Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. EB-01-IH-0017r      |
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| **TRIVERGENT COMMUNICATIONS,     | ) | NAL/Acct. No. 200132080049   |
| INC.**                           | * |                              |
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| **OCN#s: 2507, 2621, 2508, 2510, |   |                              |
| 2620, 2506, 3799**               | * |                              |
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**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted:** April 20, 2001 **Released:** April 24, 2001

By the Chief, Enforcement Bureau:

# Introduction

1.  In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
    that Trivergent Communications, Inc. ("Trivergent") has apparently
    violated 47 C.F.R. § 52.15(f) by willfully failing to report its
    number utilization and forecast data. Based upon our review of the
    facts and circumstances in this case, we conclude that Trivergent is
    apparently liable for a forfeiture in the amount of \$6,000.

    **II. BACKGROUND**

2.  Section 251(e) of the Communications Act of 1934, as amended (the
    "Act"), grants the Commission plenary jurisdiction over the North
    American Numbering Plan ("NANP") and related telephone numbering
    issues in the United States. The Commission has identified two
    primary goals related to this statutory mandate: to ensure that
    limited numbering resources of the NANP are used efficiently for the
    benefit of both consumers and carriers; and to ensure that all
    carriers have the numbering resources necessary to compete in the
    rapidly growing telecommunications marketplace.[^1] The Commission
    recently adopted administrative and technical measures that
    facilitate the monitoring of numbering resource usage within the
    NANP and promote more efficient use of numbering resources,
    including new mandatory utilization and forecast data reporting
    requirements.[^2] Monitoring individual carriers' use of numbering
    resources encourages efficiency and forestalls premature exhaustion
    of numbering resources. Thus, section 52.15(f) of the Commission's
    rules requires U.S. carriers receiving numbering resources from the
    North American Numbering Plan Administrator ("NANPA"), a Pooling
    Administrator, or another telecommunications carrier, to report
    semiannually on their actual and forecast number usage.[^3] These
    data are to be reported on FCC Form 502, the North American
    Numbering Plan Numbering Resource Utilization/Forecast ("NRUF")
    Report.

3.  The staff of the Common Carrier Bureau determined that Trivergent
    apparently did not file the mandatory NRUF reports due on September
    15, 2000. On January 29, 2001, the Enforcement Bureau sent a letter
    to Trivergent, which explained that Trivergent might be subject to
    enforcement action if it had failed to comply with the mandatory
    reporting requirements of section 52.15(f). In addition, our letter
    cautioned Trivergent that NANPA would withhold numbering resources
    as a sanction for failure or refusal to comply with the mandatory
    reporting requirements.[^4]

4.  Our letter gave Trivergent the opportunity to provide proof of
    filing of the NRUF reports due on September 15, 2000, and reminded
    Trivergent that its next NRUF reports were due on February 1, 2001.
    Trivergent did not respond to our letter.[^5]

    **III. DISCUSSION**

5.  Section 503(b)(1)(B) of the Act provides that any person who
    willfully or repeatedly fails to comply with the Act or the
    Commission's rules shall be liable for a forfeiture penalty.[^6] We
    conclude that Trivergent failed to file the NRUF reports due on
    September 15, 2000. Thus, Trivergent is apparently liable for
    forfeiture for the willful violation of section 52.15 of the
    Commission's rules, which requires U.S. carriers to report on their
    actual and forecast number usage.[^7] The Commission has held that
    an act or omission is "willful" if the violator knew it was taking
    the action in question, whether or not there is any intent to
    violate the rule.[^8] Based upon the record before us, it appears
    that Trivergent's failure to comply with the reporting requirements
    was willful.

6.  In assessing a forfeiture, Section 503(b)(2)(D) of the Act[^9] and
    section 1.80(b)(4)[^10] of the Commission's rules require us to
    consider 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
    other such matters as justice may require. The Commission's
    *Forfeiture Guidelines* establish a base amount of \$3,000 for
    failure to file required forms or information.[^11] The *Guidelines*
    also provide that we may issue a higher or lower forfeiture, as
    permitted by statute.[^12] Based upon the information before us, and
    taking into consideration the factors expressed in Section
    503(b)(2)(D) of the Act, we find that a forfeiture that is higher
    than the base amount is warranted in this case.

7.  The Commission has emphasized that consistent, accurate and complete
    reporting of number utilization and forecast data is critical to
    promoting efficiency and avoiding premature exhaustion of numbering
    resources.[^13] The potential harm to the integrity and objectives
    of the Commission's numbering administration and optimization
    strategies caused by non-compliance with the section 52.15(f)
    reporting requirements increases as a non-compliant carrier's
    inventory of numbering resources increases. We therefore find that
    it is appropriate to take into account the amount of Trivergent's
    unreported numbering resources in determining the forfeiture amount.
    Numbering resources are assigned either in blocks of 10,000 numbers
    referred to as central office codes or NXX codes, or in blocks of
    1,000 numbers. Trivergent has been assigned 46 NXX codes. Under
    these circumstances, we find that an upward adjustment of the base
    forfeiture is appropriate for Trivergent's failure to file the
    required NRUF reports, and we thus impose a forfeiture in the amount
    of \$6,000, which represents double the base forfeiture for failure
    to file required reports.

8.  Our January 29, 2001 letter reminded Trivergent that its next
    semiannual NRUF reports were due on February 1, 2001. It appears
    that Trivergent may not have filed these reports. Failure to file
    the February NRUF reports, as required by section 52.15(f), would
    constitute a separate violation of the Commission's rules. We warn
    Trivergent that failure to file the February reports or future
    reports could form the basis for additional notices of apparent
    liability. Moreover, if Trivergent fails to comply with the NRUF
    reporting requirements in the future, the Common Carrier Bureau may
    deem that its numbering resources are unused, and thus begin
    reclamation of those numbering resources.[^14] In addition, the
    Commission may consider proceedings to revoke the section 214
    authorizations and Title III licenses of carriers that persist in
    their non-compliance with section 52.15(f).

    **IV. ORDERING CLAUSES**

9.  Accordingly, IT IS ORDERED THAT, pursuant to 47 U.S.C. § 503(b), and
    47 C.F.R. § 1.80, Trivergent Communications, Inc. is hereby NOTIFIED
    of its APPARENT LIABILITY FOR A FORFEITURE in the amount of six
    thousand dollars (\$6,000) for violating the Commission's rules that
    require U.S. carriers to report actual and forecast number usage.

10. IT IS FURTHER ORDERED THAT, pursuant to 47 C.F.R. § 1.80, within
    thirty days of this NOTICE OF APPARENT LIABILITY, Trivergent
    Communications, Inc. SHALL PAY the full amount of the proposed
    forfeiture or SHALL FILE a written statement seeking reduction or
    cancellation of the proposed forfeiture.

11. Payment of the forfeiture may be made by mailing a check or similar
    instrument, payable to the order of the Federal Communications
    Commission, to the Forfeiture Collection Section, Finance Branch,
    Federal Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482. The payment should note the NAL/Acct. No. referenced
    above.

12. The response, if any, must be mailed to Charles W. Kelley, Chief,
    Investigations and Hearings Division, Enforcement Bureau, Federal
    Communications Commission, 445 12^th^ Street, S.W, Room 3-B443,
    Washington DC 20554 and MUST INCLUDE the file number listed above.

13. The Commission will not consider reducing or canceling a 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 ("GAAP"); 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.

14. Requests for payment of the full amount of this Notice of Apparent
    Liability under an installment plan should be sent to: Chief,
    Revenue and Receivables Operations Group, 445 12th Street, S.W.,
    Washington, D.C. 20554. *See* 47 C.F.R. § 1.1914.

15. Commission records indicate that Trivergent Communications, Inc.
    apparently has not designated an agent for service of Commission
    decisions, as required by 47 C.F.R. § 1.47(h). Accordingly, IT IS
    FURTHER ORDERED that a copy of this Notice of Apparent Liability for
    Forfeiture

    shall be posted in the Office of the Secretary.[^15] In addition, a
    copy will be sent by Certified Mail/Return Receipt Requested, to
    Trivergent Communications, Inc., 301 N. Main Street, Suite 5000,
    Greenville, SC 29601.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: *Numbering Resource Optimization,* Report and Order and Further
    Notice of Proposed Rulemaking in CC Docket No. 99-200, 15 FCC Rcd
    7574 (2000)("*NRO Order*"); *recon. and clarification in part*,
    Second Report and Order, Order on Reconsideration in CC Docket 96-98
    and CC Docket 99-200, and Second Further Notice of Proposed
    Rulemaking in CC Docket 99-200, FCC 00-429 (Dec. 29, 2000).

[^2]: *Id*.

[^3]: The NRUF reports are due on or before February 1 and on or before
    August 1 of each year. *See* 47 C.F.R. § 52.15(f)(6). However, we
    note that the deadline for filing reports due August 1, 2000 was
    extended to September 15, 2000. *Numbering Resource Optimization*,
    CC Docket No. 99-200, FCC 00-280 (Jul. 31, 2000).

[^4]: 47 C.F.R. § 52.25(g)(3)(iv). *See NRO Order*, 15 FCC Rcd at
    7609-10.

[^5]: The Enforcement Bureau mailed the January 29, 2001 letter to
    Trivergent by certified mail, return receipt requested. The return
    receipt reflects that Trivergent received the Bureau's letter on
    February 5, 2001.

[^6]: 47 U.S.C. § 503(b)(1)(B). *See also* 47 C.F.R. § 1.80(a)(2).
    Recently, the Commission amended Section 1.80 of its rules to make
    inflation adjustments in the maximum penalties that may be imposed.
    Accordingly, for a common carrier, the forfeiture limit for each
    violation is now \$120,000, with a maximum potential forfeiture of
    \$1,200,000 for a continuing violation involving a single act or
    failure to act. *See Amendment of Section 1.80(b) of the
    Commission's Rules*, 15 FCC Rcd 18221 (2000).

[^7]: Carriers are required to file NRUF reports by separate legal
    entity for each Operating Company Number ("OCN"). *See* 47 C.F.R. §
    52.15(f)(3)(ii). Our January 29, 2001 letter referenced seven OCNs
    for which Trivergent apparently had not filed NRUF reports due
    September 15, 2000.

[^8]: *Southern California Broadcasting Company*, 6 FCC Rcd 4387 (1991).

[^9]: 47 U.S.C. § 503(b)(2)(D).

[^10]: 47 C.F.R. § 1.80(b)(4).

[^11]: *The Commission's Forfeiture Policy Statement and Amendment of
    Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines*,
    12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303
    (1999)("*Forfeiture Guidelines*")(codified at 47 C.F.R. § 1.80(b)(4)
    Note).

[^12]: *Id*.

[^13]: *NRO Order* at 7593.

[^14]: *See NRO Order* at 7678-7683.

[^15]: *See* 47 C.F.R. § 1.47(h).