FCC Record, Volume 27, No. 11, Pages 8850 to 9847, July 30 - August 17, 2012 Page: 9,312
x, 8850-9847 p. ; 28 cm.View a full description of this book.
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13. Second, the petitioners failed to show any specific steps they took to comply even partially
with Sections 64.604(c)5)(iii)(NX)()(i) and (ii), in any relevant respect, prior to September 1, 2011.
Specifically, neither Healinc nor its Subcontractors provide any specific information regarding the brands,
sub-brands, and URLs displayed and used by the Subcontractors or regarding any specific steps they took
prior to September 1, 2011, to attempt to ensure that the display and use of such brands, sub-brands, and
URLs clearly identified Healinc as the eligible provider.7
14. In short, the petitions fail to show that any of the petitioners had, or even attempted to have,
a "plan and ability to come into compliance" with Sections 64.604(c)(5)(iii)(N)(1i) and (ii) by
September 1, 2011, three months after the June 1, 2011 effective date of those provisions. Therefore, we
find that the petitioners have failed to meet the specific waiver criteria set forth in the Anti-Fraud Order,
and that failure in itself is sufficient to justify a denial of the requested waivers.3'
15. Further, petitioners have shown no reason why grant of the requested waivers of Sections
64.604(c)(X5)iii)(N)(1)(i) and (ii) is otherwise justified. Unlike Convo Communications, LLC (Convo), to
whom we granted a temporary waiver of the same provisions, the petitioners did not seek waivers of
Sections 64.604(c)(5)(iii)(N)(1)(i) and (ii) in a timely manner.39 Indeed, the petitioners only requested
waivers after the Administrator withheld Healinc's July 2011 payment on September 20, 2011, more than
three months after the effective date, based on a finding that Healinc had violated Sections
64.604(c)(5)(iii)(N)(1i) and (ii). Petitioners offer no reasons for their failure to seek a waiver sooner,
other than simple assertions that they believed they were operating in compliance with the rules prior to
September 20, 2011. In light of their failure to describe any specific measures that they took in that
period that would make such a belief reasonable, and given the importance of timely implementation of
these rules to the Commission's efforts to combat fraud and abuse, we find that they have failed to plead
with particularity any facts and circumstances that would justify the requested waiver.4"
16. Accordingly, we find that the petitioners have failed to satisfy the waiver standard in
section 1.3 of the Commission's rules and the conditions for waiver set forth in the Anti-Fraud Order, and
we accordingly deny the requested waivers of Sections 64.604(c)(5)(iii)(N)(1)(i) and (ii).
37 Healinc itself does not provide any specific information regarding the pre-September 1 use of brands and URLs
with calls processed by its Subcontractors - even though Healinc, as the eligible provider, was responsible for
ensuring that such calls complied with the Commission's rules. The Subcontractors also failed to provide specific
information regarding any pre-September 1 attempts to comply with Sections 64.604(c)(5)(iii)(N)(1)(i) and (ii). For
example, while CODAVRS argues that it complied with those provisions, it does not describe any specific steps that
it took to comply. CODAVRS Petition at 5. Other providers describe various practices that they say were in effect
as of the date the waiver petitions were filed, but fail to provide any indication when such practices were adopted.
See, e.g., IWRelay Petition at 4-6. Moreover, as noted earlier, the Enforcement Bureau issued citations against each
of the Subcontractors, finding them in violation of Sections 64.604(c)(5)(iii)(N)()(i) and (ii) of the rules. See 7,
supra.
*3 As the Commission made clear in the Anti-Fraud Order, Sections 64.604(c)(5)iii)(N)(Xi) and (ii) and other
provisions were adopted because the Commission believed them to be necessary to prevent fraud and abuse of the
TRS Fund. Anti-Fraud Order, 26 FCC Rcd at 5576, 63 n.169. In adopting strict criteria for waiving these
important rules, the Commission expressly found that "three months is an adequate time to come into compliance
with the new requirements." Id.
9 See Convo Waiver Order, 26 FCC Red at 15051 n.1 (showing that Convo filed for a waiver on May 18, 2011).
4o WAIT Radio, 418 F.2d at 1157.9312
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DA 12_1317
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United States. Federal Communications Commission. FCC Record, Volume 27, No. 11, Pages 8850 to 9847, July 30 - August 17, 2012, book, August 2012; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc133015/m1/479/: accessed April 23, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.