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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-10-SE-092
In the Matter of
) Acct. No. 201032100042
Nex-Tech, Inc.
) FRN No. 0002320430
)
ORDER
Adopted: September 9, 2010 Released: September 9, 2010
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Nex-Tech, Inc.
("Nex-Tech"). The Consent Decree terminates the Bureau's investigation
into whether Nex-Tech failed to file timely applications to renew its
broadband Personal Communications Services C-Block licenses, call
signs WPOJ817 and WPOJ818, in the Great Bend and Hays, Kansas basic
trading areas, in violation of section 1.949(a) of the Commission's
rules ("Rules"), and operated the stations without Commission
authorization in violation of section 301 of the Communications Act of
1934, as amended (the "Act"), and section 1.903(a) of the Rules.
2. The Bureau and Nex-Tech 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 Nex-Tech 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 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.
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 Jeff Wick, Chief Operating Officer, Nex-Tech, Inc., 2418
Vine Street, Hays, KS 67601, and to Tony S. Lee, Esq., Venable LLP,
575 7th Street, N.W., Washington, DC 20004.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-10-SE-092
In the Matter of
) Acct. No. 201032100042
Nex-Tech, Inc.
) FRN No. 0002320430
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission ("Bureau")
and Nex-Tech, Inc. ("Nex-Tech"), by their authorized representatives,
hereby enter into this Consent Decree for the purpose of terminating the
Bureau's investigation into whether Nex-Tech failed to file timely
applications to renew its broadband Personal Communications Services
C-Block licenses, call signs WPOJ817 and WPOJ818, in the Great Bend and
Hays, KS basic trading areas in violation of section 1.949(a) of the
Commission's Rules ("Rules"), and operated the stations without Commission
authorization in violation of section 301 of the Communications Act of
1934, as amended (the "Act"), and section 1.903(a) of the Rules.
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. "Investigation" means the investigation initiated by the Bureau in EB
File No. EB-10-SE-092 regarding whether Nex-Tech violated section 301
of the Act and sections 1.903(a) and 1.949(a) of the Rules by failing
to file timely applications to renew its broadband Personal
Communications Services C-Block licenses and operating the stations
without Commission authorization.
h. "Licenses" means the broadband Personal Communications Services
C-Block licenses for Stations WPOJ817 and WPOJ818, in the Great Bend
and Hays, KS basic trading areas.
i. "Nex-Tech" means Nex-Tech, Inc. as well as its
predecessors-in-interest and successors-in-interest.
j. "Parties" mean Nex-Tech and the Bureau, and each a "Party."
k. "Rules" mean the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
2. Section 301 of the Act and section 1.903(a) of the Rules prohibit the
use or operation of any apparatus for the transmission of energy or
communications or signals by a wireless radio station except under and
in accordance with a Commission granted authorization. Section
1.949(a) of the Rules requires the licensee of a wireless radio
station to file its renewal application "no later than the expiration
date of the authorization for which renewal is sought, and no sooner
than 90 days prior to expiration." Absent a timely filed renewal
application, a wireless radio station license automatically terminates
on the expiration date specified in the authorization.
3. Nex-Tech, a rural telephone company formerly known as RTSC
Communications, Inc., acquired the Licenses on June 30, 1999, with
ten-year license terms ending June 30, 2009. Nex-Tech did not file
applications for renewal of the Licenses by the June 30, 2009
deadline. On September 4, 2009, Nex-Tech filed renewal applications
for the Licenses, along with requests for waivers of the filing
deadlines. On September 9, 2009, Nex-Tech filed an application for
Special Temporary Authority ("STA") to continue operating on the
frequencies under the Licenses. Because it appeared that Nex-Tech may
have operated the stations without authority after expiration of the
Licenses, the Wireless Telecommunications Bureau referred this case to
the Enforcement Bureau for investigation and possible enforcement
action.
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. Nex-Tech 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, Nex-Tech 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 Nex-Tech 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 Nex-Tech
with respect to Nex-Tech's basic qualifications, including its
character qualifications, to be a Commission licensee or authorized
common carrier.
8. Compliance Plan. For purposes of settling the matters set forth
herein, Nex-Tech agrees to (i) create within thirty (30) days after
the Effective Date a Compliance Plan related to future compliance with
the Act, the Rules, and the Commission's Orders, (ii) designate a
Compliance Officer to oversee Nex-Tech's compliance with the
Compliance Plan, and (iii) establish operating procedures intended to
ensure compliance with the terms and conditions of this Consent Decree
and with section 301 of the Act and sections 1.903(a) and 1.949(a) of
the Rules. The Compliance Plan will include, at a minimum, the
following components:
(a) Compliance Officer. Nex-Tech will assign the business administration
supervisor central responsibility as the Compliance Officer to oversee
Nex-Tech's compliance with the Compliance Plan and to ensure the timely
filing of applications to renew Nex-Tech's wireless licenses.
(b) Training Program. Nex-Tech will implement and maintain a training
program for all existing employees, as well as any new employees hired
after the Effective Date, whose responsibilities include compliance with
FCC license renewal policies.
(c) Compliance Reports. Nex-Tech 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 an officer,
as an agent of and on behalf of Nex-Tech, stating that the officer has
personal knowledge that Nex-Tech (i) has established operating procedures
intended to ensure compliance with the terms and conditions of this
Consent Decree and with section 301 of the Act and sections 1.903(a) and
1.949(a) of the Rules, together with
an accompanying statement explaining the basis for the 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 officer cannot provide
the requisite certification, the officer, as an agent of and on behalf of
Nex-Tech, shall provide the Commission with a detailed explanation of: (i)
any instances of non-compliance with this Consent Decree, the Act, and the
Rules, and (ii) the steps that Nex-Tech 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 the Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, 445 12th Street,
S.W., Washington, D.C. 20554. All Compliance Reports shall also be
submitted electronically to Kathy Harvey at Kathy.Harvey@fcc.gov and Kathy
Berthot at 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. 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 Nex-Tech 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 Nex-Tech with the Act, the Rules, or
Commission Orders.
10. Voluntary Contribution. Nex-Tech agrees that it will make a voluntary
contribution to the United States Treasury in the amount of eight
thousand dollars ($8,000). 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 NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Nex-Tech will also send electronic notification to
Kathy.Harvey@fcc.gov and Kathy.Berthot@fcc.gov on the date said
payment is made.
11. Waivers. Nex-Tech 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. Nex-Tech 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
Nex-Tech nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Nex-Tech shall waive any statutory
right to a trial de novo. Nex-Tech 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.
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 Nex-Tech does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
14. Successors and Assigns. Nex-Tech agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
15. 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 Rules and orders.
16. Modifications. This Consent Decree cannot be modified without the
advance written consent of both 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
other 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
Chief, Spectrum Enforcement Division
Enforcement Bureau
________________________________
Date
________________________________
Jeff Wick
Chief Operating Officer
Nex-Tech, Inc.
________________________________
Date
47 C.F.R. S: 1.949(a).
47 U.S.C. S: 301; 47 C.F.R. S: 1.903(a).
47 U.S.C. 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).
47 C.F.R. S: 1.949(a).
47 C.F.R. S: 1.955(a)(1).
On January 23, 2002, RTSC Communications, Inc. filed an administrative
update informing the Commission that it had, among other things, changed
its name to "Nex-Tech, Inc." File No. 00007743244 (Jan. 23, 2002).
File No. 0000012726 (granted June 30, 1999).
File Nos. 0003957435 (WPOJ817) and 0003957438 (WPOJ818) (Sept. 4, 2009)
(Ex.A: Requests for Waiver and Reinstatement Nunc Pro Tunc).
File No. 0003960495 (Sept. 9, 2009). The STA was granted for a six-month
period on September 11, 2009, under call signs WQKT936 and WQKT937, and
extended for another six-month period on March 1, 2010.
Federal Communications Commission DA 10-1706
6
Federal Communications Commission DA 10-1706