The Commission’s efforts to resolve the 2009 Omnibus CPNI NAL continue to provide insights into the enforcement process generally. In the past, we’ve commented on surprisingly small settlements and odd provisions, but two orders earlier this week are especially cryptic.
In both orders, the Chief of the Telecommunications Consumers Division of the FCC Enforcement Bureau concluded that "no forfeiture should be imposed" with respect to the carriers identified. I would like to provide you a definitive reason for the cancellation, but the orders literally provide no explanation of the basis for that conclusion.
In one case, I believe the rationale is that the entities are interconnected VoIP providers. As we’ve explained previously, because of the Commission’s refusal to determine if interconnected VoIP providers are telecommunications carriers, they get one free bite at FCC violations. Each of the three carriers listed in this cancellation order reports itself as an interconnected VoIP provider on its USF forms. Because of that, the FCC could not impose a fine for failing to file the CPNI certification unless the FCC had issued a Citation first.
The other case is truly mystifying. The two carriers listed in this cancellation order are listed as a "CAP/LEC" and an "IXC", respectively, in the USF filer database. Although one appears to have ceased providing business in 2007, the other provider filed a Form 499-A in April 2011. We are left to guess what circumstances justified the decision not to impose a forfeiture.