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


In the Matter of                        )                   
                              )                        
Frank Winsor Burbank                    )
and Barbara Gail Burbank,               )    File No. EB-04-TC-
F-001
                              )    
          Complainant,             )                   
                              )         
v.                            )
                              )    
OnStar Corporation,                )
                              )
          Defendant.               )


                              ORDER 


Adopted: August 26, 2004                                                              
Released: August 27, 2004


By the Chief, Telecommunications Consumers Division,  Enforcement 
Bureau:

I.   INTRODUCTION

     1.   In this Order, we grant the Joint Motion to Dismiss 
with Prejudice (Joint Motion) filed on August 20, 2004, by 
Complainants, Frank Winsor Burbank and Barbara Gail Burbank 
(Burbanks), and Defendant, OnStar Corporation (OnStar).1  The 
Joint Motion resolves the outstanding issues in the formal 
complaint filed, pursuant to Section 255 of the Communications 
Act of 1934, as amended (the Act), 2 by the Burbanks against 
OnStar.  We find that granting the parties' Joint Motion will 
serve the public interest by promoting the private resolution of 
disputes and by eliminating the need for further litigation and 
the expenditure of further time and resources of the parties and 
this Commission.

II.  BACKGROUND

     2.   On February 2, 2004, pursuant to Section 255 and the 
Commission's implementing rules and orders,3 the Burbanks filed a 
formal complaint against OnStar alleging that the OnStar 
telecommunications system is not accessible to persons with 
hearing disabilities in violation of Section 255.  The Burbanks 
assert that OnStar, among other things, failed to make accessible 
certain features of the wireless telephone functions and 
telecommunications services that are indispensable to the OnStar 
telecommunications system, even though accessibility for these 
functions and services is readily achievable.  The Burbanks 
request that the Commission require OnStar to make adjustments to 
its telecommunications system to make it accessible to, and 
usable by, persons with hearing disabilities.4

     3.   On June 3, 2004, the Burbanks filed an Amended 
Complaint, at the direction of Commission staff.5  On June 14, 
2004, OnStar filed an Answer to the complaint.6  On July 28, 
2004, a status conference was held at Commission headquarters; 
the parties, their attorneys, and their respective engineers and 
technical experts attended the conference.  Commission staff 
facilitated the discussion and encouraged participants to discuss 
potential settlement opportunities.  

     4.   Subsequent to the status conference, the parties held 
settlement discussions to resolve the disputed issues in the 
formal complaint.  As a result of these discussions, the parties 
executed a settlement agreement and filed the above-referenced 
Joint Motion for dismissal of the Burbanks' formal complaint 
against OnStar. 

                                 
III. DISCUSSION AND ORDERING CLAUSES

     5.   The Commission has broad discretion to conduct 
complaint proceedings ``in a manner that 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 the Burbanks or OnStar.  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 the Burbanks' 
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, and 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, and 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 Burbanks' formal complaint is hereby DISMISSED 
WITH PREJUDICE and that the above-captioned formal complaint 
proceeding IS TERMINATED.  


                         FEDERAL COMMUNICATIONS COMMISSION



                         Colleen K. Heitkamp
                         Chief, Telecommunications Consumers 
                    Division
                         Enforcement Bureau
_________________________

1      See  Joint  Motion  to  Dismiss  Formal  Complaint  with 
Prejudice, Frank  Winsor Burbank  and  Barbara Gail  Burbank  & 
OnStar Corporation,  File No.  EB-04-TC-F-001,  filed Aug.  20, 
2004.

2     See 47 U.S.C.  § 255.  Section  255 provides, in  pertinent 
part,  that  manufacturers  of  telecommunications  equipment  or 
customer  premises   equipment,   as   well   as   providers   of 
telecommunications  services,  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 In  the Matter  of 
Implementation   of   Sections   255   and   251(a)(2)   of   the 
Communications   Act,    Access   (continued....)              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    See Burbanks'  Formal  Complaint, File  No.  EB-04-TC-F-001, 
filed Feb. 2, 2004.

5    See Burbanks' Amended Complaint, File No. EB-04-TC-F-001, 
filed June 3, 2004.

6    See OnStar, Answer to the Burbanks' Amended Complaint,  File 
No EB-04-TC-F-001, filed June 14, 2004.

7    47 U.S.C. § 4(i), see also 47 U.S.C. § 4(j).

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