalid or
unenforceable provision or provisions, and the rights and obligations
of the Parties shall be construed and enforced accordingly. In the
event that this Consent Decree in its entirety 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.
14. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent rule or Order adopted
by the Commission (except an Order specifically intended to revise the
terms of this Consent Decree to which CapRock does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
15. Successors and Assigns. CapRock agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
16. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further agree that this Consent Decree does not constitute
either an adjudication on the merits or a factual or legal finding or
determination regarding any compliance or noncompliance with the
requirements of the Act or the Commission's Rules and Orders. The
Parties further agree that this Consent Decree is for settlement
purposes only and that by agreeing to the Consent Decree, CapRock does
not admit any liability for violating the Act or the Commission rules
or orders in connection with the matters that are the subject of this
Consent Decree.
17. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
18. Paragraph Headings. The headings of the Paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
19. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
20. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
________________________________
Kris Anne Monteith
Chief
Enforcement Bureau
________________________________
Date
________________________________
Alan B. Aronowitz
General Counsel
CapRock Communications, Inc.
________________________________
Date
47 U.S.C. S: 254.
47 C.F.R. S:S: 54.706, 54.711, and 64.1195.
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S: 254.
47 C.F.R. S:S: 54.706, 54.711, and 64.1195.
See Letter from Trent B. Harkrader, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, FCC, dated May 24, 2007 ("May 24,
2007 LOI").
47 U.S.C. S: 254(d); 47 C.F.R. S:S: 54.706, 54.711, and 64.1195.
47 U.S.C. S: 254(d), 47 C.F.R. S: 64.1195(a); Universal Service
Contribution Methodology, Federal-State Joint Board on Universal Service,
1998 Biennial Regulatory Review - Streamlined Contributor Reporting
Requirements Associated with Administration of Telecommunications Relay
Service, North American Numbering Plan, Local Number Portability, and
Universal Service Support Mechanisms, Telecommunications Services for
Individuals with Hearing and Speech Disabilities, and the Americans with
Disabilities Act of 1990, Administration of the North American Numbering
Plan and North American Numbering Plan Cost Recovery Contribution Factor
and Fund Size, Number Resource Optimization, Telephone Number Portability,
Truth-In-Billing and Billing Format, IP-Enabled Services, Report and Order
and Notice of Proposed Rulemaking, WC Docket Nos. 06-122 and 04-36, CC
Docket Nos. 96-45, 98-171, 90-571, 92-237, 99-200, 95-116, and 98-170, 21
FCC Rcd 7518, 7548-49, para. 61 (2006).
See LOI.
See LOI Response, dated June 12, 2007 but forwarded to the Commission
under cover letter from C. Douglas Jarrett, Keller and Heckman LLP, to
Vickie S. Robinson, Assistant Chief, Investigations and Hearings Division,
Enforcement Bureau, FCC, dated June 13, 2007.
Letter from Trent B. Harkrader, Deputy Chief, Investigations and Hearings
Division, Enforcement Bureau, FCC, to C. Douglas Jarrett, Keller and
Heckman LLP, dated August 6, 2007 ("Supplemental LOI").
Letters from C. Douglas Jarrett, Keller and Heckman LLP, to Michele Levy
Berlove, Attorney Advisor, Investigations and Hearings Division,
Enforcement Bureau, FCC, dated August 27 and September 12, 2007
("Supplemental LOI Responses").
Federal Communications Commission DA 08-1322
2
Federal Communications Commission DA 08-1322