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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File Nos. EB-07-SE-140 and
) EB-08-SE-121
In the Matter of
) Acct. Nos. 200732100028 and
IT&E Overseas, Inc. 200832100060
)
FRN No. 0001523125
)
)
ORDER
Adopted: July 25, 2008 Released: July 28, 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 IT&E Overseas, Inc.
("IT&E"). The Consent Decree terminates an investigation and a Notice
of Apparent Liability for Forfeiture ("NAL") by the Bureau against
IT&E for possible violations of section 20.19(f) of the Commission's
Rules ("Rules") regarding IT&E's failure to comply with the labeling
requirements for digital wireless hearing aid-compatible handsets, and
an investigation by the Bureau against IT&E for possible violations of
section 20.19(d)(2) of the Rules regarding IT&E's failure to offer at
least two digital wireless handset models meeting the Commission's
standards for inductive coupling by the compliance deadline.
2. The Bureau and IT&E 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 and
canceling the Notice of Apparent Liability for Forfeiture.
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 IT&E 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 sections 4(i) and 503(b)
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 investigations ARE
TERMINATED and that the Notice of Apparent Liability for Forfeiture IS
CANCELLED.
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 John A. Prendergast, Esq., Blooston, Mordkofsky,
Dickens, Duffy & Prendergast, LLP, 2120 L Street, N.W., Suite 300,
Washington, DC 20037 and to John Borlas, IT&E Overseas, Inc., 1010
South Marine Drive, Tamuning, GU 96913.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File Nos. EB-07-SE-140 and
) EB-08-SE-121
In the Matter of
) Acct. Nos. 200732100028 and
IT&E Overseas, Inc.
) 200832100060
) FRN No. 0001523125
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and IT&E Overseas, Inc. ("IT&E"), by
their authorized representatives, hereby enter into this Consent Decree
for the purpose of terminating the Bureau's investigations into whether
IT&E violated section 20.19(d)(2) of the Commission's Rules ("Rules")
regarding the inductive coupling hearing aid compatibility handset
requirements, and section 20.19(f) of the Rules regarding the labeling
requirements for digital wireless hearing aid-compatible handsets.
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. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
f. "Investigations" means the investigation initiated by the Bureau
regarding whether IT&E violated the hearing aid compatibility labeling
requirements in section 20.19(f) of the Rules culminating in the
Notice of Apparent Liability for Forfeiture, and the investigation by
the Bureau regarding whether IT&E violated the inductive coupling
hearing aid compatibility handset requirements of section 20.19(d)(2)
of the Rules.
g. "IT&E" means IT&E Overseas, Inc. and its corporate
predecessors-in-interest and corporate successors-in-interest.
h. "NAL" means IT&E Overseas, Inc., Notice of Apparent Liability for
Forfeiture, 22 FCC Rcd 7660 (Enf. Bur., Spectrum Enf. Div. 2007).
i. "Parties" means IT&E 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(f) of the Rules, hearing aid-compatible
digital wireless handsets must clearly display the technical rating on
the packaging material of the handset and an explanation of the
hearing aid compatibility technical rating system must be included in
the owner's manual or as an insert in the packaging material for the
handset. Pursuant to section 20.19(d)(2) of the Rules, wireless
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 16, 2005, IT&E filed a Petition for Temporary Waiver or
Temporary Stay of the requirements contained in section
20.19(c)(2)(i) of the Rules that IT&E include in its handset offerings
two handset models per air interface that meet the radio frequency
interference standard for hearing aid compatibility. On April 11,
2007, the Commission granted IT&E's September 16, 2005 Petition for
Temporary Waiver or Temporary Stay with respect to the requirements of
section 20.19(c)(2)(i), but concluded that IT&E had failed to
demonstrate unusual or unique circumstances, or the existence of any
other factor, warranting relief from the associated labeling
requirements set forth in Section 20.19(f) of the Rules. The
Commission referred IT&E's apparent violation of section 20.19(f) of
the Rules to the Bureau for investigation. On April 25, 2007, the
Bureau issued an NAL proposing that IT&E be held liable for a
forfeiture of $16,000 under section 503(b)(1)(B) of the Act for its
apparent violation of section 20.19(f) of the Rules and ordered the
Company either to pay the proposed forfeiture or file a written
response within thirty (30) days of the NAL release date stating why
the proposed forfeiture should be reduced or canceled. On May 11,
2007, IT&E filed a Petition for Partial Reconsideration of the
Commission's denial of its September 16, 2005 Petition for Temporary
Waiver or Temporary Stay with respect to the requirements of section
20.19(f) of the Rules. On May 24, 2007, IT&E also filed a Response to
Notice of Apparent Liability for Forfeiture with respect to the
Bureau's NAL.
4. On September 13, 2006, IT&E filed its Petition for Temporary Waiver or
Temporary Stay, up to and including September 18, 2007, of the
requirements contained in section 20.19(d)(2) of the Rules that IT&E
include in its handset offerings at least two handset models per air
interface that comply with the inductive coupling standard for hearing
aid compatibility set forth in section 20.19(b)(2) of the Rules. On
February 27, 2008, the Commission denied IT&E's September 13, 2006
Petition for Temporary Waiver or Temporary Stay of the requirements of
section 20.19(d)(2) of the Rules, and referred IT&E's apparent
violation to the Bureau for investigation. On March 28, 2008, IT&E
filed a Petition for Reconsideration of the Commission's denial of its
September 13, 2006 Petition for Temporary Waiver or Temporary Stay of
the requirements of section 20.19(d)(2) of the Rules.
5. On April 4, 2008, IT&E Overseas, Inc. and PTI Pacifica Inc. filed
applications for the assignment from IT&E to PTI Pacifica of IT&E's
wireless licenses, including its broadband Personal Communications
Service and Local Multipoint Distribution Service licenses in Guam and
the Commonwealth of the Northern Mariana Islands, as well as private
microwave licenses on Guam.
III. TERMS OF AGREEMENT
6. 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.
7. Jurisdiction. IT&E 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.
8. 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.
9. Termination of Investigations. 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
investigations and to cancel the NAL. In consideration for the
termination of said investigations and cancellation of the NAL, IT&E
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 the investigations
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 IT&E concerning the matters that were the subject of the
investigations. The Bureau also agrees that it will not use the facts
developed in the investigations 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 IT&E with respect to IT&E's basic
qualifications, including its character qualifications, to be a
Commission licensee or authorized common carrier.
10. 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 IT&E 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 IT&E with the Act, the Rules, or
Commission Orders.
11. Voluntary Contribution. IT&E agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $54,000.
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 Numbers 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 numbers in block number 23A (call
sign/other ID), and enter the letters "FORF" in block number 24A
(payment type code). IT&E shall also send electronic notification on
the date said payment is made to Nissa Laughner at
Nissa.Laughner@fcc.gov and to Ricardo M. Durham at
Ricardo.Durham@fcc.gov.
12. Waivers. IT&E 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 adopts the Consent Decree
without change, addition, modification, or deletion. IT&E 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 IT&E nor the Commission shall
contest the validity of the Consent Decree or the Adopting Order, and
IT&E shall waive any statutory right to a trial de novo. IT&E 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.
13. Withdrawal. IT&E agrees to request withdrawal of its pending May 11,
2007 Petition for Partial Reconsideration of the Commission's denial
of IT&E's September 16, 2005 Petition for Temporary Waiver or
Temporary Stay with respect to the waiver of the requirements of
section 20.19(f) of the Rules, and its pending March 28, 2008 Petition
for Reconsideration of the Commission's denial of IT&E's September 13,
2006 Petition for Temporary Waiver or Temporary Stay of the
requirements of section 20.19(d)(2) of the Rules, within five (5)
business days of the Effective Date. In addition, IT&E agrees to
request withdrawal of its May 24, 2007 Response to Notice of Apparent
Liability for Forfeiture with respect to the Bureau's NAL, within five
(5) business days of the Effective Date.
14. 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.
15. 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 IT&E does not expressly consent)
that provision will be superseded by such Commission rule or Order.
16. Successors and Assigns. IT&E agrees that the provisions of this
Consent Decree shall be binding on its corporate successors, assigns,
and transferees.
17. 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.
18. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
19. 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.
20. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
21. 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
________________________________
John Borlas
President
IT&E Overseas, Inc.
________________________________
Date
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).
47 C.F.R. S: 20.19(f).
See Section 68.4(a) of the Commission's Rules Governing Hearing
Aid-Compatible Telephones, Report and Order, 18 FCC Rcd 16753, 16780
(2003); see also 47 C.F.R. S: 20.19(d) (2006). In February 2008, the
Commission amended section 20.19 of the Rules to, among other things,
establish new benchmarks for offering inductive coupling-capable handsets
going forward. See Amendment of the Commission's Rules Governing Hearing
Aid-Compatible Handsets, First Report and Order, 23 FCC Rcd 3406 (2008).
Petition for Temporary Waiver or Temporary Stay, filed by IT&E Overseas,
Inc., WT Docket No. 01-309, September 16, 2005 at 1.
Petition for Temporary Waiver or Temporary Stay, filed by IT&E Overseas,
Inc., WT Docket No. 01-309, September 16, 2005 at 1.
Section 68.4(a) of the Commission's Rules Governing Hearing Aid-Compatible
Telephones, Petitions for Waiver of Section 20.19 of the Commission's
Rules, Memorandum Opinion and Order, 22 FCC Rcd 7171, 7193 P: 51 (2007).
Id.
47 U.S.C. S: 503(b)(1)(B).
Petition for Partial Reconsideration, filed by IT&E Overseas, Inc., WT
Docket No. 01-309, May 11, 2007.
Response to Notice of Apparent Liability for Forfeiture, filed by IT&E
Overseas, Inc., May 24, 2007.
Petition for Temporary Waiver or Temporary Stay, filed by IT&E Overseas,
Inc., WT Docket No. 01-309. September 13, 2006 at 1.
See Section 68.4(a) of the Commission's Rules Governing Hearing
Aid-Compatible Telephones, Petitions for Waiver of Section 20.19 of the
Commission's Rules, Memorandum Opinion and Order, 23 FCC Rcd 3352, 3365-66
P: 23-25 (2008).
Petition for Reconsideration, filed by IT&E Overseas, Inc., WT Docket No.
01-309, March 28, 2008.
See Application for Assignments of Authorization from IT&E Overseas, Inc.
(assignor) to PTI Pacifica Inc. (assignee), File No. 000356838, April 4,
2008; Amendments to Application, FCC File No. 00356838, April 10, 2008 and
May 2, 2008.
Federal Communications Commission DA 08-1719
2
Federal Communications Commission DA 08-1719