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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-10-SE-016
In the Matter of
) Acct. No. 201132100015
Maximum Communications Cellular, LLC
) FRN No. 0019130319
)
ORDER
Adopted: December 23, 2010 Released: December 27, 2010
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Maximum Communications
Cellular, LLC ("MaxCell"). The Consent Decree terminates an
investigation by the Bureau against MaxCell for possible violations of
Section 20.19(c)(3)(ii) of the Commission's Rules ("Rules") regarding
the commercial availability of digital wireless handset models meeting
the radio frequency standard for hearing aid compatibility, and for
possible violations of Section 20.19(d)(3)(ii) of the Rules regarding
the commercial availability of digital wireless handset models meeting
the inductive coupling standard for hearing aid compatibility.
2. The Bureau and MaxCell 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 MaxCell 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 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 Ken Johnson, Esq., Counsel for Maximum Communications
Cellular, LLC, Bennet & Bennet, PLLC, 4350 East West Highway, Suite
201, Bethesda, Maryland 20814 and to Cheryl Scapanski, Chairperson,
Maximum Communications Cellular, LLC, 102 Jonathan Boulevard, Suite
212, Chaska, Minnesota 55318.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-10-SE-016
In the Matter of
) Acct. No. 201132100015
Maximum Communications Cellular, LLC
) FRN No. 0019130319
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Maximum Communications Cellular, LLC
("MaxCell"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
into whether MaxCell violated Section 20.19(c)(3)(ii) of the Commission's
Rules ("Rules") regarding the commercial availability of digital wireless
handset models meeting the radio frequency standard for hearing aid
compatibility, and Section 20.19(d)(3)(ii) of the Rules regarding the
commercial availability of digital wireless handset models meeting the
inductive coupling standard for hearing aid compatibility.
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
regarding whether MaxCell violated Section 20.19(c)(3)(ii) of the
Rules regarding the commercial availability of digital wireless
handset models meeting the radio frequency standard for hearing aid
compatibility, and Section 20.19(d)(3)(ii) of the Rules regarding the
commercial availability of digital wireless handset models meeting the
inductive coupling standard for hearing aid compatibility.
h. "MaxCell" means Maximum Communications Cellular, LLC and its
predecessors-in-interest and successors-in-interest.
i. "Parties" means MaxCell 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. Pursuant to Section 20.19(c)(3)(ii) of the Rules, non-Tier I service
providers are required to offer - between May 15, 2009 and May 15,
2010 - at least ten digital wireless handset models per air interface
that meet or exceed the M3 rating for radio frequency interference, or
alternatively, ensure that at least one-half of their commercially
available digital wireless handset models per air interface meet or
exceed the M3 rating. Pursuant to Section 20.19(d)(3)(ii) of the
Rules, non-Tier I service providers are required to offer - between
May 15, 2009 and May 15, 2010 - at least five digital wireless handset
models per air interface that meet or exceed the T3 rating for
inductive coupling, or alternatively, ensure that at least one-third
of their commercially available digital wireless handset models per
air interface meet or exceed the T3 rating. In order to monitor the
availability of these handsets, the Commission required digital
wireless service providers to submit annual status reports, beginning
January 15, 2009, on efforts toward compliance with the hearing aid
compatibility requirements.
3. On January 15, 2010, MaxCell, a start-up company with only 18 two-way
voice customers at the end of 2009, submitted its hearing aid
compatibility status report for the 2009 reporting period. On January
25, 2010, MaxCell made voluntarily disclosures to the Bureau regarding
its compliance with the hearing aid compatibility handset deployment
requirements, noting that it had provided fewer handsets than required
based on incorrect information from its vendors about handset
compatibility.
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. MaxCell 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, MaxCell 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
MaxCell 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 MaxCell with
respect to MaxCell's basic qualifications, including its character
qualifications, to be a Commission licensee.
8. Compliance Plan. For purposes of settling the matters set forth
herein, MaxCell agrees to (i) create, within thirty (30) calendar 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 MaxCell's compliance with
the Compliance Plan; and (ii) establish operating procedures intended
to ensure compliance with the terms and conditions of this Consent
Decree and Section 20.19 of the Rules. The Compliance Plan will
include, at a minimum, the following components:
a. Compliance Officer. MaxCell shall designate a Compliance Officer who
will be responsible for implementing and administering the Compliance
Plan. The Compliance Officer will be familiar with the FCC's hearing
aid compatibility regulations and associated selling and labeling
benchmarks, and will 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. As of
the date of the Adopting Order, MaxCell has designated Scott Widor,
General Manager, as its Compliance Officer.
b. Verification of Hearing Aid Compatibility Ratings. The Compliance
Officer shall ensure that MaxCell independently verifies the hearing
aid compatibility ratings of each digital wireless handset model that
MaxCell offers for sale (e.g., by reviewing equipment certification
records available in the Commission's Equipment Authorization
Database).
c. Training. The Compliance Officer shall be responsible for ensuring
that all MaxCell employees who are involved directly or indirectly in
the procurement of digital wireless handsets or the offer for sale of
these handsets to consumers receive training concerning the hearing
aid compatibility requirements. Such training shall be completed
within ninety (90) days of the Effective Date, and any new employees
hired subsequent to this initial training shall receive training
within thirty (30) days of their employment.
d. Consumer Outreach. MaxCell shall advertise the availability of hearing
aid-compatible digital wireless handsets to ensure that all of its
retail customers are aware that hearing aid-compatible digital
wireless handsets are available.
e. Compliance Reports. MaxCell shall 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 MaxCell,
stating that the Compliance Officer has personal knowledge that (i)
MaxCell has established operating procedures intended to ensure
compliance with 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) MaxCell has been
utilizing those procedures since the previous Compliance Report was
submitted; and (iii) the Compliance Officer 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 MaxCell, 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 MaxCell 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 reports
shall also be submitted electronically to Pamera Hairston at
Pamera.Hairston@fcc.gov and to Nissa Laughner at
Nissa.Laughner@fcc.gov.
f. Termination Date. Unless stated otherwise, the requirements of this
paragraph 8 of the Consent Decree will expire twenty-four (24) months
from 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 MaxCell 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 evidence of noncompliance by
MaxCell with the Act, the Rules, or Commission Orders.
2. Voluntary Contribution. MaxCell agrees that it will make a voluntary
contribution to the United States Treasury in the amount of seven
thousand dollars ($7,000). 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 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). MaxCell shall also send electronic notification to Pamera
Hairston at Pamera.Hairston@fcc.gov and to Nissa Laughner at
Nissa.Laughner@fcc.gov.
9. Waivers. MaxCell 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 this Consent Decree without change, addition, modification or
deletion. MaxCell 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
MaxCell nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and MaxCell shall waive any statutory
right to a trial de novo. MaxCell 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.
10. 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.
11. 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 MaxCell does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
12. Successors and Assigns. MaxCell agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
13. 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.
14. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
15. 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.
16. Authorized Representative. Each Party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
17. 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.
_______________________________
Ricardo M. Durham
Acting Chief
Spectrum Enforcement Division
Enforcement Bureau
________________________________
Date
________________________________
Cheryl Scapanski
Chairperson
Maximum Communications Cellular, LLC
________________________________
Date
47 C.F.R. S: 20.19(c)(3)(ii).
See 47 C.F.R. S: 20.19(b)(1) (setting forth the hearing aid compatibility
standard for radio frequency interference).
47 C.F.R. S: 20.19(d)(3)(ii).
See 47 C.F.R. S: 20.19(b)(2) (setting forth the hearing aid compatibility
standard for inductive coupling).
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(c)(3)(ii).
See 47 C.F.R. S: 20.19(b)(1) (setting forth the hearing aid compatibility
standard for radio frequency interference).
47 C.F.R. S: 20.19(d)(3)(ii).
See 47 C.F.R. S: 20.19(b)(2) (setting forth the hearing aid compatibility
standard for inductive coupling).
47 C.F.R. S: 20.19(c)(3)(ii).
See 47 C.F.R. S: 20.19(b)(1) (setting forth the hearing aid compatibility
standard for radio frequency interference).
47 C.F.R. S: 20.19(d)(3)(ii).
See 47 C.F.R. S: 20.19(b)(2) (setting forth the hearing aid compatibility
standard for inductive coupling).
47 C.F.R. S: 20.19(c)(3)(ii).
47 C.F.R. S: 20.19(b)(1).
47 C.F.R. S: 20.19(d)(3)(ii).
47 C.F.R. S: 20.19(b)(2).
47 C.F.R. S: 20.19(i)(1).
See Maximum Communications Cellular, LLC Hearing Aid Compatibility Status
Report (filed January 15, 2010).
MaxCell offered to consumers a total of nine hearing-aid compatible
digital wireless handset models per air interface, six of which met or
exceeded both the M3 rating for radio frequency interference and the T3
rating for inductive coupling.
Federal Communications Commission DA 10-2378
2
Federal Communications Commission DA 10-2378