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-IH-1701
Delta Air Lines, Inc. ) NAL Acct. No.:
201132080007
Licensee of Various Authorizations in )
the Wireless Radio Services FRN: 0001858828
)
)
ORDER
Adopted: December 13, 2010 Released: December 13, 2010
By the Chief, Enforcement Bureau:
1. In this Order, we adopt a Consent Decree terminating an investigation
by the Enforcement Bureau (the "Bureau") into compliance by Delta Air
Lines, Inc. ("Delta") with Section 310(d) of the Communications Act of
1934, as amended, 47 U.S.C. S: 310(d), and Section 1.948 of the
Commission's Rules, 47 C.F.R. S:1.948, relating to Delta's acquisition
of Northwest Airlines, Inc. on October 29, 2008.
2. The Bureau and Delta have negotiated the terms of a Consent Decree
that would terminate the Bureau's investigation. 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 Delta possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, and the authority delegated by
Sections 0.111 and 0.311 of the Commission's rules, that the attached
Consent Decree 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 certified mail, return receipt requested,
to Alan Tilles, Esquire, Shulman, Rogers, Gandal, Pordy & Ecker, PA,
12505 Park Potomac Avenue, 6th Floor, Potomac, Maryland 20854.
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-IH-1701
Delta Air Lines, Inc. ) NAL Acct. No.:
201132080007
Licensee of Various Authorizations in )
the Wireless Radio Services FRN: 0001858828
)
)
CONSENT DECREE
1. The Enforcement Bureau of the Federal Communications Commission and
Delta Air Lines, Inc., by their authorized representatives, hereby
enter into this Consent Decree for the purpose of resolving the
Enforcement Bureau's investigation of compliance by Delta Air Lines,
Inc., with Section 310(d) of the Communications Act of 1934, as
amended, 47 U.S.C. S: 310(d), and Section 1.948 of the Commission's
rules, 47 C.F.R. S:1.948.
I. DEFINITIONS
8. For 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 this Consent
Decree.
c. "Bureau" means the FCC's Enforcement Bureau.
d. "Commission" or "FCC" means the Federal Communications Commission and
all of its Bureaus and Offices.
e. "Compliance Plan" means the program described in this Consent Decree
at paragraph ten (10).
f. "Delta" means Delta Air Lines, Inc. and its predecessors-in-interest
and successors-in-interest.
g. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
h. "Investigation" means the Bureau's investigation into Delta's
compliance with Section 310(d) of the Act and Section 1.948 of the
Rules relating to its acquisition of Northwest Airlines, Inc. on
October 29, 2008.
i. "Northwest" means Northwest Airlines, Inc., which was acquired by
Delta on October 29, 2008.
j. "Parties" means the Bureau and Delta, each of which is a "Party."
(k) "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
9. Delta is an Atlanta, Georgia-based airline carrier that offers service
to more than 350 destinations in 65 countries. It holds a number of
licenses in the Wireless Radio Services for internal, non-commercial
use.
10. Section 310(d) of the Act provides that no station license shall be
assigned without prior Commission consent. Section 1.948 of the Rules
establishes a similar prohibition with regard to station licenses in
the Wireless Radio Services.
11. On October 29, 2008, Delta acquired Northwest as part of a merger
transaction. The transaction effectuated a substantial assignment of a
number of private land mobile radio licenses. Delta did not file
applications seeking Commission consent to the assignment of licenses
prior to consummating the merger transaction. On April 3 and June 16,
2009, Delta filed two applications seeking Commission consent to the
assignment of a total of 210 private land mobile radio licenses from
Northwest to Delta. Both applications were subsequently granted by the
Commission's Wireless Telecommunications Bureau. Thereafter, the
Enforcement Bureau commenced its Investigation of Delta's compliance
with Section 310(d) of the Act and Section 1.948 of the Rules. Delta
attributes its failure to timely file the assignment applications to,
among other things, a misunderstanding that all of the radio licenses
relating to Northwest's operations were held by a separate,
independent entity, and as such, no pre-merger approval of the
assignment was required. However, Delta states that after the
transaction, it learned that there were additional radio licenses held
directly by Northwest that required Commission consent.
III. TERMS OF AGREEMENT
12. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to approval by the Bureau by incorporation of
such provisions by reference in the Adopting Order, without change,
addition, modification, or deletion.
13. Jurisdiction. Delta acknowledges that the Commission has jurisdiction
over the matters contained in this Consent Decree and the authority to
enter into and adopt this Consent Decree.
14. 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.
15. 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 on the Effective Date. In consideration for the
termination of the Investigation, Delta 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 the 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 Delta 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 the 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 against Delta with respect to Delta's basic
qualifications, including its character qualifications to be a
Commission licensee or to hold Commission authorizations.
16. Compliance Plan. Delta agrees that it will develop and implement
within sixty (60) calendar days a comprehensive Compliance Plan for
the purpose of ensuring its compliance with Section 310(d) of the Act
and Section 1.948 of the Rules. The Compliance Plan shall include, at
a minimum, the following components:
a. Compliance Officer. Within sixty (60) calendar days of the Effective
Date, Delta will designate a Compliance Officer who will administer
the Compliance Plan, supervise Delta's compliance with the Rules, and
serve as the point of contact on behalf of Delta for all FCC-related
compliance matters.
a. Compliance Manual. Within sixty (60) calendar days of the Effective
Date, the Compliance Officer will develop and distribute a Compliance
Manual to employees and all others who, on behalf of Delta, perform
duties that trigger or may trigger compliance-related
responsibilities. The Compliance Manual will include (i) an overview
of the Commission's requirements, including the need for prior
approval for license assignments and transfers of control; (ii) a
description of the regulatory requirements applicable to the accurate
reporting of information in FCC applications; and (iii) instructions
regarding due diligence for FCC applications. The Compliance Manual
will be updated from time to time as needed.
b. Compliance Training Program. Within ninety (90) calendar days of the
Effective Date, Delta will implement a Compliance Training Program
for employees and all others who, on behalf of Delta, perform duties
that trigger or may trigger compliance-related responsibilities. This
Compliance Training Program will be presented to new employees who
are engaged in compliance-related activities within the first sixty
(60) calendar days of employment. This Compliance Training Program
will track the Compliance Manual, focusing on proper implementation
of the procedures outlined in the Compliance Manual and tailored to
specific user groups.
c. Compliance Reports. Delta will submit a Compliance Report to the
Commission ninety (90) days after the Effective Date and annually
thereafter on the anniversary of the Effective Date until the
Termination Date. Each Compliance Report will include a certification
by the Compliance Officer that Delta is, and at all times since the
previous Compliance Report was submitted has been, in compliance with
the terms and conditions of this Consent Decree and with Section
310(d) of the Act and Section 1.948 of the Rules. 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 is not able to so certify, he
shall explain fully the reason(s) therefore. All Compliance Reports
shall be directed to the Chief, Investigations & Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445 12th
Street, S.W., Washington, D.C. 20554.
d. Termination Date. The requirements relating to the Compliance Plan
shall expire thirty six (36) months after the Effective Date.
17. Voluntary Contribution. Delta agrees that it will make a voluntary
contribution to the United States Treasury in the total amount of
thirty five thousand dollars ($35,000.00). The payment shall be made
in full within 30 days of the Effective Date. The payment shall 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 referenced in the caption to the Adopting
Order. Payment by check or money order may be mailed to the 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). Delta will also send electronic
notification within forty-eight (48) hours of the date of said payment
is made to Hillary.DeNigro@fcc.gov.
18. Waivers. Delta agrees to waive 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 Consent Decree is adopted without
change, addition, modification or deletion. Delta 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 Delta nor the Commission shall
contest the validity of the Consent Decree or the Adopting Order, and
Delta shall waive any statutory right to a trial de novo. Delta 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.
19. 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 the Consent Decree to which Delta does not expressly consent)
that provision shall be superseded by such Commission rule or order.
20. Successors and Assigns. Delta agrees that the terms and conditions of
this Consent Decree shall be binding on its successors, assigns, and
transferees.
21. 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 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 and shall not be
construed as an admission by Delta.
22. Modifications. This Consent Decree may not be modified without the
advance written consent of both Parties.
23. 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.
24. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
25. 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.
By: _____________________________________ By:
_______________________________
P. Michele Ellison J. Scott McClain
Chief, Enforcement Bureau Assistant General Counsel
Federal Communications Commission Delta Air Lines, Inc.
Date: ___________________________________ Date:
_____________________________
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
Federal Communications Commission DA 10-2047
1
3
Federal Communications Commission DA 10-2047