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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Nokia Inc. ) File No. EB-03-TS-015
)
) NAL/Acct. No. 200332100005
)
) FRN 0006-0770-51
ORDER
Adopted: June 4, 2003 Released: June 5, 2003
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent
Decree entered into between the Enforcement Bureau and Nokia Inc.
(``Nokia''). The Consent Decree terminates an investigation
initiated by the Enforcement Bureau into Nokia's compliance with
the 911 call processing procedures set forth in Section 22.921 of
the Commission's Rules (``Rules'').
2. The Enforcement Bureau and Nokia 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
Nokia 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 believe that the public interest will be served by adopting
the Consent Decree and terminating the investigation.
5. Accordingly, IT IS ORDERED that, pursuant to
Section 4(i) and (j) of the Communications Act of 1934, as
amended,1 and Sections 0.111 and 0.311 of the Commission's
Rules,2 the Consent Decree attached to this Order IS ADOPTED.
6. IT IS FURTHER ORDERED that the Enforcement
Bureau's investigation of Nokia IS TERMINATED. 7. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by first class mail and certified mail, return
receipt requested, to Richard W. Stimson, Vice President, Legal
Services, 6000 Connection Drive, Mail Drop 1:4-735, Irving, Texas
75038, and to Robert L. Pettit, Esq., Wiley Rein & Fielding LLP,
1776 K Street, N.W., Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
CONSENT DECREE
The Enforcement Bureau of the Federal Communications
Commission and Nokia Inc. (``Nokia'') hereby enter into a Consent
Decree resolving possible violations by Nokia of the 911 call
processing method rules as set forth in Section 22.921 of the
Commission's Rules.3
Statement of Facts
1. Under Section 22.921 of the Commission's Rules,
mobile phones manufactured after February 13, 2000, and capable
of operating in an analog mode, are required to use one or more
of the 911 call system selection processes endorsed or approved
by the Commission. On October 27, 1999, Nokia filed a request
for approval of an alternative 911 call processing method for its
multi-mode phones. On January 28, 2000, the Wireless
Telecommunications Bureau approved Nokia's 911 call processing
method.4 Under the approved Nokia method, the handset first
attempts to complete the 911 call on the ``presently acquired
system,'' the system the handset is currently using for non-
emergency calls, whether this system is analog or digital. If
the access attempts on that system are not successful, the
handset will attempt to complete the 911 call on another network.
The Wireless Telecommunications Bureau conditioned its approval
of Nokia's method on the requirement that handsets employing this
method attempt to complete the 911 call using an alternative
system if the initial access attempts are not successfully
completed by the ``presently acquired system'' within 17
seconds.5 Under the Nokia method as approved, the handset will
attempt to complete the call using an alternative system, either
analog or digital, if the initial access attempts are not
successfully completed by the presently acquired system within 17
seconds.
2. On or about December 7, 2002, Nokia discovered that
there was a possibility that in certain circumstances one of its
phones manufactured using the 911 call processing method approved
in the Nokia Order, its Model 6385 multi-mode handset, may not
always meet the 17 second requirement. In December 2002, Nokia
contacted the Wireless Telecommunications Bureau staff to
disclose the potential 911 call processing problem. On January
13, 2003, Nokia met with Commission staff to provide details of
the situation. Nokia stated that on December 9, 2002, it stopped
all shipments of Model 6385 in the United States, quarantined all
units in the distribution channel, and notified all distributors
and carrier customers of its 911 dialing process concern. Nokia
further stated that at that time there were fewer than 15,000
Model 6385 handsets in the hands of end users. Nokia also
outlined remedial steps that it had begun implementing, including
development of revised software that would ensure that its Model
6385 handsets comply with the 17 second requirement, installing
such software in all Model 6385 handsets in the U.S. distribution
chain, and providing notification to end users of Model 6385
handsets that such revised software is available at no cost to
the user. The Enforcement Bureau subsequently began an
investigation into whether Nokia was in compliance with the
requirements of Section 22.921 with respect to its Model 6385
handset.
Terms of Settlement
3. For purposes of this Consent Decree the following
definitions shall apply:
(a) ``Commission'' or ``FCC'' means the Federal
Communications Commission;
(b) ``Bureau'' means the FCC's Enforcement Bureau:
(c) ``Parties'' means Nokia Inc. and the Commission;
(d) ``Nokia'' means Nokia Inc., its subsidiaries,
affiliates and any successors or assigns;
(e) ``Adopting Order'' means an order of the FCC
adopting this Consent Decree;
(f) ``Effective Date'' means the date on which the FCC
releases the Adopting Order;
(g) ``Final Order'' means the status of the Adopting
Order after the period for administrative and
judicial review has lapsed;
(h) ``Rules'' means the Commission's regulations found
in Title 47 of the Code of Federal Regulations;
(i) ``Act'' means the Communications Act of 1934, as
amended, 47 U.S.C. § 151 et seq.
(j) ``Nokia Order'' means the Order granting Nokia's
request for approval of an alternative 911 call
processing method, 911 Call Processing Modes, WT
Docket No. 99-328, 15 FCC Rcd 1911 (Wireless
Telecom. Bur., 2000).
(k) ``17 second requirement'' means the requirement
set forth in the Nokia Order that a multi-mode
handset employing the 911 call processing method
approved in the Nokia Order attempt to complete
the 911 call using an alternative system, either
analog or digital, if the initial access attempts
on the presently acquired system are not
successfully completed within 17 seconds.6
4. 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 an Adopting
Order.
5. The Parties agree that this Consent Decree shall become
effective on the date on which the Bureau releases the Adopting
Order. Upon release, the Adopting Order and this Consent Decree
shall have the same force and effect as any other orders of the
Commission and any violation of the terms of this Consent Decree
shall constitute a violation of a Commission order.
6. Nokia agrees that the Bureau has jurisdiction over the
matters contained in this Consent Decree and the authority to
enter into and adopt this Consent Decree.
7. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between Nokia and the
Bureau regarding compliance of the Model 6385 handset with
Section 22.921. In consideration for termination by the Bureau
of its investigation into whether Nokia may have violated Section
22.921 for its Model 6385 handsets and in accordance with the
terms of this Consent Decree, Nokia agrees to the terms set forth
herein.
8. In express reliance on the covenants and
representations in this Consent Decree, the Bureau agrees to
terminate its investigation without any finding of liability on
the part of Nokia.
9. Nokia agrees that for phones capable of operating in
analog mode that it sells in the United States, it will comply
with the 911 call processing method rule as follows:
(a) First, Nokia agrees that analog capable, multimode
handsets manufactured by Nokia for sale in the
United States will use one or more of the 911 call
system selection processes endorsed or approved by
the Commission. To the extent that Nokia handsets
employ the 911 call processing method approved in
the Nokia Order, the handset will comply with the
17 second requirement as set forth in the Nokia
Order.
(b) Second, Nokia has developed revised software to
help ensure that its Model 6385 handsets comply
with the 17 second requirement and will continue
to install this or similar software in all Model
6385 handsets in the U.S. distribution chain. In
addition, Nokia will continue with its efforts to
install this or similar software in Model 6385
handsets that are already in the hands of end
users. Specifically, Nokia will continue to
provide notification to end users of Model 6385
handsets via mail, SMS messages and/or telephone
that a software issue exists with the handsets
potentially affecting 911 calls and offer to
install upgraded software in the handsets at no
cost to the end user. Further, Nokia agrees to
ensure that this or similar software is installed
in any Model 6385 handsets that are returned to
Nokia for repairs unrelated to the 911 call
processing issue. Nokia also agrees to provide
the Chief, Technical and Public Safety Division,
Enforcement Bureau, progress reports on the status
of its consumer outreach efforts at six months,
twelve months and twenty four months from the
effective date of this Consent Decree.
(c) Third, Nokia will include in its internal handset
testing procedure a test specification to ensure
that analog capable handsets which employ the 911
call processing method approved in the Nokia Order
and are manufactured for sale in the U.S. will
meet the 17 second requirement.
(d) Fourth, Nokia further agrees to retrain certain
critical organizations in the Company, including
those groups responsible for software development
for multi-mode handsets being developed for sale
in the U.S., on the 17 second requirement and the
Commission regulations related to emergency call
processing, including assuring alignment of
specifications and regulatory requirements at
early stages of new product development. This
training will be done in accordance with a
Compliance Program, the principles of which were
previously submitted to the Wireless
Telecommunications Bureau.7 The Compliance
Program is outlined in Appendix A attached hereto
and incorporated herein.8
10. Nokia agrees that it is required to comply with each
individual condition of this Consent Decree. Each specific
condition is a separate condition of the Consent Decree as
approved. To the extent that Nokia 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 may be subject to possible enforcement action,
including but not limited to revocation of the relief, a
requirement to deploy an alternative call processing technology,
letters of admonishment or forfeitures.
11. Nokia agrees to make a voluntary contribution to the
United States Treasury in the amount of Sixty Thousand Dollars
($60,000) within thirty days after the effective date of the
Adopting Order. Nokia 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.
200332100005 and FCC Registration Number 0006-0770-51.
12. The Bureau 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 Nokia for any alleged violation
of Section 22.921 in connection with its Model 6385 handset which
occurred prior to the effective date of this Consent Decree
except as consistent with the provisions of this Consent Decree.
The Bureau 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 Nokia with respect to its basic
qualifications, including the character qualifications, to be a
Commission licensee. Nothing in this Consent Decree shall
prevent the Bureau from instituting new investigations or
enforcement proceedings against Nokia in the event of any alleged
future misconduct for violation of this Consent Decree or for
violation of Section 22.921 as consistent with the provisions of
this Consent Decree.
13. Nokia 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.
14. 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 Nokia nor the FCC shall contest the
continuing validity of the Consent Decree or Adopting Order.
Nokia retains the right to challenge the Bureau interpretation of
the Consent Decree or any terms contained therein.
15. Nokia 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.
16. 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.
17. The Parties agree that this Consent Decree does not
constitute a factual or legal finding or determination regarding
noncompliance with the requirements of the Act and the Rules,
including Section 22.921 of the Rules. The Parties agree that
this Consent Decree is for settlement purposes only and that by
agreeing to this Consent Decree, Nokia does not admit or deny any
liability for violating Commission rules in connection with the
matters that are the subject of this Consent Decree.
18. The Parties agree that the terms and conditions of this
Consent Decree shall remain in effect for twenty four months
from the effective date of this Consent Decree. The Parties
further agree that any provision of the Consent Decree that would
require Nokia to act in violation of a future rule or order
adopted by the Commission will be superseded by such Commission
rule or order.
19. This Consent Decree may be signed in counterparts.
For the Enforcement Bureau For Nokia Inc.
______________________________
______________________________
David H. Solomon Richard W. Stimson
Chief, Enforcement Bureau Vice President Legal
Services, Americas
______________________________
______________________________
Date Date
Appendix A: Summary of Model 6385 Compliance Program
Nokia, Inc. is committed to full and complete compliance
with the 911 call processing rules and regulations of the Federal
Communications Commission. To that end, Nokia will establish a
program to help ensure compliance with these rules as outlined
below. The program will be conducted by a Compliance Official,
who will be appointed within 30 days of the Effective Date.
Within 60 days of the Effective Date, the Compliance
Official, in conjunction with personnel from other units of
Nokia, outside counsel and other professionals and consultants,
as needed, will develop a specific written program for compliance
with the Nokia Order9. The compliance program will address two
areas: (1) training; and (2) review and monitoring.
(1) Training. In conjunction with personnel from other
units of Nokia, outside counsel and other professionals and
consultants, as needed, the Compliance Official will conduct
training for appropriate Nokia personnel that are involved in the
software and hardware design activities on handsets covered by
the Nokia Order. The training will incorporate elements of the
compliance program, will include written materials as
appropriate, and will have two components:
First, in general, the training will review up to date
general FCC requirements with regard to 911 call processing
protocols and encourage Nokia personnel to take advantage of in-
house and outside subject matter experts when compliance
questions arise.
Second, the training will include instruction with specific
regard to compliance with the Nokia Order regarding the
manufacture (for distribution in the United States) of handsets
that are capable of operating in an analog mode.10
The training will consist of written materials and oral
presentations, as warranted, and will be conducted in the form
that, in Nokia's judgment, best conveys the principles of
compliance with the Nokia Order to the appropriate personnel.
Nokia training will also review other 911 calling methodologies
approved by the Commission that may be utilized in Nokia
handsets. Nokia shall maintain a list of persons trained. The
training will be completed within six months of the Effective
Date.
(2) Review and Monitoring. The Compliance Official, in
conjunction with outside counsel and other employees,
professionals and consultants, as appropriate, will review and
monitor FCC requirements for 911 call processing matters and will
periodically update appropriate Nokia personnel on those
requirements as necessary. The Compliance Official will further
ensure that training and training materials are updated to
reflect changes in FCC requirements, as appropriate.
_________________________
1 47 U.S.C. § 4(i) and (j).
2 47 C.F.R. §§ 0.111, 0.311.
3 47 C.F.R. § 22.921.
4 911 Call Processing Modes, WT Docket No. 99-328, 15 FCC Rcd
1911 (Wireless Telecom. Bur., 2000) (``Nokia Order''). The
Wireless Telecommunications Bureau also granted Nokia's request
for a temporary waiver of the requirements of Section 22.921 for
its multi-mode phones until May 28, 2000.
5 Hereinafter, ``17 second requirement.'' The Wireless
Telecommunications Bureau also conditioned its approval on the
requirement that the handset provide effective feedback to inform
the user when 911 call processing is underway and has not
finished. This requirement was further clarified in a recent
letter to Nokia's counsel from the Chief of the Commission's
Wireless Telecommunications Bureau. Letter from John B. Muleta,
Chief, Wireless Telecommunications Bureau, Federal Communications
Commission, to Robert L. Pettit, Counsel for Nokia, Inc. (May 30,
2003)(``Muleta Letter'').
6 See Muleta Letter at 2.
7 See Letter from Robert L. Pettit, Counsel for Nokia, Inc.,
to John B. Muleta, Chief, Wireless Telecommunications Bureau,
Federal Communications Commission (May 27, 2003) (``Pettit
Letter'').
8 The principles contained in the Compliance Program were
approved in the Muleta Letter at 2.
9 911 Call Processing Modes, 15 FCC Rcd 1911 (Wireless
Telecom. Bur. 2000).
10 Core principles of this training were presented to the
Wireless Telecommunications Bureau in Pettit Letter at 2 and
approved in Muleta Letter at 2.