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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-08-SE-546
In the Matter of
) Acct. No.: 201232100022
Cellco Partnership dba Verizon Wireless
) FRN: 0018506568
)
ORDER
Adopted: March 13, 2012 Released: March 14, 2012
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 Cellco Partnership dba Verizon Wireless (Verizon
Wireless). The Consent Decree resolves and terminates the Bureau's
investigation into Verizon Wireless's compliance with the Commission's
regulations in 47 C.F.R. Part 4 regarding the reporting of network
outages.
2. The Bureau and Verizon Wireless 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 Verizon Wireless 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 Act,
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 Mr. John T. Scott, III, Vice President and Deputy
General Counsel, Verizon, Legal & External Affairs Department, 1300 I
Street NW Suite 400-W, Washington, DC 20005 and to counsel for Verizon
Wireless, David H. Solomon, Esq., Wilkinson Barker Knauer, LLP, 2300 N
Street, NW Suite 700, Washington, DC 20037.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No.: EB-08-SE-546
In the Matter of )
Acct. No.: 201232100022
Cellco Partnership, dba Verizon Wireless )
FRN: 0018506568
)
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and Cellco
Partnership, dba Verizon Wireless, by their respective authorized
representatives, hereby enter into this Consent Decree for the purpose of
terminating the Enforcement Bureau's investigation into whether Cellco
Partnership, dba Verizon Wireless violated Section 4.9(e) of the
Commission's rules regarding the reporting of network outages.
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 Verizon Wireless is subject by virtue of its business
activities, including but not limited to, the outage reporting
requirements under Section 4.9 of the Commission's 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) "Effective Date" means the date on which the Bureau releases the
Adopting Order.
(h) "Investigation" means the investigation covered by the Bureau's
letters of inquiry dated June 24, 2008, September 24, 2008, December 29,
2008, April 22, 2009, July 16, 2009, and October 20, 2009, regarding
whether Verizon Wireless violated Section 4.9(e) of the Rules regarding
the reporting of network outages.
(i) "Parties" means Verizon Wireless and the Bureau, and each is a
"Party."
j. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
k. "Verizon Wireless" or "Company" means Cellco Partnership, dba Verizon
Wireless and its subsidiaries offering commercial mobile radio
service.
II. BACKGROUND
2. Pursuant to Section 4.9(e) of the Rules, a wireless communications
provider is required to submit to the Commission an electronic
Notification within 120 minutes after discovering that it has experienced,
on any facilities that it owns, operates, leases or otherwise utilizes, a
network outage of at least 30 minutes duration that: (1) potentially
affects at least 900,000 user minutes of either telephony or paging; (2)
affects at least 1,350 DS3 minutes; (3) potentially affects any special
offices or facilities, as defined in Section 4.5(b) of the Rules; or (4)
potentially affects a 911 special facility, as defined by Section 4.5(e)
Rules. Within 72 hours after discovering such an outage, a wireless
communications provider is required to submit electronically an Initial
Communications Outage Report, and within 30 days after discovering such an
outage, a wireless communications provider is required to submit
electronically a Final Communications Outage Report.
3. On June 24, 2008, the Bureau issued a letter of inquiry to Verizon
Wireless. The June 24, 2008 LOI directed Verizon Wireless to submit a
sworn written response to a series of questions relating to Verizon
Wireless's compliance with the Commission's network outage reporting
rules. Verizon Wireless responded to the LOI on July 24, 2008. The
Bureau issued a number of follow-up letters of inquiry to Verizon
Wireless, the latest of which was issued October 20, 2009. Verizon
Wireless responded to each of the Follow-up LOIs, most recently on
November 16, 2009. The Bureau and Verizon Wireless executed tolling
agreements 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
without change, addition, modification, or deletion.
5. Jurisdiction. Verizon Wireless 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 and provided that the Consent Decree is not rendered
invalid by the Commission, 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, Verizon Wireless 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 Verizon Wireless 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, 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
Verizon Wireless with respect to Verizon Wireless's basic
qualifications, including its character qualifications, to be a
Commission licensee or authorized common carrier or hold Commission
authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, Verizon Wireless agrees to implement within thirty (30)
calendar days after the Effective Date a Compliance Plan relating to
Verizon Wireless's future compliance with those portions of the Act,
the Commission's Rules, and the Commission's Orders related to the
Commission's network outage reporting requirements; represents that it
has one or more management employees in each of its business units who
has responsibility for compliance with each of the Communications Laws
that are relevant to its operations, that there are at least 20 such
management employees, and that, collectively, these management
employees exercise responsibility for the Company's compliance with
all of the Communications Laws that are relevant to the operations of
the Company. The Company agrees that it will either maintain this
compliance structure, or, if it makes changes, shall ensure that it
maintains equivalent management oversight over compliance with all
Communications Laws that are applicable to the operations of the
Company. The Compliance Plan will include, at a minimum, the following
components:
a. Compliance Officer. Within thirty (30) calendar days of the Effective
Date, Verizon Wireless shall designate a senior corporate manager to
serve as the Compliance Officer for FCC network outage reporting, who
will be responsible for implementing and administering Verizon
Wireless's Compliance Plan.
b. Compliance Training Program. Verizon Wireless shall establish and
maintain an FCC outage reporting training program addressing FCC
network outage reporting requirements, as detailed below, for all
employees and agents of Verizon Wireless who are responsible for
analyzing technical information regarding Verizon Wireless's network
outages, entering such information into any Verizon Wireless
database(s) and/or record(s) that form the basis of Verizon Wireless's
reporting of network outages to the Commission, and compiling and/or
submitting Verizon Wireless's outage reports to the Commission (each
employee or agent of Verizon Wireless who performs any of the
foregoing duties shall be referred to herein as a "Covered Employee").
i. Verizon Wireless's network outage training program shall address, at
a minimum, the following subjects in order to facilitate compliance
with the FCC's network outage reporting Rules: (A) the Rules
governing the 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 Verizon Wireless to identify and
report those network outages that satisfy the FCC's reporting
criteria ("Operating Procedures"). Verizon Wireless shall ensure such
Operating Procedures are in effect before beginning to administer the
training required by this paragraph, and these Operating Procedures
must ensure that network operations center ("NOC") personnel are
available or accessible at all times to receive, review, and promptly
act upon, if necessary, communications to the NOC containing
information or analyses relevant to a determination of whether a
particular outage is reportable.
ii. Verizon Wireless shall prepare and provide to all Covered Employees
a Verizon Wireless network outage internal on-line training course
that summarizes each of the subjects addressed above. After
completion of the training, Covered Employees will have the ability
to access the network outage internal online training course on
demand for reference purposes. Covered Employees also shall be
advised of the regulatory consequences in the event that Verizon
Wireless fails to comply with the FCC's outage reporting
requirements.
iii. Covered Employees as of the Effective Date shall complete the
network outage training program within sixty (60) calendar days of
the Effective Date. New or re-assigned employees of Verizon
Wireless who become Covered Employees thirty (30) days or more
after the Effective Date shall complete the Compliance Training
Program within thirty (30) calendar days of the date of their
employment or re-assignment.
iv. Verizon Wireless shall repeat such training annually, and shall take
such steps as are reasonable, necessary and appropriate to update
and enhance the network outage internal on-line training course to
ensure that it is accurate and complete.
c. Outage Reporting. Beginning sixty (60) calendar days after the
Effective Date and thereafter, Verizon Wireless shall include in any
NORS report filed with the Commission the date and time that Verizon
Wireless 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. Compliance Reports. Verizon Wireless shall file Compliance Reports
with the Bureau six (6) months 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 of and on behalf of Verizon Wireless,
stating that the Compliance Officer has personal knowledge that
Verizon Wireless (A) has 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 non-compliance with the terms and conditions of this
Consent Decree.
ii. 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.
iii. If the Compliance Officer cannot provide the requisite
certification, the Compliance Officer, as an agent of and on behalf
of Verizon Wireless, shall provide the Commission with a detailed
explanation of (A) each instance of non-compliance; (B) the steps
that Verizon Wireless has taken or will take to remedy such
non-compliance, including the schedule on which proposed remedial
actions will be taken; and (C) the steps that Verizon Wireless 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.
iv. 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 JoAnn Lucanik at
JoAnn.Lucanik@fcc.gov, and Linda Nagel at Linda.Nagel@fcc.gov.
e. Progress Assessment. Beginning on the Effective Date, Verizon Wireless
shall, at the request of the Bureau, meet with the Bureau once each
60-day period during the term of the Compliance Plan to discuss
Verizon Wireless's adherence to the Compliance Plan and its
performance under the Part 4 Rules. Verizon Wireless agrees to provide
the Bureau with information the Bureau requests concerning these
topics.
f. Termination. The provisions of this paragraph shall remain in effect
for two (2) years from 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 Verizon Wireless 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 Verizon Wireless with the Act, the Rules,
or Commission Orders.
10. Voluntary Contribution. Verizon Wireless agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
one hundred and ten thousand dollars ($110,000). The contribution will
be made within thirty (30) 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 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). Verizon Wireless will also
send electronic notification on the date said payment is made to
JoAnn.Lucanik@fcc.gov, Linda.Nagel@fcc.gov, and Sam.Peoples@fcc.gov.
11. Waivers. Verizon Wireless 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. Verizon Wireless 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 Verizon Wireless nor the Commission shall
contest the validity of the Consent Decree or the Adopting Order, and
Verizon Wireless shall waive any statutory right to a trial de novo.
Verizon Wireless 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.
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 Verizon Wireless does not
expressly consent), that provision will be superseded by such
Commission Rule or order.
14. Successors and Assigns. Verizon Wireless 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. 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.
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 Representative. Each Party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree. Each person signing this Consent Decree on behalf of a Party
hereby represents that he or she is fully authorized by the Party to
execute this Consent Decree and to bind the Party to its terms and
conditions.
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
____________________________
John T. Scott, III
Vice President and Deputy General Counsel
Verizon
____________________________
Date
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S: 4.9(e).
47 C.F.R. S: 4.9(e).
47 C.F.R. S: 4.5(b).
47 C.F.R. S: 4.5(e).
47 C.F.R. S: 4.9(e).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, to John T. Scott, III, Vice President and Deputy
General Counsel - Regulatory Law, Verizon Wireless (June 24, 2008)
("LOI").
See Letter from John T. Scott, III, Vice President and Deputy General
Counsel - Regulatory Law, Verizon Wireless, to Kathryn S. Berthot, Chief,
Spectrum, Enforcement Bureau, Federal Communications Commission (July 24,
2008).
See Letters from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, to John T. Scott, III, Vice President and Deputy
General Counsel - Regulatory Law, Verizon Wireless (September 24, 2008,
December 28, 2008, April 22, 2009, July 16, 2009, and October 20, 2009)
("Follow-up LOIs").
See Letters from John T. Scott, III, Vice President and Deputy General
Counsel - Regulatory Law, Verizon Wireless, to Kathryn S. Berthot, Chief,
Spectrum, Enforcement Bureau, Federal Communications Commission (October
14, 2008, January 12, 2009, May 15, 2009, August 17, 2009, and November
16, 2009).
See, e.g., Tolling Agreement Extension, File No. EB-08-SE-546, executed by
and between John D. Poutasse, Acting Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, and David H.
Solomon, Counsel for Verizon Wireless (Feb. 8, 2012).
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Federal Communications Commission DA 12-392
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Federal Communications Commission DA 12-392