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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-278
In the Matter of
) Acct. No. 200832100053
PinPoint Wireless, Inc.
) FRN No. 0002377901
)
ORDER
Adopted: March 9, 2009 Released: March 13, 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 PinPoint Wireless, Inc.
("PinPoint"). The Consent Decree terminates an investigation and
Notice of Apparent Liability for Forfeiture ("NAL") by the Bureau
against PinPoint for possible violations of former Section 20.19(d)(2)
of the Commission's Rules ("Rules") regarding the inductive coupling
hearing aid compatibility requirements.
2. The Bureau and PinPoint 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 PinPoint 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 Act, 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 and the Notice of Apparent Liability for Forfeiture IS
CANCELLED.
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 Tom Shoemaker, PinPoint Wireless, Inc., 611 Patterson
Street, Cambridge, NE 69022, and to its counsel, Kenneth C. Johnson,
Esq., Bennet & Bennet, PLLC, 10 G St. NE, Seventh Floor, Washington,
DC 20002.
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-278
In the Matter of
) Acct. No. 200832100053
PinPoint Wireless, Inc.
) FRN No. 0002377901
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and PinPoint Wireless, Inc.
("PinPoint"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
relating to whether Pinpoint violated former Section 20.19(d)(2) of the
Commission's Rules ("Rules") by failing to include in its digital wireless
handset offerings at least two models for each air interface that comply
with the requirements for inductive coupling 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: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. "Effective Date" means the date the Bureau releases the Adopting
Order.
f. "Investigation" mean the investigation initiated by the Bureau's
August 13, 2007 Letter of Inquiry to PinPoint regarding whether
PinPoint violated the inductive coupling hearing aid compatibility
requirements in former Section 20.19(d)(2) of the Rules.
g. "Notice of Apparent Liability for Forfeiture" or "NAL" means PinPoint
Wireless, Inc., Notice of Apparent Liability for Forfeiture, 23 FCC
Rcd 9290 (Enf. Bur., Spectrum Enf. Div. 2008).
h. "Parties" means PinPoint and the Bureau.
i. "PinPoint" means PinPoint Wireless, Inc. and its
predecessors-in-interest and successors-in-interest.
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(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 16, 2006. On November 14, 2006, PinPoint
filed a hearing aid compatibility report listing seven handset models
that it offered at that time. None of the listed models met the T3
rating for inductive coupling. The Wireless Telecommunications Bureau
subsequently referred the matter to the Enforcement Bureau's Spectrum
Enforcement Division for investigation.
3. On August 13, 2007, the Spectrum Enforcement Division issued PinPoint
a Letter of Inquiry ("LOI"). The August 13, 2007 LOI directed
PinPoint, 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. PinPoint responded to
the August 13, 2007 LOI on August 27, 2007.
4. On June 13, 2008, the Spectrum Enforcement Division issued a Notice of
Apparent Liability for Forfeiture proposing that PinPoint be held
liable for a forfeiture of $30,000 under Section 503(b)(1)(B) of the
Act, and ordered PinPoint 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
5. 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.
6. Jurisdiction. PinPoint 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.
7. 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.
8. 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,
PinPoint 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 PinPoint 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 PinPoint with respect to
PinPoint's basic qualifications, including its character
qualifications, to be a Commission licensee or authorized common
carrier.
9. Compliance Plan. For purposes of settling the matters set forth
herein, PinPoint agrees to maintain a Compliance Plan related to
future compliance with the Act, the Commission's Rules, and the
Commission's Adopting Order. The Plan will include, at a minimum, the
following components:
a. Compliance Officer. PinPoint has designated Lynn Sewell 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 PinPoint retail staff
receives training regarding the hearing aid compatibility capabilities
of the handsets PinPoint 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. PinPoint 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. PinPoint 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 report shall include a compliance certificate
from an officer, as an agent of PinPoint, stating that the officer has
personal knowledge that PinPoint 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. All reports shall also be submitted electronically to
Kathryn S. Berthot at Kathy.Berthot@fcc.gov.
e. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire twenty-four (24) months from the Effective
Date.
10. 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 PinPoint 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 PinPoint with the Act, the Rules, or the
Order.
11. Voluntary Contribution. PinPoint agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $18,000.
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). PinPoint will also send electronic notification on the date
said payment is made to Kathryn S. Berthot at Kathy.Berthot@fcc.gov.
12. Waivers. PinPoint 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. PinPoint 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 PinPoint nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and PinPoint
shall waive any statutory right to a trial de novo. PinPoint 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.
13. 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.
14. 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 PinPoint does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
15. Successors and Assigns. PinPoint agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
16. 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.
17. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
18. 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.
19. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
20. 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
________________________________
Tom Shoemaker
[Title]
PinPoint Wireless, Inc.
________________________________
Date
PinPoint Wireless, Inc., Notice of Apparent Liability for Forfeiture, 23
FCC Rcd 9290 (Enf. Bur., Spectrum Enf. Div. 2008).
47 C.F.R. S: 20.19(d)(2) (2007).
47 U.S.C. S:S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S: 20.19(d)(2) (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.
See Amendment of the Commission's Rules Governing Hearing Aid-Compatible
Mobile Handsets, First Report and Order, 23 FCC Rcd 3406 (2008) ("Hearing
Aid Compatibility First Report and Order"), Order on Reconsideration and
Erratum, 23 FCC Rcd 7249 (2008).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, to J. Richard Shoemaker, PinPoint Wireless, Inc.
(August 13, 2007) ("August 13, 2007 LOI").
August 13, 2007 LOI.
Letter from Michael Bennet, Esq., Bennet & Bennet, PLLC to Kathryn S.
Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission (August 27, 2007).
PinPoint Wireless, Inc., Notice of Apparent Liability for Forfeiture, 23
FCC Rcd 9290 (Enf. Bur., Spectrum Enf. Div. 2008).
Federal Communications Commission DA 09-556
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