Bureau Settles Rio Verde Wireless Notice of Apparent Liability, Further Reminds Providers of Form 477 Obligations
On October 7, 2015, the Enforcement Bureau settled a Notice of Apparent Liability (NAL) with Rio Verde Wireless (Rio Verde or the Company) for failing to timely file its Form 477 and for failing to answer the Bureau’s questions regarding the Company’s failure to file. Rio Verde, a Wireless Internet Service Provider (WISP) uses unlicensed spectrum to provide broadband Internet service to fixed locations in Arizona. In 2013, the Bureau learned that Rio Verde had not filed seven Form 477s, dating back to 2010. In December 2013, the Bureau sent Rio Verde a Letter of Inquiry (LOI) asking the Company to provide information and documentation pertaining to its compliance with the Commission’s Form 477. Though the Company received the Bureau’s LOI, it never responded. The Enforcement Bureau’s Investigations and Hearings Division released an NAL on March 11, 2015. The NAL proposed penalties against Rio Verde, totaling $20,000, for failing to timely file the Form 477 and for failing to respond to the Bureau’s LOI. The NAL noted that failing to file broadband data and failing to respond to the Bureaus’ inquiries were “serious offenses that impede the Commission’s efforts to meet its statutory mandates regarding broadband deployment and to conduct inquiries into possible rule violations.” The NAL stated that Rio Verde apparently violated Sections 1.7001 and 1.7002 of the Commission’s rules for filing its Form 477 five weeks after the March 2014 deadline. As a non-licensed carrier, under Section 503(b)(2)(D), the Bureau would be authorized to asses a forfeiture against Rio Verde of up to $16,000 for each day of a continuing violation, up to a statutory maximum of $122,500 for a single act or failure to act. Under Section 1.80(b) of the Commission’s rules, the base forfeiture for failure to file required forms is $3,000 (for each violation or each day of a continuing violation). The forfeiture for a failure to respond to Commission communications is $4,000 (for each violation or each day of a continuing violation). Accordingly, the Bureau proposed a base forfeiture of $7,000 for both offenses, but concluded that “significant upward adjustments” were warranted. In view of the seriousness and the repeated nature of Rio Verde’s violations, the Bureau proposed an upward adjustment for each of the offenses included in the NAL. The Bureau proposed a total forfeiture of $20,000 – $10,000 for failing to timely file the Form 477 and $10,000 for failing to respond to a Commission Order. After the Bureau concluded its investigation, Rio Verde sought out assistance to meet its filing deadlines and timely filed the Form 477 with the Commission. On October 6, 2015, the Enforcement Bureau entered into a Consent Decree to resolve its investigation into whether Rio Verde failed to timely file its Form 477 and whether Rio Verde failed to fully respond to the Bureau’s LOI. Since Rio Verde was able to show financial hardship and it committed to future compliance with the Commission’s rules, Rio Verde was able to enter into a Consent Decree for $10,500 which it will be responsible for paying within 30 days. Under the Consent Decree, Rio Verde must designate a compliance officer, develop a compliance plan, and provide compliance training to staff to ensure future compliance. Concurrent with the Rio Verde Consent Decree, the FCC released an Enforcement Advisory reminding voice and broadband Internet service providers of their obligation to timely file their Form 477 reports. The recent Enforcement Advisory puts Wireless Internet Service Providers (WISPs) and other rural entities on notice that failure to file a Form 477 could result in an enforcement action, including monetary penalties.