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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No. EB-10-SE-149
In the Matter of )
Acct. No. 201232100006
Carrier Coach Inc. )
FRN 0003409232
)
)
ORDER
Adopted: December 5, 2011 Released: December 6, 2011
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Carrier Coach Inc.
("Carrier Coach"). The Consent Decree terminates an investigation
initiated by the Bureau regarding Carrier Coach's compliance with
section 301 of the Communications Act of 1934, as amended, and
sections 1.903(a) and 1.949(a) of the Commission's rules, pertaining
to the operation of a wireless radio station without Commission
authority and the failure to file a timely renewal application for a
wireless radio station.
2. The Bureau and Carrier Coach have negotiated the terms of a 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 Carrier Coach 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 Allen H. Miller, President, Carrier Coach Inc., 271
Buffalo Street, Gowanda, New York 14070-1096.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-10-SE-149
In the Matter of
) Acct. No. 201232100006
Carrier Coach Inc.
) FRN No. 0003409232
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and
Carrier Coach Inc., by their respective authorized representatives, hereby
enter into this Consent Decree for the purpose of terminating the
Enforcement Bureau's investigation into possible violations of section 301
of the Communications Act of 1934, as amended, and sections 1.903(a) and
1.949(a) of the Commission's rules, pertaining to the operation of a
wireless radio station without Commission authority and the failure to
file a timely renewal application for a wireless radio station.
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: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. "Carrier Coach" means Carrier Coach Inc., and its subsidiaries as well
as its predecessors-in-interest and its successors-in-interest.
e. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
f. "Communications Laws" means collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to
which Carrier Coach is subject by virtue of its business activities,
including but not limited to, the Licensing Rules.
g. "Compliance Plan" means the compliance obligations and compliance
program described in this Consent Decree at paragraph 9 hereof.
h. "Covered Employees" means all employees and agents of Carrier Coach
who perform, or supervise, oversee, or manage the performance of,
duties that relate to Carrier Coach's responsibilities under the
Licensing Rules.
i. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
j. "Licensing Rules" means section 301 of the Act, sections 1.903(a) and
1.949(a) of the Rules, and other Communications Laws that prohibit the
use or operation of a wireless radio station without a valid
authorization or in a manner inconsistent with such authorization.
k. "Investigation" means the investigation commenced by the Bureau's May
2, 2011 letter of inquiry regarding whether Carrier Coach violated
sections 1.903(a) and 1.949(a) of the Rules.
l. "Parties" means Carrier Coach and the Bureau, each of which is a
"Party".
m. "Operating Procedures" means the standard, internal operating
procedures and compliance policies established by Carrier Coach to
implement the Compliance Plan.
n. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
2. Section 301 of the Act and section 1.903(a) of the Rules prohibit the
use or operation of any apparatus for the transmission of energy or
communications or signals by wireless radio stations except under and
in accordance with an authorization granted by the Commission.
Additionally, section 1.949(a) of the Rules requires that licensees
file renewal applications for wireless radio stations "no later than
the expiration date of the authorization for which renewal is sought,
and no sooner than 90 days prior to expiration." Absent a timely filed
renewal application, a wireless radio station license automatically
terminates.
3. Carrier Coach holds three Private Land Mobile Radio Service ("PLMRS")
licenses for the operation of a wireless radio communications service
for livery services with the following call signs: WNVC660 (Frewsburg,
NY); WPCP419 (Dunkirk, NY); and WQEQ315 (Dayton, NY). Carrier Coach
previously held a license for PLMRS station WNUA273 (Buffalo, New
York), which expired on August 10, 2005 and was cancelled on January
7, 2006. On February 19, 2010, the Commission's Wireless
Telecommunications Bureau ("WTB") contacted Carrier Coach and informed
the company that the license for WNUA273 had expired and that Carrier
Coach was operating without a license. On February 22, 2010, Carrier
Coach filed an application with the Commission for a new authorization
for the same Buffalo, NY service area that was covered by its expired
license. However, due to the need for Canadian coordination and
technical issues associated with the company's proposed antennae,
Carrier Coach amended its application on March 3, 2010, April 10, 2010
and July 22, 2010. WTB ultimately dismissed the application on
technical grounds on October 9, 2010. On September 23, 2010, Carrier
Coach submitted an application for Special Temporary Authority ("STA")
to provide PLMRS in the Buffalo service area under call sign WQMM777.
The STA was granted on September 27, 2010 and expired on March 26,
2011. After granting Carrier Coach's STA request, WTB referred this
matter to the Bureau for investigation and possible enforcement
action.
4. On May 2, 2011, the Bureau issued the letter of inquiry ("LOI") to
Carrier Coach. The LOI directed Carrier Coach to submit a sworn
written response to a series of questions relating to Carrier Coach's
compliance with the Commission's Licensing Rules. Carrier Coach
responded to the LOI on May 5, 2011. In its response to the LOI,
Carrier Coach stated that it vacated WQMM77 prior to the expiration of
the STA and elected instead to contract with a third party for the
shared use of the third party's licensed mobile radio communications
system to support Carrier Coach's business operations in the Buffalo
service area. The Bureau and Carrier Coach executed a Tolling
Agreement on September 7, 2011.
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.
6. Jurisdiction. Carrier Coach 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.
7. 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.
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 the
Investigation, Carrier Coach 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 Carrier Coach 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
Carrier Coach with respect to Carrier Coach'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, Carrier Coach 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 Licensing 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, Carrier Coach 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 Carrier Coach 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 Licensing
Rules prior to assuming his/her duties.
b. Operating Procedures on Licensing Rules. Within sixty (60) calendar
days after the Effective Date, Carrier Coach shall establish
Operating Procedures that all Covered Employees must follow to help
ensure Carrier Coach's compliance with the Licensing Rules. As part
of its Operating Procedures, the Compliance Officer shall designate a
Covered Employee to be responsible for developing and maintaining a
database of all FCC licenses held by Carrier Coach and the expiration
date of each such license. The Compliance Officer shall ensure that
Carrier Coach timely files an application for renewal for any FCC
license that Carrier Coach intends to operate after the license's
expiration date.
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 Licensing Rules and set forth the Operating
Procedures that Covered Employees shall follow to help ensure Carrier
Coach's compliance with the Licensing Rules. Carrier Coach shall
periodically review and revise the Compliance Manual as necessary to
ensure that the information set forth therein remains current and
complete. Carrier Coach shall distribute any revisions to the
Compliance Manual promptly to all Covered Employees.
d. Compliance Training Program. Carrier Coach shall establish and
implement a Compliance Training Program on compliance with the
Licensing Rules and the Operating Procedures. As part of the
Compliance Training Program, Covered Employees shall be advised of
Carrier Coach's obligation to report any non-compliance with the
Licensing Rules under paragraph 10 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. Carrier Coach 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 9 of the Consent Decree shall expire twenty-four (24)
months after the Effective Date.
10. Reporting Non-Compliance. Carrier Coach shall report any
non-compliance with the Licensing Rules and with the terms and
conditions of this Consent Decree 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 Carrier Coach 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 Carrier Coach has taken or will take
to prevent the recurrence of any such non-compliance. 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., Room 3-C366, Washington, D.C.
20554, with a copy submitted electronically to Josh Zeldis at
Josh.Zeldis@fcc.gov and to JoAnn Lucanik at JoAnn.Lucanik@fcc.gov. The
reporting obligations set forth in this paragraph 10 shall expire
twenty-four (24) months after the Effective Date.
11. Compliance Reports. Carrier Coach 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 Carrier
Coach's efforts during the relevant period to comply with the terms
and conditions of this Consent Decree and the Licensing Rules. In
addition, each Compliance Report shall include a certification by the
Compliance Officer, as an agent of and on behalf of Carrier Coach,
stating that the Compliance Officer has personal knowledge that
Carrier Coach (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 10 hereof.
o. 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.
p. If the Compliance Officer cannot provide the requisite certification,
the Compliance Officer, as an agent of and on behalf of Carrier Coach,
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 Carrier Coach 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 Carrier Coach 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.
q. 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, with a copy
submitted electronically to Josh Zeldis at Josh.Zeldis@fcc.gov and to
JoAnn Lucanik at JoAnn.Lucanik@fcc.gov.
12. Voluntary Contribution. Carrier Coach agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
eleven thousand dollars ($11,000). 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). Carrier Coach must also send
electronic notification to Josh Zeldis at Josh.Zeldis@fcc.gov and to
JoAnn Lucanik at JoAnn.Lucanik@fcc.gov on the date said payment is
made.
13. Waivers. Carrier Coach 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. Carrier Coach 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 Carrier Coach nor the Commission shall contest
the validity of the Consent Decree or of the Adopting Order, and
Carrier Coach shall waive any statutory right to a trial de novo.
Carrier Coach 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 Carrier Coach does not expressly
consent), that provision will be superseded by such Rule or Commission
order.
16. Successors and Assigns. Carrier Coach 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 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 Communications Laws.
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 Carrier Coach represents and warrants that he is
authorized by Carrier Coach to execute this Consent Decree and to bind
Carrier Coach 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
____________________________
Allen H. Miller
President
Carrier Coach Inc.
____________________________
Date
47 U.S.C. S: 301.
47 C.F.R. S:S: 1.903(a), 1.949(a).
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S: 301.
47 C.F.R. S:S: 1.903(a); 1.949(a).
See Letter from John D. Poutasse, Acting Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission, to
Carrier Coach Inc. (May 2, 2011).
47 U.S.C. S: 301.
47 C.F.R. S: 1.903(a).
47 C.F.R. S: 1.949(a).
47 C.F.R. S: 1.955(a)(1).
See File Nos. 0002436103 (filed January 6, 2006, granted January 14,
2006); 0001353826 (filed June 19, 2003, granted, June 20, 2003);
0002460676 (filed January 26, 2006, granted March 23, 2006). All of the
stations are licensed to Carrier Coach Inc.
See File Nos. 0004132940 (filed February 22, 2010, application returned
March 3, 2010, amendment received March 22, 2010, application returned
April 10, 2010, amendment received June 7, 2010, application returned July
21, 2010, application dismissed October 09, 2010).
Id.
See File Nos. 0004396202 (filed Aug. 20, 2008, granted September 27,
2010); STA call sign WQMM777 (Buffalo, NY).
A petition to deny and reconsideration of the STA grant was filed on
behalf of FM Communications, Inc on March 15, 2011 but was dismissed as
moot on June 9, 2011.
See supra note 3.
See Letter from Robert Dunmire III, Carrier Coach, Inc. to John D.
Poutasse, Acting Chief, Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission (May 5, 2011).
See Tolling Agreement, EB-10-SE-149, by and between John D. Poutasse,
Acting Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission, and Allen H. Miller, President, Carrier Coach
Inc. (September 7, 2011).
47 C.F.R. S: 1.16.
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