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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-10-SE-115
In the Matter of
) Acct. No.: 201232100003
OTZ Telecommunications, Inc.
) FRN: 0004334538
)
ORDER
Adopted: November 8, 2011 Released: November 9, 2011
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") of the Federal
Communications Commission and OTZ Telecommunications, Inc. ("OTZ").
The Consent Decree resolves and terminates the Bureau's investigation
into OTZ's compliance with section 20.19(d)(3)(ii) of the Commission's
rules concerning the deployment of digital wireless hearing
aid-compatible handsets. These hearing aid compatibility requirements
serve to ensure that consumers with hearing loss have access to
advanced telecommunications services.
2. The Bureau and OTZ have negotiated the terms of the Consent Decree
that resolves this matter. A copy of the Consent Decree is attached
hereto and incorporated herein 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 OTZ 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 sections 4(i) and 503(b)
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 Carl Weisner, Operations Manager, and Susan L.
Hardenbergh, Consulting Manager, OTZ Telecommunications, Inc., 346
Tundra Way, Kotzebue, AK 99752.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-10-SE-115
In the Matter of
) Acct. No.: 201232100003
OTZ Telecommunications, Inc.
) FRN: 0004334538
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and OTZ
Telecommunications, Inc., 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)(3)(ii) of the Commission's rules pertaining to 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. "Communications Laws" means collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to
which OTZ is subject by virtue of its business activities, including
but not limited to, the Hearing Aid Compatibility Rules.
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.
g. "Covered Employees" means all employees and agents of OTZ who perform,
or supervise, oversee, or manage the performance of, duties that
relate to OTZ's responsibilities under the Hearing Aid Compatibility
Rules.
h. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
i. "Hearing Aid Compatibility Rules" means section 20.19 of the Rules and
other Communications Laws governing digital wireless hearing aid
compatibility, such as the Rules governing the design, selection, or
acquisition of wireless handsets and the marketing or distribution of
such handsets to consumers in the United States.
j. "Investigation" means the investigation commenced by the Bureau's
September 17, 2010 letter of inquiry regarding OTZ's deployment of
digital wireless hearing aid-compatible handsets.
k. "Operating Procedures" means the standard, internal operating
procedures and compliance policies established by OTZ to implement the
Compliance Plan.
l. "OTZ" means OTZ Telecommunications, Inc., its predecessors-in-interest
and successors-in-interest.
m. "Parties" means OTZ and the Bureau, each of which is a "Party".
n. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
2. In the 2003 Hearing Aid Compatibility Order, the Commission adopted
several measures to enhance the ability of consumers with hearing loss
to access digital wireless telecommunications. The Commission
established technical standards for radio frequency interference (the
"M" rating) and inductive coupling (the "T" rating) that digital
wireless handsets must meet to be considered compatible with hearing
aids operating in acoustic coupling and inductive coupling (telecoil)
modes, respectively. 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. In
February 2008, as part of a comprehensive reconsideration of the
effectiveness of the Hearing Aid Compatibility Rules, the Commission
released an order that, among other things, adopted new compatible
handset deployment benchmarks beginning in 2008.
3. On January 15, 2010, OTZ submitted its annual hearing aid
compatibility status report for the January 1, 2009 to December 31,
2009 reporting period. On September 16, 2010, the Wireless
Telecommunications Bureau referred OTZ's apparent hearing
aid-compatible handset deployment violations to the Bureau's Spectrum
Enforcement Division ("Division") for investigation and possible
enforcement action. On September 17, 2010, the Division issued the LOI
to OTZ, which directed the company to submit a sworn written response
to a series of questions related to its compliance with section
20.19(c)(3)(ii). OTZ responded to the LOI on September 23, 2010. The
Bureau and OTZ entered into tolling agreements on November 15, 2010,
March 16, 2011, and June 23, 2011 to toll the statute of limitations.
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.
5. Jurisdiction. OTZ agrees that the Bureau has jurisdiction over it and
the matters contained in this Consent Decree and that the Bureau 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 as defined herein.
As of the Effective Date, 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 the
Investigation. In consideration for the termination of the
Investigation, OTZ 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 OTZ
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 OTZ with respect to OTZ's basic
qualifications, including its character qualifications, to be a
Commission licensee or to hold Commission licenses or authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, OTZ agrees that it shall within sixty (60) calendar days after
the Effective Date, develop and implement a Compliance Plan to help
ensure future compliance with the Communications Laws, including the
Hearing Aid Compatibility Rules, and with the terms and conditions of
this Consent Decree. The Compliance Plan shall include, without
limitation, the following components:
a. Compliance Officer. Within thirty (30) calendar days after the
Effective Date, OTZ shall designate a senior corporate manager with
the requisite corporate and organizational authority to serve as
Compliance Officer and to discharge the duties set forth below. The
person designated as the Compliance Officer shall be responsible for
developing, implementing, and administering the Compliance Plan and
ensuring that OTZ complies with the terms and conditions of the
Compliance Plan and this Consent Decree. In addition to the general
knowledge of the Communications Laws necessary to discharge his/her
duties under this agreement, the Compliance Officer shall have
specific knowledge of the Hearing Aid Compatibility Rules prior to
assuming his/her duties.
b. Operating Procedures on Hearing Aid Compatibility. Within sixty (60)
calendar days after the Effective Date, OTZ shall establish Operating
Procedures that all Covered Employees must follow to help ensure
OTZ's compliance with the Hearing Aid Compatibility Rules. OTZ's
Operating Procedures shall include internal procedures and policies
specifically designed to ensure that OTZ offers the requisite number
or percentage of hearing aid-compatible digital wireless handsets to
consumers as required by the Hearing Aid Compatibility Rules. OTZ
also shall develop a Compliance Checklist that describes the steps
that a Covered Employee must 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. At a minimum,
the Compliance Checklist shall require Covered Employees to verify
the hearing aid compatibility rating of each existing and proposed
handset offering using the Commission's equipment authorization
database.
c. Compliance Manual. Within sixty (60) calendar days after the
Effective Date, the Compliance Officer shall develop and distribute a
Compliance Manual to all Covered Employees. The Compliance Manual
shall explain the Hearing Aid Compatibility Rules and set forth the
Operating Procedures that Covered Employees shall follow to help
ensure OTZ's compliance with the Hearing Aid Compatibility Rules. OTZ
shall periodically review and revise the Compliance Manual as
necessary to ensure that the information set forth therein remains
current and complete. OTZ shall distribute any revisions to the
Compliance Manual promptly to all Covered Employees.
d. Compliance Training Program. OTZ shall establish and implement a
Compliance Training Program on compliance with the Hearing Aid
Compatibility Rules and the Operating Procedures. As part of the
Compliance Training Program, Covered Employees shall be advised of
OTZ's obligation to report any non-compliance with the Hearing Aid
Compatibility Rules under paragraph 9 of this Consent Decree and
shall be instructed on how to disclose non-compliance to the
Compliance Officer. All Covered Employees shall be trained pursuant
to the Compliance Training Program within sixty (60) calendar days
after the Effective Date, except that any person who becomes a
Covered Employee at any time after the Effective Date shall be
trained within thirty (30) calendar days after the date such person
becomes a Covered Employee. OTZ shall repeat the compliance training
on an annual basis, and shall periodically review and revise the
Compliance Training Program as necessary to ensure that it remains
current and complete and to enhance its effectiveness.
e. Termination Date. Unless stated otherwise, the requirements of this
paragraph 8 of the Consent Decree shall expire twenty-four (24)
months after the Effective Date.
9. Reporting Non-Compliance. OTZ shall report any non-compliance with the
Hearing Aid Compatibility Rules and with the terms and conditions of
this Consent Decree within fifteen (15) calendar days after discovery
of such non-compliance. Such reports shall include a detailed
explanation of (i) each instance of non-compliance; (ii) the steps
that OTZ 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 OTZ 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, Room 3-C366, 445 12th
Street, S.W. Washington, D.C. 20554, with a copy submitted
electronically to Katherine Power at Katherine.Power@fcc.gov and to
Pamera Hairston at Pamera.Hairston@fcc.gov. The reporting obligations
set forth in this paragraph 9 shall expire twenty-four (24) months
after the Effective Date.
10. Compliance Reports. OTZ 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.
a. Each compliance report shall include a detailed description of OTZ's
efforts during the relevant period to comply with the terms and
conditions of this Consent Decree and the Hearing Aid Compatibility
Rules. In addition, each Compliance Report shall include a
certification by the Compliance Officer, as an agent of and on behalf
of OTZ, stating that the Compliance Officer has personal knowledge
that OTZ (i) has established and implemented the Compliance Plan; (ii)
has utilized the Operating Procedures since the implementation of the
Compliance Plan; and (iii) 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 9 hereof.
b. The Compliance Officer's certification shall be accompanied by a
statement explaining the basis for such 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.
c. If the Compliance Officer cannot provide the requisite certification,
the Compliance Officer, as an agent of and on behalf of OTZ, shall
provide the Commission with a detailed explanation of the reason(s)
why and describe fully (i) each instance of non-compliance; (ii) the
steps that OTZ has taken or will take to remedy such non-compliance,
including the schedule on which proposed remedial actions will be
taken; and (iii) the steps that OTZ 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.
d. 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 Katherine Power at Katherine.Power@fcc.gov
and to Pamera Hairston at Pamera.Hairston@fcc.gov.
11. 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 OTZ 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
complaints 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 OTZ with the Act, Rules, or Commission
orders.
12. Voluntary Contribution. OTZ agrees that it will make a voluntary
contribution to the United States Treasury in the amount of thirteen
thousand dollars ($13,000). 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). OTZ shall also send electronic notification to
Katherine Power at Katherine.Power@fcc.gov and to Pamera Hairston at
Pamera.Hairston@fcc.gov on the date said payment is made.
13. Waivers. OTZ 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 as defined herein. OTZ 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 OTZ nor the Commission shall contest the
validity of the Consent Decree or of the Adopting Order, and OTZ shall
waive any statutory right to a trial de novo. OTZ 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.
14. 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.
15. 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 OTZ does not expressly consent)
that provision will be superseded by such Rule or Commission order.
16. Successors and Assigns. OTZ agrees that the provisions of this Consent
Decree shall be binding on its successors, assigns, and transferees.
17. 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, the
Rules, or Commission's orders.
18. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
19. 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.
20. Authorized Representative. The individual signing this Consent Decree
on behalf of OTZ represents and warrants that he is authorized by OTZ
to execute this Consent Decree and to bind OTZ 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.
21. 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
________________________________
Carl Weisner
Operations Manager
OTZ Telecommunications, Inc.
______________________________
Date
47 C.F.R. S: 20.19(d)(3)(ii).
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(d)(3)(ii).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Carl Weisner,
Operations Manager, OTZ Telecommunications, Inc. (Sept. 17, 2010) ("LOI").
The Commission adopted these requirements for digital wireless telephones
under the authority of the Hearing Aid Compatibility Act of 1988, codified
at section 710(b)(2)(C) of the Act, 47 U.S.C. S: 610(b)(2)(C). See Section
68.4(a) 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) ("Hearing Aid Compatibility Order");
Order on Reconsideration and Further Notice of Proposed Rulemaking, 20 FCC
Rcd 11221 (2005).
As subsequently amended, section 20.19(b)(1) provides that, for the period
beginning June 6, 2008 and ending December 31, 2009, a newly certified
wireless handset is deemed hearing aid-compatible for radio frequency
interference if, at minimum, it meets the M3 rating associated with the
technical standard set forth in either the standard document "American
National Standard Methods of Measurement of Compatibility between Wireless
Communication Devices and Hearing Aids," ANSI C63.19-2006 (June 12, 2006)
or ANSI C63.19-2007 (June 8, 2007). Beginning January 1, 2010, a newly
certified handset must meet at least an M3 rating under ANSI C63.19-2007
to be considered hearing aid-compatible for radio frequency interference.
47 C.F.R. S: 20.19(b)(1). Section 20.19(b)(2) provides that, for the
period beginning June 6, 2008 and ending December 31, 2009, a newly
certified wireless handset is deemed hearing aid-compatible for inductive
coupling if, at minimum, it meets the T3 rating associated with the
technical standard as set forth in ANSI C63.19-2006 or ANSI C63.19-2007,
and beginning January 1, 2010, it is deemed hearing aid-compatible for
inductive coupling if it meets at least a T3 rating under ANSI
C63.19-2007. 47 C.F.R. S: 20.19(b)(2). Grants of certification issued
before June 6, 2008, under previous versions of ANSI C63.19 remain valid
for hearing aid compatibility purposes.
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 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). Effective
September 10, 2012, the de minimis exception will not be available to
manufacturers or service providers that do not meet the definition of a
"small entity" beginning two years after their initial offerings. 47
C.F.R. S: 20.19(e)(1)(ii); see Amendment of the Commission's Rules
Governing Hearing Aid-Compatible Mobile Handsets, Policy Statement and
Second Report and Order and Further Notice of Proposed Rulemaking, 25 FCC
Rcd 11167, 11180-11189 P:P: 35-59 (2010).
See Amendment of the Commission's Rules Governing Hearing Aid-Compatible
Mobile Handsets, First Report and Order, 23 FCC Rcd 3406 (2008) ("Hearing
Aid Compatibility First Report and Order"), Order on Reconsideration and
Erratum, 23 FCC Rcd 7249 (2008).
See OTZ Telecommunications, Inc. Hearing Aid Compatibility Report, Docket
No. 07-250 (Jan. 15, 2010) available at
http://wireless.fcc.gov/hac_documents/100317/OTZ%20Telecommunicatio_122.PDF.
See supra note 2.
See Letter from Carl Weisner, Operations Manager, OTZ Telecommunications,
Inc., to Jacqueline Ellington, Attorney, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (Sept. 23, 2010).
Tolling Agreement, File No. EB-10-SE-115, executed by and between Kathryn
S. Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission, and Carl Weisner, Operations Manager,
OTZ Telecommunications, Inc. (Nov. 15, 2010).
Tolling Agreement Extension, File No. EB-10-SE-115, executed by and
between Ricardo M. Durham, Acting Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, and Susan L.
Hardenbergh, Senior Utility Consulting Manager (Mar. 16, 2011); Tolling
Agreement Extension, File No. EB-10-SE-115, executed by and between John
D. Poutasse, Acting Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission, and Susan L. Hardenbergh,
Senior Utility Consulting Manager (June 23, 2011).
47 C.F.R. S: 1.16.
Federal Communications Commission DA 11-1844
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Federal Communications Commission DA 11-1844