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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Dr. Bonnie O'Day, )
)
Complainant, )
)
v.
) File No. EB-03-TC-F-001
)
Cellco Partnership d/b/a/ Verizon Wireless, )
)
Defendant. )
ORDER
Adopted: September 2, 2004
Released: September 3, 2004
By the Deputy Chief, Telecommunications Consumers Division,
Enforcement Bureau:
1. In this Order, we grant the Joint Motion to Dismiss Formal
Complaint with Prejudice (``Joint Motion'') filed on August 27,
2004, by Complainant Dr. Bonnie O'Day and Defendant Cellco
Partnership d/b/a Verizon Wireless (``Verizon Wireless'').1 With
the mediation assistance of Commission staff, O'Day and Verizon
Wireless have settled the formal complaint filed with the
Commission pursuant to Section 255 of the Communications Act of
1934, as amended (the ``Act'').2 We find that granting the
parties' Joint Motion to dismiss the formal complaint, in the
manner described herein, will ensure the most efficient use of
the parties' and the Commission's resources without materially
prejudicing either party.
I. BACKGROUND
2. On February 21, 2003, pursuant to Section 255 of the Act
and the Commission's implementing rules and orders,3 Dr. Bonnie
O'Day (``O'Day'') filed a formal complaint against defendant
Verizon Wireless.4 In her complaint, O'Day contends that Verizon
Wireless violated Section 255 of the Act by, among other things,
failing to make features of its wireless products and services
accessible to O'Day, a visually-impaired user. O'Day requests
that the Commission require Verizon Wireless to make its wireless
products and services accessible to the blind and visually-
impaired users.5
3. On June 12, 2003, as proposed by O'Day in the companion
proceeding,6 the Commission held a technical conference, at
which the parties, together with their engineers, technical
experts, and legal personnel, discussed accessibility issues at
length. Commission staff facilitated the discussion and
encouraged participants to discuss potential settlement
opportunities.
4. Since the technical conference, O'Day and Verizon Wireless
have engaged in extensive settlement discussions, with assistance
from Commission staff, to resolve the disputed issues raised in
O'Day's formal complaint. As a result of these discussions, the
parties recently executed a settlement agreement and filed the
above-referenced Joint Motion for dismissal of O'Day's formal
complaint against Verizon Wireless.
II. DISCUSSION AND ORDERING CLAUSES
5. The Commission has broad discretion to conduct complaint
proceedings ``in such manner as 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 O'Day or Verizon Wireless. 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 O'Day's
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, 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, 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 O'Day's formal complaint is hereby DISMISSED WITH PREJUDICE
and that the above-captioned formal complaint proceeding IS
TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION
Kurt A. Schroeder
Deputy Chief
Telecommunications Consumers Division
Enforcement Bureau
_________________________
1 See Notice of Settlement and Joint Motion to Dismiss Formal
Complaint with Prejudice, File No. EB-03-TC-F-004, filed Aug 27,
2004.
2 See 47 U.S.C. § 255. Section 255 provides, in pertinent
part, that providers of telecommunications services, as well as
manufacturers of telecommunications equipment or customer
premises equipment, 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 Implementation of
Sections 255 and 251(a)(2) of the Communications Act, Access 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 O'Day's formal complaint was supported by the American
Council for the Blind, a national advocacy organization for blind
and visually-impaired persons. At the same time, O'Day filed a
similar formal complaint against Audiovox Communications Corp.,
File No. EB-03-TC-F-004. This Order deals only with O'Day's
formal complaint against Verizon Wireless.
5 See O'Day Formal Complaint, File No. EB-03-TC-F-001, filed
Feb. 21, 2003.
6 See O'Day Reply of Complainant to Defendant's Answer to
Complaint, File No. EB-03-TC-F-004, filed April 18, 2003.
7 47 U.S.C. § 4(j); see also id. 4(i).
8 See Wright & Miller, Federal Practice & Procedure: Civil 2d
§ 2364.