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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File Nos.: EB-11-SE-061; EB-10-SE-126;
)
In the Matter of EB-08-TC-6092
)
Ztar Mobile, Inc. Acct. No.: 20123210023
)
FRN: 0010723591
)
)
ORDER
Adopted: May 11, 2012 Released: May 11, 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 (Commission) and Ztar Mobile, Inc. (Ztar). The Consent
Decree resolves and terminates the Bureau's investigations into Ztar's
compliance with Section 20.19(d)(3)(ii) of the Commission's rules
(Rules) concerning the deployment of digital wireless hearing
aid-compatible handsets and with Section 222 of the Communications Act
of 1934, as amended (the Act), Section 64.2009(e) of the Rules, and
the EPIC CPNI Order, concerning the filing of an annual Customer
Proprietary Network Information certification.
2. The Bureau and Ztar have negotiated the 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 investigations. In the
absence of new material evidence relating to this matter, we conclude
that our investigations raise no substantial or material questions of
fact as to whether Ztar possesses the basic qualifications, including
those related to character, to hold or obtain any Commission license
or authorization.
4. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 503(b)
of the Act, and Sections 0.111 and 0.311 of the Commission's Rules,
the Consent Decree attached to this Order IS ADOPTED.
5. IT IS FURTHER ORDERED that the above-captioned investigations ARE
TERMINATED.
6. 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 Kevin Haddad, President, Ztar Mobile, Inc., 16 Village
Lane, Suite 250, Colleyville, Texas 76034, and to David Wilkie,
Counsel to Ztar Mobile, Inc., 5501A Balcones Drive, Austin, Texas
78731.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File Nos.: EB-11-SE-061; EB-10-SE-126;
)
In the Matter of EB-08-TC-6092
)
Ztar Mobile, Inc. Acct. No.: 20123210023
)
FRN: 0010723591
)
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and Ztar
Mobile, Inc., by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Enforcement Bureau's
investigations into possible violations of Section 20.19(d)(3)(ii) of the
Commission's rules, pertaining to the deployment of digital wireless
hearing aid-compatible handsets, and Section 222 of the Communications Act
of 1934, as amended, Section 64.2009(e) of the Commission's rules, and the
EPIC CPNI Order, pertaining to the filing of an annual Customer
Proprietary Network Information certification.
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 Ztar is subject by virtue of its business activities, including
but not limited to, the Hearing Aid Compatibility Rules and the CPNI
Rules.
e. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
f. "Compliance Plan" means the compliance obligations, program, and
procedures described in this Consent Decree at paragraph 13.
g. "Covered CPNI Employees" means all employees and agents of Ztar who
perform, or supervise, oversee, or manage the performance of, duties
that relate to Ztar's responsibilities under the CPNI Rules.
h. "Covered HAC Employees" means all employees and agents of Ztar who
perform, or supervise, oversee, or manage the performance of, duties
that relate to Ztar's responsibilities under the Hearing Aid
Compatibility Rules.
i. "CPNI" means customer proprietary network information as defined in 47
U.S.C. S: 222(h)(1).
j. "CPNI Investigation" means the investigation commenced by the Bureau's
September 5, 2008 letter of inquiry regarding Ztar's apparent
violation of the CPNI Rules by failing to file a compliant CPNI
certification.
k. "CPNI Rules" means Section 222 of the Act, Section 64.2009(e) of the
Rules, the EPIC CPNI Order, and other Communications Laws relating to
a telecommunications carrier's use of CPNI.
l. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
m. "HAC Investigation" means the investigation commenced by the Bureau's
October 27, 2010 letter of inquiry regarding Ztar's deployment of
digital wireless hearing aid-compatible handsets.
n. "Hearing Aid Compatibility Rules" means Section 20.19 of the Rules and
other Communications Laws governing digital wireless hearing aid
compatibility, such as the Rules governing the design, selection, or
acquisition of wireless handsets and the marketing or distribution of
such handsets to consumers in the United States.
o. "Investigations" means collectively, the HAC Investigation and CPNI
Investigation.
p. "Operating Procedures" means the standard, internal operating
procedures and compliance policies established by Ztar to implement
the Compliance Plan.
q. "Parties" means Ztar and the Bureau, each of which is a "Party."
r. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
s. "Ztar" means Ztar Mobile, Inc. and its predecessors-in-interest and
successors-in-interest.
II. BACKGROUND
A. Hearing Aid Compatibility
2. In the 2003 Hearing Aid Compatibility Order, the Commission adopted
several measures to enhance the ability of consumers with hearing loss
to access digital wireless telecommunications. The Commission
established technical standards for radio frequency interference (the
M rating) and inductive coupling (the T rating) that digital wireless
handsets must meet to be considered compatible with hearing aids
operating in acoustic coupling and inductive coupling (telecoil)
modes, respectively. For each of these standards, the Commission
further established deadlines by which manufacturers and service
providers must offer specified numbers or percentages of digital
wireless handsets per air interface that are compliant with the
relevant standard. 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.
3. On January 11, 2010, Ztar submitted its annual hearing aid
compatibility status report for the January 1, 2009 to December 31,
2009 reporting period. On September 16, 2010, the Wireless
Telecommunications Bureau (WTB) referred Ztar's apparent violation of
the hearing aid-compatible handset deployment requirements during the
2009 reporting period to the Bureau for investigation and possible
enforcement action. On October 27, 2010, the Bureau's Spectrum
Enforcement Division issued a letter of inquiry (HAC LOI) to Ztar,
directing the company to submit a sworn written response to a series
of questions related to its compliance with Sections 20.19(c)(3)(ii)
and 20.19(d)(3)(ii). Ztar responded to the HAC LOI on November 17,
2010 (HAC LOI Response). In its HAC LOI Response, Ztar stated that it
obtained the hearing aid compatibility rating for the handsets it
offered from the handset manufacturer's hearing aid compatibility
status report or from Commission records.
4. On January 6, 2011, Ztar submitted its annual hearing aid
compatibility status report for the January 1, 2010 to December 31,
2010 reporting period. On June 22, 2011, WTB referred Ztar's apparent
violation of the hearing aid-compatible handset deployment
requirements during the 2010 reporting period to the Bureau for
investigation and possible enforcement action. The Bureau and Ztar
entered into tolling agreements to toll the statute of limitations,
and negotiated the terms of this Consent Decree.
B. Customer Proprietary Network Information
5. Section 222 of the Act imposes the general duty on all
telecommunications carriers to protect the confidentiality of their
subscribers' proprietary information. The Commission has issued rules
implementing Section 222 of the Act. The Commission required carriers
to establish and maintain a system designed to ensure that carriers
adequately protected their subscribers' CPNI. Section 64.2009(e) is
one such requirement.
6. In 2006, some companies, known as "data brokers," advertised the
availability of records of wireless subscribers' incoming and outgoing
telephone calls for a fee. Data brokers also advertised the
availability of certain landline toll calls. On April 2, 2007, the
Commission strengthened its privacy rules with the release of the EPIC
CPNI Order, which adopted additional safeguards to protect CPNI
against unauthorized access and disclosure. The EPIC CPNI Order
responded directly to the actions of data brokers, or pretexters, to
obtain unauthorized access to CPNI. The EPIC CPNI Order requires that
all companies subject to the CPNI Rules file annually, on or before
March 1, a certification with the Commission pursuant to amended rule
47 C.F.R. S: 64.2009(e). Additionally, companies must now provide,
with their certification, "an explanation of any actions taken against
data brokers and a summary of all customer complaints received in the
past year concerning the unauthorized release of CPNI."
7. On September 5, 2008, the Bureau's Telecommunications Consumers
Division issued a letter of inquiry (CPNI LOI) to Ztar, directing the
company to provide copies and evidence of its timely filed CPNI
compliance certificate for 2007 in accordance with Section 64.2009(e)
of the Rules, or an explanation as to why no certification was filed.
Ztar responded to the CPNI LOI on September 18, 2008 (CPNI LOI
Response). In its CPNI LOI Response, Ztar stated that it was unaware
of the obligation to file the CPNI compliance certificate. On February
24, 2009, the Bureau released the Omnibus Notice of Apparent Liability
for Forfeiture against numerous companies, including Ztar, proposing a
monetary forfeiture of twenty thousand dollars ($20,000) for Ztar's
apparent failure to comply with Section 222 of the Act, Section
64.2009(e) of the Rules, and the Commission's EPIC CPNI Order. Ztar
responded to the Omnibus NAL on March 11, 2009, arguing that the
proposed forfeiture should be cancelled or reduced. Subsequently, the
Bureau and Ztar entered into settlement discussions.
III. TERMS OF AGREEMENT
8. 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.
9. Jurisdiction. Ztar 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.
10. 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.
11. Termination of the Investigations. 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 Investigations. In consideration for the termination of
the Investigations, Ztar 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 Investigations 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 Ztar concerning the matters that were the subject of
the Investigations. The Bureau also agrees that in the absence of new
material evidence it will not use the facts developed in the
Investigations 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 Ztar with
respect to Ztar's basic qualifications, including its character
qualifications, to be a Commission licensee or to hold Commission
licenses or authorizations.
12. Compliance Officer. Within thirty (30) calendar days after the
Effective Date, Ztar 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 Ztar 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 Consent Decree, the Compliance Officer shall have
specific knowledge of the Hearing Aid Compatibility Rules and the CPNI
Rules prior to assuming his/her duties.
13. Compliance Plan. For purposes of settling the matters set forth
herein, Ztar agrees that it shall within sixty (60) calendar days
after the Effective Date, develop and implement a Compliance Plan
designed to ensure future compliance with the Communications Laws and
with the terms and conditions of this Consent Decree. With respect to
the Hearing Aid Compatibility Rules and the CPNI Rules, Ztar shall
implement the following procedures:
a. Operating Procedures on Hearing Aid Compatibility. Within sixty (60)
calendar days after the Effective Date, Ztar shall establish
Operating Procedures that all Covered Employees must follow to help
ensure Ztar's compliance with the Hearing Aid Compatibility Rules.
Ztar's Operating Procedures shall include internal procedures and
policies specifically designed to ensure that Ztar offers the
requisite number or percentage of hearing aid-compatible digital
wireless handsets to consumers as required by the Hearing Aid
Compatibility Rules. Ztar also shall develop a Compliance Checklist
that describes the steps that a Covered HAC Employee must follow to
ensure that the inclusion of a new handset model, or discontinuance
of an existing handset offering, will not result in a violation of
the Commission's digital wireless hearing aid-compatible handset
deployment requirements. At a minimum, the Compliance Checklist shall
require Covered HAC Employees to verify the hearing aid compatibility
rating of each existing and proposed handset offering using the
Commission's equipment authorization database.
b. Hearing Aid Compatibility Compliance Manual. Within sixty (60)
calendar days after the Effective Date, the Compliance Officer shall
develop and distribute a Compliance Manual to all Covered HAC
Employees. The Compliance Manual shall explain the Hearing Aid
Compatibility Rules and set forth the Operating Procedures that
Covered HAC Employees shall follow to help ensure Ztar's compliance
with the Hearing Aid Compatibility Rules. Ztar shall periodically
review and revise the Compliance Manual as necessary to ensure that
the information set forth therein remains current and complete. Ztar
shall distribute any revisions to the Compliance Manual promptly to
all Covered HAC Employees.
c. Hearing Aid Compatibility Compliance Training Program. Ztar shall
establish and implement a Compliance Training Program on compliance
with the Hearing Aid Compatibility Rules and the Operating
Procedures. As part of the Compliance Training Program, Covered HAC
Employees shall be advised of Ztar's obligation to report any
noncompliance with the Hearing Aid Compatibility Rules under
paragraph 14 of this Consent Decree and shall be instructed on how to
disclose noncompliance to the Compliance Officer. All Covered HAC
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 HAC Employee at any time
after the Effective Date shall be trained within thirty (30) calendar
days after the date such person becomes a Covered HAC Employee. Ztar
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.
d. CPNI Compliance Measures, Training Program, and Disciplinary Process.
Ztar agrees to take all measures necessary to achieve full compliance
with the CPNI Rules. Ztar agrees that within thirty (30) calendar
days after the Effective Date, Covered CPNI Employees shall be
trained as to when they are and are not authorized to use CPNI. As
part of the CPNI training, Covered CPNI Employees shall be advised of
Ztar's obligation to report any noncompliance with the CPNI Rules
under paragraph 14 of this Consent Decree and shall be instructed on
how to disclose noncompliance to the Compliance Officer. Ztar further
agrees to have an express disciplinary process in place for the
unauthorized use of CPNI within thirty (30) calendar days after the
Effective Date. Additionally, Ztar agrees to submit for each of two
(2) years following the Effective Date of this Consent Decree a copy
of its annual Section 64.2009(e) compliance certificate, which it is
required to file annually in EB Docket 06-36. The copy of annual
Section 64.2009(e) compliance certificate shall be sent to the Chief,
Telecommunications Consumers Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Room 4-C244,
Washington, D.C. 20554, and must reference File No. EB-08-TC-6092.
Ztar must also send an electronic copy of its certification to other
Telecommunications Consumers Division staff as directed by the
Telecommunications Consumers Division Chief.
14. Reporting Noncompliance. Ztar shall report any noncompliance with the
Hearing Aid Compatibility Rules, the CPNI Rules, or with the terms and
conditions of this Consent Decree within fifteen (15) calendar days
after discovery of such noncompliance. Such reports shall include a
detailed explanation of (i) each instance of noncompliance; (ii) the
steps that Ztar has taken or will take to remedy such noncompliance;
(iii) the schedule on which such remedial actions will be taken; and
(iv) the steps that Ztar has taken or will take to prevent the
recurrence of any such noncompliance. All reports of noncompliance
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, and to the Chief,
Telecommunications Consumers Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Room 4-C244,
Washington, D.C. 20554, with a copy submitted electronically to
Katherine Power at Katherine.Power@fcc.gov, Pamera Hairston at
Pamera.Hairston@fcc.gov, and Kimberly Wild at Kimberly.Wild@fcc.gov.
15. Compliance Reports. Ztar 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 Ztar's
efforts during the relevant period to comply with the terms and
conditions of this Consent Decree, the Hearing Aid Compatibility
Rules, and the CPNI Rules. In addition, each Compliance Report shall
include a certification by the Compliance Officer, as an agent of and
on behalf of Ztar, stating that the Compliance Officer has personal
knowledge that Ztar (i) has established and implemented the Compliance
Plan; (ii) has utilized the Operating Procedures since the
implementation of the Compliance Plan; (iii) has taken necessary
measures to achieve full compliance with the CPNI Rules; and (iv) 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 14 hereof.
b. 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.
c. If the Compliance Officer cannot provide the requisite certification,
the Compliance Officer, as an agent of and on behalf of Ztar, shall
provide the Commission with a detailed explanation of the reason(s)
why and describe fully (i) each instance of noncompliance; (ii) the
steps that Ztar 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 Ztar has taken or will take to prevent
the recurrence of any such noncompliance, including the schedule on
which such preventive action will be taken.
d. All Compliance Reports 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
and to the Chief, Telecommunications Consumers Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street, S.W., Room
4-C244, Washington, D.C. 20554, with a copy submitted electronically
to Katherine Power at Katherine.Power@fcc.gov, Pamera Hairston at
Pamera.Hairston@fcc.gov and Kimberly Wild at Kimberly.Wild@fcc.gov.
16. Termination Date. The obligations set forth in paragraphs 12 through
15 of this Consent Decree shall expire twenty-four (24) months after
the Effective Date, except that the requirements of paragraph 13(d)
shall expire on March 1, 2014 or upon the termination of the
certification requirement set forth in Section 64.2009(e), whichever
is earlier.
17. 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 Ztar 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
complaints 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 Ztar with the Communications Laws.
18. Voluntary Contribution. Ztar agrees that it will make a voluntary
contribution to the United States Treasury in the amount of
Thirty-Three Thousand Six Hundred Dollars ($33,600) (Voluntary
Contribution), such Voluntary Contribution to be made in installments
(each an Installment Payment). The first Installment Payment in the
amount of Nine Thousand Six Hundred Dollars ($9,600) is due within
thirty (30) calendar days after the Effective Date. The balance of the
Voluntary Contribution will be made in twenty-four consecutive monthly
payments of One Thousand Dollars ($1,000) payable on the first day of
each month beginning with the second month following the Effective
Date. The final payment is due on the first day of the twenty-fifth
month following the Effective Date (Maturity Date). Ztar acknowledges
and agrees that upon execution of this Consent Decree, the Voluntary
Contribution and each Installment Payment shall become a "Claim " or
"Debt" as defined in 31 U.S.C. S: 3701(b)(1). Upon an Event of
Default, all procedures for collection permitted by law may, at the
Commission's discretion, be initiated. In addition, Ztar agrees that
it will make the first and all subsequent Installment Payments in
United States Dollars without further demand or notice by the dates
specified above. Installment Payments must be made by check or similar
instrument, payable in United States Dollars to the order of the
Federal Communications Commission. The payments must include the
Account Number and FRN referenced in the caption to the Adopting
Order. Payments by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payments by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payments by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. For payments 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). Ztar shall also send electronic
notification to Katherine Power at Katherine.Power@fcc.gov, Pamera
Hairston at Pamera.Hairston@fcc.gov, Samantha Peoples at
Sam.Peoples@fcc.gov, and Johnny Drake at Johnny.Drake@fcc.gov on the
date each Installment Payment is made.
19. Event of Default. Ztar agrees that an Event of Default shall occur
upon the failure by Ztar to pay the full amount of any Installment
Payment on or before the due date specified in this Consent Decree.
20. Interest, Charges for Collection, and Acceleration of Maturity Date.
After an Event of Default has occurred under this Consent Decree, the
then unpaid amount of the Voluntary Contribution shall accrue
interest, computed using the U.S. Prime Rate in effect on the date of
the Event of Default plus 4.75 percent, from the date of the Event of
Default until payment in full. Upon an Event of Default, the then
unpaid amount of the Voluntary Contribution, together with interest,
as aforesaid, any penalties permitted and/or required by the law,
including but not limited to 31 U.S.C. S: 3717 and administrative
charge(s), plus the costs of collection, litigation, and attorneys'
fees, shall become immediately due and payable, without notice,
presentment, demand, protest, or notice of protest of any kind, all of
which are waived by Ztar.
21. Waivers. Ztar 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. Ztar 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
Ztar nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Ztar shall waive any statutory right
to a trial de novo. Ztar 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.
22. 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.
23. 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 Ztar does not expressly consent)
that provision will be superseded by such Rule or Commission Order.
24. Successors and Assigns. Ztar agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
25. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties with
respect to the Investigations. 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.
26. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
27. 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.
28. Authorized Representative. The individual signing this Consent Decree
on behalf of Ztar represents and warrants that he is authorized by
Ztar to execute this Consent Decree and to bind Ztar 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.
29. 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
___________________________________
Kevin Haddad
President
Ztar Mobile, Inc.
______________________________
Date
47 C.F.R. S: 20.19(d)(3)(ii).
47 U.S.C. S: 222.
47 C.F.R. S: 64.2009(e).
See Implementation of the Telecommunications Act of 1996:
Telecommunications Carriers' Use of Customer Proprietary Network
Information and Other Customer Information; IP-Enabled Services, CC Docket
No. 96-115; WC Docket No. 04-36, Report and Order and Further Notice of
Proposed Rulemaking, 22 FCC Rcd 6927, 6953, para. 51 (2007) (EPIC CPNI
Order); aff'd sub nom. Nat'l Cable & Telecom. Assoc. v. FCC, 555 F.3d 996
(D.C. Cir. 2009).
See Annual CPNI Certification, Omnibus Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd 2299 (Enf. Bur. 2009).
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: 20.19(d)(3)(ii).
47 U.S.C. S: 222.
47 C.F.R. S: 64.2009(e).
Implementation of the Telecommunications Act of 1996: Telecommunications
Carriers' Use of Customer Proprietary Network Information and Other
Customer Information; IP-Enabled Services, CC Docket No. 96-115; WC Docket
No. 04-36, Report and Order and Further Notice of Proposed Rulemaking, 22
FCC Rcd 6927, 6953, para. 51 (2007) (EPIC CPNI Order); aff'd sub nom.
Nat'l Cable & Telecom. Assoc. v. FCC, 555 F.3d 996 (D.C. Cir. 2009).
Letter from Marcy Greene, Deputy Chief, Telecommunications Consumers
Division, Enforcement Bureau, Federal Communications Commission, to Ztar
Mobile, Inc. (Sept. 5, 2008) (on file in EB-08-TC-6092).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Kevin Haddad,
President, Ztar Mobile, Inc. (Oct. 27, 2010) (on file in EB-10-SE-126).
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 Act, 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, para. 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).
As subsequently amended, Section 20.19(b)(1) provides that, for the period
beginning June 6, 2008 and ending December 31, 2009, a newly certified
wireless handset is deemed hearing aid-compatible for radio frequency
interference if, at minimum, it meets the M3 rating associated with the
technical standard set forth in either the standard document "American
National Standard Methods of Measurement of Compatibility between Wireless
Communication Devices and Hearing Aids," ANSI C63.19-2006 (June 12, 2006)
or ANSI C63.19-2007 (June 8, 2007). Beginning January 1, 2010, a newly
certified handset must meet at least an M3 rating under ANSI C63.19-2007
to be considered hearing aid-compatible for radio frequency interference.
47 C.F.R. S: 20.19(b)(1). Section 20.19(b)(2) provides that, for the
period beginning June 6, 2008 and ending December 31, 2009, a newly
certified wireless handset is deemed hearing aid-compatible for inductive
coupling if, at minimum, it meets the T3 rating associated with the
technical standard as set forth in ANSI C63.19-2006 or ANSI C63.19-2007,
and beginning January 1, 2010, it is deemed hearing aid-compatible for
inductive coupling if it meets at least a T3 rating under ANSI
C63.19-2007. 47 C.F.R. S: 20.19(b)(2). Grants of certification issued
before June 6, 2008, under previous versions of ANSI C63.19 remain valid
for hearing aid compatibility purposes. A recently adopted further
amendment to Section 20.19(b) will permit manufacturers to test handsets
for hearing aid compatibility using the 2011 version of the ANSI standard
(ANSI C63.19-2011) as an alternative to ANSI C63.19-2007. See Amendment
of the Commission's Rules Governing Hearing Aid-Compatible Mobile
Handsets, Third Report and Order, DA 12-550 (WTB/OET rel. Apr. 9, 2012).
The term "air interface" refers to the technical protocol that ensures
compatibility between mobile radio service equipment, such as handsets,
and the service provider's base stations. Currently, the leading air
interfaces include Code Division Multiple Access (CDMA), Global System for
Mobile Communications (GSM), Integrated Digital Enhanced Network (iDEN),
and Wideband Code Division Multiple Access (WCDMA) a/k/a Universal Mobile
Telecommunications System (UMTS).
See Hearing Aid Compatibility Order, 18 FCC Rcd at 16780, para. 65; 47
C.F.R. S: 20.19(c), (d).
See Amendment of the Commission's Rules Governing Hearing Aid-Compatible
Mobile Handsets, First Report and Order, 23 FCC Rcd 3406 (2008), Order on
Reconsideration and Erratum, 23 FCC Rcd 7249 (2008). These handset
deployment requirements do not apply to service providers and
manufacturers that meet the de minimis exception. The de minimis exception
provides that manufacturers or mobile service providers that offer two or
fewer digital wireless handset models per air interface are exempt from
the hearing aid compatibility requirements, and manufacturers or service
providers that offer three digital wireless handset models per air
interface must offer at least one compliant model. 47 C.F.R. S: 20.19(e).
Effective September 10, 2012, the de minimis exception will not be
available to manufacturers or mobile service providers that do not meet
the definition of a "small entity" beginning two years after their initial
offerings. 47 C.F.R. S: 20.19(e)(1)(ii); see also Amendment of the
Commission's Rules Governing Hearing Aid-Compatible Mobile Handsets,
Policy Statement and Second Report and Order and Further Notice of
Proposed Rulemaking, 25 FCC Rcd 11167, 11180-11189 paras. 35-59 (2010).
See Ztar Mobile, Inc. Hearing Aid Compatibility Report, Docket No. 07-250
(Jan. 11, 2010) available at
http://wireless.fcc.gov/hac_documents/100317/Ztar%20Mobile,%20Inc.
See supra note 6.
See Letter from Kevin Haddad, President, Ztar Mobile, Inc., to Katherine
Power, Attorney, Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission (Nov. 17, 2010).
Id. at 4.
Ztar Mobile, Inc. Hearing Aid Compatibility Report, Docket No. 07-250
(Jan. 6, 2011),
http://wireless.fcc.gov/hac_documents/110210/5903418_23.PDF.
See, e.g., Tolling Agreement Extension, executed by and between John D.
Poutasse, Chief, Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission, and Kevin Haddad, President, Ztar
Mobile, Inc. (April 5, 2012) (on file in EB-10-SE-126).
We note that all of the terms of this settlement related to hearing aid
compatibility compliance were agreed upon prior to the Commission's recent
T-Mobile decision. See T-Mobile Inc., File No. EB-10-SE-127, Notice of
Apparent Liability for Forfeiture, FCC 12-39, 2012 WL 1305323 (Apr. 13,
2012 ) (adopting a new base forfeiture calculation methodology).
Section 222 of the Act, 47 U.S.C S: 222, provides that: "Every
telecommunications carrier has a duty to protect the confidentiality of
proprietary information of, and relating to, other telecommunications
carriers, equipment manufacturers, and customers, including
telecommunication carriers reselling telecommunications services provided
by a telecommunications carrier." Prior to the Telecommunications Act of
1996, the Commission had established CPNI requirements applicable to the
enhanced services operations of AT&T, the Bell Operating Companies (BOCs),
and GTE, and the customer premises equipment (CPE) operations of AT&T and
the BOCs, in the Computer II, Computer III, GTE Open Network Architecture
(ONA), and BOC CPE Relief proceedings. See Implementation of the
Telecommunications Act of 1996: Telecommunications Carriers' Use of
Customer Proprietary Network Information and Other Customer Information
and Implementation of Non-Accounting Safeguards of Sections 271 and 272 of
the Communications Act of 1934, as amended, CC Docket Nos. 96-115 and
96-149, Second Report and Order and Further Notice of Proposed Rulemaking,
13 FCC Rcd 8061, 8068-70, para. 7 (1998) (CPNI Order) (describing the
Commission's privacy protections for confidential customer information in
place prior to the 1996 Act).
See CPNI Order. See also Implementation of the Telecommunications Act of
1996: Telecommunications Carriers' Use of Customer Proprietary Network
Information and Other Customer Information and Implementation of the
Non-Accounting Safeguards of Sections 271 and 272 of the Communications
Act of 1934, as amended, CC Docket Nos. 96-115 and 96-149, Order on
Reconsideration and Petitions for Forbearance, 14 FCC Rcd 14409 (1999);
Implementation of the Telecommunications Act of 1996: Telecommunications
Carriers' Use of Customer Proprietary Network Information and Other
Customer Information and Implementation of the Non-Accounting Safeguards
of Sections 271 and 272 of the Communications Act of 1934, as amended, CC
Docket Nos. 96-115 and 96-149, 2000 Biennial Regulatory Review - Review of
Policies and Rules Concerning Unauthorized Changes of Consumers' Long
Distance Carriers, CC Docket No. 00-257, Third Report and Order and Third
Further Notice of Proposed Rulemaking, 17 FCC Rcd 14860 (2002); EPIC CPNI
Order.
47 C.F.R. S: 64.2009(e).
See, e.g., http://www.epic.org/privacy/iei/.
See id.
EPIC CPNI Order, 22 FCC Rcd 6927. Specifically, pursuant to Section
64.2009(e):
A telecommunications carrier must have an officer, as an agent of the
carrier, sign and file with the Commission a compliance certificate on an
annual basis. The officer must state in the certification that he or she
has personal knowledge that the company has established operating
procedures that are adequate to ensure compliance with the rules in this
subpart. The carrier must provide a statement accompanying the
certification explaining how its operating procedures ensure that it is or
is not in compliance with the rules in this subpart. In addition, the
carrier must include an explanation of any actions taken against data
brokers and a summary of all customer complaints received in the past year
concerning the unauthorized release of CPNI. This filing must be made
annually with the Enforcement Bureau on or before March 1 in EB Docket No.
06-36, for data pertaining to the previous calendar year. 47 C.F.R. S:
64.2009(e).
EPIC CPNI Order, 22 FCC Rcd at 6928, para. 2.
Id. at 6954, para. 53; 47 C.F.R. S: 64.2009(e).
EPIC CPNI Order, 22 FCC Rcd at 6953, para. 51.
See supra note 6.
See e-mail from Kevin Haddad, CEO, Ztar, to Marcy Greene, Deputy Chief,
Telecommunications Consumers Division, Enforcement Bureau, Federal
Communications Commission (Sept.18, 2008) (on file in EB-08-TC-6092).
Id.
Annual CPNI Certification, Omnibus Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd 2299 (Enf. Bur. 2009) (Omnibus NAL).
See Response from Kevin Haddad, CEO, Ztar, to Marcy Greene, Deputy Chief,
Telecommunications Consumers Division, Enforcement Bureau, Federal
Communications Commission (Mar. 11, 2009) (on file in EB-08-TC-6092).
47 C.F.R. S: 1.16.
Debt Collection Improvement Act of 1996, Pub. L. No. 104-134, 110 Stat.
1321, 1358 (Apr. 26, 1996).
Federal Communications Commission DA 12-628
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Federal Communications Commission DA 12-628
Federal Communications Commission DA 12-628
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Federal Communications Commission DA 12-628