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                           Before the
                Federal Communications Commission  
                     Washington, D.C. 20554

In the Matter of                   )
                              )    
Dr. Bonnie O'Day,                  )    File No. EB-03-TC-F-004
                              )    
          Complainant,             )                   
                              )
v.                            )
                              )    
Audiovox Communications Corporation,    )
                              )
          Defendant.               )


                              ORDER 


                   Adopted: December 30, 2003                                                       
                    Released: January 5, 2004


By the Chief, Telecommunications Consumers Division,  Enforcement 
Bureau:


 1.   In this Order,  we grant the Joint  Motion to Dismiss  with 
Prejudice (``Joint  Motion'')  filed  on December  17,  2003,  by 
Complainant   Dr.   Bonnie    O'Day   and   Defendant    Audiovox 
Communications Corporation.1   With the  mediation assistance  of 
Commission staff,  O'Day  and  Audiovox have  settled  the  first 
formal complaint filed  with the Commission  pursuant to  Section 
255  of  the  Communications  Act  of  1934,  as  amended,   (the 
``Act'').2  We find  that granting the  parties' Joint Motion  to 
dismiss the  formal complaint,  in the  manner described  herein, 
will ensure  the  most efficient  use  of the  parties'  and  the 
Commission's  resources  without  materially  prejudicing  either 
party.




                         I.  BACKGROUND

 2.   On  February 21, 2003, pursuant  to Section 255 of the  Act 
and the Commission's implementing  rules and orders,3 Dr.  Bonnie 
O'Day (``O'Day'')  filed  a formal  complaint  against  defendant 
Audiovox  Communications  Corporation  (``Audiovox'').4   In  her 
complaint, O'Day contends that  Audiovox violated Section 255  of 
the Act by, among other things,  failing to make features of  the 
wireless telephone handset that Audiovox manufactured  accessible 
to O'Day,  a visually-impaired  user.   O'Day requests  that  the 
Commission require  Audiovox to  make available  for  downloading 
into O'Day's  wireless telephone  the software  needed to  deploy 
``text to speech'' capability.  O'Day contends that such software 
would  allow  the  essential  functions  and  services  available 
through a wireless  telephone's visual menu  to be accessible  to 
her through audio prompts.5

 3.   On April 1,  2003, Audiovox filed a  Motion to Dismiss  the 
formal complaint and an Answer denying the allegations in O'Day's 
complaint.6  O'Day filed a Reply to the Answer and an  Opposition 
to Audiovox's Motion to Dismiss.7   In her Reply, O'Day  proposed 
that the  Commission hold  a technical  conference at  which  the 
parties, together  with their  engineering and  legal  personnel, 
could discuss accessibility issues at length.8  Commission  staff 
convened such a conference on June 12, 2003.  The parties,  their 
attorneys, and their respective  engineers and technical  experts 
attended  the  conference.   Commission  staff  facilitated   the 
discussion  and  encouraged  participants  to  discuss  potential 
settlement opportunities.  

 4.   Since the  technical conference,  O'Day and  Audiovox  have 
engaged in extensive settlement discussions, with assistance from 
Commission staff,  to  resolve  the  disputed  issues  raised  in 
O'Day's formal complaint.  As a result of these discussions,  the 
parties recently executed  a settlement agreement  and filed  the 
above-referenced Joint  Motion for  dismissal of  O'Day's  formal 
complaint against Audiovox. 

              II.  DISCUSSION AND ORDERING CLAUSES

 5.   The Commission  has broad discretion  to conduct  complaint 
proceedings ``in a manner  that will best  conduce to the  proper 
dispatch of business and to the ends of justice.''9  Although the 
Commission  does  not  have  a  specific  rule  relating  to  the 
dismissal of  formal complaints,  we generally  follow the  well-
established principle that dismissal should be allowed unless  it 
will materially prejudice either party.10  

 6.   Under  the  circumstances  of  this  case,  dismissing  the 
complaint with prejudice is  appropriate and does not  materially 
prejudice either O'Day or Audiovox.   Dismissal is in the  public 
interest because it ensures the efficient use of the Commission's 
formal complaint  process and  eliminates  the need  for  further 
litigation and expenditure  of additional time  and resources  of 
the parties and the Commission.  Hence, we find that the  parties 
have shown good cause for us to dismiss O'Day's formal  complaint 
with prejudice.  

 7.   Accordingly, IT  IS  ORDERED, pursuant  to  sections  4(i), 
4(j), and 208 of the Communications  Act of 1934, as amended,  47 
U.S.C.   154(i), 154(j),  and  208, and  section 1.727  of  the 
Commission's  rules,  47  C.F.R.    1.727,  and  the   authority 
delegated in sections 0.111 and 0.311 of the Commission's  rules, 
47 C.F.R.   0.111,  0.311,  that the  Joint Motion  to  Dismiss 
Formal Complaint  with Prejudice  filed by  the parties  to  this 
proceeding IS GRANTED.

 8.   IT IS  FURTHER ORDERED,  pursuant to  sections 4(i),  4(j), 
and 208 of the Communications Act of 1934, as amended, 47  U.S.C. 
 154(i), 154(j), and 208, and section 1.727 of the Commission's 
rules, 47 C.F.R.  1.727, and the authority delegated in sections 
0.111 and 0.311 of  the Commission's rules,  47 C.F.R.   0.111, 
0.311, that  O'Day's formal  complaint is  hereby DISMISSED  WITH 
PREJUDICE  and   that   the  above-captioned   formal   complaint 
proceeding IS TERMINATED.  


                         FEDERAL COMMUNICATIONS COMMISSION



                         Colleen K. Heitkamp
                         Chief, Telecommunications Consumers 
                    Division
                         Enforcement Bureau
_________________________

1     See Notice of Settlement and Joint Motion to Dismiss Formal 
Complaint  with   Prejudice,   Dr.  Bonnie   O'Day   &   Audiovox 
Communications Corporation, File  No. EB-03-TC-F-004, filed  Dec. 
17, 2003.

2     See 47 U.S.C.   255.  Section  255 provides, in  pertinent 
part,  that  manufacturers  of  telecommunications  equipment  or 
customer  premises   equipment,   as   well   as   providers   of 
telecommunications  services,  must   make  their  products   and 
services  ``accessible''  to  and  usable  by  individuals   with 
disabilities, if ``readily achievable.''

3     Sections 6.1 - 7.23 of the Commission's rules, 47 C.F.R.  
6.1 - 7.23,  implement Section 255.   See also In  the Matter  of 
Implementation   of   Sections   255   and   251(a)(2)   of   the 
Communications  Act,   Access  to   Telecommunications   Service, 
Telecommunications Equipment and  Customer Premises Equipment  by 
Persons with  Disabilities, Report  and Order,  16 FCC  Rcd  6417 
(1999) (``Section 255  Order'').  In the  Section 255 Order,  the 
Commission noted  that ``[p]rompt  and efficient  enforcement  of 
Section 255 and  the rules  adopted in  this Order  is a  crucial 
component  of  successful  implementation  of  the  accessibility 
requirements . . . .''  Section 255 Order, 15 FCC Rcd at 6441.

4    O'Day's formal  complaint  was  supported  by  the  American 
Council for the Blind, a national advocacy organization for blind 
and visually-impaired persons.   At the same time, O'Day filed  a 
similar formal complaint against  Verizon Wireless, File No.  EB-
03-TC-F-001.  This Order deals only with O'Day's formal complaint 
against Audiovox.

5    See O'Day Formal Complaint,  File No. EB-03-TC-F-004,  filed 
Feb. 21, 2003.

6    See Audiovox,  Answer and  Motion  to Dismiss  O'Day  Formal 
Complaint, File No. EB-03-TC-F-004, filed April 1, 2003.

7    See O'Day Reply to Audiovox Answer, File No. EB-03-TC-F-004, 
filed April  18,  2003  (``O'Day Reply'');  O'Day  Opposition  to 
Audiovox Motion to Dismiss, File No. EB-03-TC-F-004, filed  April 
18, 2003.  

8    See O'Day Reply.

9    47 U.S.C.  4(i), see also 47 U.S.C.  4(j).

10   See Wright & Miller, Federal Practice & Procedure: Civil  2d 
 2364.