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
)
In the Matter of ) File No. EB-09-SE-155
Futurewei Technologies, Inc. d/b/a Huawei ) Acct. No. 201032100035
Technologies (USA) ) FRN No. 0016162539
)
ORDER
Adopted: July 9, 2010 Released: July 12, 2010
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Futurewei Technologies,
Inc. d/b/a Huawei Technologies (USA) ("Huawei"). The Consent Decree
terminates an investigation by the Bureau against Huawei for possible
violations of Section 20.19(i) of the Commission's Rules ("Rules"),
regarding compliance with the Commission's regulations pertaining to
hearing aid compatibility for wireless handsets.
2. The Bureau and Huawei 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 Huawei 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 Jiangao Cui, Senior Vice President, Futurewei
Technologies Inc., dba Huawei Technologies (USA), and counsel for
Huawei, Thomas Navin, Esq., Wiley Rein LLP, 1776 K Street, NW,
Washington, DC 20006.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-09-SE-155
Futurewei Technologies, Inc. d/b/a Huawei ) Acct. No. 201032100035
Technologies (USA) ) FRN No. 0016162539
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission ("Bureau")
and Futurewei Technologies, Inc. d/b/a Huawei Technologies (USA)
("Huawei"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
of Huawei for possible violations of Section 20.19(i) of the Commission's
Rules ("Rules"), regarding compliance with the Commission's regulations
pertaining to hearing aid compatibility for wireless 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 compliance obligations and compliance
program described in this Consent Decree at Paragraph 8.
f. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
g. "Huawei" means Futurewei Technologies, Inc. d/b/a Huawei Technologies
(USA) and its subsidiaries as well as its predecessors-in-interest
and successors-in-interest.
h. "Investigation" means the investigation commenced by the Bureau's
September 30, 2009, letter of inquiry ("LOI") to Huawei regarding
possible violations of Sections 20.19(h) and (i) of the Rules.
i. "Parties" means Huawei and the Bureau, and each a "Party".
j. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
2. In the 2003 Hearing Aid Compatibility Order, the Commission adopted
several measures to enhance the ability of individuals with hearing
disabilities to access digital wireless telecommunications. In
February 2008, as part of a comprehensive reconsideration of the
effectiveness of the hearing aid compatibility rules, the Commission
released an order that, among other things, adopted new compatible
handset deployment benchmarks beginning in 2008. Pursuant to Section
20.19(i) of the Rules, manufacturers of certain wireless handsets are
subject to regulations specifying compliance with the Commission's
requirements for hearing aid compatibility. This regulation includes
provisions addressing compliance with technical requirements and
reporting obligations.
3. On September 30, 2009, the Bureau issued an LOI to Huawei. The LOI
directed Huawei to submit a sworn written response to a series of
questions relating to compliance with the hearing aid compatibility
regulations pertaining to certain wireless handsets. Huawei responded
to the LOI on November 13, 2009.
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. Huawei 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 Effective Date. 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, Huawei 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, 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
Huawei concerning the matters that were the subject of the
investigation. The Bureau also agrees that in the absence of new
material evidence it will not use the facts developed in this
investigation through the Effective Date, 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 Huawei with
respect to Huawei's basic qualifications, including its character
qualifications, to be a Commission licensee or to hold Commission
licenses or authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, Huawei agrees to (i) create within sixty (60) days after the
Effective Date a Compliance Plan related to future compliance with the
Act, the Commission's Rules and the Commission's Orders, and (ii)
establish operating procedures intended to ensure compliance with the
terms and conditions of this Consent Decree and with section 20.19 of
the Rules. The Compliance Plan will include, at a minimum, the
following components:
a. Compliance Officer. Huawei will designate a senior corporate manager
("Compliance Officer") who is responsible for administering the
Compliance Plan.
b. Training. Within ninety (90) days after the Effective Date, Huawei
will provide training and materials concerning Section 20.19 of the
Rules pertaining to the hearing aid compatibility requirements for
wireless handsets and explaining the requirements of the Consent
Decree to those of its management employees who are involved directly
in the development and marketing of wireless handsets imported,
marketed, and sold by Huawei in the United States. Huawei will also
provide training and materials to any new management employees who
are directly involved in the development and marketing of wireless
handsets imported, marketed, and sold by Huawei in the United States
within ninety (90) days of their employment.
c. Compliance Reports. Huawei 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
certification by the Compliance Officer, as an agent of and on behalf
of Huawei, stating that the Compliance Officer has personal knowledge
that Huawei (i) has established operating procedures intended to
ensure compliance with the terms and conditions of this Consent
Decree and with section 20.19 of the Rules, together with an
accompanying statement explaining the basis for the Compliance
Officer's certification; (ii) has been utilizing those procedures
since the previous Compliance Report was submitted; and (iii) is not
aware of any instances of non-compliance. The certification must
comply with section 1.16 of the Rules and be subscribed to as true
under penalty of perjury in substantially the form set forth therein.
If the Compliance Officer cannot provide the requisite certification,
the Compliance Officer, as an agent of and on behalf of Huawei, shall
provide the Commission with a detailed explanation of: (i) any
instances of non-compliance with this Consent Decree and the Rules,
and (ii) the steps that Huawei has taken or will take to remedy each
instance of non-compliance and ensure future compliance, and the
schedule on which proposed remedial actions will be taken. All
Compliance Reports shall be submitted to Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W., Washington, D.C. 20554, with a copy submitted
electronically to Kevin.Pittman@fcc.gov and Kathy.Berthot@fcc.gov.
d. Termination Date. Unless stated otherwise, the requirements of this
Paragraph 8 of the Consent Decree will expire twenty-four (24) months
after the Effective Date.
9. Voluntary Contribution. Huawei agrees that it will make a voluntary
contribution to the United States Treasury in the amount of nine
thousand dollars ($9,000). The payment will be made within thirty (30)
days after the Effective Date. 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). Huawei will also send electronic notification to
Kevin.Pittman@fcc.gov and Kathy.Berthot@fcc.gov on the date said
payment is made.
10. Waivers. Huawei 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. Huawei 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 Huawei nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and Huawei shall
waive any statutory right to a trial de novo. Huawei 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. 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.
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 Huawei does not expressly
consent) that provision will be superseded by such Commission Rule or
Order.
13. Successors and Assigns. Huawei 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 with
respect to the matters set forth herein. 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.
_______________________________
P. Michele Ellison
Chief, Enforcement Bureau
________________________________
Date
________________________________
Jiangao Cui
Senior Vice President
Futurewei Technologies, Inc. d/b/a Huawei Technologies (USA)
________________________________
Date
47 C.F.R. S: 20.19(i).
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S: 20.19(i).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Huawei
Technologies (September 30, 2009) ("LOI").
The Commission adopted these requirements for digital wireless telephones
under the authority of the Hearing Aid Compatibility Act of 1988, codified
at Section 710(b)(2)(C) of the Communications Act of 1934, as amended, 47
U.S.C. S: 610(b)(2)(C). See Section 68.4(a) of the Commission's Rules
Governing Hearing Aid-Compatible Telephones, Report and Order, 18 FCC Rcd
16753, 16787 P: 89 (2003); Erratum, 18 FCC Rcd 18047 (2003) ("Hearing Aid
Compatibility Order"); Order on Reconsideration and Further Notice of
Proposed Rulemaking, 20 FCC Rcd 11221 (2005).
See Amendment of the Commission's Rules Governing Hearing Aid-Compatible
Mobile Handsets, First Report and Order, 23 FCC Rcd 3406, 3418-24 P:P:
34-46 (2008) ("Hearing Aid Compatibility First Report and Order"), Order
on Reconsideration and Erratum, 23 FCC Rcd 7249 (2008).
47 C.F.R. S: 20.19(i).
See LOI.
See Letter from Charlie W. Chen, Senior Vice-President, Huawei, to Marlene
H. Dortch, Secretary, Federal Communications Commission (November 11,
2009) ("LOI Response"). The LOI response was filed November 13, 2009.
Huawei submitted its Hearing Aid Compatibility reports for 2008 and 2009
on the same date.
1
Federal Communications Commission DA 10-1271
1
5
Federal Communications Commission DA 10-1271