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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File Nos. EB-07-SE-141 and
In the Matter of )
EB-07-SE-277
Pine Telephone Company, Inc. d/b/a )
NAL/Acct. No. 200732100033
Pine Cellular Phones, Inc. )
FRN No. 0001699776
)
)
ORDER
Adopted: March 17, 2008 Released: March 19, 2008
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Pine Telephone Company,
Inc. d/b/a Pine Cellular Phones, Inc. ("Pine"). The Consent Decree
terminates an investigation by the Bureau against Pine for possible
violations of section 20.19(d)(2) of the Commission's Rules ("Rules")
regarding the inductive coupling hearing aid compatibility
requirements and an investigation and Notice of Apparent Liability for
Forfeiture against Pine for possible violations of section 20.19(f) of
the Rules regarding the hearing aid compatibility labeling
requirements.
2. The Bureau and Pine 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 Pine 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 Rules, the Consent Decree attached to this Order IS
ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigations ARE
TERMINATED and the Notice of Apparent Liability for Forfeiture in File
No. EB-07-SE-141 IS CANCELLED.
7. IT IS FURTHER ORDERED that Pine shall make its voluntary contribution
to the United States Treasury, as specified in the Consent Decree, by
mailing a check or similar instrument payable to the order of the
Federal Communications Commission, 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).
8. IT IS FURTHER ORDERED that Pine will file reports with the Commission
ninety days after the Effective Date, twelve months after the
Effective Date, and 24 months after the Effective Date. Each report
shall include a compliance certificate from an officer, as an agent of
Pine, stating that the officer has personal knowledge that Pine 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.
9. 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 Michael Bennet, Esq. and Kenneth Johnson, Esq., Bennet &
Bennet, PLLC, 4350 East West Highway, Suite 201, Bethesda, MD 20814
and Jerry Whisenhunt, Pine Telephone Company, Inc. 210 N. Park, P.O.
Box 548, Broken Now, OK 74728.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of File Nos. EB-07-SE-141 and
) EB-07-SE-277
Pine Telephone Company, Inc.
d/b/a ) NAL/Acct. No. 200732100033
Pine Cellular Phones, Inc. ) FRN No. 0001699776
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Pine Telephone Company, Inc. d/b/a
Pine Cellular Phones, Inc. ("Pine"), by their authorized representatives,
hereby enter into this Consent Decree for the purpose of terminating the
Bureau's investigations into whether Pine violated section 20.19(d)(2) of
the Commission's Rules regarding inductive coupling hearing aid
compatibility requirements and section 20.19(f) of the Commission's Rules
regarding the hearing aid compatibility labeling 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. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
c. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
d. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
e. "Investigations" mean the investigation initiated by the Bureau
regarding whether Pine 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
commenced by the Bureau's August13, 2007 Letter of Inquiry regarding
whether Pine violated the inductive coupling hearing aid compatibility
requirements of section 20.19(d)(2) of the Rules.
f. "Pine" means Pine Telephone Company, Inc. d/b/a/ Pine Cellular Phones,
Inc. and its predecessors-in-interest and successors-in-interest.
g. "NAL" means Pine Telephone Company, Inc. d/b/a Pine Cellular Phones,
Inc., Notice of Apparent Liability for Forfeiture, 22 FCC Rcd 9205
(Enf. Bur., Spectrum Enf. Div. 2007).
h. "Order" or "Adopting Order" means an Order of the Bureau adopting the
terms of this Consent Decree without change, addition, deletion, or
modification.
i. "Parties" means Pine 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, wireless digital handsets
that are hearing aid compatible 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, 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 May 22, 2007, the Bureau issued a Notice of Apparent Liability for
Forfeiture ("NAL") proposing that Pine be held liable for a forfeiture
of $16,000 under section 503(b)(1)(B) of the Act, 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.
4. On August 13, 2007, the Bureau issued a letter of inquiry (LOI) to
Pine. The August 13, 2007 LOI directed Pine, 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. Pine responded to the August 13, 2007 LOI on August 24,
2007.
III. TERMS OF AGREEMENT
5. 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.
6. Jurisdiction. Pine 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.
7. 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.
8. 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 its NAL. In consideration for the
termination of said investigations and cancellation of the NAL, Pine
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 Pine 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 Pine with respect to Pine's basic
qualifications, including its character qualifications, to be a
Commission licensee or authorized common carrier.
9. Compliance Plan. For purposes of settling the matters set forth
herein, Pine 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:
* Compliance Officer. Pine has designated its Cellular 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.
* Training. The designated hearing aid compatibility compliance officer
will be responsible for ensuring that all Pine retail staff receives
training regarding the hearing aid compatibility capabilities of the
handsets Pine 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.
* Consumer Outreach. Pine 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.
* Compliance Reports. Pine 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 Pine, stating that the officer has
personal knowledge that Pine 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.
* Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire twenty-four (24) months from the Effective
Date.
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 Pine 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 Pine with the Act, the Rules, or the
Order.
11. Voluntary Contribution. Pine agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $33,000.
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 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).
12. Waivers. Pine 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 Order adopting this Consent Decree, provided the Bureau issues
an Order adopting the Consent Decree without change, addition,
modification, or deletion. Pine 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 Pine nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and Pine shall
waive any statutory right to a trial de novo. Pine 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. 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.
14. 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 Pine does not expressly consent)
that provision will be superseded by such Commission rule or Order.
15. Successors and Assigns. Pine agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
16. 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.
17. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
18. 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.
19. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
20. 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
________________________________
Roy Shiro
Cellular Manager
Pine Telephone Company, Inc. d/b/a
Pine Cellular Phones, Inc.
________________________________
Date
47 C.F.R. S: 20.19(d)(2) and (f). See Pine Telephone Company, Inc. d/b/a
Pine Cellular Phones, Inc., Notice of Apparent Liability for Forfeiture,
22 FCC Rcd 9205 (Enf. Bur., Spectrum Enf. Div. 2007).
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).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division
Enforcement Bureau to Jerry Whisenhunt, Pine Telephone Company (August 13,
2007).
See Pine Telephone Company, Inc. d/b/a Pine Cellular Phones, Inc., Notice
of Apparent Liability for Forfeiture, 22 FCC Rcd 9205 (Enf. Bur., Spectrum
Enf. Div. 2007).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division
Enforcement Bureau to Jerry Whisenhunt, Pine Telephone Company (August 13,
2007).
See Letter from Michael Bennet, Esq. and Kenneth Johnson, Esq., Bennet &
Bennet, PLLC to Kathryn S. Berthot, Chief, Spectrum Enforcement Division
Enforcement Bureau (August 24, 2007).
Federal Communications Commission DA 08-537
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Federal Communications Commission DA 08-537
Federal Communications Commission DA 08-537
Federal Communications Commission DA 08-537