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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-273
In the Matter of
) Acct. No. 200832100048
Choice Wireless, LC
) FRN No. 0004250056
)
ORDER
Adopted: June 2, 2008 Released: June 10, 2008
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Choice Wireless, LC
("Choice"). The Consent Decree terminates an investigation by the
Bureau against Choice for possible violation of section 20.19(d)(2) of
the Commission's Rules ("Rules") regarding the inductive coupling
hearing aid compatibility requirements.
2. The Bureau and Choice have negotiated the terms of the Consent Decree
that resolve this matter. 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 which terminates the investigation.
4. In the absence of material new evidence relating to this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether Choice 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 Commission's 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 Sylvia Lesse, Esq., Counsel for Choice Wireless, LC,
Communications Advisory Counsel, LLC, 2154 Wisconsin Avenue, N.W.,
Washington, D.C. 20007.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-273
In the Matter of
) Acct. No. 200832100048
Choice Wireless, LC
) FRN No. 0004250056
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Choice Wireless, LC ("Choice"), by
their authorized representatives, hereby enter into this Consent Decree
for the purpose of terminating the Bureau's investigation into whether
Choice violated section 20.19(d)(2) of the Commission's Rules ("Rules")
regarding the 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. "Choice Wireless, LC" or "Choice" means Choice Wireless, LC and its
predecessors-in-interest and successors-in-interest.
e. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
f. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
g. "Investigation" means the investigation commenced by the Bureau's
August 13, 2007 Letter of Inquiry ("LOI") regarding whether Choice
violated the inductive coupling hearing aid requirements of section
20.19(d)(2) of the Rules.
h. "Parties" means Choice 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 were required
to offer, by September 18, 2006, at least two handset models for each
air interface that meet the inductive coupling standards for hearing
aid compatibility.
3. On November 17, 2006, Choice submitted a report to the Wireless
Telecommunications Bureau ("WTB") that suggested that Choice was not
in compliance with section 20.19(d)(2). After referral by the WTB, the
Bureau issued an LOI to Choice on August 13, 2007. The LOI directed
Choice to submit a sworn written response to a series of questions
regarding its compliance with the inductive coupling hearing aid
compatibility requirements. Choice first responded to the LOI on
August 28, 2007 and supplemented its response on November 19 and 30,
2007.
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. Choice 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, Choice 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 Choice 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 Choice with respect to
Choice'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, Choice 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. The duties of Choice's Sales and Marketing
Director ("Director") will be expanded to include responsibility to
ensure that all retail sales items meet the requirements of the Act,
the Rules, and the Commission's Orders. The Director shall, at a
minimum:
i. Regularly review available resources to ascertain regulatory
requirements;
ii. Provide recommendations to senior management regarding methods
of achieving compliance;
iii. Establish and maintain vendor communications to ensure that
Choice's requirements are understood and honored; and
iv. Establish, implement, and maintain procedures for ensuring that
vendor deliveries comply with Commission requirements.
b. Training. The Director will be responsible for ensuring that all
Choice retail staff receives training regarding the hearing aid
compatibility capabilities of the handsets Choice offers for sale.
Such training will be completed within ninety (90) days of the
Effective Date, and any new employees will receive training within
sixty (60) days of their employment.
c. Consumer Outreach. Under the supervision of the Director, Choice's
hearing aid compatibility outreach efforts will be expanded to
include the preparation, and revision as necessary, of a brochure
that will be distributed in all Choice retail outlets. The brochure
will explain hearing-aid compatibility standards for mobile phones;
describe issues that can arise from the use of hearing aids with
mobile phones; and list compliant models of hearing-aid compatible
mobile phones.
d. Compliance Reports. Choice 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 an officer, as an agent of Choice, stating that the
officer has personal knowledge that Choice 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 Kevin
Pittman at Kevin.Pittman@fcc.gov and to JoAnn Lucanik at
JoAnn.Lucanik@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 Choice 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 Choice of the Act, the rules, or the
Order.
10. Voluntary Contribution. Choice agrees that it will make a voluntary
contribution to the United States Treasury in the amount of
twenty-four thousand dollars ($24,000). 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). Choice shall
also send electronic notification on the date said payment is made to
Kevin Pittman at Kevin.Pittman@fcc.gov and to JoAnn Lucanik at
JoAnn.Lucanik@fcc.gov.
11. Waivers. Choice 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 Adopting Order adopts the
Consent Decree without change, addition, modification, or deletion.
Choice 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 Choice nor
the Commission shall contest the validity of the Consent Decree or the
Adopting Order, and Choice shall waive any statutory right to a trial
de novo. Choice 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 Choice does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
14. Successors and Assigns. Choice 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.
_______________________________
Kris Anne Monteith
Chief
Enforcement Bureau
________________________________
Date
________________________________
Alan Rohmer
President
Choice Wireless, LC
________________________________
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).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission to Tim
Humpert, President, Choice Wireless, LC, (August 13, 2007) ("August
13, 2007 LOI").
47 C.F.R. S: 20.19(d)(2).
47 C.F.R. S: 20.19(d)(2).
See August 13, 2007 LOI.
See Letter from Sylvia Lesse, Esq., Counsel for Choice Wireless, LC,
to Marlene H. Dortch, Secretary, Federal Communications Commission
(August 28, 2007); Letter from Sylvia Lesse, Esq., Counsel for Choice
Wireless, LC, to Marlene H. Dortch, Secretary, Federal Communications
Commission (November 19, 2007); Letter from Sylvia Lesse, Esq.,
Counsel for Choice Wireless, LC, to Marlene H. Dortch, Secretary,
Federal Communications Commission (November 30, 2007).
(Continued from previous page)
(continued....)
Federal Communications Commission DA 08-1186
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Federal Communications Commission DA 08-1186
Federal Communications Commission DA 08-1186
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Federal Communications Commission DA 08-1186