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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Puerto Rico Telephone Company, Inc. d/b/a Claro
File Nos.: EB-SED-13-00009248;
Acct. No.: 201332100015
Adopted: August 13, 2013 Released: August 14, 2013
By the Acting Chief, Enforcement Bureau:
In this Order, we adopt the attached Consent Decree entered into between the Enforcement Bureau (Bureau) of the Federal Communications Commission (Commission) and Puerto Rico Telephone Company, Inc. d/b/a Claro (Claro). The Consent Decree resolves and terminates the Bureau's investigations into Claro's possible violations of Sections 20.19(c)(3) and 20.19(d)(3) of the Commission's rules (Rules) pertaining to the deployment of digital wireless hearing aid-compatible handset models.
The Bureau and Claro have negotiated the Consent Decree that resolves these matters. A copy of the Consent Decree is attached hereto and incorporated herein by reference.
After reviewing the terms of the Consent Decree and evaluating the facts before us, we find that the public interest would be served by adopting the Consent Decree and terminating the investigations.
In the absence of material new evidence relating to this matter, we conclude that our investigations raise no substantial or material questions of fact as to whether Claro possesses the basic qualifications, including those related to character, to hold or obtain any Commission license or authorization.
Accordingly, IT IS ORDERED that, pursuant to Sections 4(i), 4(j), and 503(b) of the Communications Act of 1934, as amended, and Sections 0.111 and 0.311 of the Rules, the Consent Decree attached to this Order IS ADOPTED.
IT IS FURTHER ORDERED that the above-captioned investigations ARE TERMINATED.
IT IS FURTHER ORDERED that a copy of this Order and Consent Decree shall be sent by first class mail and certified mail, return receipt requested, to Enrique Ortiz de Montellano, President, Puerto Rico Telephone Company, Inc. d/b/a Claro, P.O. Box 360998, 1515 Roosevelt Avenue, San Juan, PR 00936-0998 and to Nancy J. Victory, Esq., Wiley Rein LLP, Counsel for Puerto Rico Telephone Company, Inc. d/b/a Claro, 1776 K Street N.W., Washington DC 20006.
FEDERAL COMMUNICATIONS COMMISSION
Robert H. Ratcliffe
Acting Chief, Enforcement Bureau
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Puerto Rico Telephone Company, Inc. d/b/a Claro
File Nos.: EB-SED-13-00009248;
Acct. No.: 201332100015
The Enforcement Bureau of the Federal Communications Commission and Puerto Rico Telephone Company, Inc. d/b/a Claro, by their authorized representatives, hereby enter into this Consent Decree for the purpose of terminating the Enforcement Bureau's investigation into possible violations of Sections 20.19(c)(3) and 20.19(d)(3) of the Commission's rules pertaining to the deployment of digital wireless hearing aid-compatible handset models.
* I. DEFINITIONS
For the purposes of this Consent Decree, the following definitions shall apply:
* "Act" means the Communications Act of 1934, as amended, 47 U.S.C. § 151 et seq.
* "Adopting Order" means an order of the Bureau adopting the terms of this Consent Decree without change, addition, deletion, or modification.
* "Bureau" means the Enforcement Bureau of the Federal Communications Commission.
* "Claro" means Puerto Rico Telephone Company, Inc. d/b/a Claro and its predecessors-in-interest and successors-in-interest.
* "Commission" and "FCC" mean the Federal Communications Commission and all of its bureaus and offices.
* "Communications Laws" means collectively, the Act, the Rules, and the published and promulgated orders and decisions of the Commission to which Claro is subject by virtue of its business activities, including but not limited to, the Hearing Aid Compatibility Rules.
* "Compliance Plan" means the compliance obligations, program, and procedures described in this Consent Decree at paragraph 10.
* "Covered Employees" means all employees and agents of Claro who perform duties, or who supervise, oversee, or manage the performance of duties, that relate to Claro's responsibilities under the Hearing Aid Compatibility Rules.
* "Effective Date" means the date on which the Bureau releases the Adopting Order.
* "Hearing Aid Compatibility Rules" means Section 20.19 of the Rules and other Communications Laws governing digital wireless hearing aid compatibility, such as the Rules governing the design, selection, or acquisition of digital wireless handsets and the marketing or distribution of such handsets to consumers in the United States and its territories.
* "Investigations" means collectively, the investigations commenced by the Bureau regarding Claro's compliance with the Hearing Aid Compatibility Rules during the 2009, 2010, and 2011 reporting periods.
* "Operating Procedures" means the standard, internal operating procedures and compliance policies established by Claro to implement the Compliance Plan.
* "Parties" means Claro and the Bureau, each of which is a "Party."
* "Rules" means the Commission's regulations found in Title 47 of the Code of Federal Regulations.
* In the 2003 Hearing Aid Compatibility Order, the Commission adopted several measures to enhance the ability of consumers with hearing loss to access digital wireless telecommunications. The Commission established technical standards for radio frequency interference (the M rating) and inductive coupling (the T rating) that digital wireless handsets must meet to be considered compatible with hearing aids operating in acoustic coupling and inductive coupling (telecoil) modes, respectively. For each of these standards, the Commission further established deadlines by which manufacturers and service providers were required to offer specified numbers or percentages of digital wireless handsets per air interface that are compliant with the relevant standard. In February 2008, as part of a comprehensive reconsideration of the effectiveness of the Hearing Aid Compatibility Rules, the Commission released an order that, among other things, adopted new hearing aid-compatible handset deployment benchmarks beginning in 2008.
On January 15, 2010, Claro submitted its hearing aid compatibility status report for the January 1, 2009 to December 31, 2009 reporting period. Based on its review of that report, the Commission's Wireless Telecommunications Bureau (Wireless Bureau) referred this matter to the Bureau for investigation and possible enforcement action. On September 17, 2010, the Bureau's Spectrum Enforcement Division (Division) issued a letter of inquiry (2010 LOI) to Claro, directing Claro to submit a sworn written response to a series of questions relating to Claro's compliance with Sections 20.19(c)(3) and 20.19(d)(3) of the Rules. Claro responded to the 2010 LOI on December 17, 2010. In its 2010 LOI Response, Claro provided updated information regarding its handset model offerings during the 2009 reporting period. Claro also disclosed possible hearing aid-compatible handset deployment violations during the January 1, 2010 to November 30, 2010 reporting period.
On January 17, 2012, Claro submitted its hearing aid compatibility status report for the January 1, 2011 to December 31, 2011 reporting period. Based on its review of that report, the Wireless Bureau also referred this matter to the Bureau for investigation and possible enforcement action. On August 2, 2012, the Division issued a letter of inquiry (2012 LOI) to Claro, directing it to submit a sworn written response to a series of questions relating to Claro's compliance with the Hearing Aid Compatibility Rules during the 2011 reporting period. Claro responded to the 2012 LOI on August 22, 2012. On November 12, 2012, Claro supplemented its 2012 LOI Response with additional information concerning its handset model offerings during the 2012 reporting period. The Bureau and Claro entered into tolling agreements to toll the statute of limitations.
III. TERMS OF AGREEMENT
* Adopting Order. The Parties agree that the provisions of this Consent Decree shall be subject to final approval by the Bureau by incorporation of such provisions by reference in the Adopting Order.
* Jurisdiction. Claro agrees that the Bureau has jurisdiction over it and the matters contained in this Consent Decree and that the Bureau has the authority to enter into and adopt this Consent Decree.
* Effective Date; Violations. The Parties agree that this Consent Decree shall become effective on the Effective Date as defined herein. As of the Effective Date, the Adopting Order and this Consent Decree shall have the same force and effect as any other order of the Commission. Any violation of the Adopting Order or of the terms of this Consent Decree shall constitute a separate violation of a Commission order, entitling the Commission to exercise any rights and remedies attendant to the enforcement of a Commission order.
* Termination of Investigations. In express reliance on the covenants and representations in this Consent Decree and to avoid further expenditure of public resources, the Bureau agrees to terminate the Investigations. In consideration for the termination of the Investigations, Claro agrees to the terms, conditions, and procedures contained herein. The Bureau further agrees that in the absence of new material evidence, the Bureau will not use the facts developed in the Investigations through the Effective Date, or the existence of this Consent Decree, to institute on its own motion any new proceeding, formal or informal, or take any action on its own motion against Claro concerning the matters that were the subject of the Investigations. The Bureau also agrees that in the absence of new material evidence it will not use the facts developed in the Investigations through the Effective Date, or the existence of this Consent Decree, to institute on its own motion any proceeding, formal or informal, or take any action on its own motion against Claro with respect to Claro's basic qualifications, including its character qualifications, to be a Commission licensee or to hold Commission licenses or authorizations.
* Compliance Officer. Within thirty (30) calendar days after the Effective Date, Claro shall designate a senior corporate manager with the requisite corporate and organizational authority to serve as Compliance Officer and to discharge the duties set forth below. The person designated as the Compliance Officer shall be responsible for developing, implementing, and administering the Compliance Plan and ensuring that Claro complies with the terms and conditions of the Compliance Plan and this Consent Decree. In addition to the general knowledge of the Communications Laws necessary to discharge his/her duties under this Consent Decree, the Compliance Officer shall have specific knowledge of the Hearing Aid Compatibility Rules prior to assuming his/her duties.
* Compliance Plan. For purposes of settling the matters set forth herein, Claro agrees that it shall within sixty (60) calendar days after the Effective Date, develop and implement a Compliance Plan designed to ensure future compliance with the Communications Laws and with the terms and conditions of this Consent Decree. With respect to the Hearing Aid Compatibility Rules, Claro shall implement the following procedures:
+ Operating Procedures on Hearing Aid Compatibility. Within sixty (60) calendar days after the Effective Date, Claro shall establish Operating Procedures that all Covered Employees must follow to help ensure Claro's compliance with the Hearing Aid Compatibility Rules. Claro's Operating Procedures shall include internal procedures and policies specifically designed to ensure that Claro offers to consumers the number or percentage of digital wireless hearing aid-compatible handset models required by the Hearing Aid Compatibility Rules, and accurately reports its handset offerings in annual hearing aid compatibility status reports. Claro also shall develop a Compliance Checklist that describes the steps that a Covered Employee must follow to ensure that the inclusion of a new handset model, or discontinuance of an existing handset model offering, will not result in a violation of the Commission's digital wireless hearing aid-compatible handset deployment requirements. At a minimum, the Compliance Checklist shall require Covered Employees to verify the hearing aid compatibility rating(s) of each existing and proposed handset model offering using the Commission's equipment authorization database.
+ Compliance Manual. Within sixty (60) calendar days after the Effective Date, the Compliance Officer shall develop and distribute a Compliance Manual to all Covered Employees. The Compliance Manual shall explain the Hearing Aid Compatibility Rules and set forth the Operating Procedures that Covered Employees shall follow to help ensure Claro's compliance with the Hearing Aid Compatibility Rules. Claro shall periodically review and revise the Compliance Manual as necessary to ensure that the information set forth therein remains current and complete. Claro shall distribute any revisions to the Compliance Manual promptly to all Covered Employees.
+ Compliance Training Program. Claro shall establish and implement a Compliance Training Program on compliance with the Hearing Aid Compatibility Rules and the Operating Procedures. As part of the Compliance Training Program, Covered Employees shall be advised of Claro's obligation to report any noncompliance with the Hearing Aid Compatibility Rules under paragraph 11 of this Consent Decree and shall be instructed on how to disclose noncompliance to the Compliance Officer. All Covered Employees shall be trained pursuant to the Compliance Training Program within sixty (60) calendar days after the Effective Date, except that any person who becomes a Covered Employee at any time after the initial training session shall be trained within thirty (30) calendar days after the date such person becomes a Covered Employee. Claro shall repeat the compliance training on an annual basis, and shall periodically review and revise the Compliance Training Program as necessary to ensure that it remains current and complete and to enhance its effectiveness.
* Reporting Noncompliance. Claro shall report any noncompliance with the Hearing Aid Compatibility Rules and with the terms and conditions of this Consent Decree within fifteen (15) calendar days after discovery of such noncompliance. Such reports shall include a detailed explanation of (i) each instance of noncompliance; (ii) the steps that Claro has taken or will take to remedy such noncompliance; (iii) the schedule on which such remedial actions will be taken; and (iv) the steps that Claro has taken or will take to prevent the recurrence of any such noncompliance. All reports of noncompliance shall be submitted to the Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal Communications Commission, Room 3-C366, 445 12th Street, S.W. Washington, DC 20554, with a copy submitted electronically to Nissa Laughner at Nissa.Laughner@fcc.gov and to Pamera Hairston at Pamera.Hairston@fcc.gov.
* Compliance Reports. Claro shall file Compliance Reports with the Commission ninety (90) calendar days after the Effective Date, twelve (12) months after the Effective Date, twenty-four (24) months after the Effective Date, and thirty-six (36) months after the Effective Date.
* Each Compliance Report shall include a detailed description of Claro's efforts during the relevant period to comply with the terms and conditions of this Consent Decree and the Hearing Aid Compatibility Rules. In addition, each Compliance Report shall include a certification by the Compliance Officer, as an agent of and on behalf of Claro, stating that the Compliance Officer has personal knowledge that Claro (i) has established and implemented the Compliance Plan; (ii) has utilized the Operating Procedures since the implementation of the Compliance Plan; and (iii) is not aware of any instances of noncompliance with the terms and conditions of this Consent Decree, including the reporting obligations set forth in paragraph 11 hereof.
* The Compliance Officer's certification shall be accompanied by a statement explaining the basis for such certification and must comply with Section 1.16 of the Rules and be subscribed to as true under penalty of perjury in substantially the form set forth therein.
* If the Compliance Officer cannot provide the requisite certification, the Compliance Officer, as an agent of and on behalf of Claro, shall provide the Commission with a detailed explanation of the reason(s) why and describe fully (i) each instance of noncompliance; (ii) the steps that Claro has taken or will take to remedy such noncompliance, including the schedule on which proposed remedial actions will be taken; and (iii) the steps that Claro has taken or will take to prevent the recurrence of any such noncompliance, including the schedule on which such preventive action will be taken.
* All Compliance Reports shall be submitted to the Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal Communications Commission, 445 12th Street, S.W., Washington, DC 20554, with a copy submitted electronically to Nissa Laughner at Nissa.Laughner@fcc.gov and Pamera Hairston at Pamera.Hairston@fcc.gov.
* Termination Date. Unless stated otherwise, the requirements of paragraphs 9 through 12 of this Consent Decree shall expire thirty-six (36) months after the Effective Date.
* Section 208 Complaints; Subsequent Investigations. Nothing in this Consent Decree shall prevent the Commission or its delegated authority from adjudicating complaints filed pursuant to Section 208 of the Act against Claro or its affiliates for alleged violations of the Act, or for any other type of alleged misconduct, regardless of when such misconduct took place. The Commission's adjudication of any such complaints will be based solely on the record developed in that proceeding. Except as expressly provided in this Consent Decree, this Consent Decree shall not prevent the Commission from investigating new evidence of noncompliance by Claro with the Communications Laws.
Voluntary Contribution. Claro agrees that it will make a voluntary contribution to the United States Treasury in the amount of six hundred fifty thousand dollars ($650,000) (Voluntary Contribution), such Voluntary Contribution to be made in four equal installments of one hundred sixty-two thousand five hundred dollars ($162,500) (each, an Installment Payment). The first Installment Payment is due within thirty (30) calendar days after the Effective Date. The second Installment Payment is due on or before December 1, 2013. The third Installment Payment is due on or before April 1, 2014. The fourth and final Installment Payment is due on or before August 1, 2014. Claro shall make the first and all subsequent Installment Payments in United States Dollars without further demand or notice by the dates specified above. Claro acknowledges and agrees that upon execution of this Consent Decree the Voluntary Contribution and each Installment Payment shall become a "Claim" or "Debt" as defined in 31 U.S.C. § 3701(b)(1). Upon an Event of Default (as defined below), all procedures for collection as permitted by law may, at the Commission's discretion, be initiated. Claro shall also send electronic notification of each Installment Payment on the date said payment is made to Nissa Laughner at Nissa.Laughner@fcc.gov, Pamera Hairston at Pamera.Hairston@fcc.gov, and to Samantha Peoples at Sam.Peoples@fcc.gov. The payment must be made by check or similar instrument, wire transfer, or credit card, and must include the NAL/Account number and FRN referenced above. Regardless of the form of payment, a completed FCC Form 159 (Remittance Advice) must be submitted. When completing the FCC Form 159, enter the Account Number in block number 23A (call sign/other ID) and enter the letters "FORF" in block number 24A (payment type code). Below are additional instructions you should follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of the Federal Communications Commission. Such payments (along with the completed Form 159) must be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004, receiving bank TREAS/NYC, and Account Number 27000001. To complete the wire transfer and ensure appropriate crediting of the wired funds, a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit card information on FCC Form 159 and signing and dating the Form 159 to authorize the credit card payment. The completed Form 159 must then be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* If you have questions regarding payment procedures, please contact the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
Event of Default. Claro agrees that an Event of Default shall occur upon the failure by Claro to pay the full amount of any Installment Payment on or before the due date specified in this Consent Decree.
Interest, Charges for Collection, and Acceleration of Maturity Date. After an Event of Default has occurred under this Consent Decree, the then unpaid amount of the Voluntary Contribution shall accrue interest, computed using the rate of the U.S. Prime Rate in effect on the date of the Event of Default plus 4.75 percent, from the date of the Event of Default until payment in full. Upon an Event of Default, the then unpaid amount of the Voluntary Contribution, together with interest, as aforesaid, any penalties permitted and/or required by the law, including but not limited to interest and penalties permitted under 31 U.S.C. § 3717 and administrative charge(s), plus the costs of collection, litigation, and attorneys' fees, shall become immediately due and payable, without notice, presentment, demand, protest, or notice of protest of any kind, all of which are waived by Claro.
Waivers. Claro waives any and all rights it may have to seek administrative or judicial reconsideration, review, appeal, or stay, or to otherwise challenge or contest the validity of this Consent Decree and the Adopting Order, provided the Bureau issues an Adopting Order as defined herein. Claro shall retain the right to challenge Commission interpretation of the Consent Decree or any terms contained herein. If either Party (or the United States on behalf of the Commission) brings a judicial action to enforce the terms of the Adopting Order, neither Claro nor the Commission shall contest the validity of the Consent Decree or of the Adopting Order, and Claro shall waive any statutory right to a trial de novo. Claro hereby agrees to waive any claims it may have under the Equal Access to Justice Act relating to the matters addressed in this Consent Decree.
Invalidity. In the event that this Consent Decree in its entirety is rendered invalid by any court of competent jurisdiction, it shall become null and void and may not be used in any manner in any legal proceeding.
Subsequent Rule or Order. The Parties agree that if any provision of the Consent Decree conflicts with any subsequent Rule or order adopted by the Commission (except an order specifically intended to revise the terms of this Consent Decree to which Claro does not expressly consent) that provision will be superseded by such Rule or Commission order.
Successors and Assigns. Claro agrees that the provisions of this Consent Decree shall be binding on its successors, assigns, and transferees.
Final Settlement. The Parties agree and acknowledge that this Consent Decree shall constitute a final settlement between the Parties with respect to the Investigations. The Parties further agree that this Consent Decree does not constitute either an adjudication on the merits or a factual or legal finding or determination regarding any compliance or noncompliance with the Communications Laws.
Modifications. This Consent Decree cannot be modified without the advance written consent of both Parties.
Paragraph Headings. The headings of the paragraphs in this Consent Decree are inserted for convenience only and are not intended to affect the meaning or interpretation of this Consent Decree.
Authorized Representative. The individual signing this Consent Decree on behalf of Claro represents and warrants that he is authorized by Claro to execute this Consent Decree and to bind Claro and all of its subsidiaries to the obligations set forth herein. The FCC signatory represents that he is signing this Consent Decree in his official capacity and that he is authorized to execute this Consent Decree.
Counterparts. This Consent Decree may be signed in any number of counterparts (including by facsimile), each of which, when executed and delivered, shall be an original, and all of which counterparts together shall constitute one and the same fully executed instrument.
Robert H. Ratcliffe
Enrique Ortiz de Montellano
Puerto Rico Telephone Company, Inc. d/b/a Claro