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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
ENDLESS MOUNTAINS WIRELESS, ) File No. EB-05-SE-205
L.L.C. ) NAL/Acct. No. 200532100012
Call Sign WPSJ792 ) FRN # 0005025663
Pennsylvania 4- Bradford RSA )
ORDER
Adopted: September 6, 2005
Released: September 9, 2005
By the Acting Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent
Decree entered into between the Enforcement Bureau and Endless
Mountains Wireless L.L.C. (``Endless Mountains Wireless''). The
Consent Decree resolves any possible violations by Endless
Mountains Wireless of Section 22.901(b) of the Commission's Rules
(``Rules'')1 requiring provision of analog cellular service in
the Pennsylvania 4 -Bradford Rural Service Area.
2. The Enforcement Bureau and Endless Mountains
Wireless have negotiated the terms of a Consent Decree that would
resolve this matter. 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 with respect to
this matter as to whether Endless Mountains Wireless 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 will be served by adopting the
Consent Decree.
5. Accordingly, IT IS ORDERED that, pursuant to
Section 4(i) of the Communications Act of 1934, as amended,2 and
Sections 0.111 and 0.311 of the Rules,3 the Consent Decree
attached to this Order IS ADOPTED.
6. IT IS FURTHER ORDERED that Endless Mountains
Wireless will make a voluntary contribution to the United States
Treasury in the amount of twenty thousand dollars ($20,000)
within 30 calendar days after the Effective Date of the Adopting
Order. Payment of the forfeiture must be made by check or
similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check or
money order may be mailed to Federal Communications Commission,
P.O. Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight
mail may be sent to Mellon Bank /LB 358340, 500 Ross Street, Room
1540670, Pittsburgh, PA 15251. Payment by wire transfer may be
made to ABA Number 043000261, receiving bank Mellon Bank, and
account number 911-6106.
7. 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 Mr. William
Schwaibold, Manager, Endless Mountains Wireless, L.L.C., 106
Cedar Court, Unit 3159, Waleska, Georgia 30183.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Acting Chief, Enforcement Bureau
CONSENT DECREE
1. The Enforcement Bureau (the ``Bureau'') of the Federal
Communications Commission (the ``Commission'') and
ENDLESS MOUNTAINS WIRELESS, L.L.C. (``EMW'') hereby
enter into this Consent Decree for the purpose of
resolving any possible violations by EMW of the rule
requiring provision of analog cellular service, Section
22.901(b) of the Commission's Rules (``Rules''), 47
C.F.R.§ 22.901(b), arising from EMW's alleged failure
to provide analog cellular service on the A-block
cellular frequencies in Cellular Market Area (``CMA'')
615, the Pennsylvania 4-Bradford Rural Service Area
(``RSA'').
Background
2. On May 3, 2005, EMW's counsel voluntarily met with the
Commission's Wireless Telecommunications Bureau to
discuss EMW's provision of analog cellular service.
EMW related that it had initiated analog service in
accordance with the Commission's rules on September 6,
2002; however, because of significant financial
hardship, EMW ceased providing analog service on June
5, 2004, when it deployed digital Global System for
Mobile Communications (``GSM'') technology in the
Pennsylvania 4-Bradford RSA.
3. EMW further related to the Wireless Telecommunications
Bureau that it has entered into an Asset Purchase
Agreement and a Spectrum Manager Lease Agreement (the
``Lease'') with American Cellular Corporation
(``American''), a subsidiary of Dobson Communications
Corporation. Pursuant to those agreements, among other
things, American will construct and begin providing
analog service within six (6) months of the effective
date of the Lease.
4. On June 30, 2005, in response to a recommendation from
the Wireless Telecommunications Bureau, EMW's counsel
voluntarily contacted the Enforcement Bureau to relate
the same information and to propose resolution of the
analog cellular service issue by entering into a
consent decree.
5. On July 13, 2005, counsel for EMW met with staff of the
Enforcement Bureau to provide further details regarding
the possible violation of the analog cellular service
rule.
Definitions
6. For the purposes of this Consent Decree, the following
definitions shall apply:
(a) The ``Commission'' means the Federal
Communications Commission;
(b) The ``Bureau'' means the Enforcement Bureau of the
Federal Communications Commission;
(c) ``EMW'' means Endless Mountains Wireless, L.L.C.,
the A-block cellular licensee in the Pennsylvania 4 -
Bradford RSA (CMA615), its subsidiaries, affiliates and
any successors or assigns;
(d) ``Parties'' means EMW and the Bureau;
(e) ``Adopting Order'' means the order of the Bureau
adopting the terms and conditions of this Consent
Decree;
(f) ``Effective Date'' means the date the Adopting
Order is released by the Bureau;
(g) The ``effective date of the Lease'' means the date
on which EMW and American both sign the lease.
(h) ``Rules'' means the Commission's Rules found in
Title 47 of the Code of Federal Regulations;
(i) The ``Act'' means the Communications Act of 1934,
as amended, 47 U.S.C. §§ 151 et seq.;
(j) The ``System'' refers to EMW's cellular system,
including the license WPSJ792, ancillary licenses, and
facilities for the Pennsylvania 4-Bradford RSA; and
(k) The ``Lease'' refers to the Spectrum Manager Lease
Agreement between EMW and American.
Terms of Settlement
7. 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 the
Adopting Order.
8. The Parties agree that this Consent Decree shall become
binding on the Parties on the Effective Date. Upon
release, the Adopting Order and this Consent Decree
shall have the same force and effect as any other final
order of the Commission and any violation of the terms
or conditions of this Consent Decree shall constitute a
violation of a Commission order.
9. EMW acknowledges and agrees that the Bureau has
jurisdiction over the matters contained in this Consent
Decree and that the Bureau has the authority to enter
into and adopt this Consent Decree.
10. The Parties waive any rights they 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 that the Adopting Order adopts the
Consent Decree without change, addition, modification
or deletion.
11. The Parties agree that this Consent Decree does
not constitute either an adjudication on the merits or
a factual or legal finding or determination of any
compliance or noncompliance with the Act or the Rules.
The Parties further agree that this Consent Decree is
for settlement purposes only and that by agreeing to
this Consent Decree, EMW does not admit or deny any
liability for violating the Rules in connection with
the matters that are the subject of this Consent
Decree.
12. EMW agrees that it will make a voluntary
contribution to the United States Treasury in the
amount of twenty thousand dollars ($20,000) within 30
calendar days after the Effective Date of the Adopting
Order. Payment must be made by check or similar
instrument, payable to the order of the Federal
Communications Commission. Payment by check or money
order may be mailed to Federal Communications
Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon Bank
/LB 358340, 500 Ross Street, Room 1540670, Pittsburgh,
PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and
account number 911-6106. The payment should reference
the NAL/Acct. No. and FCC Registration Number (FRN)
referenced above.
13. EMW agrees to bring its System into compliance
with Section 22.901(b) of the Rules no later than six
(6) months from the effective date of the Lease in
accordance with the attached compliance plan.
14. EMW agrees to notify the Bureau of the effective
date of the Lease no later than five days after the
Lease has been signed.
15. The parties acknowledge and agree that this
Consent Decree shall constitute a final settlement
between EMW and the Bureau regarding any past
violations of Section 22.901(b) of the Rules as well as
any future violations of that rule occurring less than
six months after the effective date of the Lease.
16. The Bureau agrees that it will not institute, on
its own motion, any proceeding, formal or informal,
take any action on its own motion, or recommend to the
Commission any forfeiture or other sanction, against
EMW for its past possible violations of Section
22.901(b) of the Rules or against EMW or American
Cellular involving the Pennsylvania 4 - Bradford RSA
for any future violations of that Rule occurring less
than six months after the effective date of the Lease.
Nothing in this Consent Decree shall prevent the Bureau
from instituting investigations or enforcement
proceedings against EMW in the event of any other
alleged misconduct that violates this Consent Decree or
any provision of the Act or the Rules.
17. EMW agrees that in the event it fails to comply
with Section 22.901(b) of the Rules within six (6)
months of the effective date of the Lease, it will make
a voluntary contribution to the United States Treasury
in the amount of $50,000 for each one month period (or
part thereof if the one month period is incomplete)
that the violation continues. Each such voluntary
contribution will be made within thirty (30) days of
the beginning of each such one month period or part
thereof. Payment must be made by check or similar
instrument, payable to the order of the Federal
Communications Commission. Payment by check or money
order may be mailed to Federal Communications
Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon Bank
/LB 358340, 500 Ross Street, Room 1540670, Pittsburgh,
PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and
account number 911-6106. The payment should reference
the NAL/Acct. No. and FCC Registration Number (FRN)
referenced above.
18. The parties agree that, in the event any court of
competent jurisdiction renders this Consent Decree
invalid, the Consent Decree shall become null and void
and may not be used in any manner in any legal
proceeding.
19. If either Party (or the United States on behalf of
the Commission) brings a judicial action to enforce the
terms of the Adopting Order, neither EMW nor the
Commission shall contest the continuing validity of the
Consent Decree or Adopting Order. The Parties agree to
comply with, defend and support the validity of this
Consent Decree and the Adopting Order in any proceeding
seeking to nullify, void, or otherwise modify the
Consent Decree or the Adopting Order.
20. EMW waives any rights it may have under any
provision of the Equal Access to Justice Act, 5 U.S.C.
§ 504 and 47 C.F.R. § 1.1501 et seq., relating to the
matters addressed in this Consent Decree.
21. EMW agrees that any violation of the Consent
Decree or the Order adopting this Consent Decree will
constitute a separate violation of a Commission order,
entitling the Commission to exercise any rights and
remedies attendant to the enforcement of a Commission
order.
22. The Parties agree that any provision of this
Consent Decree which conflicts with any subsequent
rule, order of general applicability or other decision
of general applicability adopted by the Commission will
be superseded by such Commission rule, order or other
decision.
23. This Consent Decree cannot be modified without the
advance written consent of both Parties.
24. This Consent Decree may be signed in counterparts.
FEDERAL COMMUNICATIONS COMMISSION
ENFORCEMENT BUREAU
By: __________________________ ____________
Kris Anne Monteith Date
Acting Chief, Enforcement Bureau
ENDLESS MOUNTAINS WIRELESS, L.L.C.
By: ___________________________ _____________
William Schwaibold Date
Manager
COMPLIANCE PLAN
Endless Mountains Wireless, LLC (``EMW''), is committed to
full and complete compliance with the Federal Communications
Commission's (``Commission'') Rules (``Rules'') in connection
with the operation of an analog service in the Pennsylvania 4 -
Bradford RSA cellular system. In order to ensure such
compliance, and in connection with the Consent Decree being
entered into by the Enforcement Bureau of the Commission and EMW
with respect to such compliance (the ``Consent Decree'') will
implement this Compliance Plan. Capitalized terms not otherwise
defined herein and the term ``effective date of the Lease'' shall
have the meanings assigned to them in the Consent Decree. The
Compliance Plan will consist of four components.
1. EMW will require American to order the requisite
equipment and interconnection facilities within two (2) months of
the effective date of the Lease to achieve compliance with
Section 22.901(b) of the Commission's rules on the A-Block
cellular frequencies in the Pennsylvania 4 - Bradford RSA.
2. EMW will require American to deploy analog cellular
service in accordance with Section 22.901(b) of the Commission's
Rules on the A-Block cellular frequencies in the Pennsylvania 4 -
Bradford RSA as soon as it is practicable to do so, but in no
event later than six (6) months after the effective date of the
Lease.
3. EMW will file a report at the end of the second month
and again not later than the end of the sixth month (or within
ten days of such earlier date as compliance has been achieved)
following the effective date of the Lease that describes the
progress and compliance of the terms and conditions of the
Consent Decree.
4.
EMW agrees to provide analog cellular service on the A-Block
cellular frequencies in the Pennsylvania 4 - Bradford RSA for as
long as such analog service is required by the Commission's Rules
and EMW is the licensee of the Pennsylvania 4žBradford RSA.
_________________________
1 47 C.F.R. § 20.18(d).
2 47 U.S.C. § 154(i).
3 47 C.F.R. §§ 0.111, 0.311.