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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
NTT DOCOMO USA, Inc.
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File Nos.: EB-SED-12-00003542;
EB-SED-13-00006161
Acct. No.: 201332100018
FRN: 0020632055
ORDER
Adopted: September 25, 2013 Released: September 25, 2013
By the Acting Chief, Enforcement Bureau:
* In this Order, we adopt the attached Consent Decree entered into between the Enforcement Bureau (Bureau) of the Federal Communications Commission (Commission) and NTT DOCOMO USA, Inc. (DOCOMO USA). The Consent Decree resolves and terminates the Bureau's investigations into possible violations of Sections 20.19(c)(3) and 20.19(d)(3) of the Commission's rules (Rules) pertaining to the deployment of digital wireless hearing aid-compatible handsets.
* The Bureau and DOCOMO USA have negotiated the Consent Decree that resolve these matters. A copy of the Consent Decree is attached hereto and incorporated herein by reference.
* 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 material new evidence relating to these matters, we conclude that our investigations raise no substantial or material questions of fact as to whether DOCOMO USA possesses the basic qualifications, including those related to character, to hold or obtain any Commission license or authorization.
* Accordingly, IT IS ORDERED that, pursuant to Sections 4(i), 4(j), 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.
* IT IS FURTHER ORDERED that the above-captioned investigations ARE TERMINATED.
* 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 Masaaki Maeda, President & CEO, NTT DOCOMO USA, Inc., 101 Park Avenue, 41[st] Floor, New York, NY 10178, and to David H. Solomon, Esq. and Jennifer L. Kostyu, Esq., Wilkinson Barker Knauer, LLP, Counsel for NTT DOCOMO USA, Inc., 2300 N Street, N.W., Suite 700, Washington DC 20037.
FEDERAL COMMUNICATIONS COMMISSION
Robert H. Ratcliffe
Acting Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
NTT DOCOMO USA, Inc.
)
)
)
)
)
)
File No.: EB-SED-12-00003542;
EB-SED-13-00006161
Acct. No.: 201332100018
FRN: 0020632055
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and NTT DOCOMO USA, 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 Sections 20.19(c)(3) and 20.19(d)(3) of the Commission's rules pertaining to the deployment of digital wireless hearing aid-compatible handsets.
* I. DEFINITIONS
For the purposes of this Consent Decree, the following definitions shall apply:
* "Act" means the Communications Act of 1934, as amended, 47 U.S.C. ยง 151 et seq.
* "Adopting Order" means an order of the Bureau adopting the terms of this Consent Decree without change, addition, deletion, or modification.
* "Bureau" means the Enforcement Bureau of the Federal Communications Commission.
* "Commission" and "FCC" mean the Federal Communications Commission and all of its bureaus and offices.
* "Communications Laws" means collectively, the Act, the Rules, and the published and promulgated orders and decisions of the Commission to which DOCOMO USA is subject by virtue of its business activities, including but not limited to, the Hearing Aid Compatibility Rules.
* "Compliance Plan" means the compliance obligations, program, and procedures described in this Consent Decree at paragraph 10.
* "Covered Employees" means all employees and agents of DOCOMO USA who perform, or supervise, oversee, or manage the performance of, duties that relate to DOCOMO USA's responsibilities under the Hearing Aid Compatibility Rules.
* DOCOMO USA" means NTT DOCOMO USA, Inc. and its predecessors-in-interest and successors-in-interest
* "Effective Date" means the date on which the Bureau releases the Adopting Order.
* "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.
* "Investigations" means, collectively, (1) the investigation commenced by the Bureau's August 17, 2012 letter of inquiry regarding DOCOMO USA's deployment of digital wireless hearing aid-compatible handsets during the 2011 reporting period, and (2) the investigation initiated following DOCOMO USA's disclosure of possible hearing aid-compatible handset deployment violations during the 2012 reporting period.
* "Operating Procedures" means the standard, internal operating procedures and compliance policies established by DOCOMO USA to implement the Compliance Plan.
* "Parties" means DOCOMO USA and the Bureau, each of which is a "Party."
* "Rules" means the Commission's regulations found in Title 47 of the Code of Federal Regulations.
II. BACKGROUND
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 were required to 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 hearing aid-compatible handset deployment benchmarks that became effective beginning in 2008.
On January 17, 2012, DOCOMO USA submitted its annual hearing aid compatibility status report for the January 1, 2011 to December 31, 2011 reporting period. Based upon its review of that report, the Commission's Wireless Telecommunications Bureau referred DOCOMO USA's possible hearing aid-compatible handset deployment violations during the 2011 reporting period to the Bureau's Spectrum Enforcement Division (Division) for investigation and possible enforcement action.
On August 17, 2012, the Division issued a letter of inquiry (LOI) to DOCOMO USA, which directed the company to submit a sworn written response to a series of questions relating to its compliance with Hearing Aid Compatibility Rules. DOCOMO USA responded to the LOI on September 11, 2012. In its LOI Response, DOCOMO USA states that it commenced offering service as a Mobile Virtual Network Operator in April 2011, and that the company primarily markets its service to Japanese expatriates and other Japanese individuals in the United States. In October 2012, DOCOMO USA also disclosed possible hearing aid-compatible handset deployment violations during the 2012 reporting period. The Bureau and DOCOMO USA entered into a tolling agreement to toll the applicable statute of limitations.
III. TERMS OF AGREEMENT
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.
Jurisdiction. DOCOMO USA 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.
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.
Termination of 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, DOCOMO USA 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 DOCOMO USA 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 DOCOMO USA with respect to DOCOMO USA's basic qualifications, including its character qualifications, to be a Commission licensee or to hold Commission licenses or authorizations.
Compliance Officer. Within thirty (30) calendar days after the Effective Date, DOCOMO USA 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 Compliance Officer shall be responsible for developing, implementing, and administering the Compliance Plan and ensuring that DOCOMO USA 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 prior to assuming his/her duties.
Compliance Plan. For purposes of settling the matters set forth herein, DOCOMO USA 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, DOCOMO USA shall implement the following procedures:
+ Operating Procedures on Hearing Aid Compatibility. Within sixty (60) calendar days after the Effective Date, DOCOMO USA shall establish Operating Procedures that all Covered Employees must follow to help ensure DOCOMO USA's compliance with the Hearing Aid Compatibility Rules. DOCOMO USA's Operating Procedures shall include internal procedures and policies specifically designed to ensure that DOCOMO USA offers the requisite number or percentage of hearing aid-compatible digital wireless handset models to consumers as required by the Hearing Aid Compatibility Rules, and accurately reports its handset offerings in its annual hearing aid compatibility status reports. DOCOMO USA also shall develop a Compliance Checklist that describes the steps that a Covered Employee must follow to ensure that the inclusion of a new handset model, or discontinuance of an existing handset model 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 Employees to verify the hearing aid compatibility rating of each existing and proposed handset model offering using the Commission's equipment authorization database.
+ Compliance Manual. Within sixty (60) calendar days after the Effective Date, the Compliance Officer shall develop and distribute a Compliance Manual to all Covered Employees. The Compliance Manual shall explain the Hearing Aid Compatibility Rules and set forth the Operating Procedures that Covered Employees shall follow to help ensure DOCOMO USA's compliance with the Hearing Aid Compatibility Rules. DOCOMO USA shall periodically review and revise the Compliance Manual as necessary to ensure that the information set forth therein remains current and complete. DOCOMO USA shall distribute any revisions to the Compliance Manual promptly to all Covered Employees.
+ Compliance Training Program. DOCOMO USA 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 Employees shall be advised of DOCOMO USA's obligation to report any noncompliance with the Hearing Aid Compatibility Rules under paragraph 11 of this Consent Decree and shall be instructed on how to disclose noncompliance to the Compliance Officer. All Covered Employees shall be trained pursuant to the Compliance Training Program within sixty (60) calendar days after the Effective Date, except that any person who becomes a Covered Employee at any time after the Effective Date shall be trained within thirty (30) calendar days after the date such person becomes a Covered Employee. DOCOMO USA 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.
Reporting Noncompliance. DOCOMO USA shall report any noncompliance with the Hearing Aid Compatibility Rules and with the terms and conditions of this Consent Decree within fifteen (15) calendar days after discovery of such noncompliance. Such report shall include a detailed explanation of (i) each instance of noncompliance; (ii) the steps that DOCOMO USA 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 DOCOMO USA 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, Room 3-C366, 445 12th Street, S.W., Washington, DC 20554, with a copy submitted electronically to Jennifer Burton at Jennifer.Burton@fcc.gov and to Pamera Hairston at Pamera.Hairston@fcc.gov.
Compliance Reports. DOCOMO USA 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 detailed description of DOCOMO USA's efforts during the relevant period to comply with the terms and conditions of this Consent Decree and the Hearing Aid Compatibility Rules. In addition, each Compliance Report shall include a certification by the Compliance Officer, as an agent of and on behalf of DOCOMO USA, stating that the Compliance Officer has personal knowledge that DOCOMO USA (i) has established and implemented the Compliance Plan; (ii) has utilized the Operating Procedures since the implementation of the Compliance Plan; and (iii) is not aware of any instances of noncompliance with the terms and conditions of this Consent Decree, including the reporting obligations set forth in paragraph 11 hereof.
* 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.
* If the Compliance Officer cannot provide the requisite certification, the Compliance Officer, as an agent of and on behalf of DOCOMO USA, 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 DOCOMO USA 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 DOCOMO USA has taken or will take to prevent the recurrence of any such noncompliance, including the schedule on which such preventive action will be taken.
* All Compliance Reports shall be submitted to the Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal Communications Commission, 445 12th Street, S.W., Washington, DC 20554, with a copy submitted electronically to Jennifer Burton at Jennifer.Burton@fcc.gov and to Pamera Hairston at Pamera.Hairston@fcc.gov.
Termination Date. The obligations set forth in paragraphs 9 through 12 of this Consent Decree shall expire thirty-six (36) months after the Effective Date.
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 DOCOMO USA 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 DOCOMO USA with the Communications Laws.
Voluntary Contribution. DOCOMO USA agrees that it will make a voluntary contribution to the United States Treasury in the amount of one hundred thousand dollars ($100,000) within thirty (30) calendar days after the Effective Date. DOCOMO USA shall also send electronic notification of payment to Jennifer Burton at Jennifer.Burton@fcc.gov, Pamera Hairston at Pamera.Hairston@fcc.gov, and Samantha Peoples at Sam.Peoples@fcc.gov on the date said payment is made. The payment must be made by check or similar instrument, wire transfer, or credit card and must include the NAL/Account Number and FRN referenced above. Regardless of the form of payment, a completed 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). Below are additional instructions DOCOMO USA should follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of the Federal Communications Commission. Such payments (along with the completed Form 159) must be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004, receiving bank TREAS/NYC, and Account Number 27000001. To complete the wire transfer and ensure appropriate crediting of the wired funds, a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit card information on FCC Form 159 and signing and dating the Form 159 to authorize the credit card payment. The completed Form 159 must then be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* If DOCOMO USA has questions regarding payment procedures, please contact the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
Waivers. DOCOMO USA 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. DOCOMO USA 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 DOCOMO USA nor the Commission shall contest the validity of the Consent Decree or of the Adopting Order, and DOCOMO USA shall waive any statutory right to a trial de novo. DOCOMO USA hereby agrees to waive any claims it may have under the Equal Access to Justice Act relating to the matters addressed in this Consent Decree.
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.
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 DOCOMO USA does not expressly consent) that provision will be superseded by such Rule or Commission order.
Successors and Assigns. DOCOMO USA agrees that the provisions of this Consent Decree shall be binding on its successors, assigns, and transferees.
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.
Modifications. This Consent Decree cannot be modified without the advance written consent of both Parties.
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.
Authorized Representative. The individual signing this Consent Decree on behalf of DOCOMO USA represents and warrants that he is authorized by DOCOMO USA to execute this Consent Decree and to bind DOCOMO USA to the obligations set forth herein. The FCC signatory represents that he is signing this Consent Decree in his official capacity and that he is authorized to execute this Consent Decree.
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.
________________________________
Robert H. Ratcliffe
Acting Chief
Enforcement Bureau
________________________________
Date
________________________________
Masaaki Maeda
President and Chief Executive Officer
NTT DOCOMO USA, Inc.
________________________________
Date