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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No. EB-09-SE-162
ACS Wireless, Inc. a subsidiary of Alaska ) Acct. No. 201032100009
Communications Systems
) FRN No. 0019483718
)
)
ORDER
Adopted: January 18, 2011 Released: January 19, 2011
By the Acting Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and ACS Wireless, Inc.
("ACSW"). The Consent Decree terminates an investigation by the Bureau
and cancels the Notice of Apparent Liability for Forfeiture ("NAL")
issued against ACSW for possible violations of Sections 20.19 (h) and
(i)(1) of the Commission's Rules ("Rules"), regarding compliance with
the Commission's regulations pertaining to hearing aid compatibility
for wireless handsets.
2. The Bureau and ACSW have negotiated the terms of the 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, which terminates the investigation and
cancels the NAL.
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 ACSW 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 Rules, the Consent Decree attached to this Order IS
ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED and the Notice of Apparent Liability for Forfeiture IS
CANCELLED.
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 ACS Wireless, Inc., James H. Lister, Esq.,
Birch, Horton, Bittner and Cherot, P.C., 1155 Connecticut Avenue,
N.W., Suite 1200, Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
Ricardo M. Durham
Acting Chief
Spectrum Enforcement Division
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No. EB-09-SE-162
ACS Wireless, Inc., a subsidiary of ) Acct. No. 201032100009
Alaska Communications Systems
) FRN No. 0019483718
)
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and ACS Wireless, Inc. ("ACSW"), by
their authorized representatives, hereby enter into this Consent Decree
for the purpose of terminating the Bureau's investigation into whether
ACSW violated Sections 20.19(h) and 20.19(i)(1) of the Commission's Rules
regarding web site posting and reporting of information concerning ACSW's
compliance with the wireless handset hearing aid compatibility rules.
I. DEFINITIONS
1. For the purposes of this Consent Decree, the following definitions
shall apply:
(a) "ACSW" means ACS Wireless, Inc. and its predecessors-in-interest and
successors-in-interest.
(b) "Act" means the Communications Act of 1934, as amended, 47 U.S.C. S:S:
151 et seq.
(c) "Adopting Order" means an Order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or modification.
(d) "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
(e) "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
(f) "Compliance Plan" means the program described in this Consent Decree
at paragraph 9.
(g) "Effective Date" means the date the Bureau releases the Adopting
Order.
(h) "Investigation" means the investigation initiated by the Bureau's
October 1, 2009 Letter of Inquiry regarding whether ACSW violated the web
site posting and reporting requirements of Sections 20.19(h) and
20.19(i)(1) of the Rules.
(i) "NAL" means ACS Wireless, Inc., Notice of Apparent Liability for
Forfeiture, 25 FCC Rcd 291 (Enf. Bur., Spectrum Enf. Div. 2010).
(j) "Parties" mean ACSW and the Bureau.
(k) "Rules" mean 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. Pursuant to Section
20.19(i)(1) of the Rules, service providers must submit hearing aid
compatibility status reports regarding hearing aid compatibility
compliance on January 15, 2009 (covering the six month period ending
December 31, 2008) and then annually thereafter. Pursuant to Section
20.19(h) of the Rules, beginning January 15, 2009, each service
provider that operates a publicly-accessible web site must 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. Any changes to a
service provider's offerings must be reflected on its public web site
listing within 30 days of the change.
3. On October 1, 2009, the Enforcement Bureau's Spectrum Enforcement
Division ("Division") issued the October 1, 2009 LOI to ACSW. The
October 1, 2009 LOI directed ACSW to, among other things, submit a
sworn written response to a series of questions relating to the web
site posting and reporting requirements of Sections 20.19(h) and
20.19(i)(1) of the Rules. ACSW responded to the October 1, 2009 LOI on
October 16, 2009.
4. On January 14, 2010, the Division issued a Notice of Apparent
Liability for Forfeiture proposing that ACSW be held liable for a
forfeiture of $12,000 under Section 503(b)(1)(B) of the Act, and
ordering ACSW either to pay the proposed forfeiture or file a written
response within thirty (30) days of the NAL release date stating why
the proposed forfeiture should be reduced or canceled.
III. TERMS OF AGREEMENT
5. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order
without change, addition, modification, or deletion.
6. Jurisdiction. ACSW agrees that the Bureau has jurisdiction over it and
the matters contained in this Consent Decree and has the authority to
enter into and adopt this Consent Decree.
7. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the date on which the Bureau releases the
Adopting Order. Upon release, the Adopting Order and this Consent
Decree shall have the same force and effect as any other Order of the
Bureau. Any violation of the Adopting Order or of the terms of this
Consent Decree shall constitute a separate violation of a Bureau
Order, entitling the Bureau to exercise any rights and remedies
attendant to the enforcement of a Commission Order.
8. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate the
Investigation and cancel the NAL. In consideration for the termination
of said Investigation and cancellation of the NAL, ACSW 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 of the Consent Decree, 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 ACSW 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 the Investigation through the Effective
Date of this Consent Decree, 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 ACSW with respect to ACSW's
basic qualifications, including its character qualifications, to be a
Commission licensee or authorized common carrier.
9. Compliance Plan. For purposes of settling the matters set forth
herein, ACSW agrees to maintain a Compliance Plan related to future
compliance with the Act, the Commission's Rules, and the Commission's
Orders. The Plan will include, at a minimum, the following components:
(a) Compliance Officer. ACSW has designated a hearing aid compatibility
compliance officer. The designated hearing aid compatibility compliance
officer will be familiar the Commission's hearing aid compatibility
regulations, including the reporting and web site posting requirements.
The designated hearing aid compatibility compliance officer will also
review the Commission's hearing aid compatibility regulations on a monthly
basis in order to stay abreast of pending benchmarks and any new hearing
aid compatibility requirements.
(b) Training and Compliance Manual. The designated hearing aid
compatibility compliance officer will be responsible for ensuring that all
ACSW regulatory staff, ACSW's web master, and ACSW's product managers
responsible for wireless phone offerings receive training regarding: (a)
the functionalities and hearing aid compatibility capabilities of the
handsets ACSW offers for sale, (b) the necessary annual information
reporting to the FCC regarding such capabilities, and (c) the necessary
web site posting of information regarding such capabilities. Such training
will be completed within ninety days of the Effective Date and any new
employees will receive training within sixty days of their employment. The
designated hearing aid compatibility compliance officer will prepare
within 90 days after the Effective Date a Compliance Manual reviewing
these training requirements and specific business processes that ACSW is
undertaking to ensure that the necessary annual reports are timely filed
and that ACSW's web site contains the necessary information and is timely
updated. This will include a business interface between the product
managers and the web master so that the web master is automatically
apprised of new product offerings and so can update the web site promptly.
(c) Consumer Outreach. ACSW will continue to advertise the availability of
hearing aid-compatible handsets on its web site and in such other media as
it normally utilizes for business advertising, in order to ensure that all
of its retail customers are aware that hearing aid-compatible handsets are
available.
(d) Compliance Reports. ACSW will file compliance reports with the
Commission ninety (90) days after the Effective Date, twelve (12) months
after the Effective Date, and twenty-four (24) months after the Effective
Date. Each compliance report shall include a compliance certificate from
an officer, as an agent of ACSW, stating that the officer has personal
knowledge that ACSW has established operating procedures intended to
ensure compliance with this Consent Decree, together with an accompanying
statement explaining the basis for the officer's compliance certification.
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 Ricardo.Durham@fcc.gov and to
Linda.Nagel@fcc.gov.
(e) Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire twenty-four (24) months from the Effective
Date.
10. Section 208 Complaints; Subsequent Investigations. Nothing in this
Consent Decree shall prevent the Commission or its delegated authority
from adjudicating complaints filed pursuant to section 208 of the Act
against ACSW 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 ACSW with the Act, the Rules, or the
Order.
11. Voluntary Contribution. ACSW agrees that it will make a voluntary
contribution to the United States Treasury in the amount of eight
thousand five hundred dollars ($8,500). The payment will be made
within 30 days after the Effective Date of the Adopting Order. 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 Number 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). ACSW will also send
electronic notification to Ricardo.Durham@fcc.gov and to
Linda.Nagel@fcc.gov on the date said payment is made.
12. Waivers. ACSW 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 Order adopting this Consent Decree, provided the Bureau issues
an Order adopting the Consent Decree without change, addition,
modification, or deletion. ACSW 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 ACSW nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and ACSW shall
waive any statutory right to a trial de novo. ACSW 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.
13. Invalidity. In the event that this Consent Decree in its entirety is
rendered invalid by any court of competent jurisdiction, it shall
become null and void and may not be used in any manner in any legal
proceeding.
14. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent rule or Order adopted
by the Commission (except an Order specifically intended to revise the
terms of this Consent Decree to which ACSW does not expressly consent)
that provision will be superseded by such Commission rule or Order.
15. Successors and Assigns. ACSW agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
16. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. 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 Commission's Rules and Orders and shall
not be construed as an admission by ACSW.
17. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
18. Paragraph Headings. The headings of the Paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
19. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
20. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
_________________________________
Ricardo M. Durham
Acting Chief
Spectrum Enforcement Division
Enforcement Bureau
______________________________
Date
______________________________
Michael R. Todd
Senior Vice President, Engineering and Operations
ACS Wireless, Inc., a subsidiary of Alaska Communications Systems
______________________________
Date
ACS Wireless, Inc., Notice of Apparent Liability for Forfeiture, 25 FCC
Rcd 291 (Enf. Bur., Spectrum Enf. Div. 2010) (response received).
47 C.F.R. S:S: 20.19(h), 20.19(i)(1).
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:S: 20.19(h), 20.19(i)(l).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Liane Pelletier,
President, Alaska Communications Systems (Oct. 1, 2009) ("October 1, 2009
LOI").
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); 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 (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(i)(1).
47 C.F.R. S: 20.19(h). See also Hearing Compatibility First Report and
Order, 23 FCC Rcd at 3450 P: 112.
See Hearing Compatibility First Report and Order, 23 FCC Rcd at 3450 P:
112.
See supra footnote 2.
See Letter from Lisa Phillips, Manager, Regulatory Affairs, ACSW, to Peter
Waltonen, Esq., Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission (Oct. 16, 2009).
ACS Wireless, Inc., Notice of Apparent Liability for Forfeiture, 25 FCC
Rcd 291 (Enf. Bur., Spectrum Enf. Div. 2010) (response received).
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