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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Motorola, Inc. ) File No. EB-02-TS-644
)
) NAL/Acct. No. 200332100001
)
) FRN 0007-3504-40
ORDER
Adopted: February 20, 2003 Released: February 21,
2003
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent
Decree entered into between the Enforcement Bureau and Motorola,
Inc. (``Motorola''). The Consent Decree terminates an
investigation initiated by the Enforcement Bureau into Motorola'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 Motorola 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
Motorola 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
Sections 4(i), 4(j), and 503(b) 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 Motorola IS TERMINATED.
7. IT IS FURTHER ORDERED that Motorola, Inc. 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 Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
payment should note NAL/Acct. No. 200332100001 and FRN 0007-3504-
40.
8. 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 Mary E. Brooner,
Esq., Director, Telecommunications Strategy and Regulation,
Global Government Relations Office, Motorola, Inc., 1350 I
Street, N.W., Suite 400, Washington, D.C. 20005, and to Robert
Pettit, Esq., Wiley Rein & Fielding, 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 Motorola, Inc. (``Motorola'') hereby enter into a
Consent Decree resolving possible violations by Motorola 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 September 22, 2002, Motorola filed a request
for a waiver of Section 22.921 to permit continued shipment to a
specific customer of two models of multi-mode mobile phones,
models 120E and T720, which incorporate a call processing method
not endorsed or approved by the Commission.4 Motorola stated
that it began shipping these handsets on about September 5, 2002.
In addition, Motorola filed a petition with the Commission
seeking approval of its alternative call processing method under
Section 22.921 of the Commission's Rules.5 On October 3, 2002,
the Wireless Telecommunications Bureau granted Motorola a
limited, interim waiver of Section 22.921 to permit continued
shipment of the handsets incorporating the modified call
completion method, subject to further review of the modified
method.6 The Enforcement Bureau subsequently began an
investigation into whether Motorola was in compliance with the
requirements of Section 22.921 with respect to these two handset
models.7
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) ``Bureau'' means the FCC's Enforcement Bureau:
(c) ``Parties'' means Motorola, Inc. and the
Commission;
(d) ``Motorola'' means Motorola, 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.
3. 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.
4. 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.
5. Motorola 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.
6. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between Motorola and
the Bureau regarding possible violations of the 911 call
processing method rules for manufacture and distribution of
wireless handset models 120E and T720 prior to September 20,
2002. In consideration for termination by the Bureau of its
investigation into whether Motorola has violated the 911 call
processing rules for its 120E and T720 model handsets and in
accordance with the terms of this Consent Decree, Motorola agrees
to the terms set forth herein.
7. 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 Motorola.
8. Motorola agrees that for phones capable of operating in
analog mode that it sells in the United States it will comply
with 911 call processing method rule as follows:
(a) First, Motorola agrees that it will manufacture
handsets using one or more of the 911 call system
selection processes endorsed or approved by the
Commission, or handsets that have otherwise
received FCC approval to incorporate a modified
911 call completion method.
(b) Second, Motorola agrees to retrain certain
critical organizations in the Company, including
its software developments groups for each cellular
and PCS system technology in the U.S. market, on
issues related to the Commission's rules and
regulations related to emergency call processing
including assuring alignment of customer
specifications and regulatory requirements at
early stages of new product development. Motorola
would also retrain its technical compliance
organization to ensure that regulatory compliance
requirements are met at each stage of compliance
review for new product development. This training
will be completed within six months of the
effective date of this Consent Decree and, in
addition, further reminder training will be
conducted within eighteen (18) months of the
effective date of this Consent Decree.
9. Motorola 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 Motorola 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.
10. Motorola agrees to make a voluntary contribution to the
United States Treasury in the amount of Twenty Five Thousand
Dollars ($25,000) per handset model referenced above for a total
of Fifty Thousand Dollars ($50,000) within thirty (30) days after
the effective date of the Adopting Order. Motorola 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. 200332100001 and FCC Registration Number
0007-3504-40.
11. 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 Motorola for any alleged
violation of the 911 call processing method rules in connection
with its 120E and T720 model handsets 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
Motorola 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 Motorola in
the event of any alleged future misconduct for violation of this
Consent Decree or for violation of the 911 call processing rules
as consistent with the provisions of this Consent Decree.
12. Motorola 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.
13. 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 Motorola nor the FCC shall contest the
continuing validity of the Consent Decree or Adopting Order.
Motorola retains the right to challenge the Bureau interpretation
of the Consent Decree or any terms contained therein.
14. Motorola 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.
15. 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.
16. 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 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, Motorola does not admit or deny
any liability for violating Commission rules in connection with
the matters that are the subject of this Consent Decree.
17. The Parties agree that the terms and conditions of this
Consent Decree shall remain in effect for twenty-four (24) months
from the effective date of this Consent Decree. The Parties
further agree that any provision of the Consent Decree that would
require Motorola to act in violation of a future rule or order
adopted by the Commission will be superseded by such Commission
rule or order. 18. This Consent Decree may be signed in counterparts.
For the Enforcement Bureau For Motorola, Inc.
______________________________
______________________________
David H. Solomon Michael S. Tatelman
Chief, Enforcement Bureau Vice President of
Sales for PCS, North America
______________________________
______________________________
Date Date
_________________________
1 47 U.S.C. §§ 4(i), 4(j), 503(b).
2 47 C.F.R. §§ 0.111, 0.311.
3 47 C.F.R. § 22.921.
4 Letter from Mary E. Brooner, Director, Telecommunications
Strategy and Regulation, Global Government Relations Office,
Motorola, Inc. to Mr. Thomas Sugrue, Chief, Wireless
Telecommunications Bureau, FCC (filed Sept. 20, 2002).
5 Request of Motorola, Inc. For Approval of a Modified 911
Call Processing Mode (filed Sept. 20, 2002).
6 911 Call Processing Modes, Motorola Request for Expedited
Relief for Phase-II Enabled Handsets, WT Docket No. 99-328, 17
FCC Rcd 19267 (Wireless Telecom. Bur. 2002).
7 Letter from Joseph P. Casey, Chief, Technical and Public
Safety Division, Enforcement Bureau, to Mary E. Brooner,
Director, Telecommunications Strategy and Regulation, Global
Government Relations Office, Motorola, Inc. (October 24, 2002).