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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the matter of File No.: EB-09-SE-156
)
Pantech Wireless, Inc., a U.S.-based Acct. No.: 201132100024
subsidiary of Pantech Co., Ltd. )
FRN.: 0019483593
)
)
ORDER
Adopted: February 17, 2011 Released: February 17, 2011
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Pantech Co., Ltd. and
its wholly owned U.S.-based subsidiary, Pantech Wireless, Inc.
(together "Pantech"). The Consent Decree terminates an investigation
initiated by the Bureau regarding Pantech's compliance with sections
20.19(h) and (i) of the Commission's rules concerning the wireless
handset hearing aid compatibility web site posting and hearing aid
compatibility status reporting requirements, and sections 20.19(c)(1)
and (d)(1) of the Commission's rules pertaining to the hearing
aid-compatible digital wireless handset deployment requirements.
2. The Bureau and Pantech 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 Pantech 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 counsel for Pantech Wireless, Inc., W. Dennis Summers,
Esq., McGuireWoods LLP, 1170 Peachtree St., NE, Suite 2100, Atlanta,
Georgia 30309, Kathy Jones, Secretary, Pantech Wireless, Inc., 5607
Glenridge Drive, Suite 500, Atlanta, Georgia 30342, and DooHyun Yoon,
CFO, Pantech Co., Ltd., Pantech R&D Center, I-2, DMC, Sangam-dong,
Mapo-gu, Seoul, 121-790, Korea.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the matter of File No.: EB-09-SE-156
)
Pantech Wireless, Inc., a U.S.-based Acct. No.: 201132100024
subsidiary of Pantech Co., Ltd. )
FRN: 0019483593
)
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission, Pantech
Wireless, Inc., and Pantech Co., Ltd. by their authorized representatives,
hereby enter into this Consent Decree for the purpose of terminating the
Bureau's investigation into possible violations of sections 20.19(h) and
(i) of the Commission's rules pertaining to wireless handset hearing aid
compatibility web site posting and hearing aid compatibility status
reporting requirements, and sections 20.19(c)(1) and (d)(1) of the
Commission's rules pertaining to wireless hearing aid-compatible handset
deployment requirements.
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 compliance obligations and compliance
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
October 9, 2009 and November 18, 2009 letters of inquiry to PWI
regarding possible violations by Pantech of sections 20.19(h) and (i)
of the Rules, which was later expanded to include possible violations
of sections 20.19(c)(1) and (d)(1) of the Rules.
h. "Pantech" means Pantech Wireless, Inc. and Pantech Co., Ltd. as well
as their predecessors-in-interest and successors-in-interest.
i. "PWI" means Pantech Wireless, Inc., a U.S.-based subsidiary of Pantech
Co., Ltd. which distributes Pantech handsets in the United States, as
well as its predecessors-in-interest and successors-in-interest.
j. "Parties" means Pantech and the Bureau, and each a "Party."
k. "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 individuals with hearing
disabilities to access digital wireless telecommunications. 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. Sections 20.19(c)(1)
and (d)(1) of the Rules establish specific deployment benchmarks for
manufacturers of wireless handsets relating to radio frequency
interference and inductive coupling capability, respectively. In
addition, section 20.19(h) of the Rules requires that each
manufacturer of wireless handsets that maintains a publicly-accessible
web site make available on its web site a list of all hearing
aid-compatible handset models currently offered, the ratings of those
models, an explanation of the rating system, and related information.
Each manufacturer of wireless handsets must also update its public web
site within 30 calendar days of any changes in its handset offerings.
Section 20.19(i) of the Rules further requires manufacturers of
wireless handsets to submit reports to the Commission on its efforts
towards compliance with the Commission's requirements for hearing aid
compatibility, such as compliance with hearing aid-compatible handset
deployment benchmarks and technical requirements.
3. On October 9, 2009, the Bureau issued a letter of inquiry ("LOI") to
PWI, a U.S.-based subsidiary of Pantech Co., Ltd, which distributes
Pantech handsets in the United States. The LOI directed PWI to submit
a sworn written response to a series of questions relating to
Pantech's compliance with the hearing aid compatibility regulations
pertaining to certain wireless handsets. On November 18, 2009, having
received no response, the Spectrum Enforcement Division re-sent the
LOI to PWI. PWI responded to the Second LOI on December 18, 2009. PWI
stated that it updated its website to comply with the Rules upon
learning of the requirement from the LOI. PWI also filed the required
Hearing Aid Compatibility Report for the period January 1, 2009 - June
30, 2009 (due July 15, 2009) on February 4, 2010, and for the period
July 1, 2008 - December 31, 2008 (due January 15, 2009) on March 29,
2010.
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
without change, addition, modification, or deletion.
5. Jurisdiction. Pantech 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.
6. 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.
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 said
Investigation, Pantech 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
Pantech 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 Pantech with
respect to Pantech'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, Pantech agrees to (i) implement within sixty (60) calendar
days after the Effective Date a Compliance Plan related to future
compliance with the Act, the Rules, and the Commission's Orders, and
(ii) establish operating procedures intended to ensure compliance with
the terms and conditions of this Consent Decree, section 20.19 of the
Rules, and other Rules, Commission Orders or statutory requirements
governing wireless hearing aid-compatible handsets, and (iii) describe
such operating procedures in its Compliance Manual pursuant to
paragraph 8(b) below. The compliance plan shall include, at a minimum,
the following components:
a. Compliance Officer. Pantech shall designate a senior corporate
manager to serve as a Compliance Officer. The Compliance Officer
shall be responsible for administering the Compliance Plan and shall
be familiar with the FCC's hearing aid compatibility regulations and
other relevant rules.
b. Compliance Manual. The Compliance Officer shall develop and
distribute a Compliance Manual to employees of Pantech and others who
perform duties that trigger or may trigger compliance-related
responsibilities. The Compliance Manual shall describe the
Commission's handset deployment, reporting, and other wireless
hearing aid compatibility requirements, as well as the operating
procedures referenced above. Pantech shall update the Compliance
Manual in accordance with any changes and/or additions to sections of
the Act, Rules, and related Commission Orders governing wireless
hearing aid-compatible handsets.
c. Training. Within sixty (60) calendar days after the Effective Date,
Pantech shall train and provide educational materials on section
20.19 of the Rules and the terms of this Consent Decree to its
management employees who are involved in the development and/or
marketing of wireless handsets imported, marketed, or sold by Pantech
in the United States. Such training shall be repeated annually during
the term of this Consent Decree. Pantech shall also train and provide
materials to any new or re-assigned management employees of Pantech
involved in the development and/or marketing of wireless handsets
imported, marketed, or sold by Pantech in the United States within
thirty (30) calendar days of their employment or re-assignment.
Finally, Pantech shall update any training and educational materials
to reflect changes and/or additions to sections of the Act, Rules,
and related Commission Orders governing wireless hearing
aid-compatible handsets, and promptly provide these materials to
management employees as set forth above.
d. Reporting Non-Compliance. Pantech shall report any non-compliance
with this Consent Decree and/or with sections of the Act, Rules, and
related Commission Orders governing wireless hearing aid-compatible
handsets to the Enforcement Bureau within fifteen (15) calendar days
after the discovery of such non-compliance.
e. Compliance Reports. Pantech shall file Compliance Reports with the
Commission ninety (90) calendar days after the Effective Date, twelve
(12) months after the Effective Date, twenty-four (24) months after
the Effective Date, and thirty-six (36) months after the Effective
Date. Each Compliance Report shall include a certification by the
Compliance Officer, as an agent of and on behalf of Pantech, stating
that the Compliance Officer has personal knowledge that Pantech (i)
has established operating procedures intended to ensure compliance
with the terms and conditions of this Consent Decree, with section
20.19 of the Rules, and other Rules, Commission Orders, or statutory
requirements governing wireless hearing aid-compatible handsets,
together with an accompanying statement explaining the basis for the
Compliance Officer's certification; (ii) has been utilizing those
procedures since the previous Compliance Report was submitted; (iii)
has filed the required annual Hearing Aid Compatibility Report and
updated its public website in a timely manner consistent with the
Rules; and (iv) is not aware of any instances of non-compliance. The
certification 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. If the Compliance Officer cannot provide the
requisite certification, the Compliance Officer, as an agent of and
on behalf of Pantech, shall provide the Commission with a detailed
explanation of: (i) any instances of non-compliance with this Consent
Decree and the Rules, (ii) the steps that Pantech has taken or will
take to remedy each instance of non-compliance and ensure future
compliance, and (iii) the schedule on which proposed remedial actions
will be taken. 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@fcc.gov and JoAnn.Lucanik@fcc.gov.
f. Termination Date. Unless stated otherwise, the requirements of this
paragraph 8 of the Consent Decree shall expire thirty-six (36) months
after the Effective Date.
9. Voluntary Contribution. Pantech agrees that it will make a voluntary
contribution to the United States Treasury in the amount of fifty
thousand dollars ($50,000). 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). Pantech must also send electronic notification to
Jennifer.Burton@fcc.gov and JoAnn.Lucanik@fcc.gov on the date said
payment is made.
10. Waivers. Pantech 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. Pantech 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 Pantech nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and Pantech
shall waive any statutory right to a trial de novo. Pantech 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.
11. 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.
12. 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 Pantech does not expressly
consent) that provision will be superseded by such Rule or Order.
13. Successors and Assigns. Pantech agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
14. 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.
15. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
16. 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.
17. Authorized Representative. The individuals signing this Consent
Decree on behalf of PWI and Pantech Co., Ltd. represent and warrant
that they are authorized by PWI and Pantech Co., Ltd. to execute this
Consent Decree and to bind these companies 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.
18. 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
____________________________
Kathy Jones
Secretary, Pantech Wireless, Inc.
___________________________
Date
_____________________________
DooHyun Yoon
CFO, Pantech Co., Ltd.
_____________________________
Date
47 C.F.R. S: 20.19(h), (i).
47 C.F.R. S: 20.19(c)(1), (d)(1).
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S: 20.19(h), (i).
47 C.F.R. S: 20.19(c)(1), (d)(1).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Patrick Beattie,
Vice President, Pantech Wireless, Inc. (October 9, 2009).
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 Communications Act of 1934, as amended, 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).
See Amendment of the Commission's Rules Governing Hearing Aid-Compatible
Mobile Handsets, First Report and Order, 23 FCC Rcd 3406, 3418-24 P:P:
34-46 (2008) ("Hearing Aid Compatibility First Report and Order"), Order
on Reconsideration and Erratum, 23 FCC Rcd 7249 (2008).
47 C.F.R. S: 20.19(c)(1), (d)(1). See also Hearing Compatibility First
Report and Order, 23 FCC Rcd at 3417-20 P:P: 34-37.
47 C.F.R. S: 20.19(h). See also Hearing Compatibility First Report and
Order, 23 FCC Rcd at 3450 P: 112.
47 C.F.R. S: 20.19(i). See also Hearing Compatibility First Report and
Order, 23 FCC Rcd at 3444-46 P:P: 95-101.
See LOI supra note 3. PWI, based in Atlanta, Georgia, is the United States
subsidiary of Pantech Co., Ltd., a mobile handset manufacturer based in
Korea. See Independent Auditors' Report from PK LLP to The Board of
Directors, Pantech Wireless, Inc., January 26, 2010.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Jim Berridge,
National Retail Sales Manager, Pantech Wireless, Inc. (Nov. 18, 2009)
("Second LOI").
See LOI Response. The Bureau granted PWI extensions of time, until
December 18, 2009, to file its response.
See id at 2.
Federal Communications Commission DA 11-257
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Federal Communications Commission DA 11-257
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