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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-237
In the Matter of
) NAL/Acct No. 200832100025
T-Mobile USA, Inc.
) FRN No. 0001565449
)
ORDER
Adopted: March 26, 2008 Released: March 28, 2008
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and T-Mobile USA, Inc.
("T-Mobile"). The Consent Decree terminates an investigation by the
Bureau against T-Mobile for possible violations of Part 4 of the
Commission's rules regarding the reporting of network outages.
2. The Bureau and T-Mobile have negotiated the terms of a Consent Decree
that would resolve this matter and terminate the investigation. 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 these matters, we
conclude that no substantial or material questions of fact exist with
respect to this matter as to whether T-Mobile 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 T-Mobile 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 and enter the letters "FORF" in block number 24A
(payment type code).
8. IT IS FURTHER ORDERED that T-Mobile will file reports with the
Commission twelve (12) months and twenty-four (24) months after the
Effective Date. Each report shall include an affidavit or declaration
under penalty of perjury, signed and dated by an authorized officer of
T-Mobile with personal knowledge of the representations therein,
verifying that T-Mobile has complied with the terms of this Consent
Decree. All reports shall be submitted to the 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 Thomas J. Sugrue, Vice President, Government Affairs,
T-Mobile USA, Inc., 401 9th Street, NW, Suite 550, Washington, D.C.
20004, and its Counsel, David H. Solomon, Wilkinson Barker Knauer LLP,
2300 N Street, NW, Suite 700, Washington, D.C. 20037.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-237
In the Matter of
) NAL/Acct. No. 200832100025
T-Mobile USA, Inc.
) FRN No. 0001565449
)
CONSENT DECREE
1. The Enforcement Bureau (the "Bureau") and T-Mobile, USA, Inc.
("T-Mobile), by their respective authorized representatives, hereby
enter into this Consent Decree for the purpose of terminating the
Bureau's Investigation into T-Mobile's compliance with the
Commission's regulations in 47 C.F.R. Part 4 regarding the reporting
of network outages.
I. DEFINITIONS
2. 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:S:
151 et seq.
(b) "Adopting Order" or "Order" means an order of the Bureau adopting this
Consent Decree.
(c) "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
(d) "Commission" or "FCC" means the Federal Communications Commission and
all of its bureaus and offices.
(e) "Effective Date" means the date on which the Bureau releases the
Order.
(f) "Investigation" means the investigation initiated by the Bureau's
August 6, 2007 Letter of Inquiry regarding T-Mobile's compliance with the
Commission's regulations in Part 4 of its Rules regarding the reporting of
network outages through the Effective Date.
(g) "Parties" means T-Mobile and the Bureau.
(h) "Rules" means the Commission's regulations set forth in Title 47 of
the Code of Federal Regulations.
(i) "T-Mobile" means T-Mobile USA, Inc., and its predecessors-in-interest
and successors-in-interest.
II. BACKGROUND
3. Pursuant to Part 4 of the Rules, a wireless communications provider is
required to submit to the Commission an electronic Notification within
120 minutes after discovering that it has experienced a network outage
of at least 30 minutes duration: (1) of a Mobile Switching Center; (2)
that potentially affects at least 900,000 user minutes of either
telephony and associated data (2nd generation or lower) service or
paging service; (3) that affects at least 1,350 DS3 minutes; (3) that
potentially affects any special offices and facilities, as defined by
the Rules; or (4) that potentially affects a 911 special facility, as
defined by the Rules. 47 C.F.R. S:S: 4.5, 4.9(e). Within 72 hours
after discovering such an outage, a wireless communications provider
is required to submit electronically an Initial Communications Outage
Report. 47 C.F.R. S: 4.9(e).
4. T-Mobile is a wireless communications provider and is subject to the
network outage reporting regulations in Part 4 of the Commission's
Rules.
5. On August 6, 2007, the Bureau issued a Letter of Inquiry ("LOI")
initiating an investigation regarding T-Mobile's outage reporting
procedures and T-Mobile's compliance with the Commission's outage
reporting rules. On September 5, 2007, T-Mobile submitted a response
to the LOI.
III. TERMS OF AGREEMENT
6. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to, and are contingent upon, final approval by
the Bureau by incorporation of such provisions by reference in the
Adopting Order without change, addition, modification, or deletion.
7. Jurisdiction. T-Mobile agrees that the Bureau has jurisdiction over it
and the subject matter contained in this Consent Decree and 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 final 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 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 the
Investigation without any finding of liability on the part of
T-Mobile. In consideration for the termination of said Investigation
and in accordance with the terms of this Consent Decree, T-Mobile
agrees to the terms, conditions, and procedures contained herein. The
Bureau further agrees that, in the absence of new material evidence,
it will not institute, on its own motion or in response to third-party
objection, or refer to the Commission, any new proceeding, formal or
informal, or take or refer to the Commission any action on its own
motion against T-Mobile for possible past violations of Part 4 of the
Commission's rules regarding the reporting of network outages prior to
the Effective Date. The Bureau also agrees that, in the absence of new
material evidence, the Bureau will not use the facts developed in the
Investigation through the Effective Date, or the existence of this
Consent Decree, to institute, on its own motion, or refer to the
Commission, any new proceeding, formal or informal, or take on its own
motion, or refer to the Commission, any action against T-Mobile for
possible violations of Part 4 of the Commission's rules regarding the
reporting of network outages prior to the Effective Date. The Bureau
further agrees that, in the absence of new material evidence, it will
not use the facts developed in this Investigation through the
Effective Date, or the existence of this Consent Decree, to institute
on its own motion, or refer to the Commission, any proceeding, formal
or informal, or take on its own motion, or refer to the Commission,
any action, against T-Mobile with respect to T-Mobile's basic
qualifications, including its character qualifications, to be a
Commission licensee.
10. Compliance Plan. For purposes of settling the matters set forth
herein, T-Mobile agrees that it will develop, within thirty (30)
calendar days from the Effective Date, an internal Compliance Plan to
ensure T-Mobile's future compliance with the Commission's regulations
in Part 4 of its Rules regarding the reporting of disruptions to
communications. The Compliance Plan will include, at a minimum, the
following components:
a. Compliance Training Program. T-Mobile shall establish and maintain an
FCC outage reporting training program, as detailed below, for all
employees who are responsible for gathering and/or analyzing
information regarding T-Mobile's network outages, entering that
information into any T-Mobile database(s) and/or record(s) that forms
the basis of T-Mobile's reporting of network outages to the
Commission, or compiling and/or submitting T-Mobile's outage reports
to the Commission.
i. T-Mobile's Compliance Training Program shall address, at a minimum, the
FCC's Rules governing the reporting of network outages, the information
and calculations necessary to determine whether an outage is reportable
under the FCC's Rules, and the time periods during which notifications and
reports of reportable outages must be submitted to the FCC. T-Mobile's
Compliance Training Program shall also address the methods and procedures
adopted by T-Mobile to identify and report those network outages that
satisfy the FCC's reporting criteria in order to ensure compliance with
the FCC's outage reporting Rules. The training program shall also include
information on the potential internal and regulatory consequences of
failing to comply with T-Mobile's methods and procedures and/or the FCC's
outage reporting requirements.
ii. T-Mobile shall provide the foregoing outage reporting training within
six months of the Effective Date and will update the training at least
annually for all of its employees who are responsible for gathering and/or
analyzing information regarding T-Mobile's network outages, entering that
information into any T-Mobile database(s) and/or record(s) that forms the
basis of T-Mobile's reporting of network outages to the Commission, or
compiling and/or submitting T-Mobile's outage reports to the Commission.
T-Mobile will also provide training to new employees responsible for these
activities.
iii. T-Mobile shall update and enhance the foregoing training regarding
the FCC's outage reporting requirements as appropriate and necessary.
b. Annual Report. Twelve (12) months and twenty-four (24) months after
the Effective Date, T-Mobile shall submit an affidavit or declaration
under penalty of perjury, signed and dated by an authorized officer of
T-Mobile with personal knowledge of the representations therein,
verifying that T-Mobile has complied with the terms of this Consent
Decree. The affidavit or declaration shall be submitted to the Chief,
Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C.
20554. The affidavit or declaration must comply with Section 1.16 of
the Commission's rules, 47 C.F.R. S: 1.16, and be substantially in the
form set forth therein.
c. Termination. The provisions of this paragraph shall remain in effect
for two (2) years from the Effective Date.
11. Section 208 Complaints; Subsequent Investigations. Nothing in this
Consent Decree shall prevent the Commission or its delegated authority
from adjudicating any formal or informal complaint filed against
T-Mobile pursuant to Section 208 of the Act, 47 U.S.C. S: 208, and to
take action in response to such formal complaint. If any such
complaint is made, the adjudication of that complaint will be based
solely on the record developed in that proceeding and the Commission
shall not use any facts developed through the Investigation in any
such proceeding. Except as expressly provided in this Consent Decree,
nothing herein shall prevent the Commission or its delegated authority
from investigating T-Mobile's compliance with the Act, the
Commission's rules, or this Consent Decree.
12. Voluntary Contribution. T-Mobile agrees that it will make a voluntary
contribution to the United States Treasury, in the amount of two
hundred fifty thousand dollars ($250,000). 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).
13. Waivers. T-Mobile 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. T-Mobile 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 T-Mobile nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and T-Mobile
shall waive any statutory right to a trial de novo regarding the terms
or validity of the Consent Decree. T-Mobile, however, may present
evidence that it has not violated the Consent Decree. In addition,
nothing in this Consent Decree shall preclude T-Mobile from
petitioning the Commission for relief as to future obligations under
Part 4 of the Commission's Rules. T-Mobile 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.
14. Invalidity. In the event that this Consent Decree 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 T-Mobile does not consent), that
provision will be superseded by such Commission Rule or Order.
16. Successors and Assigns. T-Mobile agrees that the provisions of this
Consent decree shall be binding on its 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. The
Parties agree that this Consent Decree is for settlement purposes only
and that by agreeing to this Consent Decree, T-Mobile does not admit
or deny noncompliance, violation or liability for violating the Act or
the Rules in connection with the matters that are the subject of this
Consent Decree.
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 Representatives. 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.
____________________________
Kris Anne Monteith
Chief
Enforcement Bureau
____________________________
Date
____________________________
Thomas J. Sugrue
Vice President, Government Affairs
T-Mobile USA, Inc.
____________________________
Date
47 C.F.R. S: 4.1 et seq.
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111 and 0.311.
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, to Kathleen O'Brien Ham, T-Mobile USA, Inc. (Aug. 6,
2007).
Id.
Letter from David H. Solomon, Esq., Wilkinson Barker Knauer, LLP, to
Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau (Sept. 5, 2007).
Under this provision, T-Mobile will not be required to provide outage
reporting compliance training to employees whose responsibilities do not
include gathering, analysis, or data entry of information regarding
T-Mobile's network outages or compiling T-Mobile's outage reports, or
whose involvement in T-Mobile's outage reporting activities is limited to
performing job functions that are not specific to outage reporting under
the Commission's Rules.
Federal Communications Commission DA 08-711
2
Federal Communications Commission DA 08-711
6