Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-143
In the Matter of
) Acct. No. 200932100069
CT Cube, Inc. d/b/a West Central Wireless
) FRN No. 0001650860
)
ORDER
Adopted: July 8, 2009 Released: July 10, 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") and CT Cube, Inc. d/b/a West
Central Wireless ("CT Cube"). The Consent Decree terminates an
investigation by the Bureau against CT Cube for possible violations of
former section 20.19(c)(2)(i)(B)(1) of the Commission's Rules
("Rules") regarding the offering of digital wireless handset models
that meet the radio frequency interference standard for hearing aid
compatibility, and former section 20.19(f) of the Rules regarding the
labeling requirements for digital wireless hearing aid-compatible
handsets.
2. The Bureau and CT Cube 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 CT Cube 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 a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Mike Higgins, Jr., General Manager, CT Cube, Inc. d/b/a
West Central Wireless, 3389 Knickerbocker Road, P. O. Box 991, San
Angelo, Texas 76902 and to counsel for CT Cube, Inc. d/b/a West
Central Wireless, Kenneth Johnson, Esq., Bennet & Bennet, PLLC, 4350
East West Highway, Bethesda, Maryland 20814.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-143
In the Matter of
) Acct. No. 200932100069
CT Cube, Inc. d/b/a West Central Wireless
) FRN No. 0001650860
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and CT Cube, Inc. d/b/a West Central
Wireless ("CT Cube"), by their authorized representatives, hereby enter
into this Consent Decree for the purpose of terminating the Bureau's
investigation into whether CT Cube violated former section
20.19(c)(2)(i)(B)(1) of the Commission's Rules ("Rules") regarding the
offering of digital wireless handset models that meet the radio frequency
interference standard for hearing aid compatibility, and former section
20.19(f) of the Rules regarding the labeling requirements for digital
wireless hearing aid-compatible handsets.
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. "Adopting Order" means an Order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
e. "Compliance Plan" means the program described in this Consent Decree
at paragraph 11.
f. "CT Cube" means CT Cube, Inc. d/b/a West Central Wireless, and its
corporate predecessors-in-interest and corporate
successors-in-interest.
g. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
h. "Investigation" means the investigation initiated by the Bureau
regarding whether CT Cube violated former section 20.19(c)(2)(i)(B)(1)
of the Rules by failing to include in its digital wireless handset
offerings at least two handset models meeting the radio frequency
interference standard for hearing aid compatibility and whether CT
Cube violated former section 20.19(f) of the Rules by failing to
provide the proper labels and inserts with hearing aid-compatible
wireless handsets.
i. "Parties" means CT Cube 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 former section 20.19(f) of the Rules, hearing
aid-compatible digital wireless handsets must clearly display the
technical rating on the packaging material of the handset. An
explanation of the hearing aid compatibility technical rating system
must also be included in the owner's manual or as an insert in the
packaging material for the handset. Pursuant to former section
20.19(c)(2)(i)(B)(1) of the Rules, Tier III wireless carriers were
required to offer for each air interface at least two digital wireless
handset models with reduced emission levels that meet at least a U3
rating for radio frequency interference by September 16, 2005. On
September 8, 2005, the Commission provided relief for entities that
offer dual-band Global System for Mobile Communications ("GSM")
digital wireless handsets that operate in both the 850 MHz and 1900
MHz bands, holding that it would accept until August 1, 2006, subject
to certain conditions, the hearing aid compatibility compliance rating
of the handsets for 1900 MHz operation as the overall compliance
rating for the handset.
3. On September 16, 2005, CT Cube filed a Petition for Temporary and
Limited Waiver of Section 20.19(c)(2)(i)(B)(1) of the Commission's
Rules requesting a limited waiver of the FCC's requirement that CT
Cube offer at least two U3-rated handsets by September 16, 2005. CT
Cube's petition requested an additional six months to include at least
two certified U3-rated handsets per air interface in its handset
offerings. CT Cube amended its petition on January 25, 2006,
indicating that as of January 1, 2006, it was offering two handset
models rated U3 or better, and that it therefore required relief only
until January 1, 2006.
4. On April 25, 2006, CT Cube notified the Commission that it had availed
itself of the relief afforded to GSM carriers pursuant to the
Commission's September 8, 2005 Memorandum Opinion and Order. CT Cube
also reported, however, that one of its U3-rated handsets -- the LG
L1400i -- did not have the labels and inserts required pursuant to the
Commission's Rules.
5. In its November 17, 2006 Hearing Aid Compatibility Report, CT Cube
stated that only one of the four U3-rated handset models that it was
then offering included proper labels and inserts.
6. On April 11, 2007, the Commission issued a Memorandum Opinion and
Order that, inter alia, denied CT Cube's Petition for Temporary and
Limited Waiver of Section 20.19(c)(2)(i)(B)(1) of the Commission's
Rules and referred CT Cube's apparent violations of the hearing aid
compatibility requirements to the Bureau.
III. TERMS OF AGREEMENT
7. 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.
8. Jurisdiction. CT Cube 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.
9. 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.
10. 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, CT Cube 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 CT Cube 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 CT Cube with respect to CT
Cube's basic qualifications, including its character qualifications,
to be a Commission licensee or authorized common carrier.
11. Compliance Plan. For purposes of settling the matters set forth
herein, CT Cube 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. CT Cube has designated Kim Tumlinson as its
hearing aid compatibility 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.
b. Training. The designated hearing aid compatibility compliance officer
will be responsible for ensuring that all CT Cube retail staff
receives training regarding the hearing aid compatibility capabilities
of the handsets CT Cube offers for sale. Such training will be
completed within ninety (90) days of the Effective Date and any new
employees will receive training within sixty (60) days of their
employment.
c. Consumer Outreach. CT Cube 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.
d. Compliance Reports. CT Cube 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 compliance report shall include a compliance
certificate from an officer, as an agent of CT Cube, stating that the
officer has personal knowledge that CT Cube 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 compliance 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 Nissa Laughner at Nissa.Laughner@fcc.gov
and to Ricardo Durham at Ricardo.Durham@fcc.gov.
e. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire twenty-four (24) months from the Effective
Date.
12. 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 CT Cube 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 CT Cube with the Act, the Rules, or
Commission orders.
13. Voluntary Contribution. CT Cube agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $14,000.
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 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). CT Cube shall also send electronic notification on the date
said payment is made to Nissa.Laughner@fcc.gov and
Ricardo.Durham@fcc.gov.
14. Waivers. CT Cube 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 Adopting Order, provided the Bureau issues an Adopting Order
adopting the Consent Decree without change, addition, modification, or
deletion. CT Cube 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
CT Cube nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and CT Cube shall waive any statutory
right to a trial de novo. CT Cube 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.
15. 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.
16. 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 CT Cube does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
17. Successors and Assigns. CT Cube agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
18. 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.
19. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
20. 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.
21. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
22. 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
Chief, Spectrum Enforcement Division
Enforcement Bureau
________________________________
Date
________________________________
Mike Higgins, Jr.
General Manager
CT Cube, Inc. d/b/a West Central Wireless
________________________________
Date
47 C.F.R. S: 20.19 (c)(2)(i)(B)(1) (2007). In February 2008, as part of a
comprehensive reconsideration of the effectiveness of the hearing aid
compatibility Rules the Commission made several changes to these Rules,
including, inter alia, the continuation and expansion of hearing aid
compatibility reporting requirements, and the phasing in of new technical
standards for hearing aid compatibility. See Amendment of the Commission's
Rules Governing Hearing Aid-Compatible Mobile Handsets, First Report and
Order, 23 FCC Rcd 3406, 3408-11, 3418 (2008), Order on Reconsideration and
Erratum, 23 FCC Rcd 7249 (2008). These revised rules, however, do not
govern CT Cube's conduct prior to the effective date of the revisions,
June 6, 2008. See 73 Fed. Reg. 25,566 (May 7, 2008).
47 C.F.R. S: 20.19(f) (2007). Former section 20.19(f) of the Rules was
redesignated as section 20.19(f)(1) in February 2008.
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 (c)(2)(i)(B)(1) (2007). In February 2008, as part of a
comprehensive reconsideration of the effectiveness of the hearing aid
compatibility Rules the Commission made several changes to these Rules,
including, inter alia, the continuation and expansion of hearing aid
compatibility reporting requirements, and the phasing in of new technical
standards for hearing aid compatibility. See Amendment of the Commission's
Rules Governing Hearing Aid-Compatible Mobile Handsets, First Report and
Order, 23 FCC Rcd 3406, 3408-11, 3418 (2008), Order on Reconsideration and
Erratum, 23 FCC Rcd 7249 (2008). These revised rules, however, do not
govern CT Cube's conduct prior to the effective date of the revisions,
June 6, 2008. See 73 Fed. Reg. 25,566 (May 7, 2008).
47 C.F.R. S: 20.19(f) (2007). Former section 20.19(f) of the Rules was
redesignated as section 20.19(f)(1) in February 2008.
47 C.F.R. S: 20.19(f) (2007).
47 C.F.R. S: 20.19(c)(2)(i)(B)(1) (2007).
See Section 68.4(a) of the Commission's Rules Governing Hearing
Aid-Compatible Telephones, Cingular Wireless LLC Petition for Waiver of
Section 20.19(c)(3)(i)(A) of the Commission's Rules, Memorandum Opinion
and Order, WT Docket No. 01-309, 20 FCC Rcd 15108 (2005).
See Letter from Michael Bennet, Esq., Bennet & Bennet, Counsel for CT Cube
d/b/a West Central Wireless to Angela E. Giancarlo, Associate Chief,
Public Safety & Critical Infrastructure Division (April 25, 2006).
See Section 68.4(a) of the Commission's Rules Governing Hearing
Aid-Compatible Telephones, Hearing Aid Compatibility Report of CT Cube
d/b/a West Central Wireless, WT Docket No. 01-309 (November 17, 2006).
See Section 68.4(a) of the Commission's Rules Governing Hearing
Aid-Compatible Telephones, Petitions for Waiver of Section 20.19 of the
Commission's Rules, Memorandum Opinion and Order, 22 FCC Rcd 7171, 7187
(2007).
Federal Communications Commission DA 09-1504
2
Federal Communications Commission DA 09-1504