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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-07-SE-272
Cable & Communications Corporation ) NAL/Acct. No. 200832100015
dba Mid-Rivers Cellular ) FRN No. 0001634443
)
ORDER
Adopted: April 3, 2008 Released: April 7, 2008
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Cable & Communications
Corporation dba Mid-Rivers Cellular ("Mid-Rivers Cellular"). The
Consent Decree terminates an investigation and Notice of Apparent
Liability for Forfeiture ("NAL") by the Bureau against Mid-Rivers
Cellular for possible violation of Section 20.19(d)(2) of the
Commission's Rules ("Rules") regarding its failure to include in its
digital wireless handset offerings at least two models that meet the
inductive coupling standards for hearing aid compatibility by
September 18, 2006.
2. The Bureau and Mid-Rivers Cellular 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, which terminates the investigation and
cancels the NAL.
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 Mid-Rivers Cellular 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 investigation IS
TERMINATED and the Notice of Apparent Liability for Forfeiture IS
CANCELLED.
7. IT IS FURTHER ORDERED that Mid-Rivers Cellular shall make its
voluntary contribution to the United States Treasury, as specified in
the Consent Decree, by credit card through the Commission's Revenue
and Receivables Operations Group at (202) 418-1995, or 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 that Mid-Rivers Cellular will file reports
with the Commission ninety days, twelve months, and twenty-four months
after the Effective Date of this Order. Each report shall include a
compliance certificate from an officer, as an agent of Mid-Rivers
Cellular, stating that the officer has personal knowledge that
Mid-Rivers Cellular 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 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 Sylvia Lesse, Esq., Communications Advisory Counsel,
LLC, 2154 Wisconsin Avenue N.W., Washington, DC 20007, and to Gerry
Anderson, Cable & Communications Corporation dba Mid-Rivers Cellular,
904 C Avenue, P.O. Box 280, Circle, MT 59215.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-07-SE-272
Cable & Communications Corporation ) NAL/Acct. No. 200832100015
dba Mid-Rivers Cellular ) FRN No. 0001634443
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Cable & Communications Corporation
dba Mid-Rivers Cellular ("Mid-Rivers Cellular" or the "Company"), by
their authorized representatives, hereby enter into this Consent Decree
for the purpose of terminating the Bureau's investigation into whether
Mid-Rivers Cellular violated section 20.19(d)(2) of the Commission's Rules
("Rules") regarding its failure to include in its digital wireless handset
offerings at least two models that meet the inductive coupling standards
for hearing aid compatibility by September 18, 2006.
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. "Compliance Plan" means the program described in this Consent Decree
at paragraph nine.
e. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
f. "Investigation" means the investigation commenced by the Bureau's
August 13, 2007 Letter of Inquiry regarding whether Mid-Rivers
Cellular violated section 20.19(d)(2) of the Rules by failing to
include in its digital wireless handset offerings at least two models
that meet the inductive coupling standards for hearing aid
compatibility by September 18, 2006.
g. "Mid-Rivers Cellular" means Cable & Communications Corporation dba
Mid-Rivers Cellular and its predecessors-in-interest and
successors-in-interest.
h. "NAL" means Cable & Communications Corporation dba Mid-Rivers
Cellular, Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 1622
(Enf. Bur., Spectrum Enf. Div., 2008).
i. "Order" or "Adopting Order" means an Order of the Bureau adopting the
terms of this Consent Decree without change, addition, deletion, or
modification.
j. "Parties" means Mid-Rivers Cellular and the Bureau.
k. "Rules" means the Commission's regulations found in Title 47 of the
Federal Regulations.
II. BACKGROUND
2. Pursuant to section 20.19(d)(2) of the Rules, digital wireless service
providers were required to offer for sale at least two handset models
for each air interface offered that meet at least a T3 rating for
inductive coupling by September 18, 2006.
3. On February 11, 2008, the Bureau issued a Notice of Apparent Liability
for Forfeiture ("NAL") proposing that Mid-Rivers Cellular be held
liable for a forfeiture of fifteen thousand dollars ($15,000) 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.
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. Mid-Rivers Cellular 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 and to cancel its NAL. In consideration for the
termination of said investigation and cancellation of the NAL,
Mid-Rivers Cellular 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 Mid-Rivers Cellular 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 Mid-Rivers
Cellular with respect to Mid-Rivers Cellular's basic qualifications,
including its character qualifications, to be a Commission licensee or
authorized common carrier.
8. 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 Mid-Rivers Cellular 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 Mid-Rivers Cellular of the Act, the
rules, or the Order.
9. Compliance Plan. For purposes of settling the matters set forth
herein, Mid-Rivers Cellular agrees to create within 30 days and
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. Wireless Services Coordinator. Mid-Rivers Cellular has designated a
wireless services coordinator, who will be familiar with the FCC's
hearing aid compatibility regulations and associated selling and
labeling benchmarks. The designated coordinator 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 wireless services coordinator will ensure
that hearing aid compatibility regulations are understood and
implemented. The designated coordinator will be responsible for
ensuring that all Mid-Rivers Cellular retail staff receives training
regarding the hearing aid compatibility capabilities of the handsets
Mid-Rivers Cellular offers for sale. Such training will ensure that
retail staff is able to demonstrate the operation of hearing
aid-compatible handsets and to direct customers to additional sources
of information. 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. Purchasing. The designated wireless services coordinator will develop
and institute procedures for ensuring that vendor deliveries are
compliant with hearing aid compatibility requirements. Under the
supervision of the wireless services coordinator, the purchasing and
supply supervisor will ensure that sufficient numbers of hearing
aid-compatible handset models are purchased and in inventory to meet
FCC hearing aid compatibility requirements. The supervisor will
contact vendors regularly to discuss and confirm equipment compliance
requirements, and will regularly review the company's compliance
status with supervisors.
d. Consumer Outreach. Mid-Rivers Cellular will ensure that each retail
outlet is stocked with the company-developed hearing aid compatibility
information sheet designed to educate customers in their selection of
handsets. Mid-Rivers Cellular will coordinate with area audiologists
and area medical facilities to arrange for display and/or
dissemination of information sheets in retail hearing aid
establishments.
e. Compliance Reports. Mid-Rivers Cellular will file compliance 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 Mid-Rivers Cellular, stating that the officer
has personal knowledge that Mid-Rivers Cellular 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.
f. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire 24 months from the Effective Date.
10. Voluntary Contribution. Mid-Rivers Cellular agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
$12,000. 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 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).
11. Waivers. Mid-Rivers Cellular 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. Mid-Rivers Cellular 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 Mid-Rivers Cellular nor the
Commission shall contest the validity of the Consent Decree or the
Adopting Order, and Mid-Rivers Cellular shall waive any statutory
right to a trial de novo. Mid-Rivers Cellular 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 Mid-Rivers Cellular does not
expressly consent) that provision will be superseded by such
Commission rule or Order.
14. Successors and Assigns. Mid-Rivers Cellular 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.
____________________________
Kris Anne Monteith
Chief
Enforcement Bureau
________________________________
Date
________________________________
Gerry Anderson
General Manager
Cable & Communications Corporation
dba Mid-Rivers Cellular
________________________________
Date
47 U.S.C. S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement
Division, Enforcement Bureau, to Gerry Anderson, Cable &
Communications Corporation dba Mid-Rivers Cellular (August 13, 2007).
47 C.F.R. S: 20.19(d)(2).
Id.
Cable & Communication Corporation dba Mid-Rivers Cellular, Notice of
Apparent Liability for Forfeiture, 23 FCC Rcd 1622 (Enf. Bur.,
Spectrum Enf. Div., 2008).
Federal Communications Commission DA 08-785
Federal Communications Commission DA 08-785
Federal Communications Commission DA 08-785
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Federal Communications Commission DA 08-785