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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File No. EB-09-SE-114
Samsung Telecommunications America, LLC
) Acct. No. 201032100022
and
) FRN 0005876644
Samsung Electronics Co., Ltd.
)
)
ORDER
Adopted: March 12, 2010 Released: March 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 Samsung
Telecommunications America, LLC ("STA") and Samsung Electronics
Corporation, Ltd. ("SEC") (together "Samsung"). The Consent Decree
terminates an investigation by the Bureau against Samsung for possible
violations of the 911 call processing method rules as set forth in
Section 22.921 of the Commission's Rules.
2. The Bureau and Samsung have negotiated the terms of the Consent Decree
that resolves 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 Samsung 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 Joseph (Joon Kyo) Cheong, Vice President and Chief
Financial Officer, Samsung Telecommunications America, LLC, 1301 East
Lookout Drive, Richardson, TX 75082 and to Samsung's counsel, David H.
Solomon, Esq., Wilkinson Barker Knauer LLP, 2300 N St. NW, Suite 700,
Washington, DC 20037.
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-114
)
Samsung Telecommunications America, LLC ) Acct. No. 201032100022
and )
Samsung Electronics Co., Ltd. ) FRN 0005876644
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission, Samsung
Telecommunications America, LLC ("STA"), and Samsung Electronics
Corporation, Ltd. ("SEC") (together "Samsung"), by their authorized
representatives, hereby enter into a Consent Decree for the purpose of
terminating the Bureau's investigation into whether Samsung violated the
911 call processing method rules as set forth in Section 22.921 of the
Commission's Rules.
I. DEFINITIONS
1. 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 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 program described in this Consent Decree
at paragraph 7.
(f) "Effective Date" means the date on which the Bureau releases the
Adopting Order.
(g) "Investigation" means the investigation commenced by the Bureau's July
27, 2009 Letter of Inquiry ("LOI") regarding whether Samsung violated the
911 call processing method rules as set forth in Section 22.921 of the
Commission's Rules.
(h) "Parties" means Samsung and the Bureau.
(i) "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
(j) "Samsung" means Samsung Telecommunications America, LLC and Samsung
Electronics Co., Ltd.
II. BACKGROUND
8. Under Section 22.921 of the Commission's Rules, mobile phones
manufactured after February 13, 2000, and capable of operating in an
analog mode, are required to use one or more of the 911 call system
selection processes endorsed or approved by the Commission. Samsung
reported that on April 7, 2009, it voluntarily disclosed to the U.S.
Consumer Product Safety Commission ("CPSC") that a limited number of
Samsung-manufactured cell phones (with model numbers SPH-A110 and
SPH-A120, manufactured between March of 2008 and February of 2009),
may be unable to connect with an appropriate public safety answering
point ("PSAP"), such as a 911 call center. This inability to connect
could occur in markets where a wireless network of carriers is not
included in the Preferred Roaming List ("PRL") programmed into the
device software which allows calls to be made outside the caller's
home area. Samsung proposed a Corrective Action Plan ("CAP") to the
CPSC, which includes a free software upgrade to distributors with
noncompliant phones in their inventory, and outreach to potential
affected consumers. The CPSC has approved and Samsung has implemented
the CAP. On July 27, 2009, the Bureau issued a Letter of Inquiry
("LOI") initiating an Investigation regarding these cell phones and
whether Samsung violated the Commission's 911 call processing and
related Part 2 equipment authorization rules. On August 26, 2009,
Samsung, by counsel, submitted a response to the LOI.
III. TERMS OF AGREEMENT
9. Adopting Order. The Parties agree that the provisions of the 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.
10. Jurisdiction. Samsung 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.
11. 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.
12. 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, Samsung 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, or
refer to the Commission, any new proceeding, formal or informal, or
take any action on its own motion, or refer to the Commission any
action, against Samsung 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, or refer to the Commission, any
proceeding, formal or informal, or take any action on its own motion,
or refer to the Commission any action, against Samsung with respect to
Samsung's basic qualifications, including its character
qualifications, to be a Commission licensee or to hold Commission
licenses or authorizations.
13. Compliance Plan. For purposes of settling the matters set forth
herein, Samsung agrees to maintain a Compliance Plan ("Compliance
Plan") related to future compliance with the Act, the Commission's
Rules, and the Commission's Orders. The Compliance Plan will include,
at a minimum, the following components:
a. Compliance Official. Within 30 days of the Effective Date, SEC shall
appoint a Compliance Official ("Compliance Official") who will be
responsible for implementing and administering the Compliance Plan.
b. Maintenance of Free Software Upgrade. Samsung will maintain the free
software upgrade program entered into with the CPSC for one year from
the Effective Date.
c. Training. SEC will provide appropriate training and materials
concerning the requirements of Section 22.921 and the Consent Decree
to those employees, agents and contractors, as appropriate, who are
most directly involved in the programming and flashing of handsets
with software that affects the routing and completion of 911 calls.
Such training will be completed within ninety (90) days of the
Effective Date, and any such new employees, agents and contractors, as
described above, will receive training within sixty (60) days of their
assumption of relevant responsibilities.
d. Compliance Report. Samsung will file reports with the Commission
ninety days after the Effective Date, twelve months after the
Effective Date, and twenty four months after the Effective Date. Each
compliance report shall include a compliance certificate from an
officer, as an agent of Samsung, stating that the officer has personal
knowledge that Samsung has established operating procedures intended
to ensure compliance with this Consent Decree. 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 Linda Nagel at Linda.Nagel@fcc.gov and
Kathryn Berthot at Kathy.Berthot@fcc.gov. Samsung may request, in
accordance with 47 C.F.R. S: 0.459, that such information be treated
as confidential business information and withheld from public
inspection. Any information submitted with such a request shall be
subject to all the protections afforded by the Commission's rules. For
instance, as set forth in 47 C.F.R. S: 0.459(d), such information will
be accorded confidential treatment as provided for in sections
0.459(g) and 0.461, until the Commission acts on the confidentiality
request and all subsequent appeal and stay proceedings have been
exhausted.
e. Termination Date. Unless stated otherwise, the requirements of this
Compliance Plan will expire twenty four months after the Effective
Date.
14. Voluntary Contribution. Samsung agrees that it will make a voluntary
contribution to the United States Treasury in the amount of sixty
thousand dollars ($60,000). The payment will be made within 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). Samsung will also send
electronic notification to Linda Nagel at Linda.Nagel@fcc.gov and
Kathryn Berthot at Kathy.Berthot@fcc.gov on the date said payment is
made.
15. Waivers. Samsung 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. Samsung 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
Samsung nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Samsung shall waive any statutory
right to a trial de novo. Samsung 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.
16. 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.
17. 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 Samsung does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
18. Successors and Assigns. Samsung agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
19. 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. The
Parties agree that this Consent Decree is for settlement purposes only
and that by agreeing to this Consent Decree, Samsung does not admit or
deny noncompliance, violation or liability for violating the Act or
Rules in connection with the matters that are the subject of this
Consent Decree.
20. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
21. Paragraph Headings. The headings of the Paragraphs in the Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
22. Authorized Representative. Each Party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
23. 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
__________________________
Joseph (Joon Kyo) Cheong
Vice President and Chief Financial Officer
Samsung Telecommunications America, LLC
__________________________
Date
47 C.F.R. S: 22.921.
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S: 22.921.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Michelangelo
Troisi, Senior Counsel and Director of Risk Management, Samsung
Electronics America Inc. (July 27, 2009) ("LOI"). We note that Samsung
Electronics America Inc. is not a party to this Consent Decree, as it
neither manufactures, imports, nor distributes wireless handsets subject
to section 22.921 of the Commission's Rules.
47 C.F.R. S: 22.921.
Id.; Revision of the Commission's Rules To Ensure Compatibility with
Enhanced 911 Emergency Calling Systems, Second Report and Order, 14 FCC
Rcd 10954 (1999).
See LOI.
See Letter from David H. Solomon, Esq. and Robert G. Morse, Esq.,
Wilkinson Barker Knauer, LLP, to Linda M. Nagel, Esq., Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission (August 26, 2009) ("LOI Response").
See 47 C.F.R. S: 0.459.
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