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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-271
In the Matter of
) Acct. No. 200832100041
Alaska DigiTel, LLC
) FRN No. 0001766179
)
ORDER
Adopted: April 21, 2008 Released: April 23, 2008
By the Deputy Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Alaska DigiTel, LLC
("Alaska DigiTel"). The Consent Decree terminates an investigation by
the Bureau against Alaska DigiTel for possible violation of section
20.19(d)(2) of the Commission's Rules ("Rules") regarding the
inductive coupling hearing aid compatibility requirements.
2. The Bureau and Alaska DigiTel 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 Alaska DigiTel 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 Alaska DigiTel 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 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 a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Thomas Guiterrez, Esq., Lukas, Nace, Gutierrez & Sachs
Chartered, 1650 Tysons Boulevard, Suite 1500, McLean, VA 22102.
FEDERAL COMMUNICATIONS COMMISSION
Susan McNeil
Deputy Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-271
In the Matter of
) Acct. No. 200832100041
Alaska DigiTel, LLC
) FRN No. 0001766179
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Alaska DigiTel, LLC ("Alaska
DigiTel"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
into whether Alaska DigiTel violated section 20.19(d)(2) of the
Commission's Rules regarding the 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. "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. "Investigation" mean the investigation commenced by the Bureau's
August 13, 2007 Letter of Inquiry regarding whether Alaska DigiTel
violated the inductive coupling hearing aid compatibility requirements
of section 20.19(d)(2) of the Rules.
f. "Alaska DigiTel" means Alaska DigiTel, LLC and its
predecessors-in-interest and successors-in-interest.
g. "Order" or "Adopting Order" means an Order of the Bureau adopting the
terms of this Consent Decree without change, addition, deletion, or
modification.
h. "Parties" means Alaska DigiTel and the Bureau.
i. "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 August 13, 2007, the Bureau issued a letter of inquiry ("LOI") to
Alaska DigiTel. The August 13, 2007 LOI directed Alaska DigiTel, 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. Alaska DigiTel responded to
the August 13, 2007 LOI on August 27, 2007. On December 21, 2007, an
application to transfer control of Alaska DigiTel to GCI, Inc. was
filed.
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. Alaska DigiTel 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, Alaska DigiTel 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 Alaska DigiTel 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 Alaska
DigiTel with respect to Alaska DigiTel'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 Alaska DigiTel 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 Alaska DigiTel with the Act, the Rules,
or the Order.
9. Voluntary Contribution. Alaska DigiTel agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
$15,000. 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 Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code).
10. Waivers. Alaska DigiTel 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. Alaska DigiTel 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 Alaska DigiTel nor the Commission shall
contest the validity of the Consent Decree or the Adopting Order, and
Alaska DigiTel shall waive any statutory right to a trial de novo.
Alaska DigiTel 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.
11. 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.
12. 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 Alaska DigiTel does not
expressly consent) that provision will be superseded by such
Commission rule or Order.
13. Successors and Assigns. Alaska DigiTel agrees that the provisions of
this Consent Decree shall be binding on its successors, assigns, and
transferees.
14. 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.
15. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
16. 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.
17. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
18. 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.
_______________________________
Susan McNeil
Deputy Chief
Enforcement Bureau
________________________________
Date
________________________________
William M. Yandell, III
Chief Executive Officer
Alaska DigiTel, LLC
________________________________
Date
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).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division
Enforcement Bureau to Alaska DigiTel, LLC (August 13, 2007).
47 C.F.R. S: 20.19(d)(2).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division
Enforcement Bureau to Alaska DigiTel, LLC (August 13, 2007).
5 Letter from Thomas Gutierrez, Esq. and Todd Slamowitz, Esq., Lukas,
Nace, Gutierrez & Sachs, Chartered to Kathryn S. Berthot, Chief, Spectrum
Enforcement Division Enforcement Bureau (August 27, 2007).
See File No. 0003258714 (as amended on January 8, 2008).
Federal Communications Commission DA 08-920
2
Federal Communications Commission DA 08-920