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Before the
Federal Communications Commission
Washington, D.C. 20554
)
File No. EB-08-SE-561
In the Matter of )
Acct. No. 201032100017
Bluegrass Cellular, Inc. )
FRN No. 0007000854
)
order
Adopted: February 12, 2010 Released: February 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 Bluegrass Cellular, Inc.
("Bluegrass"). The Consent Decree terminates an investigation by the
Bureau into Bluegrass's possible violations of Part 4 of the
Commission's rules regarding the reporting of network outages.
2. The Bureau and Bluegrass 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 investigations.
4. Based on the record before us, we conclude that our investigations
raise no substantial or material questions of fact as to whether
Bluegrass 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 Ronald R. Smith, President, Bluegrass Cellular, Inc.,
2902 Ring Road, Elizabethtown, Kentucky 42702, and to Pamela L. Gist,
Esq., Lukas, Nace, Gutierrez & Sachs, 1650 Tysons Blvd., Suite 1500,
McLean, Virginia 22102.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
File No. EB-08-SE-561
In the Matter of )
Acct. No. 201032100017
Bluegrass Cellular, Inc. )
FRN No. 0007000854
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Bluegrass Cellular, Inc.
("Bluegrass"), by their respective authorized representatives, hereby
enter into this Consent Decree for the purpose of terminating the Bureau's
investigation into whether Bluegrass violated Section 4.9(e) of the
Commission's Rules by failing to file network outage reports by the
compliance deadlines.
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. "Bluegrass" means Bluegrass Cellular, Inc., its affiliates, its
predecessors-in-interest and successors-in-interest.
d. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
e. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
(f) "Compliance Plan" means the program described in this Consent Decree
at paragraph 10.
(g) "Effective Date" means the date on which the Bureau releases the
Adopting Order.
(h) "Investigation" means the investigation commenced by the Bureau's July
14, 2008 and December 29, 2008 Letters of Inquiry regarding whether
Bluegrass violated Section 4.9(e) of the Rules regarding the reporting of
network outages.
(i) "Parties" means Bluegrass and the Bureau.
(j) "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
2. Pursuant to Section 4.9(e) of the Rules, a wireless communications
provider is required to submit to the Commission an electronic
Notification within 120 minutes after discovering that it has experienced
a network outage of at least 30 minutes duration that: (1) potentially
affects at least 900,000 user minutes of either telephony or paging; (2)
affects at least 1,350 DS3 minutes; (3) potentially affects any special
offices or facilities, as defined in Section 4.5(e) Rules; or (4)
potentially affects a 911 special facility, as defined by the Rules.
Within 72 hours after discovering such an outage, a wireless
communications provider is required to submit electronically an Initial
Communications Outage Report, and within 30 days after discovering such an
outage, a wireless communications provider is required to submit
electronically a Final Communications Report.
3. On July 14, 2008, the Bureau issued a Letter of Inquiry ("LOI") to
Bluegrass. The July 14, 2008 LOI directed Bluegrass, among other
things, to submit a sworn written response to a series of questions
relating to Bluegrass's compliance with the Commission's network
outage reporting rules. Bluegrass responded to the LOI on August 6,
2008. On December 29, 2008, the Bureau issued a follow up LOI to
Bluegrass. Bluegrass responded to the follow-up LOI on January 14,
2009. The Bureau and Bluegrass executed a Tolling Agreement on April
14, 2008, and executed Tolling Agreement Extensions on July 8, 2009
and on October 30, 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. Bluegrass 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 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.
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, Bluegrass 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 Bluegrass 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 Bluegrass
with respect to Bluegrass's basic qualifications, including its
character qualifications, to be a Commission licensee.
8. Compliance Plan. For purposes of settling the matters set forth
herein, Bluegrass agrees to create within thirty (30) days a
Compliance Plan related to Bluegrass's future compliance with the Act,
the Commission's Rules, and the Commission's Orders. The Plan will
include, at a minimum, the following components:
a. Compliance Training Program. Bluegrass shall establish and maintain a
FCC outage reporting training program addressing FCC network outage
reporting requirements, as detailed below, for all employees who are
responsible for analyzing technical information regarding Bluegrass's
network outages, entering information into any Bluegrass database(s)
and/or record(s) that form the basis of Bluegrass's reporting of
network outages to the Commission, and compiling and/or submitting
Bluegrass's outage reports to the Commission.
i. Bluegrass's Compliance Training Program shall address, at a minimum,
the FCC's Rules governing the reporting of network outages, the
information and calculations necessary to determine whether an outage is
reportable under the FCC's Rules, and the time periods during which
notifications and reports of reportable outages must be submitted to the
FCC. Bluegrass's Compliance Training Program shall also address the
methods and procedures adopted by Bluegrass to identify and report those
network outages that satisfy the FCC's reporting criteria in order to
ensure compliance with the FCC's outage reporting Rules. The training
program shall also include information on the potential internal and
regulatory consequences of failing to comply with Bluegrass's methods and
procedures and/or the FCC's outage reporting requirements.
ii. Bluegrass shall provide the foregoing outage reporting training within
six months of the Effective Date and will update the training at least
annually for employees who are responsible for analyzing technical
information regarding Bluegrass's network outages, entering information
into any Bluegrass database(s) and/or record(s) that form the basis of
Bluegrass's reporting of network outages to the Commission, and compiling
and/or submitting Bluegrass's outage reports to the Commission. Bluegrass
will also provide training to new employees responsible for these
activities.
iii. Bluegrass shall update and enhance the foregoing training regarding
the FCC's outage reporting requirements as appropriate and necessary.
b. Compliance Reports. Bluegrass will file compliance reports with the
Commission ninety (90) days after the Effective Date, twelve (12)
months and twenty-four (24) months after the Effective Date. Each
compliance report shall include a compliance certificate from an
officer, as an agent of Bluegrass, stating that the officer has
personal knowledge that Bluegrass 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 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 Ricardo
M. Durham, Senior Deputy Chief, Spectrum Enforcement Division at
Ricardo.Durham@fcc.gov and Nissa Laughner at Nissa.Laughner@fcc.gov.
c. Termination. The provisions of this paragraph shall remain in effect
for two (2) years 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 Bluegrass 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 Bluegrass with the Act, the Rules, or
Commission Orders.
10. Voluntary Contribution. Bluegrass agrees that it will make a voluntary
contribution to the United States Treasury, in the amount of fifty
thousand dollars ($50,000). The contribution 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). Bluegrass will also send
electronic notification on the date said payment is made to
Ricardo.Durham @fcc.gov and Nissa.Laughner@fcc.gov.
11. Waivers. Bluegrass 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. Bluegrass 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
Bluegrass nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Bluegrass shall waive any statutory
right to a trial de novo. Bluegrass 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 Bluegrass does not expressly
consent), that provision will be superseded by such Commission Rule or
Order.
14. Successors and Assigns. Bluegrass 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. 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.
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.
____________________________
P. Michele Ellison
Bureau Chief
Enforcement Bureau
____________________________
Date
____________________________
Scott W. McCloud
Vice President-Wireless Networks
Bluegrass Cellular, Inc.
____________________________
Date
47 C.F.R. S: 4.1 et seq.
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S: 4.9(e).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, to Ronald R. Smith, President, Bluegrass Cellular,
Inc. (July 14, 2008); Letter from Kathryn S. Berthot, Chief, Spectrum
Enforcement Division, Enforcement Bureau, to Scott W. McCloud, Vice
President, Wireless Networks, Bluegrass Cellular, Inc. (December 29,
2008).
47 C.F.R. S: 4.9(e).
47 C.F.R. S: 4.5(e).
47 C.F.R. S: 4.9(e).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Ronald R. Smith,
President, Bluegrass Cellular, Inc. (July 14, 2008).
See Letter from Pamela L. Gist, Esq., Counsel for Bluegrass Cellular Inc.,
to Nissa Laughner, Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission (August 6, 2008).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Scott W.
McCloud, Vice President, Wireless Networks, Bluegrass Cellular, Inc.
(December 29, 2008).
See Letter from Pamela L. Gist, Esq., Counsel for Bluegrass Cellular,
Inc., to Nissa Laughner, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (January 14, 2009).
See Tolling Agreement, File No. EB-07-SE-561, executed by and between
Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission, and Scott W. McCloud, Vice
President, Wireless Networks, Bluegrass Cellular, Inc. (April 14, 2009).
See Tolling Agreement Extension, File No. EB-07-SE-561, executed by and
between Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, and Ronald R.
Smith, President, Bluegrass Cellular, Inc. (July 8, 2009).
See Tolling Agreement Extension, File No. EB-07-SE-561, executed by and
between Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, and Ronald R.
Smith, President, Bluegrass Cellular, Inc. (October 30, 2009).
Under this provision, Bluegrass will not be required to provide outage
reporting compliance training to employees other than those whose
responsibilities include analyzing technical information regarding
Bluegrass's network outages, entering information into Bluegrass's
database(s) and/or record(s) that form the basis of Bluegrass's reporting
of network outages to the Commission, and compiling and/or submitting
Bluegrass's outage reports to the Commission.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 10-237
2
Federal Communications Commission DA 10-237