**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. EB-01-IH-0642       |
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| SBC Communications, Inc.         | ) | NAL/Acct. No. 20023208001    |
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| Apparent Liability for           | * | FRN Nos. 0004-3051-24        |
| Forfeiture                       |   |                              |
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**FORFEITURE ORDER**

**Adopted:** April 9, 2002 **Released:** April 15, 2002

By the Commission:[^1]

# INTRODUCTION

1.  In this Forfeiture Order, we find that SBC Communications, Inc.
    ("SBC") violated an Enforcement Bureau ("Bureau") order requiring
    SBC to provide sworn verification of the truth and accuracy of
    answers to a letter of inquiry ("LOI") that the Bureau issued
    pursuant to authority provided by the Communications Act of 1934, as
    amended ("Act").[^2] Based on the facts and circumstances before us
    and after considering SBC's response to the Bureau's Notice of
    Apparent Liability ("NAL") in this matter, we conclude that SBC is
    liable for a forfeiture of one hundred thousand dollars (\$100,000),
    the amount the Bureau proposed in the NAL.

# FACTS

2.  As described more fully in the NAL,[^3] on October 1, 2001, the
    Enforcement Bureau sent SBC an LOI directing SBC to provide answers
    to several questions regarding possible discrimination by SBC in its
    provisioning and maintenance of digital subscriber line ("DSL")
    technology and possible misrepresentations by SBC to the Bureau.[^4]
    The Bureau further directed SBC to verify the veracity of its
    answers by providing a sworn statement attesting to the truth and
    accuracy of the responses.[^5] SBC did not object to or challenge
    the Bureau's order in any manner. Instead, on October 22, 2001, SBC
    submitted a response to the LOI that addressed the questions but
    omitted the requisite sworn statement.[^6] SBC did not identify this
    omission to the Bureau.

3.  Soon after receiving SBC's response to the LOI, Enforcement Bureau
    staff discovered the omission and contacted the company to determine
    the reason for the noncompliance and to provide the company with an
    opportunity to correct it. SBC, however, disclosed to Bureau staff
    that it had intentionally refused to provide the sworn statement and
    that it did not intend to comply with that aspect of the Bureau's
    order.[^7] The Bureau informed the company that SBC was in violation
    of the order.[^8] On November 2, 2001, SBC had still not provided
    the sworn statement, and the Bureau issued the NAL proposing a
    forfeiture of \$100,000 and again directing SBC to provide a sworn
    statement. As with the Bureau's original direction to provide a
    sworn statement, SBC did not request that the Bureau or the
    Commission stay the portion of the NAL directing it again to provide
    a sworn statement. On November 7, 2001, SBC provided the sworn
    statement, noting that it did so "under protest."[^9] On December 3,
    2001, SBC filed its response to the NAL.[^10]

    **III. DISCUSSION**

4.  Under section 503(b) of the Act, "\[a\]ny person who is determined
    by the Commission to have . . . willfully or repeatedly failed to
    comply with . . . any order issued by the Commission under this Act"
    shall be liable for a forfeiture penalty.[^11] In order to impose
    such a forfeiture, the Commission must issue a notice of apparent
    liability, the notice must be received, and the person against whom
    the notice has been issued must have an opportunity to show, in
    writing, why no such forfeiture penalty should be imposed.[^12] The
    Commission will then issue a forfeiture order if it finds by a
    preponderance of the evidence that the person has violated the
    relevant order.[^13] As set forth in detail below, we conclude that,
    based on this standard, SBC is subject to forfeiture.

5.  The issue presented here is whether SBC violated the Bureau's
    directive that SBC provide sworn verification of the accuracy and
    truthfulness of its answers to the Commission's written inquiries.
    SBC argues that the Commission has no authority to require it to
    submit an attestation in the circumstances presented here. But the
    order at issue here was squarely within the Commission's authority
    and, in any event, parties are required to comply with Commission
    orders even if they believe them to be outside the Commission's
    authority. Therefore, based upon our review of the NAL, of SBC's
    response thereto, and of the record in this matter, we find that SBC
    willfully violated a Commission order.[^14]

## Congress Authorized The Commission To Require Regulated Entities To Provide Sworn Statements Verifying The Truth And Accuracy Of Information Submitted During A Commission Investigation. [^15]

6.  The Commission has statutory authority to require its regulatees to
    attest to the veracity and accuracy of answers to written questions
    that we pose during the course of an investigation into potential
    violations of the Act or Commission rules. In sections 4(i), 4(j),
    218, 403, and 208 of the Act, Congress afforded us with broad
    authority to investigate regulated entities.[^16] This broad
    investigative authority in these sections individually and
    collectively encompasses the authority to obtain from carriers
    information supported by attestations to ensure that the information
    is accurate and truthful.

7.  Section 218 of the Act authorizes us to "obtain from . . . carriers
    . . . full and complete information necessary to enable the
    Commission to perform the duties and carry out the objects for which
    it was created."[^17] This provision plainly grants us broad
    investigative power. SBC's argument that section 218 does not speak
    to the means by which we may obtain information is misplaced.[^18]
    As we will explain more fully below, in many cases information
    supported by attestation is "information necessary" to enable us to
    perform our enforcement function.[^19] Therefore, section 218's
    broad grant of authority covers our action here.

8.  Section 403 also gives the Commission broad authority to "make and
    enforce orders" relating to the matter under investigation.[^20]
    Moreover, it gives the Commission the same "powers and authority" in
    conducting an investigation that it would have when investigating a
    section 208 complaint.[^21] In this regard, section 208 says the
    Commission can investigate such matters "in such manner and such
    means as it shall deem proper."[^22]

9.  The broad authority in sections 4(i) and 4(j) for the Commission to
    "issue such orders . . . as may be necessary in the execution of its
    functions" and to "conduct its proceedings in such manner as will
    best conduce the proper dispatch of business and to the ends of
    justice" further supports our authority to require
    attestations.[^23] It is well established that sections 4(i) and
    4(j) afford us broad general authority and power,[^24] and the
    Bureau's action here falls comfortably within the scope of that
    authority as well.

10. We are not persuaded by SBC's argument that sworn verification here
    was not "necessary" and thus was outside the scope of our authority
    under section 4(i).[^25] When the Commission conducts an
    investigation, the subject of the investigation may be the exclusive
    source of information on which the Commission must ultimately rely
    to determine the subject's compliance. In these situations, the
    willingness of the subject to attest to the truth and accuracy of
    the information can be critical. This type of attestation takes on
    even greater significance when, as in this case, a core question at
    issue is whether a carrier has engaged in misrepresentation to the
    Commission.[^26] As we have said in another context, we afford
    greater weight to comments and pleadings supported by affidavits or
    sworn statements than to unsupported contrary pleadings.[^27]
    Indeed, a party's failure to submit such an attestation in the
    context of an investigation has led to a higher forfeiture amount
    for the underlying substantive violation.[^28] These types of
    verifications can be necessary to the Commission's investigative
    function,[^29] and the requirement of such verification here falls
    squarely within the category of acts and orders envisioned as
    necessary under section 4(i).[^30]

11. SBC protests that the requirement that it attest to the veracity of
    responses to the Bureau's questions is not a "question of procedure"
    that properly falls within section 4(j).[^31] But this requirement
    is precisely a procedural means by which the Commission obtains the
    substantive response it seeks, i.e., answers that bear a unique
    imprimatur of reliability. Indeed, this type of requirement is a
    standard and fundamental procedural tool in the context of both
    Commission formal complaint proceedings and in civil litigation
    generally. As noted above, section 208 of the Act (which is
    incorporated here through section 403), states that it is the "duty"
    of the Commission to investigate "in such manner and by such means
    as it shall deem proper."[^32] Our rules implementing section 208
    state that the Commission "may require parties \[to a complaint
    proceeding\] to submit any additional information it deems
    appropriate for a full, fair, and expeditious resolution of the
    proceeding, *including affidavits and exhibits,*"[^33] and they
    require that interrogatories in complaint proceedings "are to be
    answered . . . in writing *under oath or affirmation*."[^34]
    Similarly, the Federal Rules of Civil Procedure require that parties
    must provide answers to interrogatories under oath.[^35] The
    attestation requirement is identical in function and purpose to
    these other requirements. Thus, section 4(j) also provides authority
    for the Bureau's order.

12. In sum, we find that the Bureau was well within its statutory
    authority in requiring SBC to provide a sworn written verification
    of the truth and accuracy of its responses to the LOI. In defying
    that directive, SBC willfully violated a Commission order.

## The Commission's Subpoena Power Is Not Relevant To This Case.

13. In section 409 of the Act, Congress afforded the Commission with
    subpoena power to compel "the *attendance and testimony of
    witnesses* and the *production* of all books, papers, schedules of
    charges, contracts, agreements, and documents relating to any matter
    under investigation."[^36] SBC's primary argument in defense of its
    defiance of the Bureau's order is that the Commission may only
    require carriers to attest to the veracity of their LOI responses
    pursuant to this section 409 subpoena power and all of its
    accompanying statutory and constitutional procedures and
    protections. Even assuming, *arguendo*, that section 409 provides
    the exclusive means for the Commission to obtain information within
    the ambit of that section,[^37] we reject SBC's argument simply
    because section 409 has no relevance to the requirement that a
    carrier attest to the veracity and accuracy of its answers to our
    written inquiries.

14. By its own terms, section 409 relates only to the "attendance and
    testimony of witnesses," and the production of documentary
    evidence.[^38] Section 409 is styled "General Provisions Relating to
    Proceedings -- Witnesses and Depositions," setting forth the limited
    scope of its applicability. Section 409 itself acknowledges that the
    Commission has means other than subpoenas to obtain information from
    parties.[^39] In relevant part, section 409 governs the use of the
    Commission's subpoena power to compel individuals to appear and
    testify at hearings or depositions. The Bureau did not seek to
    compel the appearance of witnesses for testimony. The LOI merely
    sought a "sworn written response"[^40] verifying the truth and
    accuracy of SBC's answers to the LOI. As noted above, in this
    respect the LOI followed long-standing Commission practice. We have
    routinely required affidavits and verifications from regulated
    entities during the course of various proceedings without asserting
    subpoena power.[^41] Our orders requiring regulatees to submit
    affidavits or to swear to the accuracy of responses to our written
    inquiries do not trigger the requirements of section 409.

15. Consequently, we reject SBC's argument that the specific
    requirements of section 409 supersede the more general provisions of
    sections 218, 403, 4(i) and 4(j).[^42] Although section 409 may be
    more detailed in its requirements, those requirements simply do not
    apply to the circumstances of this case.[^43] Rather, sections 218,
    403, 4(i), and 4(j) control here.[^44] Therefore, we also reject
    SBC's assertion that the Bureau's failure to comply with the
    procedural requirements of section 409 rendered its order
    invalid.[^45] Those requirements did not apply to the Bureau's
    action.

    **C. SBC's Constitutional Arguments Are Without Merit.**

16. Our federal constitution affords to subjects of administrative
    subpoenas or other administrative orders particular rights of access
    to judicial review. First, as to administrative subpoenas, SBC
    invokes the right of a subject of such a subpoena to judicial review
    before the subject is obliged to suffer penalties for refusing to
    comply.[^46] Second, as to other administrative orders, SBC refers
    us to its asserted right to an opportunity to raise a good faith
    challenge to an order before being sanctioned.[^47] We reject each
    of these arguments because they depend on fundamental
    misconstructions of the relevant facts and applicable law in this
    case.

17. First, as we concluded above, this case did not involve a subpoena,
    and SBC is incorrect that the Act required the Bureau to use a
    subpoena.[^48] Therefore, the constitutional protections that attach
    to the enforcement of a subpoena are not applicable here. Even so,
    Congress provided a carefully constructed protocol for our
    forfeiture proceedings that allows ample opportunity for judicial
    review before any subject of a Commission forfeiture order may
    suffer any penalties for refusing to comply with that order. The Act
    explicitly provides that no one can be forced to pay a
    Commission-imposed non-hearing forfeiture unless or until the
    forfeiture order has been subjected to federal judicial review in a
    trial *de novo.*[^49] Thus, SBC will have access to full-blown
    judicial review before suffering any penalty.[^50] For this reason,
    and more fundamentally because no subpoena was at issue in this
    case, we find that the Bureau's actions did not violate any
    constitutional requirements related to pre-enforcement judicial
    review of subpoenas.

18. Second, we find SBC's argument that the Bureau improperly sanctioned
    a constitutionally protected good faith challenge to be
    misplaced.[^51] As an initial matter, an NAL is not itself a
    sanction; it is a proposed sanction. In addition, contrary to its
    assertions, SBC did not raise any type of affirmative challenge to
    the Bureau's sworn statement directive. Rather, it failed even to
    disclose its noncompliance to the Bureau. Moreover, SBC had
    conducted itself in this manner on two prior occasions, and never
    brought its objection to the Bureau's attention.[^52]

19. Far from extinguishing SBC's right to challenge the sworn statement
    directive, the Bureau virtually invited such a challenge. Before
    issuing the NAL in this case, the Bureau notified SBC that it had
    discovered the omission of the sworn statement, gave SBC the
    opportunity to admit and correct its noncompliance, and informed SBC
    that it was in violation of a Commission order.[^53] At that point
    in time, and even before, SBC could have raised a good faith
    challenge to the order. As an initial matter, SBC could have taken
    the minimal step of alerting the Bureau of its concerns prior to, or
    simultaneous with, its submission of its October 22, 2001 response
    to the LOI. In addition, at the same time, or at least upon
    receiving notice that it was in violation of the order, SBC could
    have petitioned the Commission or the Bureau for a stay of the
    portion of the October 1, 2001 order that required the sworn
    statement.[^54] Nonetheless, SBC chose not to avail itself of the
    opportunity to raise a genuine good faith challenge to the
    order.[^55]

20. SBC's mere belief that the Bureau's sworn statement directive was
    unlawful cannot excuse its conduct here, and it certainly cannot
    amount to a good faith challenge to the order. The Act provides that
    "\[a\]ll such orders shall continue in force for the period of time
    specified in the order or until the Commission or a court of
    competent jurisdiction issues a superseding order."[^56] Moreover,
    "\[i\]t shall be the duty of every person, its agents and employees,
    and any receiver or trustee thereof, to observe and comply with such
    orders so long as the same shall remain in effect."[^57] As we have
    stated very recently, "a licensee cannot ignore a Commission order
    simply because it believes such order to be unlawful."[^58]

21. Finally, none of the cases on which SBC bases this argument would
    support a finding that SBC exercised a good faith challenge in this
    case.[^59] To the contrary, SBC did "\`default\[\] \[and\]
    contumaciously refuse\[\] to comply," and our process "\`provides
    full opportunity for judicial review *before* any coercive sanctions
    may be imposed.'"[^60] We reject SBC's argument that the Bureau
    improperly sanctioned a good faith challenge to the LOI. The Bureau
    provided ample due process to SBC.

    **D. The Forfeiture Amount Is Lawful and Appropriate.**

22\. Section 503(b)(2)(B) of the Act authorizes the Commission to assess
a forfeiture of up to \$120,000 for each violation, or each day of a
continuing violation, up to a statutory maximum of \$1,200,000 for a
single act or failure to act.[^61] In determining the appropriate
forfeiture amount, we consider the factors enumerated in section
503(b)(2)(D) of the Act, including "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 such other matters as justice may require."[^62]

23\. Section 1.80 of the Commission's rules and the Commission's
*Forfeiture Policy Statement* establish a base forfeiture amount of
\$3,000 for failure to file required forms or information.[^63] As noted
in the NAL, however, the circumstances of this case justify a
substantial increase to this base amount pursuant to upward adjustment
criteria contained in the rules and the *Forfeiture Policy
Statement*.[^64] Specifically, the Bureau found that the adjustment was
appropriate because the misconduct was egregious; the violation was
intentional; and the forfeiture amount must be high enough to serve a
deterrent effect in view of SBC's ability to pay.[^65]

24\. SBC objects to several aspects of the Bureau's reasoning, and it
contends that the forfeiture amount proposed in the NAL is inappropriate
because: (1) SBC did not intentionally violate the LOI; (2) SBC's
conduct did not impede the Bureau's investigation; and (3) SBC and the
Bureau still were "negotiating" when the Bureau issued the NAL.[^66]
None of these points has merit.

25\. First, SBC explicitly acknowledged to the Bureau that its failure
to comply with the LOI was intentional.[^67] SBC admittedly had
knowledge of its actions and of the fact that those actions violated a
Commission order.[^68] The company cannot now credibly argue that its
conduct was unintentional.

26\. Second, SBC's refusal to attest to the truth and accuracy of its
responses to the Bureau's written questions did impede the Bureau's
investigation. As the Bureau properly noted in the NAL, "SBC's decision
not to provide the requisite sworn statement here obstructs the Bureau's
investigation into discrepancies in SBC's various representations to the
Commission. SBC's conduct strikes at the core of the Bureau's ability to
perform its function, and rises above the level of a mere omission or
failure to file."[^69]

27\. Third, SBC and the Bureau were not "negotiating" at the time the
Bureau issued the NAL. Indeed, Bureau staff had made clear to SBC that
SBC's obligation to submit a sworn written response was not open for
negotiation between SBC and the Bureau.[^70] In any event, the Bureau
was under no obligation even to inform SBC of its noncompliance or to
give SBC an opportunity to comply. It did so as a courtesy and was not
required to do more.[^71] When a carrier deliberately violates a
Commission directive, it should not be surprised that the Commission
would issue an NAL upon discovering the violation.

28\. For all of the reasons we have discussed above, we find that SBC's
conduct justified the forfeiture amount that the Bureau proposed. We
therefore affirm the \$100,000 forfeiture amount originally proposed by
the Bureau.[^72]

# ORDERING CLAUSES

29\. Accordingly, IT IS ORDERED THAT, pursuant to section 503(b) of the
Act, [^73] and section 1.80 of the Commission's Rules,[^74] SBC
Communications SHALL FORFEIT to the United States Government the sum of
one hundred thousand dollars (\$100,000) for violating an Enforcement
Bureau order to submit a sworn written response to a Bureau LOI.

30\. IT IS FURTHER ORDERED that payment shall be made in the manner
provided for in section 1.80 of the Commission's rules within 30 days of
release of this order.[^75] If the forfeiture is not paid within the
period specified, the case will be referred to the Department of Justice
for collection pursuant to section 504(a) of the Act.[^76]

31\. IT IS FURTHER ORDERED that a copy of this Order of Forfeiture shall
be sent by Certified Mail/Return Receipt Requested to SBC
Communications, c/o Caryn D. Moir, Vice President - Federal Regulatory,
1401 I Street, N.W., Suite 1100, Washington, D.C. 20005.

> FEDERAL COMMUNICATIONS COMMISSION

William F. Caton

####### Acting Secretary {#acting-secretary .unnumbered}

[^1]: We note that the Enforcement Bureau issued the Notice of Apparent
    Liability in this case under its delegated authority, but has now
    referred the matter to the Commission given the significance of the
    challenge to the Commission's authority. 47 C.F.R. § 0.5(c) ("the
    staff is at liberty to refer any matter at any stage to the
    Commission for action, upon concluding that it involves matters
    warranting the Commission's consideration").

[^2]: 47 U.S.C. §§ 218, 403, 154(i), 154(j).

[^3]: *SBC Communications, Inc*., Notice of Apparent Liability for
    Forfeiture, 16 FCC Rcd 19370 (2001) ("NAL").

[^4]: *See* Oct. 1, 2001 Letter from Charles W. Kelley, Chief,
    Investigations and Hearings Division, Enforcement Bureau, Federal
    Communications Commission to Sandra L. Wagner, Vice President --
    Federal Regulatory, SBC Telecommunications, Inc. ("LOI").

[^5]: *Id.*

[^6]: *See* Oct. 22, 2001 Letter from William A. Brown, Senior Counsel,
    SBC Telecommunications, Inc. to Elizabeth H. Valinoti, Attorney,
    Investigations and Hearings Division, Enforcement Bureau, Federal
    Communications Commission ("LOI Response").

[^7]: *See* Dec. 3, 2001 Response of SBC Communications, Inc. to Notice
    of Apparent Liability for Forfeiture ("NAL Response"), Attachment F,
    "Affidavit of Caryn D. Moir" at ¶ 6. As it turns out, this instance
    was not the first in which SBC violated a Bureau directive to submit
    a sworn written response to a Bureau inquiry. In at least two other
    Bureau investigations, both of which involved possible
    misrepresentations by SBC, SBC ignored a Bureau directive that the
    company submit a sworn written response to a Bureau LOI without
    identifying the omission to the Bureau and without offering any
    explanation -- legal or otherwise -- for its omission. *Compare*
    Letter from David H. Solomon, Chief, Federal Communications
    Commission Enforcement Bureau to Sandra L. Wagner, Vice-President,
    Federal Regulatory, SBC Telecommunications, Inc., dated July 26,
    2001 (LOI directing a "sworn written response") ("July 26, 2001
    LOI") *with* Letter from Reid M. Figel, counsel to SBC
    Communications, Inc. to David H. Solomon, Chief, Federal
    Communications Commission Enforcement Bureau dated Sept. 7, 2001
    (unsworn written response to July 26, 2001 LOI). *Compare* Letter
    from Bradford M. Berry, Deputy Chief, Federal Communications
    Commission Enforcement Bureau to Sandra L. Wagner, Vice-President,
    Federal Regulatory, SBC Telecommunications, Inc., dated Sept. 14,
    2001 (LOI directing a "sworn written response") ("Sept. 14, 2001
    LOI") *with* Letter from Reid M. Figel, counsel for SBC
    Communications, Inc., to Trent Harkrader, Federal Communications
    Commission Enforcement Bureau dated Sept. 19, 2001 (unsworn written
    response to Sept. 14, 2001 LOI).

[^8]: *See* NAL Response at 5; *see also* NAL Response, Attachment F,
    "Affidavit of Caryn D. Moir" at ¶ 6.

[^9]: In response to the NAL's order that SBC "submit, not later than
    November 7, 2001, a sworn written response to the Bureau's LOI," NAL
    at 5, SBC filed an affidavit signed by an officer of the company
    attesting that the information submitted in response to the Bureau's
    October 1, 2001 LOI was "true and correct to the best of \[the
    officer's\] knowledge." *See* "Verification to Letter of Inquiry,
    File No. EB-00-IH-0282" signed by John S. Habeeb, Director --
    Regulatory, SBC Advance Services, Inc., attached to Nov. 7, 2001
    Letter from Caryn D. Moir, Vice President -- Federal Regulatory, SBC
    Telecommunications, Inc. to Elizabeth H. Valinoti, Attorney,
    Investigations and Hearings Division, Enforcement Bureau, Federal
    Communications Commission ("SBC's Nov. 7, 2001 Letter"). SBC
    submitted this affidavit "under protest and without prejudice to its
    contention that the Enforcement Bureau has no authority either to
    compel sworn testimony absent a subpoena or to attach additional
    costs to SBC for seeking review of a contested point of law." *See*
    SBC's Nov. 7, 2001 Letter at 2.

[^10]: *See* NAL Response.

[^11]: 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(a).

[^12]: 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).

[^13]: *See, e.g., Tuscola Broadcasting Co.,* Memorandum Opinion and
    Order, 76 FCC 2d 367, 371 (1980) (applying preponderance of the
    evidence standard in reviewing Bureau level forfeiture order). *Cf.*
    47 U.S.C. § 312(d) (assigning burden of proof in hearings to
    Commission).

[^14]: Under the Communications Act, a party "willfully" violates the
    Communications Act or a Commission rule or order when it knows it is
    taking the action in question, irrespective of any intent to violate
    the Commission's rules. *See* 47 U.S.C. § 312(f); *Southern
    California Broadcasting Co., Licensee, Radio Station KIEV(AM)
    Glendale, California,* Memorandum Opinion and Order, 6 FCC Rcd 4387,
    4387-88, ¶ 5 (1991) (citing legislative history that definition of
    willful in section 312(f) applies to section 503(b)); *Liability of
    Hale Broadcasting Corp., Licensee of Radio Station WMTS
    Murfreesboro, Tennessee,* Memorandum Opinion and Order, 79 FCC 2d
    169, 171, ¶ 5 (1980).

[^15]: The Commission has delegated to the Enforcement Bureau broad
    authority to serve as "the primary Commission entity responsible for
    enforcement of the Communications Act and other communications
    statutes, the Commission's rules, Commission orders and Commission
    authorizations." 47 C.F.R. §§ 0.111(a), 0.311. This delegated
    authority expressly includes the authority to "\[i\]ssue or draft
    orders taking or recommending appropriate action in response to
    complaints or investigations," and to "issue . . . appropriate
    interlocutory orders and take appropriate action in the exercise of
    its responsibilities." 47 C.F.R. § 0.111(a)(14). Where this
    Forfeiture Order speaks to Commission authority, therefore, it also
    applies to the delegated authority of the Enforcement Bureau.

[^16]: 47 U.S.C. §§ 154(i), 154(j), 208, 218, 403. *See also* 47 U.S.C.
    §308(b) (authority to investigate radio licensees and applicants).

[^17]: 47 U.S.C. § 218. "The Commission may inquire into the management
    of the business of all carriers subject to this Act. . . . The
    Commission may obtain from such carriers, and from persons directly
    or indirectly controlling or controlled by, or under direct or
    indirect common control with, such carriers full and complete
    information necessary to perform the duties and carry out the
    objects for which it was created." *Id.*

[^18]: NAL Response at 18.

[^19]: *See infra* ¶ 10.

[^20]: 47 U.S.C. § 403.

    > The Commission shall have full authority and power at any time to
    > institute an inquiry, on its own motion, in any case and as to any
    > matter or thing concerning which complaint is authorized to be
    > made, to or before the Commission by any provision of this Act, or
    > concerning which any question may arise under any of the
    > provisions of this Act, or relating to the enforcement of any of
    > the provisions of this Act. The Commission shall have the same
    > powers and authority to proceed with any inquiry instituted on its
    > own motion as though it had been appealed to by complaint or
    > petition under any of the provisions of this Act, including the
    > power to make and enforce any order or orders in the case, or
    > relating to the matter or thing concerning which the inquiry is
    > had, excepting orders for the payment of money. *Id.*

[^21]: *Id.*

[^22]: 47 U.S.C. § 208(a). "If such carrier or carriers \[in response to
    a complaint\] shall not satisfy the complaint within the time
    specified or there shall appear to be any reasonable ground for
    investigating said complaint, it shall be the duty of the Commission
    to investigate the matters complained of in such manner and by such
    means as it shall deem proper." *Id.*

[^23]: "The Commission may perform any and all such acts, . . . and
    issue such orders, not inconsistent with this Act, as may be
    necessary in the execution of its functions." 47 U.S.C. § 154(i).
    "The Commission may conduct its proceedings in such manner as will
    best conduce to the proper dispatch of business and to the ends of
    justice." 47 U.S.C. § 154(j).

[^24]: *See, e.g., U.S. v. Southwestern Cable Co*., 392 U.S. 157 (1968).
    "Congress declined to 'stereotyp(e) the powers of the Commission to
    specific details.'" *Id*. at 180 (quoting *NBC v. U.S.,* 319 U.S.
    190, 219 (1943)). "Thus, the Commission has been explicitly
    authorized to issue 'such orders, not inconsistent with this (Act),
    as may be necessary in the execution of its functions.'" *Id.*
    (citing section 4(i) of the Communications Act, 47 U.S.C. § 154(i)).
    *See also FCC v. Schreiber*, 381 U.S. 279, 289 (1965) (section 4(j)
    "delegates broad discretion" to the Commission to, *inter alia,*
    "make ad hoc procedural rulings in specific cases."); *Mobile
    Communications Corp. of America v. FCC*, 77 F.3d 1399, 1404 (D.C.
    Cir. 1990) (and cases cited therein).

[^25]: *See* NAL Response at 16.

[^26]: *See* NAL 19371 at ¶ 4, 19373 at ¶ 10.

[^27]: *See Application of Ameritech Michigan Pursuant to Section 271 of
    the Communications Act of 1934, as amended, to Provide In-Region,
    InterLATA Services in Michigan*, CC Docket No. 97-137, Memorandum
    Opinion and Order, 12 FCC Rcd 20543, 20569 (1997).

[^28]: *See, e.g., Sound Broadcasting Corp*., Notice of Apparent
    Liability for Forfeiture, 7 FCC Rcd 3378, 3379 (Mass Media Bureau
    1992) (noting that a forfeiture in the "full amount . . . allowed by
    law" was to be imposed because the company's reply "included only
    non-notarized statements . . . although \[the Mass Media Bureau\]
    had requested notarized affidavits").

[^29]: The fact that 18 U.S.C. § 1001 and 47 C.F.R. § 1.17 require SBC
    to tell the truth does not, as SBC suggests, render an attestation
    superfluous. *See* NAL Response at 16, 28. Requiring submission of
    an attestation may elicit a higher level of care and attention than
    the level that answers unaccompanied by verification may prompt.
    Attestations can be necessary to attain the level of reliability
    that we require to enforce the Act and our orders and rules.
    Moreover, to the extent that, as SBC suggests, the standards of
    accuracy, reliability, and accountability elicited by sections 1001
    and 1.17 are truly indistinguishable from those the company must
    meet when we require it to attest to the accuracy and veracity of
    written responses, the basis for SBC's objection to such an
    attestation is unclear.

[^30]: Similarly, as we have noted above, information supported by sworn
    verification may be "necessary" for purposes of 47 U.S.C. § 218. See
    supra ¶ 7.

[^31]: *See* NAL Response at 16 (citing *FCC v. Pottsville Broadcasting
    Co.*, 309 U.S. 134, 138 (1940)).

[^32]: 47 U.S.C. § 208(a).

[^33]: 47 C.F.R. § 1.732(g) (emphasis added).

[^34]: 47 C.F.R. § 1.729(e) (emphasis added).

[^35]: Fed. R. Civ. Pro. 33(b)(1).

[^36]: 47 U.S.C. § 409(e) (emphasis added).

[^37]: *See infra* n.46.

[^38]: 47 U.S.C. § 409.

[^39]: 47 U.S.C. § 409(m).

[^40]: LOI at 2, 4.

[^41]: *See, e.g., Peninsula Communications, Inc*., Notice of Apparent
    Liability for Forfeiture and Order, 16 FCC Rcd 16124 (2001)
    (ordering broadcast licensee to "submit an affidavit informing \[the
    Commission\] whether \[it\] has ceased operating . . . translators
    and whether it intends to operate those translators at any time in
    the future absent authorization to do so"); *see also* *Brindlee
    Broadcasting Corp*., Memorandum Opinion and Order, 54 FCC 2d 56, 57
    (Rev. Bd. 1975) (ordering president of broadcast license applicant
    to submit "an explanation . . . under oath as to how he plans to
    fulfill his full-time commitment to \[the license applicant\]
    Brindlee" and his commitments to other organizations in which he
    holds an interest).

[^42]: *See* NAL Response at 14-18.

[^43]: Our conclusion is perfectly consistent with the case law SBC
    cites in its Response to the NAL. For example, in *AT&T v. FCC*, the
    FCC's use of its broad authority conferred in sections 4(i), 4(j),
    403 and numerous other sections of the Act conflicted with "precise
    procedures and limitations" in section 205 of the Act. *AT&T v.
    FCC*, 487 F.2d 865, 873 (2d Cir. 1973). In this case, however, the
    procedures and limitations of section 409 simply do not apply.
    Hence, no conflict exists.

[^44]: We also note that the Supreme Court has upheld the Commission's
    authority to utilize its general section 4(i) authority even when a
    more specialized provision of the Act is at the Commission's
    disposal. *U.S. v. Southwestern Cable Co*., 392 U.S at 180 n.46
    (noting that the Commission need not "issue prohibitory orders only
    under, and in conformity with . . . section \[312(b) of the
    Communications Act\]," and that it appropriately may rely on its
    general section 4(i) powers to issue such orders).

[^45]: NAL Response at 13. The procedural protections afforded by
    section 409 include payments to witnesses and deponents, aid to the
    Commission by federal courts in instances of disobedience to a
    subpoena, depositions before specified, disinterested officers, and
    caution to deponents to testify the whole truth. 47 U.S.C. §§
    409(e), (f), (g), (h), (i), (k). We note that these procedures are
    for the protection of not only the parties subject to subpoenas, but
    also for the protection of the Commission.

[^46]: NAL Response at 19-22.

[^47]: NAL Response at 22-25.

[^48]: *See supra* ¶¶ 13-15.

[^49]: 47 U.S.C. § 504(a). If a party chooses not to pay a non-hearing
    forfeiture, the Commission may refer the matter to the U.S.
    Department of Justice for collection proceedings, in which case the
    party is entitled to an entirely new trial on the merits in federal
    court.

[^50]: Even assuming that the administrative subpoena cases SBC cites
    apply here, none of them requires more than that the parties have
    the right to judicial review of an administrative subpoena before
    "suffering penalties for refusing to comply." *See See v. City of
    Seattle*, 387 U.S. 541, 544 (1967), *quoted in*, NAL Response at 19.
    Indeed, those cases tend to reinforce our finding here that there is
    ample opportunity for judicial review of the order at issue, and
    that it is incumbent upon SBC to invoke those protections. *See,
    e.g.,* *Oklahoma Press Publ'g Co v. Walling,* 327 U.S. 186, 217
    (1946) (rejecting petitioners' argument that agency subpoena power
    would subject them to impermissible inconvenience, expense, and
    harrassment precisely because "they may make appropriate defense
    surrounded by every safeguard of judicial restraint.") (internal
    quotation omitted).

[^51]: *See* NAL Response at 22-26.

[^52]: *See supra* n.7.

[^53]: *See* *supra* ¶ 3.

[^54]: 47 C.F.R. §§ 1.43, 1.44.

[^55]: Moreover, as we discuss above, *see supra* ¶ 17, even after the
    issuance of this Forfeiture Order, SBC may choose not to pay the
    forfeiture and to raise a challenge to our findings in a trial *de
    novo* should the Department of Justice prosecute any collection
    action we may refer.

[^56]: 47 U.S.C. § 408.

[^57]: 47 U.S.C. § 416(c).

[^58]: *See* *Peninsula Communications, Inc*., Forfeiture Order, FCC
    02-31 at ¶ 5 (rel. Feb. 6, 2002).

[^59]: *See* NAL Response at 22-26. In these cases, parties subject to
    various subpoenas or fines actively sought judicial relief to stay
    and/or enjoin the relevant order. *See, e.g., Oklahoma Operating Co.
    v. Love,* 252 U.S. 331, 339 (1920) (laundry company sued to enjoin
    Oklahoma Corporation Commission from entertaining rate complaints
    against company, and from enforcement related to such complaints);
    *see also*, *Reisman v. Caplin*, 375 U.S. 440, 441 (1964) (attorney
    filed suit seeking declaratory ruling and injunctive relief against
    IRS to invalidate a subpoena demanding production of work papers );
    *see also* *Belle Fourche Pipeline* *Co. v. U.S*., 751 F.2d 332, 333
    (10^th^ Cir. 1984) (oil company filed complaint seeking declaratory
    and injunctive relief against an investigation by the Federal Energy
    Regulatory Commission).

[^60]: *See* NAL Response at 23 (quoting *Reisman v. Caplin*, 375 U.S.
    440, 448 n.8, 450 (1964) (emphasis added)). Even under SBC's
    asserted interpretation that section 503(b) must, as a
    constitutional matter, permit good faith pre-enforcement challenges,
    the Bureau's actions were still entirely appropriate.

[^61]: 47 U.S.C. § 503(b)(2)(B); *see also* 47 C.F.R § 1.80(b)(2); *see
    also* *Amendment of Section 1.80(b) of the Commission's Rules,
    Adjustment of Forfeiture Maxima to Reflect Inflation*, Order, 15 FCC
    Rcd 18221 (2000).

[^62]: 47 U.S.C. § 503(b)(2)(D); *see also* *The Commission's Forfeiture
    Policy Statement and Amendment of Section 1.80 of the Rules to
    Incorporate the Forfeiture Guidelines*, 12 FCC Rcd 17087, 17100
    (1997) ("*Forfeiture Policy Statement*"); *recon. denied* 15 FCC Rcd
    303 (1999); 47 C.F.R. § 1.80(b)(4).

[^63]: 47 C.F.R. § 1.80; *Forfeiture Policy Statement*, 12 FCC Rcd at
    17114, Appendix A, Section I.

[^64]: NAL at 19372-73.

[^65]: 47 C.F.R. § 1.80; *Forfeiture Policy Statement*, 12 FCC Rcd at
    17100.

[^66]: *See* NAL Response at 27--29.

[^67]: S*ee* NAL Response, Attachment F, "Affidavit of Caryn D. Moir" at
    ¶ 6.

[^68]: *Id.* *See also supra* ¶ 3.

[^69]: NAL 19373 at ¶ 10. See supra ¶ 10 and n.30 (discussing necessity
    of attestations to Commission investigations).

[^70]: *See* NAL Response at 5; *see also* NAL Response, Attachment F,
    "Affidavit of Caryn D. Moir" at ¶ 6.

[^71]: \"The Commission is not required to bargain with its licensees
    for the information to which it is entitled in order properly to
    carry out its functions.\" *See* *James A. Kay, Jr.,* Decision, FCC
    01-341 at ¶ 40 (rel. Jan. 25, 2002) (quoting *Carol Music, Inc*., 37
    FCC 379, 384 (1964)) (acknowledging licensee right to register
    principled objections to Commission directives but noting that
    objections do not negate licensee obligation to comply with
    directives).

[^72]: SBC correctly points out that \$100,000 is the maximum forfeiture
    available at this point in this case, *see, e.g.*, NAL Response at
    ii, iv, 27, 28, but the company misunderstands the reason for that
    limitation. The Commission is limited here to imposing a maximum
    \$100,000 forfeiture only because this Order is based on a
    Bureau-level NAL in which the Bureau proposed a forfeiture of
    \$100,000, which is the cap on its delegated authority. *See* 47
    C.F.R. § 0.311. We note, however, that had the Commission itself
    issued the NAL in the first instance, we could have imposed a
    forfeiture here of up to \$120,000 per day, up to a maximum of \$1.2
    million for the more than 10 days for which SBC\'s violation
    continued. *See* 47 U.S.C. § 503(b)(2)(B); *see also* 47 C.F.R §
    1.80(b)(2); *see also* *Amendment of Section 1.80(b) of the
    Commission's Rules, Adjustment of Forfeiture Maxima to Reflect
    Inflation*, Order, 15 FCC Rcd 18221 (2000).

[^73]: 47 U.S.C. § 503(b).

[^74]: 47 C.F.R. § 1.80.

[^75]: *Id.*

[^76]: 47 U.S.C. § 504(a).