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Before the
Federal Communications Commission
Washington, D.C. 20554
)
File Nos. EB-07-SE-269
In the Matter of )
Acct. No. 200832100047
Custer Telephone Cooperative, Inc. )
FRN No. 0001623321
)
ORDER
Adopted: May 19, 2008 Released: May 21, 2008
By the Deputy Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Custer Telephone
Cooperative, Inc. ("Custer"). The Consent Decree terminates an
investigation by the Bureau against Custer for possible violations of
section 20.19(d)(2) of the Commission's Rules ("Rules") regarding the
inductive coupling hearing aid compatibility requirements.
2. The Bureau and Custer have negotiated the terms of the Consent Decree
that resolve these matters. A copy of the Consent Decree is attached
hereto and incorporated by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and terminating the investigations.
4. In the absence of material new evidence relating to these matters, we
conclude that our investigations raise no substantial or material
questions of fact as to whether Custer possesses the basic qualifications,
including those related to character, to hold or obtain any Commission
license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to section 4(i) of the
Communications Act of 1934, as amended, and sections 0.111 and 0.311 of
the Rules, the Consent Decree attached to this Order IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
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 Peter M. Connolly, Esq., Holland & Knight LLP, 2099
Pennsylvania Avenue, NW, Ste. 100, Washington, DC 20006 and Dennis
Thornock, Custer Telephone Cooperative, Inc., Box 324, 1111 Main Street,
Challis, ID 83226.
FEDERAL COMMUNICATIONS COMMISSION
Susan McNeil
Deputy Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File Nos. EB-07-SE-269
In the Matter of )
Acct. No. 200832100047
Custer Telephone Cooperative, Inc. )
FRN No. 0001623321
)
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Custer Telephone Cooperative, Inc.
("Custer"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigations
into whether Custer violated section 20.19(d)(2) of the Commission's Rules
regarding inductive coupling hearing aid compatibility requirements.
I. DEFINITIONS
1. For the purposes of this Consent Decree, the following definitions
shall apply:
(a) "Act" means the Communications Act of 1934, as amended, 47 U.S.C.
S: 151 et seq.
(b) "Adopting Order" means an Order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or modification.
(c) "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
(d) "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
(e) "Custer" means Custer Telephone Cooperative, Inc., and its
predecessors-in-interest and successors-in-interest.
(f) "Effective Date" means the date on which the Bureau releases the
Adopting Order.
(g) "Investigation" mean the investigation initiated by the Bureau's
August 13, 2007 Letter of Inquiry ("LOI") regarding whether Custer
violated the inductive coupling hearing aid compatibility requirements of
section 20.19(d)(2) of the Rules.
(h) "Parties" means Custer and the Bureau.
(i) "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
2. Pursuant to section 20.19(d)(2) of the Rules, carriers are required to
offer at least two handset models for each air interface that meet the
inductive coupling standards for hearing aid compatibility.
3. On August 13, 2007, the Bureau issued an LOI to Custer. The August 13,
2007 LOI directed Custer, among other things, to submit a sworn written
response to a series of questions relating to its compliance with the
inductive coupling hearing aid compatibility requirements. Custer
responded to the August 13, 2007 LOI on August 24, 2007. Custer filed a
supplemental response on January 29, 2008.
III. TERMS OF AGREEMENT
4. Adopting Order. 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 without change,
addition, modification, or deletion.
5. Jurisdiction. Custer agrees that the Bureau has jurisdiction over it
and the matters contained in this Consent Decree and has the authority to
enter into and adopt this Consent Decree.
6. Effective Date; Violations. 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 Order of the Bureau. Any
violation of the Adopting Order or of the terms of this Consent Decree
shall constitute a separate violation of a Bureau Order, entitling the
Bureau to exercise any rights and remedies attendant to the enforcement of
a Commission Order.
7. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further expenditure of
public resources, the Bureau agrees to terminate its investigation. In
consideration for the termination of said investigation, Custer agrees to
the terms, conditions, and procedures contained herein. The Bureau further
agrees that in the absence of new material evidence, the Bureau will not
use the facts developed in this investigation through the Effective Date
of the Consent Decree, or the existence of this Consent Decree, to
institute, on its own motion, any new proceeding, formal or informal, or
take any action on its own motion against Custer concerning the matters
that were the subject of the investigation. The Bureau also agrees that it
will not use the facts developed in this investigation through the
Effective 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 Custer with respect to
Custer's basic qualifications, including its character qualifications, to
be a Commission licensee or authorized common carrier.
8. Compliance Plan. For purposes of settling the matters set forth herein,
Custer agrees to maintain a Compliance Plan related to future compliance
with the Act, the Commission's Rules, and the Commission's Orders. The
Plan will include, at a minimum, the following components:
(a) Compliance Officer. Custer has designated its Manager as its hearing
aid compatibility compliance officer. The designated hearing aid
compatibility compliance officer will be familiar with the FCC's hearing
aid compatibility regulations. The designated hearing aid compatibility
compliance officer will also review the FCC's hearing aid compatibility
regulations on a monthly basis in order to stay abreast of pending
benchmarks and any new hearing aid compatibility requirements.
(b) Training. The designated hearing aid compatibility compliance officer
will be responsible for ensuring that all Custer retail staff receive
training regarding the hearing aid compatibility capabilities of the
handsets Custer offers for sale. Such training will be completed within
ninety days of the Effective Date and any new employees will receive
training within sixty days of their employment.
(c) Consumer Outreach. Custer will advertise the availability of hearing
aid-compatible handsets to ensure that all of its retail customers are
aware that hearing aid-compatible handsets are available.
(d) Compliance Reports. Custer will file compliance reports with the
Commission, ninety (90) days after the Effective Date, twelve (12) months
after the Effective Date, and twenty-four (24) months after the Effective
Date. Each report shall include a compliance certificate from the Manager,
as an agent of Custer, stating that the Manager has personal knowledge
that Custer has established operating procedures intended to ensure
compliance with this Consent Decree, together with an accompanying
statement explaining the basis for the officer's compliance certification.
All reports shall be submitted to Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, 445 12th Street,
S.W., Washington, D.C. 20554. All reports shall also be submitted
electronically to JoAnn Lucanik at joann.lucanik@fcc.gov and Ava Holly
Berland at holly.berland@fcc.gov.
(e) Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire twenty-four (24) months from the Effective
Date.
9. Section 208 Complaints; Subsequent Investigations. Nothing in this
Consent Decree shall prevent the Commission or its delegated authority
from adjudicating complaints filed pursuant to section 208 of the Act
against Custer or its affiliates for alleged violations of the Act, or for
any other type of alleged misconduct, regardless of when such misconduct
took place. The Commission's adjudication of any such complaint will be
based solely on the record developed in that proceeding. Except as
expressly provided in this Consent Decree, this Consent Decree shall not
prevent the Commission from investigating new evidence of noncompliance by
Custer with the Act, the Rules, or the Order.
10. Voluntary Contribution. Custer agrees that it will make a voluntary
contribution to the United States Treasury in the amount of twelve
thousand dollars ($12,000). The payment will be made within thirty (30)
days after the Effective Date of the Adopting Order. The payment must be
made by check or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the Account Number and
FRN Number referenced in the caption to the Adopting Order. Payment by
check or money order may be mailed to Federal Communications Commission,
P.O. Box 979088, St. Louis, MO 63197-9000. Payment by overnight mail may
be sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank TREAS/NYC, and account number
27000001. For payment by credit card, an FCC Form 159 (Remittance Advice)
must be submitted. When completing the FCC Form 159, enter the Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Custer will also send
electronic notification on the date said payment is made to JoAnn Lucanik
at joann.lucanik@fcc.gov and Ava Holly Berland at holly.berland@fcc.gov.
11. Waivers. Custer 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 Bureau issues an Adopting Order adopting the
Consent Decree without change, addition, modification, or deletion. Custer
shall retain the right to challenge Commission interpretation of the
Consent Decree or any terms contained herein. 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 Custer nor the Commission
shall contest the validity of the Consent Decree or the Adopting Order,
and Custer shall waive any statutory right to a trial de novo. Custer
hereby agrees to waive any claims it may otherwise have under the Equal
Access to Justice Act, 5 U.S.C. S: 504 and 47 C.F.R. S: 1.1501 et seq.,
relating to the matters addressed in this Consent Decree.
12. Severability. The Parties agree that if any of the provisions of the
Adopting Order or the Consent Decree shall be invalid or unenforceable,
such invalidity or unenforceability shall not invalidate or render
unenforceable the entire Adopting Order or Consent Decree, but rather the
entire Adopting Order or Consent Decree shall be construed as if not
containing the particular invalid or unenforceable provision or
provisions, and the rights and obligations of the Parties shall be
construed and enforced accordingly. In the event that this Consent Decree
in its entirety is rendered invalid by any court of competent
jurisdiction, it shall become null and void and may not be used in any
manner in any legal proceeding.
13. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent rule or Order adopted by
the Commission (except an Order specifically intended to revise the terms
of this Consent Decree to which Custer does not expressly consent) that
provision will be superseded by such Commission rule or Order.
14. Successors and Assigns. Custer agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
15. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further 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 or the Commission's Rules and Orders.
16. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
17. Paragraph Headings. The headings of the Paragraphs in this Consent
Decree are inserted for convenience only and are not intended to affect
the meaning or interpretation of this Consent Decree.
18. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
19. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed and
delivered, shall be an original, and all of which counterparts together
shall constitute one and the same fully executed instrument.
_______________________________
Sue McNeil
Deputy Chief
Enforcement Bureau
________________________________
Date
________________________________
Dennis Thornock
Manager
Custer Telephone Cooperative, Inc.
1111 Main Street
Challis, ID 83226
________________________________
Date
47 C.F.R. S: 20.19(d)(2).
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S: 20.19(d)(2).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, to Custer Telephone Cooperative, Inc. (August 13,
2007).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, to Custer Telephone Cooperative, Inc. (August 13,
2007).
See Letter from Peter M. Connolly, Esq., Holland & Knight LLP to Marlene
Dortch (August 24, 2007).
See Letter from Peter M. Connolly, Esq., to JoAnn Lucanik, Esq. and Holly
Berland, Esq., Spectrum Enforcement Division, Enforcement Bureau (January
29, 2008).
Federal Communications Commission DA 08-1157
2
Federal Communications Commission DA 08-1157