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

In the Matter of                                       )
                                     )  
Dr. Bonnie O'Day,                         )  
                                     )  
          Complainant,                    )                 
                                     )
                                    v.                                               
)                  File No. EB-03-TC-F-001
                                     )  
Cellco Partnership d/b/a/ Verizon Wireless,                )
                                     )
          Defendant.                      )


                              ORDER


  Adopted: September 2, 2004                                                                 
Released: September 3, 2004


By  the  Deputy  Chief,  Telecommunications  Consumers  Division, 
Enforcement Bureau:


 1.   In this Order, we grant the Joint Motion to Dismiss Formal 
Complaint with Prejudice (``Joint Motion'') filed on August 27, 
2004, by Complainant Dr. Bonnie O'Day and Defendant Cellco 
Partnership d/b/a Verizon Wireless (``Verizon Wireless'').1  With 
the mediation assistance of Commission staff, O'Day and Verizon 
Wireless have settled the 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 
Verizon Wireless.4  In her complaint, O'Day contends that Verizon 
Wireless violated Section 255 of the Act by, among other things, 
failing to make features of its wireless products and services 
accessible to O'Day, a visually-impaired user.  O'Day requests 
that the Commission require Verizon Wireless to make its wireless 
products and services accessible to the blind and visually-
impaired users.5

 3.   On June 12, 2003, as proposed by O'Day in the companion 
proceeding,6  the Commission held a technical conference, at 
which the parties, together with their engineers, technical 
experts, and legal personnel, discussed accessibility issues at 
length.  Commission staff facilitated the discussion and 
encouraged participants to discuss potential settlement 
opportunities.  

 4.   Since the technical conference, O'Day and Verizon Wireless 
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 Verizon Wireless. 

II.  DISCUSSION AND ORDERING CLAUSES

 5.   The Commission has broad discretion to conduct complaint 
proceedings ``in such  manner as will best conduce to the proper 
dispatch of business and to the ends of justice.''7  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.8  

 6.   Under the circumstances of this case, dismissing the 
complaint with prejudice is appropriate and does not materially 
prejudice either O'Day or Verizon Wireless.  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), 208, 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), 208, 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



                         Kurt A. Schroeder
                         Deputy Chief
                         Telecommunications Consumers Division
                         Enforcement Bureau
_________________________

1     See Notice of Settlement and Joint Motion to Dismiss Formal 
Complaint with Prejudice, File No. EB-03-TC-F-004, filed Aug  27, 
2004.

2     See 47 U.S.C.   255.  Section  255 provides, in  pertinent 
part, that providers of  telecommunications services, as well  as 
manufacturers  of   telecommunications  equipment   or   customer 
premises  equipment,  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 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 Audiovox Communications  Corp., 
File No.  EB-03-TC-F-004.  This  Order  deals only  with  O'Day's 
formal complaint against Verizon Wireless.

5    See O'Day Formal Complaint,  File No. EB-03-TC-F-001,  filed 
Feb. 21, 2003.

6    See O'Day Reply of Complainant to Defendant's Answer to 
Complaint, File No. EB-03-TC-F-004, filed April 18, 2003.
 
7    47 U.S.C.  4(j); see also id. 4(i).

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