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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of )
Access 700, LLC ) File No.: EB-08-SE-712
and ) Acct. No.: 200932100060
Chevron North America Exploration and ) FRN No.: 0014650329
Production Company, a Division of
Chevron U.S.A. Inc., successor in ) File No.: EB-08-SE-711
interest to Chevron Texaco Exploration
and Production Company )
)
)
)
ORDER
Adopted: May 19, 2009 Released: May 21, 2009
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"), Access 700, LLC ("Access
700") and Chevron North America Exploration and Production Company, a
Division of Chevron U.S.A. Inc., successor in interest to Chevron
Texaco Exploration and Production Company ("Chevron"). The Consent
Decree terminates an investigation by the Bureau against Access 700
and Chevron for possible violation of Section 301 of the
Communications Act of 1934, as amended ("Act") and Section 1.903(a) of
the Federal Communications Commission's rules ("rules") by operating
on frequencies not authorized by Access 700's license or a valid
Special Temporary Authorization ("STA").
2. The Bureau, Access 700, and Chevron 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.
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 Access 700 or Chevron 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 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 a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Mr. Michael I. Gottdenker, Chairman and Chief Executive
Officer, and Mr. Andrew J. Rein, Compliance Officer and Director,
Strategy and Operations, Access 700, LLC, 2 Bethesda Metro Center,
Bethesda, MD 20814-6319, and to counsel for Access 700, LLC, Charles
W. Logan and Gunnar D. Halley, Esqs., Lawler, Metzger, Milkman &
Keeney, LLC, 2001 K Street, NW, Suite 802, Washington DC 20006; and to
James G. Larre, Assistant Secretary, Chevron U.S.A., Inc., 6001
Bollinger Canyon Road, San Ramon, CA 94583, and to counsel for Chevron
U.S.A., Inc., Jack Richards, Esq., Keller and Heckman LLP, 1001 G
Street, N.W., Suite 500 West, Washington DC 20001.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of )
Access 700, LLC ) File No.: EB-08-SE-712
and ) Acct. No.: 200932100060
Chevron North America Exploration and ) FRN No.: 0014650329
Production Company, a Division of
Chevron U.S.A. Inc., successor in ) File No.: EB-08-SE-711
interest to Chevron Texaco Exploration
and Production Company )
)
)
)
CONSENT DECREE
The Enforcement Bureau ("Bureau"), Access 700, LLC ("Access 700"), Chevron
North America Exploration and Production Company, a Division of Chevron
U.S.A. Inc., successor in interest to Chevron Texaco Exploration and
Production Company ("Chevron"), by their authorized representatives,
hereby enter into this Consent Decree for the purposes of terminating the
Bureau's investigation into whether Access 700 and Chevron (collectively,
the "Companies") violated Section 301 of the Communications Act of 1934,
as amended ("Act") and Section 1.903(a) of the Federal Communications
Commission's rules ("rules") by operating on frequencies not authorized by
Access 700's license or a valid Special Temporary Authorization ("STA").
I. DEFINITIONS
1. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Access 700" means Access 700, LLC.
b. "Act" means the Communications Act of 1934, as amended 47 U.S.C.
S: 151 et seq.
c. "Adopting Order" means an Order of the Bureau adopting the terms
of this Consent Decree without change, addition, deletion, or
modification.
d. "Bureau" means the Enforcement Bureau of the Federal
Communications Commission.
e. "Chevron" means Chevron North America Exploration and Production
Company, a Division of Chevron U.S.A. Inc., successor in interest
to Chevron Texaco Exploration and Production Company.
f. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
g. "Compliance Plan" means the program described in this Consent Decree
at paragraph 8.
h. "Companies" means Access 700 and Chevron, collectively.
i. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
j. "Investigation" means the investigation commenced by the Bureau upon
receipt of a referral from the Wireless Telecommunications Bureau
regarding the possible violation of Section 301 of the Act and
Section 1.903(a) of the Commission's regulations by Access 700 and
Chevron.
k. "Parties" means Access 700, Chevron, and the Bureau.
l. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
2. Pursuant to Section 301 of the Act and Section 1.903(a) of the Rules,
the use or operation of any apparatus for the transmission of energy
or communications or signals by a wireless radio station is prohibited
except under, and in accordance with, a Commission authorization.
3. In a July 25, 2008 letter to Commission staff, counsel for Chevron
described events regarding Chevron's operation on what had formerly
been 700 MHz Guard Band frequencies in MEA027 and MEA031 from October
23, 2007 to April 18, 2008. Chevron previously had entered into an
agreement with Access 700, a 700 MHz Guard Band Manager, to lease the
use of these frequencies in these and other MEAs from Access 700
during the period in question. The Wireless Telecommunications Bureau
subsequently referred the matter to the Enforcement Bureau for
investigation.
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. The Companies agree that the Bureau has jurisdiction
over them 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, the Companies agree 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 the Companies 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 the
Companies with respect to their basic qualifications, including their
character qualifications, to be a Commission licensee or to hold
Commission licenses or authorizations.
8. Compliance Plan/Access 700. For purposes of settling the matters set
forth herein, Access 700 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:
a. Compliance Officer. Access 700 will designate an employee
familiar with the Commission's rules, regulations and associated
policies relating to spectrum leasing agreements ("Access 700
Compliance Officer"). Access 700 has designated its Director of
Strategy and Operations as its Access 700 Compliance Officer. The
designated Access 700 Compliance Officer will also review the
FCC's leasing regulations on a quarterly basis to stay abreast of
any new requirements, and will review all spectrum leasing
agreements before they are entered into by Access 700 and ensure
that such agreements comply with FCC rules and policies.
b. Training. Within ninety (90) days of the Effective Date, Access
700 shall conduct training sessions for any Access 700 personnel
engaged in spectrum leasing ("Covered Employees") to inform them
about the FCC rules and policies regarding spectrum leasing
agreements. In addition, all new Covered Employees of Access 700
will undergo such training within sixty (60) days of the
commencement of their employment. Access 700 will also provide
refresher training for all Covered Employees on at least an
annual basis. In addition, Access 700 will prepare and distribute
a written compliance guide that sets forth company and Commission
policies for spectrum leasing agreements. Access 700 will update
the guide, as necessary.
c. Compliance Reports. Access 700 shall 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 the Access 700 Compliance Officer, as an agent
of Access 700, stating that the company has established operating
procedures intended to ensure compliance with this Consent
Decree, together with an accompanying statement explaining the
basis for the 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. All reports shall
also be submitted electronically to Ricardo Durham at
ricardo.durham@fcc.gov, and to Deborah Broderson at
deborah.broderson@fcc.gov.
d. Termination Date. Unless stated otherwise, the requirements of
this Compliance Plan will expire twenty-four (24) months from the
Effective Date or at such time as Access 700 ceases to be a
Commission licensee, whichever occurs first.
9. Compliance Plan/Chevron. For purposes of settling the matters set
forth herein, Chevron 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:
a. Compliance Officer. Chevron will designate an employee familiar
with the Commission's rules, regulations and associated policies
relating to spectrum leasing agreements under the Band Manager
program ("Chevron Compliance Officer"). The Chevron Compliance
Officer will review the FCC's leasing regulations on a quarterly
basis to stay abreast of any new requirements and will review all
spectrum leasing agreements under the Band Manager program before
they are entered into by Chevron to ensure that such agreements
comply with FCC rules and policies governing Band Manager leases.
The Chevron Compliance Officer shall review the Commission's
records on a quarterly basis to ensure that any Commission
licensee entering into a spectrum lease agreement with Chevron
under the Band Manager program is and continues to be duly
authorized by the Commission for the frequencies and at the
locations contained in the spectrum use agreement.
b. Compliance Reports. Chevron shall 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 the Chevron Compliance Officer, as an agent of
Chevron, stating that the company has established operating
procedures intended to ensure compliance with this Consent
Decree, together with an accompanying statement explaining the
basis for the 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. All reports shall
also be submitted electronically to Ricardo Durham at
ricardo.durham@fcc.gov, and to Deborah Broderson at
deborah.broderson@fcc.gov.
c. Termination Date. Unless stated otherwise, the requirements of
this Compliance Plan will expire twenty-four (24) months from the
Effective Date.
10. Voluntary Contribution. Access 700 agrees that it will make a
voluntary contribution on its behalf and on behalf of Chevron to the
United States Treasury in the amount of sixteen thousand dollars
($16,000). 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 Account Number
and applicable 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). Access 700 also will send electronic
notification on the date said payment is made to
Ricardo.Durham@fcc.gov and Deborah.Broderson@fcc.gov.
11. Waivers. The Companies waive any and all rights they 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 issues the Adopting Order
without change, addition, modification, or deletion. The Companies
shall retain the right to challenge Commission interpretation of the
Consent Decree or any terms contained herein. If any of the Parties
(or the United States on behalf of the Commission) brings a judicial
action to enforce the terms of the Adopting Order,
neither the Parties nor the Commission shall contest the validity of the
Consent Decree or the Adopting Order, and the Companies shall waive any
statutory right to a trial de novo. The Companies hereby agree to waive
any claims they 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. Invalidity. 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 the Companies do not expressly
consent) that provision will be superseded by such Commission rule or
Order.
14. Successors and Assigns. The Companies agree that the provisions of
this Consent Decree shall be binding on their successors, assigns, and
transferees.
15. Final Settlement. The Parties agree that this Consent Decree is for
settlement purposes only and that by agreeing to this Consent Decree,
the Companies do not admit or deny noncompliance, violation, or
liability for violating the Act, Commission's Rules or Orders in
connection with the matters that are the subject of this Consent
Decree. 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 all 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
others 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.
_____________________________________ _____________________
Kathryn S. Berthot Date
Chief, Spectrum Enforcement Division
Enforcement Bureau
_____________________________________ _____________________
Michael I. Gottdenker Date
Chairman and Chief Executive Officer
Access 700, LLC
_____________________________________ _____________________
Andrew J. Rein Date
Compliance Officer and Director, Strategy
& Operations
Access 700, LLC
______________________________________ ______________________
James G. Larre Date
Assistant Secretary
Chevron U.S.A. Inc.
Chevron North America Exploration and Production Company,
A Division of Chevron U.S.A. Inc.,
Successor in interest to Chevron Texaco Exploration and Production Company
47 U.S.C. S: 301.
47 C.F.R. S: 1.903(a).
47 U.S.C. S:S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S: 301.
47 C.F.R. S: 1.903(a).
47 U.S.C. S: 301; 47 C.F.R. S: 1.903(a).
Federal Communications Commission DA 09-1067
2
Federal Communications Commission DA 09-1067