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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-07-SE-276
NE Colorado Cellular, Inc., dba Viaero ) Acct. No. 200832100056
Wireless ) FRN No. 0015360456
)
ORDER
Adopted: July 11, 2008 Released: July 14, 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 NE Colorado Cellular,
Inc., dba Viaero Wireless ("Viaero"). The Consent Decree terminates an
investigation by the Bureau against Viaero for possible violation of
section 20.19(d)(2) of the Commission's Rules ("Rules") regarding
inductive coupling hearing aid compatibility handset requirements.
2. The Bureau and Viaero 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 and terminating 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 Viaero 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 Mike Felicissimo, Executive Vice-President, NE Colorado
Cellular, Inc., dba Viaero Wireless, 1220 West Platte Avenue, Fort
Morgan, Colorado 80701, and to its counsel, Todd Slamowitz, Esq.,
Lukas, Nace, Gutierrez & Sachs, Chartered, 1650 Tysons Boulevard,
Suite 1500, McLean, Virginia 22102.
FEDERAL COMMUNICATIONS COMMISSION
Susan McNeil
Deputy Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-07-SE-276
NE Colorado Cellular, Inc., dba Viaero ) Acct. No. 200832100056
Wireless
) FRN No. 0015360456
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and NE Colorado Cellular, Inc., dba
Viaero Wireless ("Viaero"), by their authorized representatives, hereby
enter into this Consent Decree for the purpose of terminating the Bureau's
investigation into whether Viaero violated section 20.19(d)(2) of the
Commission's Rules ("Rules") regarding inductive coupling hearing aid
compatibility handset 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. "Compliance Plan" means the program described in this Consent Decree
at paragraph 8.
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 regarding whether Viaero violated
the inductive coupling hearing aid compatibility requirements of
section 20.19(d)(2) of the Rules.
h. "Parties" means Viaero and the Bureau.
i. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
j. "Viaero" means NE Colorado Cellular, Inc., dba Viaero Wireless, and
its predecessors-in-interest and successors-in-interest.
II. BACKGROUND
2. Pursuant to section 20.19(d)(2) of the Rules, beginning September 18,
2006, 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 a letter of inquiry (LOI) to
Viaero. The August 13, 2007 LOI directed Viaero, 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 handset requirements. Viaero responded to the August 13,
2007 LOI on August 27, 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. Viaero 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, Viaero 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 Viaero 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 Viaero with respect to
Viaero'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, Viaero 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. Viaero has designated Mike Felicissimo 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 and associated selling and
labeling benchmarks. 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 Viaero retail staff
receives training regarding the hearing aid compatibility
capabilities of the handsets Viaero 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. Viaero 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. Viaero 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 Viaero, stating that the
officer has personal knowledge that Viaero 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
Kathryn S. Berthot, 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 Susan Stickley at Susan.Stickley@fcc.gov and to
Ricardo Durham at Ricardo.Durham@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 Viaero 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 Viaero with the Act, the Rules, or the
Order.
10. Voluntary Contribution. Viaero 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
NAL/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 NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Viaero will also send
electronic notification on the date said payment is made to
Susan.Stickley@fcc.gov and Ricardo.Durham@fcc.gov.
11. Waivers. Viaero 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.
Viaero 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 Viaero nor
the Commission shall contest the validity of the Consent Decree or the
Adopting Order, and Viaero shall waive any statutory right to a trial
de novo. Viaero 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 Viaero does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
14. Successors and Assigns. Viaero 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.
_______________________________
Susan McNeil
Deputy Chief
Enforcement Bureau
________________________________
Date
________________________________
Mike Felicissimo
Executive Vice-President
NE Colorado Cellular, Inc. dba Viaero Wireless
________________________________
Date
47 C.F.R. S: 20.19(d)(2).
47 U.S.C. S: 154(i), 503(b).
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 Mike Felicissimo, NE Colorado Cellular, Inc.,
dba Viaero Wireless (August 13, 2007)("August 13, 2007 LOI").
Id.
See Letter from Thomas Gutierrez, Esq. and Todd Slamowitz, Esq.,
Lukas, Nace, Gutierrez & Sachs, Chartered, to Kathryn S. Berthot,
Chief, Spectrum Enforcement Division, Enforcement Bureau (August 27,
2007).
Federal Communications Commission DA 08-1625
2
Federal Communications Commission DA 08-1625