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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No.: EB-07-SE-281
In the Matter of )
Acct. No.: 201132100031
Cincinnati Bell Wireless LLC )
FRN: 0003010493
)
)
ORDER
Adopted: June 9, 2011 Released: June 9, 2011
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Cincinnati Bell Wireless
LLC ("CBW"). The Consent Decree terminates an investigation initiated
by the Bureau regarding CBW's compliance with section 20.19(d)(2) of
the Commission's rules pertaining to the deployment of digital
wireless hearing aid-compatible handsets.
2. The Bureau and CBW have negotiated the terms of a Consent Decree that
would 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 CBW 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 Jouett K. Brenzel, Corporate Counsel, Cincinnati Bell
Wireless LLC, 221 E. Fourth Street, Suite 103-1280, Cincinnati, OH
45202.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-07-SE-281
In the Matter of
) Acct. No.: 201132100031
Cincinnati Bell Wireless LLC
) FRN: 0003010493
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and
Cincinnati Bell Wireless LLC, by their authorized representatives, hereby
enter into this Consent Decree for the purpose of terminating the
Enforcement Bureau's investigation into possible violations of section
20.19(d)(2) of the Commission's rules regarding the deployment of digital
wireless hearing aid-compatible handsets.
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. "CBW" means Cincinnati Bell Wireless LLC and its
predecessors-in-interest and successors-in-interest.
e. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
f. "Compliance Plan" means the compliance obligations and compliance
program described in this Consent Decree at paragraph 8 hereof.
g. "Covered Employees" means all employees and agents of CBW who perform
duties that trigger or may trigger compliance-related responsibilities
under section 20.19 of the Rules and other Rules, Commission orders or
statutory requirements governing wireless hearing aid-compatible
handsets, including the design, selection or acquisition of wireless
handsets, or the marketing or distribution of such handsets to
consumers in the United States.
h. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
i. "Investigation" means the investigation commenced by the Bureau's
August 13, 2007 letter of inquiry regarding CBW's deployment of
digital wireless hearing aid-compatible handsets.
j. "Parties" means CBW and the Bureau, 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
2. Congress enacted the Hearing Aid Compatibility Act of 1988 to provide
access to telecommunications services for individuals with hearing
disabilities in recognition that telecommunications services are an
essential component of our daily lives. In the 2003 Hearing Aid
Compatibility Order, the Commission adopted several measures to
enhance the ability of individuals with hearing disabilities to access
digital wireless telecommunications. The Commission established a
technical standard for radio frequency interference - the "U3" (now
"M3") rating - that would enable acoustic coupling between digital
wireless phones and hearing aids operating in acoustic coupling
(a.k.a. microphone) mode, and a separate standard - the "U3T" (now
"T3") rating - for handset production of an audio signal-based
magnetic field to enable inductive coupling with hearing aids
operating in telecoil mode. For each of these standards, the
Commission further established deadlines by which manufacturers and
service providers were required to offer specified numbers or
percentages of digital wireless handsets per air interface that are
compliant with the relevant standard unless the de minimis exception
applies. For example, service providers not covered by the de minimis
exception were required to make available at least two handset models
that met, at a minimum, the U3T ("T3") rating for inductive coupling
capability by September 18, 2006.
3. The Commission also adopted reporting requirements to ensure that it
could monitor the availability of these handsets and to provide
valuable information to the public concerning the technical testing
and commercial availability of hearing aid-compatible handsets. The
Commission initially required manufacturers and digital wireless
service providers to report every six months on efforts toward
compliance with the hearing aid compatibility requirements for the
first three years of implementation until November 17, 2006, and then
annually thereafter through the fifth year of implementation until
November 17, 2008.
4. CBW reported in its November 17, 2006 hearing aid compatibility status
report that it was offering two or more handsets that met the
inductive coupling standard. On August 13, 2007, the Bureau's Spectrum
Enforcement Division ("Division") issued a letter of inquiry ("LOI")
to CBW. The LOI directed CBW to submit a sworn written response to a
series of questions related to CBW's compliance with section
20.19(d)(2) of the Rules regarding the inductive coupling hearing aid
compatibility deployment requirements. CBW responded to the LOI on
August 23, 2007. In its LOI Response, CBW stated that after filing its
November 17, 2006 Annual Report, it came to CBW's attention that the
Nokia 6126 handset model it had offered since August 16, 2006, did not
meet the inductive coupling requirements. CBW explained that the
compliant handset model was the Nokia 6126h model. CBW indicated that
in February 2007, it began offering another handset that met the
inductive coupling requirements.
III. TERMS OF AGREEMENT
5. 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.
6. Jurisdiction. CBW 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.
7. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the Effective Date as defined herein. 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.
8. 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 the
Investigation. In consideration for the termination of said
Investigation, CBW 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 CBW
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 CBW with respect to CBW's basic
qualifications, including its character qualifications, to be a
Commission licensee or to hold Commission licenses or authorizations.
9. Compliance Plan. For purposes of settling the matters set forth
herein, CBW agrees that it shall within sixty (60) calendar days
after the Effective Date (i) develop and implement a Compliance Plan
related to future compliance with the Act, the Rules, and the
Commission's orders, including section 20.19 of the Rules, and other
Rules, Commission orders and statutory requirements governing wireless
hearing aid-compatible handsets; (ii) establish standard, internal
operating procedures and policies ("Operating Procedures") that CBW
shall follow to ensure compliance with section 20.19 of the Rules and
other hearing aid compatibility requirements; and (iii) incorporate
such Operating Procedures into a Compliance Manual pursuant to
paragraph 8(c) hereof. The Compliance Plan shall include, at a
minimum, the following components:
(a) Regulatory Steering Committee. CBW has established, and shall
maintain, a Regulatory Steering Committee to ensure compliance with a
variety of federal and state regulatory requirements and the terms of this
Consent Decree. The Regulatory Steering Committee shall serve as a
resource for resolving questions related to the Compliance Plan and CBW's
compliance with applicable hearing aid compatibility requirements, and
shall act as a central point of contact for the dissemination of the
Commission's hearing aid compatibility requirements throughout the
company. The Regulatory Steering Committee, with input from the Compliance
Officer, shall oversee the development and implementation of the Training
Program and shall monitor changes to the Commission's hearing aid
compatibility rules to ensure that those changes are documented in the
Compliance Manual discussed in paragraph 8(c) and disseminated
appropriately to all Covered Employees, as defined herein. The Regulatory
Steering Committee shall include representatives from CBW's legal and
regulatory departments.
(b) Compliance Officer. Within thirty (30) calendar days after the
Effective Date, CBW shall designate a senior corporate manager to serve as
a Compliance Officer. The Compliance Officer shall be responsible for
administering the Compliance Plan and ensuring compliance with this
Consent Decree, shall be familiar with the FCC's requirements governing
wireless hearing aid-compatible handsets and other relevant Rules, and
shall report to the Regulatory Steering Committee.
(c) Compliance Manual. The Compliance Officer shall develop and distribute
a Compliance Manual to all Covered Employees. The Compliance Manual shall
(i) describe the Commission's handset deployment and other wireless
hearing aid compatibility requirements; and (ii) set forth the relevant
Operating Procedures that CBW will follow to ensure compliance with such
requirements. CBW shall periodically review and, to the extent necessary,
revise the Compliance Manual to ensure that it remains current and
complete. Any such revisions shall be disseminated promptly to all Covered
Employees.
(d) Training Program. Within sixty (60) calendar days after the Effective
Date, CBW shall establish and implement a Training Program on compliance
with the Commission's digital wireless hearing-aid compatible handset
deployment requirements. The Training Program shall be provided to all
Covered Employees. Any person who becomes a Covered Employee at any time
after the initial training session shall be provided such training within
thirty (30) calendar days after the date such person becomes a Covered
Employee. CBW shall conduct the Training Program on an annual basis, and
shall periodically review and, to the extent necessary, revise the
Training Program to ensure that it remains current and complete, and to
enhance its effectiveness.
(e) Operating Procedures for the Availability of Hearing Aid Compatible
Handsets. CBW's Operating Procedures shall include internal procedures and
policies specifically designed to ensure that CBW offers the requisite
number or percentage of hearing aid compatible handsets to consumers as
required by the Rules, including the following:
(i) CBW shall develop a compliance checklist that describes the
Commission's hearing aid compatibility requirements and the steps that a
Covered Employee will follow to ensure that the inclusion of a new handset
model, or discontinuance of an existing handset offering, will not result
in a violation of the Commission's digital wireless hearing aid-compatible
handset deployment requirements.
(ii) Prior to ordering any new handset model, or discontinuing any
existing handset offering, the Covered Employee responsible for
completing, approving or authorizing such action must complete, sign, and
date the compliance checklist indicating whether the affected handset is
hearing aid-compatible and whether the offering of such handset, or the
discontinuance of such handset offering, by CBW will result in a violation
of the Commission's digital wireless hearing aid-compatible handset
deployment requirements. CBW shall utilize such compliance checklists to
prepare its Hearing Aid Compatibility Reports on FCC Form 655, and shall
retain such checklists for a period of two (2) years after the Effective
Date, or until the FCC Form 655 for the period covered by such checklist
has been filed, whichever is later.
(f) Reporting Non-Compliance. CBW shall report any non-compliance with
section 20.19 of the Rules, and other Rules, Commission orders or
statutory requirements governing wireless hearing aid-compatible handsets
within fifteen (15) calendar days after the discovery of such
non-compliance. Such reports shall include a detailed explanation of (i)
each instance of non-compliance; (ii) the steps that CBW has taken or will
take to remedy such non-compliance; (iii) the schedule on which such
remedial actions will be taken; and (iv) the steps that CBW has taken or
will take to prevent the recurrence of any such non-compliance. All
reports of non-compliance shall be submitted to the Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street, S.W. Washington, D.C. 20554, with a copy
submitted electronically to Jennifer Burton at Jennifer.Burton@fcc.gov and
to JoAnn Lucanik at JoAnn.Lucanik@fcc.gov.
(g) Compliance Reports. CBW shall file Compliance Reports with the
Commission ninety (90) calendar days after the Effective Date, twelve (12)
months after the Effective Date, and twenty-four (24) months after the
Effective Date.
i. Each compliance report shall include a detailed description of
CBW's efforts during the relevant period to comply with the terms
and conditions of this Consent Decree and the Commission's
requirements governing wireless hearing aid-compatible handsets. In
addition, each Compliance Report shall include a certification by
the Compliance Officer, as an agent of and on behalf of CBW,
stating that the Compliance Officer has personal knowledge that CBW
(A) has established and implemented the Compliance Plan; (B) has
utilized the Operating Procedures since the implementation of the
Compliance Plan; and (C) is not aware of any instances of
non-compliance with the terms and conditions of this Consent
Decree, including the reporting obligations set forth in paragraph
8(f) hereof.
ii. The certification shall be accompanied by a statement explaining
the basis for the Compliance Officer's certification and 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.
iii. If the Compliance Officer cannot provide the requisite
certification, the Compliance Officer, as an agent of and on
behalf of CBW, shall provide the Commission with a detailed
explanation of (A) each instance of non-compliance; (B) the steps
that CBW has taken or will take to remedy such non-compliance,
including the schedule on which proposed remedial actions will be
taken; and (C) the steps that CBW has taken or will take to
prevent the recurrence of any such non-compliance, including the
schedule on which such preventive action will be taken.
iv. All Compliance Reports shall be submitted to Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street, S.W., Washington, D.C. 20554, with a
copy submitted electronically to Jennifer Burton at
Jennifer.Burton@fcc.gov and to JoAnn Lucanik at
JoAnn.Lucanik@fcc.gov.
(h) Termination Date. Unless otherwise stated, the requirements of
paragraph 8 of the Consent Decree shall expire twenty-four (24) months
after the Effective Date.
10. 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 CBW 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 CBW with the Act, the Rules, or
Commission orders.
11. Voluntary Contribution. CBW agrees that it will make a voluntary
contribution to the United States Treasury in the amount of thirty
thousand dollars ($30,000.00). The payment must be made within thirty
(30) calendar 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 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). CBW shall also send electronic notification to
Jennifer Burton at Jennifer.Burton@fcc.gov and to JoAnn Lucanik at
JoAnn.Lucanik@fcc.gov on the date said payment is made.
12. Waivers. CBW 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. CBW 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
CBW nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and CBW shall waive any statutory right
to a trial de novo. CBW hereby agrees to waive any claims it may 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.
13. 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.
14. 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 CBW does not expressly consent)
that provision will be superseded by such Commission Rule or order.
15. Successors and Assigns. CBW agrees that the provisions of this Consent
Decree shall be binding on its successors, assigns, and transferees.
16. 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 Commission's orders.
17. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
18. 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.
19. Authorized Representative. The individual signing this Consent Decree
on behalf of CBW represents and warrants that he is authorized by CBW
to execute this Consent Decree and to bind CBW to the obligations set
forth herein. The FCC signatory represents that she is signing this
agreement in her official capacity and that she is authorized to
execute this Consent Decree.
20. 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
______________________________
Christopher J. Wilson
Vice President, General Counsel & Secretary
Cincinnati Bell Wireless LLC
______________________________
Date
47 C.F.R. S: 20.19(d)(2).
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S: 20.19(d)(2).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Jouett K.
Brenzel, Esq., Cincinnati Bell Wireless LLC (August 13, 2007).
Pub. L. No. 100-394, 102 Stat. 976 (1988), codified at section
710(b)(2)(C) of the Act, 47 U.S.C. S: 610(b)(2)(C).
See Section 68.4 of the Commission's Rules Governing Hearing Aid
Compatible Telephones, Report and Order, 18 FCC Rcd 16753, 16787 P: 89
(2003); Erratum, 18 FCC Rcd 18047 (2003); Order on Reconsideration and
Further Notice of Proposed Rulemaking, 20 FCC Rcd 11221 (2005).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16777 P: 56; 47 C.F.R.
S: 20.19(b)(1),(2).
The term "air interface" refers to the technical protocol that ensures
compatibility between mobile radio service equipment, such as handsets,
and the service provider's base stations. Currently, the leading air
interfaces include Code Division Multiple Access (CDMA), Global System for
Mobile Communications (GSM), Integrated Digital Enhanced Network (iDEN)
and Wideband Code Division Multiple Access (WCDMA) a/k/a Universal Mobile
Telecommunications System (UMTS).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16780 P: 65; 47 C.F.R.
S: 20.19(c), (d). The de minimis exception established in the 2003 Hearing
Aid Compatibility Order provides that manufacturers or mobile service
providers that offer two or fewer digital wireless handset models per air
interface are exempt from the hearing aid compatibility deployment
requirements, and manufacturers or mobile service providers that offer
three digital wireless handset models per air interface must offer at
least one compliant model. 47 C.F.R. S: 20.19(e). Subsequent amendments to
the de minimis exception do not apply to the instant case.
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16780 P: 71; 47 C.F.R.
S: 20.19(c)(2)(i)(A).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16787 P: 89.
Id.; see also Wireless Telecommunications Bureau Announces Hearing Aid
Compatibility Reporting Dates for Wireless Carriers and Handset
Manufacturers, Public Notice, 19 FCC Rcd 4097 (Wireless Tel. Bur. 2004).
See LOI Response at 1-2.
See supra note 2.
See Letter from Jouett K. Brenzel, Corporate Counsel, Cincinnati Bell, to
Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (Aug. 23, 2007) ("LOI
Response").
See LOI Response at 2.
Id. This is consistent with the Bureau's understanding that when the new
hearing aid compatibility requirements took effect in September 2006,
there was some confusion among carriers that certain handset models met
the inductive coupling requirements, when in fact they only met the
acoustic coupling requirements.
See LOI Response at 2.
Federal Communications Commission DA 11-1002
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Federal Communications Commission DA 11-1002
Federal Communications Commission DA 11-1002
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Federal Communications Commission DA 11-1002