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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Cingular Wireless LLC ) File No. EB-02-TS-003
) NAL/Acct. No.
200232100001
) FRN 0004-9792-33
ORDER
Adopted: May 2, 2002 Released: May 9,
2002
By the Commission: Chairman Powell and Commissioners
Abernathy, Copps and Martin issuing
a joint statement.
1. In this Order, we adopt a Consent Decree
terminating an investigation into possible violations by
Cingular Wireless LLC (``Cingular'') of the enhanced 911
(E911) Phase II provisions of Section 20.18 of the
Commission's Rules (``Rules'').1
2. The Commission and Cingular have negotiated the
terms of a Consent Decree that would resolve this matter and
terminate the investigation. A copy of the Consent Decree
is attached hereto and incorporated by reference.
3. Based on the record before us, we conclude that no
substantial or material questions of fact exist as to
whether Cingular possesses the basic qualifications,
including those related to character, to hold or obtain any
FCC license or authorization.
4. After reviewing the terms of the Consent Decree,
we find that the public interest would be served by
approving the Consent Decree and terminating the
investigation into Cingular's possible violations of the
E911 Phase II provisions of Section 20.18 of the Rules.
5. Accordingly, IT IS ORDERED, pursuant to Sections
4(i), 4(j) and 503(b) of the Communications Act of 1934, as
amended,2 that the attached Consent Decree IS ADOPTED.
6. Cingular shall make its voluntary contribution to
the United States Treasury by mailing a check or similar
instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, Forfeiture Collection Section, Finance Branch,
P.O. Box 73482, Chicago, Illinois 60673-7482. The payment
should reference NAL/Acct. No. 200232100001 and FRN 0004-
9792-33.
7. IT IS FURTHER ORDERED that the Commission
investigation into the matter described herein IS
TERMINATED.
8. IT IS FURTHER ORDERED that the Secretary SHALL
SIGN the Consent Decree on behalf of the Commission.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
CONSENT DECREE
The Federal Communications Commission (``FCC'')
and Cingular Wireless LLC (``Cingular'') hereby enter into a
Consent Decree resolving possible violations by Cingular of
the E911 Phase II rules as set forth in Section 20.18 of the
Commission's Rules. 47 C.F.R. § 20.18.
Statement of Facts
1. Under Phase II of the FCC's wireless E911 rules,
wireless carriers are required to meet certain benchmarks
as of October 1, 2001. Per referral by the Commission on
October 12, 2001, the Enforcement Bureau began an
investigation into whether Cingular was in compliance with
the October 1, 2001 benchmarks specified in the
Commission's E911 Phase II rules.
Terms of Settlement
2. For purposes of this Consent Decree the following
definitions shall apply:
(a) ``Commission'' or ``FCC'' means the Federal
Communications Commission;
(b) ``Parties'' means Cingular Wireless LLC and
the Commission;
(c) ``Cingular'' means Cingular Wireless LLC, its
subsidiaries, affiliates and any covered
carriers listed in its waiver request filed
on August 30, 2001, and any successors or
assigns;
(d) ``Adopting Order'' means an order of the FCC
adopting this Consent Decree;
(e) ``Effective Date'' means the date on which
the FCC releases the Adopting Order;
(f) ``Final Order'' means the status of the
Adopting Order after the period for
administrative and judicial review has
lapsed;
(g) ``Rules'' means the Commission's regulations
found in Title 47 of the Code of Federal
Regulations;
(h) ``Act'' means the Communications Act of 1934,
as amended, 47 U.S.C. § 151 et seq.
(i) ``Valid PSAP Request'' means a Public Safety
Answering Point (``PSAP'') request for Phase
I or Phase II service as defined in the
Commission's rules governing E911 and any
orders of the Commission interpreting such
rules.
3. The Parties agree that the provisions of this
Consent Decree shall be subject to final approval by the
FCC by incorporation of such provisions by reference in an
Adopting Order.
4. The Parties agree that this Consent Decree shall
become effective on the date on which the FCC releases the
Adopting Order. Upon release, the Adopting Order and this
Consent Decree shall have the same force and effect as any
other order of the Commission and any violation of the
terms of this Consent Decree shall constitute a violation
of a Commission order, entitling the FCC to exercise any
and all rights and to seek any and all remedies authorized
by law for the enforcement of a Commission order.
5. Cingular agrees that the FCC has jurisdiction over
the matters contained in this Consent Decree and the
authority to enter into and adopt this Consent Decree.
6. The Parties agree and acknowledge that this
Consent Decree shall constitute a final settlement between
Cingular and the FCC regarding possible violations of the
E911 Phase II network rules for its Time Division Multiple
Access (``TDMA''), Advanced Mobile Phone Service
(``AMPS''), and TDMA/AMPS networks. In consideration for
termination by the Commission of its investigation into
whether Cingular has violated the E911 Phase II rules for
its TDMA, AMPS, and TDMA/AMPS networks, and in accordance
with the terms of this Consent Decree, Cingular agrees to
the terms set forth herein.
7. In express reliance on the covenants and
representations in this Consent Decree, the FCC agrees to
terminate its investigation without any finding of
liability on the part of Cingular.
8. Cingular agrees to comply with E911 Phase II rules
modified as follows:
(a) First, Cingular agrees:
(1) To deploy a Phase II compliant
technology at a minimum of 1,000 cell
sites by November 15, 2002.
(2) To deploy a Phase II compliant
technology at a minimum of 2,000 cell
sites and provide Phase II service at all
these sites by December 31, 2002.
(3) To deploy a Phase II compliant
technology at a minimum of 4,000 cell
sites and provide Phase II service at all
these sites by June 30, 2003.
(4) To deploy a Phase II compliant
technology at a minimum of 6,000 cell
sites by December 31, 2003, if necessary
to meet a PSAP request pending more than
six months as of that date.
(5) To deploy a Phase II compliant
technology at a minimum of 8,000 cell
sites by June 30, 2004, if necessary to
meet a PSAP request pending more than six
months as of that date.
(6) For any valid PSAP requests for Phase II
compliant service on its TDMA, AMPS, or
TDMA/AMPS network received by Cingular on
or before June 30, 2001, Cingular must
provide its Phase II compliant service to
100% of those PSAPs' coverage areas by
April 1, 2003.3
(7) For any valid PSAP requests for Phase II
compliant service on its TDMA, AMPS, or
TDMA/AMPS network received by Cingular
after June 30, 2001, but on or before
February 28, 2002, Cingular must provide
its Phase II compliant service to 100% of
those PSAPs' coverage areas by April 1,
2003.
(8) For valid PSAP requests received after
February 28, 2002, but on or before
September 30, 2002, Cingular must provide
its Phase II compliant service to 50% of
those PSAPs' coverage areas by April 1,
2003, and to 100% of those PSAPs' coverage
areas by November 30, 2003.
(9) For valid PSAP requests received after
September 30, 2002, Cingular must provide
its Phase II compliant service to 50% of
those PSAPs' coverage areas within six
months of receipt of such request and to
100% of those PSAPs' coverage areas within
15 months of receipt of a PSAP request.
(b) Second, Cingular agrees that its
classification of a PSAP request as invalid will not
insulate it from enforcement action if the Commission
determines that the request was valid.
(c) Third, Cingular states that it is relying on
vendor representations in agreeing to the deployment
schedule set forth herein and for its belief that a network
based solution will satisfy the Commission's accuracy
requirements.
(d) Fourth, Cingular agrees that in the
event it fails to comply with any of the benchmarks set
forth in paragraph 8(a)(1) through (5), it will make a
voluntary contribution to the United States Treasury in the
amount of $300,000 for the first missed benchmark, $600,000
for the second missed benchmark and $1,200,000 for the third
missed benchmark and any subsequently missed benchmarks.
Any such voluntary contribution will be made within 30 days
of the missed benchmark or within 5 business days of a
Commission decision denying a request to modify the
benchmark date, whichever is later, by mailing a check or
similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, Forfeiture Collection Section, Finance Branch,
P.O. Box 73482, Chicago, Illinois 60673-7482. The payment
should reference NAL/Acct. No. 200232100001, as well as
Cingular's FCC Registration Number (``FRN'') 0004-9792-33.
(e) Fifth, Cingular must file Quarterly Reports,
on its compliance with the terms and conditions of this
Consent Decree and the wireless E911 rules, as set forth in
paragraphs 9-10 below.
(f) Sixth, with its August 1, 2002 Quarterly
Report, Cingular must submit a Phase II compliant rollout
plan describing how it will prioritize PSAP requests and
deploy Phase II compliant service in TDMA, AMPS, and
TDMA/AMPS markets.
(g) Seventh, Cingular represents that it has
completed it Lucent switch upgrades by April 1, 2002 and
agrees that it must complete all other switch upgrades by
August 1, 2002.
9. To assist in monitoring and enforcing each of the
conditions imposed on Cingular, Cingular must file
Quarterly Reports with the Chief of the Enforcement Bureau
and the Chief of the Wireless Telecommunications Bureau.4
10. Specifically, the Quarterly Reports must contain
the following information:
(a) The Report must include information on all
pending Phase I and Phase II requests in TDMA, AMPS, and
TDMA/AMPS markets, including the name of the PSAP, the date
the request was received by Cingular, whether or not
Cingular considers it valid, and its status. To the extent
any PSAP request for Phase II service in a TDMA, AMPS, or
TDMA/AMPS market received after September 30, 2002 has been
pending for more than six months, Cingular must identify the
specific reasons underlying the failure to provide the
requested service, the steps Cingular has taken to resolve
the problem(s), and the anticipated date of full completion
of the work necessary to deliver the requested information
to the PSAP in question. If Cingular believes there are
questions concerning a PSAP's compliance with the conditions
necessary for a valid Phase I or II request, such as its
readiness to receive and utilize Phase I or Phase II
information, it should identify specifically the question
and the efforts it has undertaken, including the
communications it has had with the PSAP, to resolve the
question. Cingular agrees to serve this report on the
Association of Public-Safety Communications Officials-
International, Inc., the National Emergency Number
Association and the National Association of State Nine One
One Administrators.5 In addition, the Commission will post
this information on its website.6 The parties agree that
the Wireless Telecommunications Bureau may require any
additional steps necessary to ensure PSAP access to this
information.
(b) Each Quarterly Report also must contain
statements regarding whether Cingular
has met each deployment benchmark in its
TDMA, AMPS, and TDMA/AMPS markets and
any other condition falling due in the
period immediately preceding the
Quarterly Report, and, if not, the
reasons for its failure to comply.
These benchmarks and conditions include
the following:
(1) a statement of whether Cingular's Phase
II service meets the accuracy requirement
of 100 meters for 67 percent of calls and
300 meters for 95 percent of calls;
(2) for August 1, 2002 benchmark, a
statement of whether Cingular has
completed its switch upgrades;
(3) for the November 15, 2002 benchmark, a
statement of whether Cingular has deployed
a Phase II compliant technology at 1,000
cell sites;
(4) for the December 31, 2002 benchmark, a
statement of whether Cingular has deployed
a Phase II compliant technology at 2,000
cell sites and whether Cingular is
providing Phase II service at these sites;
(5) for the April 1, 2003 benchmarks, a
statement of whether (i) for any valid
PSAP requests for Phase II service on its
TDMA or TDMA/AMPS network received by
Cingular on or before February 28, 2002,
Cingular has provided its Phase II
compliant service to 100% of those PSAPs'
coverage areas or population; and (ii) for
any valid PSAP request for Phase II
service on its TDMA or TDMA/AMPS network
received by Cingular after February 28,
2002, but on or before September 30, 2002,
Cingular has provided its Phase II
compliant service to 50% of those PSAPs'
coverage areas or population.
(6) for the June 30, 2003 benchmark, a
statement of whether Cingular has deployed
a compliant Phase II technology at 4,000
cell sites;
(7) for the November 30, 2003 benchmark, a
statement of whether, for any valid PSAP
requests for Phase II service on its TDMA
or TDMA/AMPS network received by Cingular
after February 28, 2002, but on or before
September 30, 2002, Cingular has provided
its Phase II compliant service to 100% of
those PSAPs' coverage areas or population;
(8) for the December 31, 2003 benchmark, a
statement of whether Cingular has deployed
a compliant Phase II technology at 6,000
cell sites;
(9) for the June 30, 2004 benchmark, a
statement of whether Cingular has deployed
a compliant Phase II technology at 8,000
cell sites;
(10) For any valid PSAP request
received after September 30, 2002, a
statement of whether Cingular has provided
its Phase II compliant service to 50% of
those PSAPs' coverage areas or population
within six months of receipt of the
request and to 100% of those PSAPs'
coverage areas or population within 15
months of receipt of the request.
(c) Cingular must support each Quarterly Report
with an affidavit or declaration, from
an officer or director of Cingular,
attesting to the truth and accuracy of
the Report.7
(d) To the extent that Cingular anticipates that
it will fail to satisfy any one of the
conditions, it must advise the
Commission of the problem. Seeking
relief from that condition will not
insulate Cingular from possible
enforcement in cases where Cingular has
violated a condition of this Consent
Decree. Cingular agrees that the
Commission will not entertain requests
for additional relief that seek changes
in the conditions imposed herein absent
extraordinary circumstances.
(e) To the extent Cingular cannot provide the
information required under this
paragraph in its next Quarterly Report
following the respective benchmark, it
must file with the Chief, Enforcement
Bureau, a request for extension of time
to file the required information. Such
request must be filed as early as
possible before the Quarterly Report
filing date, but not later than 10
business days prior to the Quarterly
Report filing date. The request must
specify the reasons for the request.
(f) Cingular's Quarterly Reports are due February
1, May 1, August 1, and November 1 of
each year, beginning August 1, 2002 and
continuing through February 1, 2006. To
the extent that Cingular cannot provide
any of the information required in its
final report, it must file with the
Chief, Enforcement Bureau, a request for
extension of time to file the required
information in accordance with the
procedures set forth above.
11. To the extent unexpected problems arise affecting
Cingular's ability to perform any of the requirements set
forth in paragraph 8(a) in the period between Quarterly
Reports, Cingular agrees to notify the Commission in
writing through a supplementary filing to be filed within
30 days of Cingular's discovery of the problem. This
supplemental filing must include specific details regarding
the problems Cingular has encountered affecting its ability
to comply with the benchmark requirements.
12. The Parties agree that the Chiefs of the Wireless
Telecommunications Bureau and the Enforcement Bureau may
require Cingular to provide additional information in its
Quarterly Reports, in order to evaluate Cingular's
compliance with the terms and conditions of the Consent
Decree, and its progress in deploying Phase I and Phase II
services.
13. Cingular agrees that it is required to comply with
each individual condition of this Consent Decree, including
the reporting requirements set forth above. Each specific
benchmark and Quarterly Report is a separate condition of
the Consent Decree as approved. In addition, Cingular
remains subject to all other requirements of the
Commission's wireless E911 rules apart from those
specifically modified in this Consent Decree, and
ultimately responsible for providing timely, compliant
Phase II service. To the extent that Cingular fails to
satisfy any condition or Commission rule, in the absence of
Commission alteration of the condition or rule, it will be
deemed noncompliant and referred to the Commission's
Enforcement Bureau for possible action, including but not
limited to revocation of the relief, a requirement to
deploy an alternative ALI technology, letters of
admonishment or forfeitures. At that time, an assertion
that a vendor, manufacturer, or other entity was unable to
supply compliant products will not excuse noncompliance.
However, Cingular's ``concrete and timely'' actions taken
with a vendor, manufacturer, or other entity may be
considered as possible mitigation factors in such an
enforcement context. To the extent the Commission, in the
context of petitions for reconsideration pending in
Revision of the Commission's Rules to Ensure Compatibility
with Enhanced 911 Emergency Calling Systems, Request for
Waiver by Nextel Communications, Inc., 16 FCC Rcd 18277
(2001), Revision of the Commission's Rules to Ensure
Compatibility with Enhanced 911 Emergency Calling Systems,
Request for Waiver by Cingular Wireless LLC, 16 FCC Rcd
18305 (2001), or Revision of the Commission's Rules to
Ensure Compatibility with Enhanced 911 Emergency Calling
Systems, Request for Waiver by Verizon Wireless, 16 FCC Rcd
18364 (2001), or in connection with any court order on
review of those proceedings, imposes a standard regarding
compliance and enforcement action that is different than
set forth in this Consent Decree, that subsequent standard
shall apply.
14. Cingular agrees to make a voluntary contribution
to the United States Treasury in the amount of One Hundred
Thousand Dollars ($100,000) within thirty (30) days after
the effective date of the Adopting Order. Cingular will
make this contribution without further protest or recourse
by mailing a check or similar instrument, payable to the
order of the Federal Communications Commission, to the
Federal Communications Commission, Forfeiture Collection
Section, Finance Branch, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment should reference NAL/Acct. No.
200232100001, as well as Cingular's FCC Registration Number
(``FRN'') 0004-9792-33.
15. The FCC agrees that it will not institute, on its
own motion, any new proceeding, formal or informal, or take
any action on its own motion against Cingular for violation
of the E911 Phase II rules for its TDMA, AMPS, and
TDMA/AMPS networks except as consistent with the provisions
of this Consent Decree. The FCC also agrees that, in the
absence of material new evidence related to this matter, it
will not use the facts developed in this proceeding through
the date of this Consent Decree 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 Cingular with respect to its basic
qualifications, including the character qualifications, to
be a Commission licensee. Nothing in this Consent Decree
shall prevent the FCC from instituting new investigations
or enforcement proceedings against Cingular pursuant to
Sections 4(i), 403 and 503 of the Act, 47 U.S.C. §§ 4(i),
403 and 503, in the event of any alleged future misconduct
for violation of this Consent Decree or for violation of
the E911 Phase II rules as consistent with the provisions
of this Consent Decree.
16. Nothing in this Consent Decree shall prevent the
FCC from adjudicating complaints filed pursuant to Section
208 of the Act, 47 U.S.C. § 208, against Cingular or its
subsidiaries for alleged violations of Section 20.18 of the
Rules, or for any other type of alleged misconduct,
regardless of when such misconduct took place. If any such
complaint is made, the FCC's adjudication of that complaint
will be based solely on the record developed in that
proceeding.
17. Cingular 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 Adopting Order adopts the Consent Decree
without change, addition or modification.
18. If either Party (or the United States on behalf of
the FCC) brings a judicial action to enforce the terms of
the Adopting Order, neither Cingular nor the FCC shall
contest the continuing validity of the Consent Decree or
Adopting Order. Cingular retains the right to challenge
the Commission's interpretation of the Consent Decree or
any terms contained therein.
19. Cingular agrees to waive any claims it may
otherwise have under the Equal Access to Justice Act, 5
U.S.C. § 504 and 47 C.F.R. § 1.1501 et seq., relating to
the matters discussed in this Consent Decree.
20. In the event that this Consent Decree is rendered
invalid by any court of competent jurisdiction, this
Consent Decree shall become null and void and may not be
used in any manner in any legal proceeding.
21. The Parties 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 requirements of the
Act and the Rules, including Section 20.18 of the Rules.
The Parties agree that this Consent Decree is for
settlement purposes only and that by agreeing to this
Consent Decree, Cingular does not admit any liability for
violating Commission rules in connection with the matters
that are the subject of this Consent Decree.
22. The Parties agree that any provision of the
Consent Decree that would require Cingular to act in
violation of a future rule or order adopted by the
Commission will be superseded by such Commission rule or
order.
23. This Consent Decree may be signed in counterparts.
For the Federal Communications Commission For Cingular
Wireless LLC
______________________________
______________________________
Marlene H. Dortch J.R. Carbonell
Secretary Senior Vice President and
General Counsel-
Regulatory and Legal
______________________________
______________________________
Date Date JOINT STATEMENT OF
CHAIRMAN MICHAEL K. POWELL AND COMMISSIONERS KATHLEEN Q.
ABERNATHY, MICHAEL J. COPPS AND KEVIN J. MARTIN
RE: Cingular Wireless LLC.
We support today's Order adopting a Consent Decree
terminating the investigation into possible violations of
the Commission's Phase II E911 rules by Cingular Wireless.
It is critically important that all the participants in our
quest for full Phase II E911 compliance do their part to
move forward in protecting American consumers. For carriers
this means meeting the benchmarks and deadlines set by the
Commission. For Public Safety Answering Points this means
equipping facilities so that they are prepared to receive
Phase II information as quickly as possible. For the
Commission this means enforcing our mandates.
In order to meet our responsibility the Commission must
therefore be consistent and steadfast, as we have been here.
We commend the Enforcement Bureau and Cingular Wireless for
their hard work in negotiating a consent decree that will
accelerate the pace of American consumers receiving the
public safety benefits of Phase II E911. We also want to
thank the public safety community for their ongoing input on
E911 implementation, which has been invaluable at every
stage of this process.
_________________________
1 47 C.F.R. § 20.18.
2 47 U.S.C. §§ 154(i), 154(j) and 503(b).
3 In this regard, Cingular agrees that its Phase II
service must be compliant with 47 C.F.R. § 20.18.
4 To the extent Cingular believes any of the required
information is proprietary, it may file a request for
confidential treatment pursuant to 47 C.F.R. § 0.459. If
confidential treatment is sought, redacted versions of the
reports still must be served as required by the Consent
Decree.
5 Cingular should serve the Executive Director of each
organization as well as its counsel, to the extent such
counsel has been identified in the record in response to
Cingular's request for relief.
6 See www.fcc.gov/e911.
7 See 47 C.F.R. § 1.16. As required by Section
20.18(h)(1) of the Commission's Rules, Cingular's network-
based technology for delivering E911 Phase II location
information must meet the following standards for location
accuracy: 100 meters for 67 percent of calls, 300 meters
for 95 percent of calls. Cingular will derive its network-
wide location accuracy by selecting the 67 percent and 95
percent accuracy numbers from a set of test data weighted in
accordance with OET Bulletin No. 71, Guidelines for Testing
and Verifying the Accuracy of Wireless E911 Location
Systems, Apr. 12, 2000.