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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-119
In the Matter of
) Acct. No. 200832100059
Airadigm Communications, Inc.
) FRN No. 0002701688
)
ORDER
Adopted: July 30, 2008 Released: August 1, 2008
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Airadigm Communications,
Inc. ("Airadigm"). The Consent Decree terminates an investigation by
the Bureau against Airadigm 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 Airadigm 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 Airadigm 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 Todd B. Lantor, Esq., Lukas, Nace, Gutierrez & Sachs,
Chartered, 1650 Tysons Blvd., Suite 1500, McLean, VA 22102, counsel
for Airadigm Communications, Inc., and Linda J. Springer, Director of
Finance, Airadigm Communications, Inc., 2301 Kelbe Drive, Little
Chute, Wisconsin 54140.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-119
In the Matter of
) Acct. No. 200832100059
Airadigm Communications, Inc.
) FRN No. 0002701688
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Airadigm Communications, Inc.
("Airadigm"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
into whether Airadigm violated section 20.19(d)(2) of the Commission's
Rules ("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. "Airadigm" means Airadigm Communications, Inc. and its
predecessors-in-interest and successors-in-interest.
d. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
e. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
f. "Compliance Plan" means the program described in this Consent Decree
at paragraph 8.
g. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
h. "Investigation" means the investigation commenced by the Bureau
regarding whether Airadigm violated the inductive coupling hearing aid
compatibility requirements of section 20.19(d)(2) of the Rules.
i. "Parties" means Airadigm and the Bureau.
j. "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 at least two handset models for each air interface that meet
the inductive coupling standards for hearing aid compatibility by
September 18, 2006.
3. On September 19, 2006, Airadigm filed a Petition for Temporary Waiver
requesting a temporary waiver of the requirements in section
20.19(d)(2) of the Rules. Airadigm supplemented its Petition for
Temporary Waiver with filings on May 29, 2007 and June 13, 2007. On
February 27, 2008, the Commission released a Memorandum Opinion and
Order denying Airadigm's Petition for Temporary Waiver and referring
Airadigm's alleged violations to the Commission's Enforcement Bureau.
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. Airadigm 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, Airadigm 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 Airadigm 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 Airadigm
with respect to Airadigm'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, Airadigm 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. Airadigm will designate its Marketing 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 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 Airadigm retail staff
receives training regarding the hearing aid compatibility capabilities
of the handsets Airadigm 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. Airadigm 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. Airadigm 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 Airadigm, stating that the officer has
personal knowledge that Airadigm 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 compliance 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 Jennifer
Burton, Esq., Jennifer.Burton@fcc.gov, and JoAnn Lucanik, Deputy
Division Chief, 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 Airadigm 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 Airadigm with the Act, the Rules, or
Commission Orders.
10. Voluntary Contribution. Airadigm agrees that it will make a voluntary
contribution to the United States Treasury in the amount of eleven
thousand dollars ($11,000.00). The payment will be made within 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). Airadigm will also send
electronic notification on the date said payment is made to Jennifer
Burton, Esq., Jennifer.Burton@fcc.gov, and JoAnn Lucanik, Deputy
Division Chief, JoAnn.Lucanik@fcc.gov.
11. Waivers. Airadigm 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 Adopting Order, provided the Adopting Order adopts the Consent
Decree without change, addition, modification, or deletion. Airadigm
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 Airadigm nor the
Commission shall contest the validity of the Consent Decree or the
Adopting Order, and Airadigm shall waive any statutory right to a
trial de novo. Airadigm 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 Airadigm does not expressly
consent), that provision will be superseded by such Commission rule or
Order.
14. Successors and Assigns. Airadigm 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.
_______________________________
Kathryn S. Berthot, Chief,
Spectrum Enforcement Division
Enforcement Bureau
________________________________
Date
________________________________
Linda J. Springer
Director of Finance and Accounting
Airadigm Communications, Inc.
________________________________
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).
Airadigm Petition for Temporary Waiver, WT Docket No. 01-309 (filed Sept.
19, 2006).
Airadigm Supplement to Petition for Temporary Waiver, WT Docket No. 01-309
(filed May 29, 2007).
Airadigm Further Supplement to Petition for Temporary Waiver, WT Docket
No. 01-309 (filed June 13, 2007).
Petitions for Waiver of Section 20.19 of the Commission's Rules,
Memorandum Opinion and Order, 23 FCC Rcd 3352 (2008) ("Waiver Order").
Federal Communications Commission DA 08-1716
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Federal Communications Commission DA 08-1716
Federal Communications Commission DA 08-1716
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Federal Communications Commission DA 08-1716