Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-07-SE-221
In the Matter of
) Acct. No.: 201232100004
Sprint Nextel Corporation
) FRN: 0003774593
)
ORDER
Adopted: December 2, 2011 Released: December 5, 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 Sprint Nextel Corporation ("Sprint"). The Consent Decree
terminates an investigation initiated by the Bureau regarding Sprint's
compliance with section 4.9 of the Commission's rules ("Rules")
pertaining to the reporting of certain network outages.
2. The Bureau and Sprint have negotiated a 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 Sprint 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 Michael B. Fingerhut, Director, Government Affairs, Sprint
Nextel Corporation, 2001 Edmund Halley Drive, Reston, VA 20191.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-07-SE-221
In the Matter of
) Acct. No.: 201232100004
Sprint Nextel Corporation
) FRN: 0003774593
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and Sprint
Nextel Corporation, 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 4.9 of the
Commission's rules pertaining to the timely filing of network outage
reports.
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 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 commenced by the Bureau's
August 15, 2007 letter of inquiry regarding whether Sprint violated
section 4.9 of the Rules regarding the reporting of network outages.
(h) "Parties" means Sprint and the Bureau, each of which is a "Party."
(i) "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
(j) "Sprint" means Sprint Nextel Corporation and its subsidiaries,
affiliates, predecessors-in-interest and successors-in-interest.
II. BACKGROUND
2. Under section 4.9 of the Rules, wireless and wireline service providers
must report to the Commission certain outages affecting the service
provider's network as defined by the Rules. Upon discovery of such an
outage on facilities that they own, operate, lease, or otherwise utilize,
wireless and wireline service providers are required to file
electronically a Notification within 120 minutes, an Initial
Communications Outage Report within 72 hours, and a Final Communications
Outage Report within 30 days.
3. On August 15, 2007, the Bureau issued the LOI to Sprint. The LOI
directed Sprint to submit a sworn written response to a series of
questions relating to Sprint's compliance with section 4.9 of the Rules.
Sprint responded to the LOI on September 14, 2007. On April 22, 2008, the
Bureau issued a second letter of inquiry to Sprint, to which Sprint
responded on May 22, 2008. Sprint and the Bureau entered into a tolling
agreement on January 14, 2008 and a series of tolling agreement
extensions, the last of which was executed on May 27, 2011.
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. Sprint 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
Commission. Any violation of the Adopting Order or of the terms of
this Consent Decree shall constitute a separate violation of a
Commission order, entitling the Commission 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, Sprint 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
the 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
Sprint concerning the matters that were the subject of the
Investigation. The Bureau also agrees that it will not, in the absence
of new material evidence, use the facts developed in the 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 Sprint with respect to
Sprint's basic qualifications, including its character qualifications,
to be a Commission licensee or authorized common carrier or to hold
Commission authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, Sprint agrees that it shall develop and implement within
thirty (30) calendar days after the Effective Date a Compliance Plan
relating to Sprint's future compliance with the Act, the Rules, and
the Commission's orders. The Compliance Plan shall include, at a
minimum, the following components:
a. Compliance Officer. Sprint shall designate a corporate officer
with the requisite corporate authority and oversight of Sprint's
network outage reporting responsibilities to serve as Compliance
Officer. The person designated as the Compliance Officer shall be
responsible for developing, implementing, and administering the
Compliance Plan.
b. Compliance Training Program. Sprint shall establish and maintain
a Compliance Training Program addressing the FCC's network outage
reporting requirements, as detailed below, for all employees and
agents of Sprint who perform, supervise, oversee or manage the
performance of duties that relate to analyzing technical
information regarding Sprint's network outages, entering
information into any Sprint database(s) and/or record(s) that
form the basis of Sprint's reporting of network outages to the
Commission, and compiling and/or submitting Sprint's network
outage reports to the Commission (each employee or agent of
Sprint who performs, or supervises, oversees or manages the
performance of any of the foregoing duties shall be referred to
herein as a "Covered Employee").
i. Sprint's Compliance Training Program shall address, at a
minimum, the following subjects in order to facilitate
Sprint's compliance with the FCC's network outage reporting
requirements: (A) the Rules governing reporting of network
outages; (B) the information and calculations required by the
Rules or otherwise necessary to determine whether an outage
is reportable under the Rules; (C) the time periods within
which notifications and reports of reportable outages must be
submitted to the FCC; and (D) the standard internal operating
procedures adopted by Sprint to identify and timely report
those network outages that satisfy the FCC's reporting
criteria ("Operating Procedures"). Covered Employees also
shall be advised of the regulatory consequences in the event
that Sprint fails to comply with the FCC's outage reporting
requirements.
ii. 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 initial training
session shall be trained within thirty (30) calendar days
after the date such person becomes a Covered Employee.
iii. Sprint shall repeat the Compliance Training Program 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.
iv. As part of the Compliance Training Program, Sprint shall
within sixty (60) calendar days after the Effective Date
prepare and distribute to all Covered Employees a written
Network Outage Compliance Manual that summarizes each of the
subjects addressed in paragraph 8(b)(i) hereof. Sprint shall
periodically review and revise the Network Outage Compliance
Manual as necessary to ensure that it remains current and
complete and to enhance its effectiveness.
c. Outage Reporting. Beginning sixty (60) calendar days after the
Effective Date and thereafter, Sprint shall include in any
network outage report filed with the Commission the date and time
that Sprint discovered the outage was reportable using the
following two separate fields: (1) Date Outage Determined
Reportable and (2) Local Time Outage Determined Reportable (24 hr
clock (nnnn)).
d. Reporting Non-Compliance. Sprint shall report any non-compliance with
section 4.9 of the Rules or this Consent Decree to the Bureau within
fifteen (15) calendar days after the discovery of such noncompliance.
Such reports shall include a detailed explanation of (i) each
instance of noncompliance; (ii) the steps that Sprint has taken or
will take to remedy such noncompliance, including the schedule on
which proposed remedial actions will be taken; and (iii) the steps
that Sprint 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. All such 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 JoAnn
Lucanik at JoAnn.Lucanik@fcc.gov, and Paul Noone at
Paul.Noone@fcc.gov.
e. Compliance Reports. Sprint 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 certification by the Compliance
Officer, as an agent and on behalf of Sprint, stating that the
Compliance Officer has personal knowledge that Sprint has (A)
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 noncompliance with the terms
and conditions of this Consent Decree, including the reporting
obligations set forth in paragraph 8(d) hereof.
i. 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.
ii. If the Compliance Officer cannot provide the requisite
certification, the Compliance Officer, as an agent of and on
behalf of Sprint, shall provide the Commission with a detailed
explanation of: (A) each instance of non-compliance; (B) the
steps that Sprint has taken or will take to remedy such
non-compliance, including the schedule on which proposed remedial
action will be taken; and (C) the steps that Sprint 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.
iii. 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 JoAnn Lucanik
at JoAnn Lucanik@fcc.gov and Paul Noone at Paul.Noone@fcc.gov.
a. Termination. Unless stated otherwise, the provisions of this
paragraph shall remain in effect for twenty-four (24) months after
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 Sprint 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 Sprint of the Act, the Rules, or
Commission Orders.
10. Voluntary Contribution. Sprint agrees to make a voluntary contribution
to the United States Treasury in the amount of One Hundred Fifty
Thousand Dollars ($150,000) within thirty (30) calendar days after the
Effective Date. 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 NAL/Account Number in block number 23A (call sign/other ID), and
enter the letters "FORF" in block number 24A (payment type code).
Sprint will also send electronic notification to JoAnn Lucanik at
JoAnn.Lucanik@fcc.gov, Paul Noone at Paul.Noone@fcc.gov, and Samantha
Peoples at Sam.Peoples@fcc.gov on the date said payment is made.
11. Waivers. Sprint waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal, or stay,
or otherwise to challenge or contest the validity of this Consent
Decree and the Adopting Order, provided the Bureau issues an Adopting
Order as defined herein. Sprint 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 Sprint nor the Commission shall contest the
validity of the Consent Decree or of the Adopting Order, and Sprint
shall waive any statutory right to a trial de novo. Sprint 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 Sprint does not expressly
consent) that provision will be superseded by such rule or Commission
order.
14. Successors and Assigns. Sprint 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 with
respect to the Investigation. 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 the Commission's 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 Representatives. The individual signing this Consent
Decree on behalf of Sprint represents and warrants that he is
authorized by Sprint to execute this Consent Decree and to bind the
company to the obligations set forth herein. The FCC signatory
represents that she is signing this Consent Decree in her official
capacity and that she is authorized to execute 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
Chief
Enforcement Bureau
___________________________
Date
____________________________
Charles W. McKee
Vice President
Sprint Nextel Corporation
900 7th Street NW
Washington, DC 20001
____________________________
Date
47 C.F.R. S: 4.9.
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S: 4.9.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Laura Holloway
Carter, Vice President, Government Affairs - Federal Regulatory, Sprint
Nextel Corporation (Aug. 15, 2007) ("LOI").
47 C.F.R. S: 4.9.
Id.
See LOI, supra n. 2.
See Letter from Michael B. Fingerhut, Director - Government Affairs,
Sprint Nextel Corporation, to Marlene H. Dortch, Secretary, Federal
Communications Commission (Sept. 14, 2007).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Federal Communications Commission, to Michael B. Fingerhut, Director -
Government Affairs, Sprint Nextel Corporation (Apr. 22, 2008).
See Letter from Michael B. Fingerhut, Director - Government Affairs,
Sprint Nextel Corporation, to Marlene H. Dortch, Secretary, Federal
Communications Commission (May 22, 2008).
See Tolling Agreement, File No. EB-07-SE-221, executed by and between
Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission, and Michael B. Fingerhut,
Director - Government Affairs, Sprint Nextel Corporation (Jan. 14, 2008).
See Tolling Agreement Extension, File No. EB-07-SE-221, executed by and
between John D. Poutasse, Acting Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, and Michael B.
Fingerhut, Director - Government Affairs, Sprint Nextel Corporation (May
27, 2011).
(Continued from previous page)
(continued....)
Federal Communications Commission DA 11-1941
2
Federal Communications Commission DA 11-1941
Federal Communications Commission DA 11-1941
4
Federal Communications Commission DA 11-1941