Federal Communications Commission DA 07-43 1 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Alltel Corporation ) ) ) ) ) ) ) File No. EB-06-SE-381 NAL/Acct. No. 200732100009 FRN: 0012284394 ORDER Adopted: January 11, 2007 Released: January 11, 2007 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 (the “FCC” or “Commission”) and Alltel Corporation (“Alltel”). The Consent Decree terminates the Bureau’s investigation into whether one of Alltel’s indirect wholly-owned licensee subsidiaries failed to timely file an application to renew its A-Block cellular license, call sign KNKA369, for the Oklahoma City, Oklahoma cellular market area in violation of Section 1.949 of the Commission’s rules,1 and whether the subsidiary operated the station without Commission authorization in violation of Section 301 of the Communications Act of 1934, as amended (the “Act”), and Section 1.903(a) of the Commission’s rules.2 2. The Enforcement Bureau and Alltel have negotiated the terms of a Consent Decree that would resolve this matter and terminate the investigation. A copy of the Consent Decree is attached hereto and incorporated by reference. 3. Based on the record before us, we conclude that no substantial or material questions of fact exist with respect to this matter as to whether Alltel possesses the basic qualifications, including those related to character, to hold or obtain any FCC license or authorization. 4. After reviewing the terms of the Consent Decree, we find that the public interest would be served by adopting the Consent Decree and terminating the investigation. 5. Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the Act and the authority delegated by Sections 0.111 and 0.311 of the Commission’s rules,3 that the attached Consent Decree IS ADOPTED. 6. IT IS FURTHER ORDERED that the above-captioned investigatory proceeding IS TERMINATED. 1 47 C.F.R. § 1.949. 2 47 U.S.C. § 301; 47 C.F.R. §§ 1.949, 1.955(a)(1). 3 47 U.S.C. § 154(i); 47 C.F.R. §§ 0.111, 0.311. Federal Communications Commission DA 07-43 2 7. IT IS FURTHER ORDERED that Alltel shall make its voluntary contribution to the United States Treasury, as specified in the Consent Decree, by credit card through the Commission’s Debt and Credit Management Center at (202) 418-1995, or by mailing a check or similar instrument, payable to the order of the Federal Communications Commission, to the Federal Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may be sent to Mellon Bank/LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA Number 043000261, receiving bank Mellon Bank, and account number 911-6106. 8. 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 Glenn S. Rabin-Federal Communications Counsel, Alltel, 601 Pennsylvania Avenue, NW, Suite 720, Washington, D.C. 20004, and to Cheryl A. Tritt, Esq., Morrison & Foerster LLP, 2000 Pennsylvania Avenue, NW, Washington, D.C. 20006-1888. FEDERAL COMMUNICATIONS COMMISSION Kris Anne Monteith Chief, Enforcement Bureau Federal Communications Commission DA 07-43 1 CONSENT DECREE The Enforcement Bureau (“Bureau”) of the Federal Communications Commission (the “FCC” or “Commission”) and Alltel Corporation (“Alltel”), by their authorized representatives, hereby enter into this Consent Decree for the purpose of terminating the Bureau’s investigation into whether one of Alltel’s indirect wholly-owned licensee subsidiaries failed to timely file an application to renew its A-Block cellular license, call sign KNKA369, for the Oklahoma City, Oklahoma cellular market area in violation of Section 1.949 of the Commission’s rules,4 and whether the subsidiary operated the station without Commission authorization, in violation of Section 301 of the Communications Act of 1934, as amended (the “Act”), and Section 1.903(a) of the Commission’s rules.5 Background 1. Alltel, headquartered in Little Rock, Arkansas, provides wireless services in various regions of the United States. Alltel, through Alltel Newco LLC (“Alltel Newco”) and other affiliates and subsidiaries, holds numerous FCC authorizations to provide wireless telecommunications services in the United States. 2. In April 2005, Alltel acquired the A-Block cellular license, call sign KNKA369, for the Oklahoma City, Oklahoma cellular market area (the “License”) and a related operating unit and subscribers as part of a government-ordered divestiture of certain commercial mobile radio service properties that served as a condition of the approval of the merger between Cingular Wireless LLC and AT&T Wireless Services, Inc. (“AT&T Wireless”).6 3. The 10-year term of the License originally extended through February 9, 2006, which is reflected in the administrative history of the License in the Commission’s Universal Licensing System (“ULS”).7 At the request of AT&T Wireless, the prior license holder, the Commission accelerated the expiration date by four months to October 1, 2005.8 4. Alltel failed to file an application to renew the License by the October 1, 2005 deadline. Alltel immediately informed the Commission staff upon discovering the past-due deadline. 5. On December 20, 2005, Alltel filed an application9 requesting renewal of the License and seeking waiver of Section 1.949 of the rules, which provides that a renewal application must be filed by the license expiration date.10 4 47 C.F.R. § 1.949. 5 47 U.S.C. § 301; 47 C.F.R. § 1.903(a). 6 See Applications of AT&T Wireless Services, Inc. and Cingular Wireless Corp., 19 FCC Rcd 21522 (2004); Public Notice, Wireless Telecommunications Bureau Assignment of License Authorization Applications, Transfer of Control of Licensee Applications, De Facto Transfer Lease Applications and Spectrum Manager Lease Notifications Action, Report No. 2124D (rel. Apr. 13, 2005). 7 The administrative history of the first renewal application for the License (ULS File No. 07946CLMR95) shows a license expiration date of February 9, 2006. 8 See Radio Station Authorization for Cellular License KNKA369 (listing the expiration date of the License as October 1, 2005). 9 See ULS File No. 0002418247. 10 47 C.F.R. § 1.949. Federal Communications Commission DA 07-43 2 6. Contemporaneously with the renewal application, Alltel also filed a request for special temporary authority (“STA”) to operate the License’s network facilities during the pendency of the renewal application.11 The Commission granted the STA request on January 18, 2006 and assigned call sign WQEG235 to the STA. On June 12, 2006, at Alltel’s request, the Commission granted an extension of the STA until December 14, 2006. At Alltel’s request, the Commission subsequently extended the STA until June 12, 2007. Definitions 7. For purposes of this Consent Decree, the following definitions shall apply: a. “Act” means the Communications Act of 1934, as amended. b. “Alltel” means Alltel Corporation and any of its affiliates, subsidiaries and/or its successors. c. “Alltel Newco” means Alltel Newco LLC. d. “Bureau” means the Enforcement Bureau of the Federal Communications Commission. e. “Commission” or “FCC” means the Federal Communications Commission. f. “Effective Date” means the date on which the Bureau releases the Adopting Order. g. “Investigation” means the investigation into whether Alltel Newco failed to timely file an application to renew the License and whether it operated the Licensed cellular system without Commission authorization. h. “License” means the A-Block cellular license, call sign KNKA369, for the Oklahoma City, Oklahoma cellular market area. i. “Order” or “Adopting Order” means an Order of the Bureau adopting the terms and conditions of this Consent Decree without change, addition, or modification. j. “Parties” means Alltel and the Bureau. k. “Plan” means the internal compliance plan to be adopted by Alltel that is described in this Consent Decree. l. “Rules” means the Commission’s Rules found in Title 47 of the Code of Federal Regulations. m. “STA” means the special temporary authority granted to Alltel Newco, call sign WQEG235. 11 See ULS File No. 0002418331. Federal Communications Commission DA 07-43 3 Terms of Agreement 8. Alltel agrees that the Bureau has jurisdiction over it and the subject matter contained in this Consent Decree and the authority to enter into and adopt this Consent Decree. 9. 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. 10. The Parties agree and acknowledge that this Consent Decree shall constitute a final settlement of the Investigation between Alltel and the Bureau. In express reliance on the covenants and representations contained herein, the Bureau agrees to terminate the Investigation. In consideration for the termination of this Investigation and in accordance with the terms of this Consent Decree, Alltel agrees to the terms, conditions and procedures contained herein. 11. The Parties agree that this Consent Decree shall become binding on the Parties on the Effective Date. Upon release, the Adopting Order and this Consent Decree shall have the same force and effect as any other final order of the Commission and any violation of the terms or conditions of this Consent Decree shall constitute a violation of a Commission order. 12. The Parties 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 by Alltel with the requirements of the Act or the Commission’s rules or orders. The Parties agree that this Consent Decree is for settlement purposes only and that by agreeing to this Consent Decree, Alltel does not admit or deny any noncompliance, violation, or liability associated with or arising from its actions or omissions involving the Act or the Commission’s rules that are the subject of this Consent Decree. 13. Alltel agrees to make a voluntary contribution to the United States Treasury, without further protest or recourse to a trial de novo, in the amount of $100,000.00 within thirty (30) calendar days after the Effective Date. This voluntary payment does not constitute a fine or penalty for, or admission of, a violation of any law. Such contribution shall be made by credit card through the Commission’s Debt and Credit Management Center at (202) 418-1995, or by mailing a check or similar instrument, payable to the order of the Federal Communications Commission, to the Federal Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA Number 043000261, receiving bank Mellon Bank, and account number 911-6106. The payment should reference NAL/Acct. No. 200732100009 and FRN # 0012284394. 14. Alltel agrees to implement, within thirty (30) calendar days after the Effective Date, an internal compliance plan (the “Plan”) to ensure that Alltel satisfies its obligations under the Act and the Commission’s rules and orders to timely file renewal applications for its wireless licenses. The Plan will include the following components: a. Designated Contact. Alltel will assign the vice president for network operations central responsibility to oversee Alltel’s compliance with the Plan and to ensure the timely filing of applications to renew Alltel’s wireless licenses. b. Training Program. Alltel will implement and maintain a training program for all employees whose responsibilities include compliance with FCC license renewal policies. The training program is ongoing and will include appropriate reference Federal Communications Commission DA 07-43 4 materials and at least quarterly meetings and/or training sessions regarding FCC compliance matters. c. Wireless License Database. Alltel will continue its efforts to refine its software and programmatic interface to the FCC’s ULS system to facilitate Alltel’s compliance with FCC license renewal policies. These tools will assist Alltel employees with comparing relevant renewal dates in the database with those listed in ULS and will automatically notify Alltel’s designated contact regarding upcoming renewal deadlines. d. Audits. Alltel will conduct regular and random audits on at least a monthly basis regarding its wireless license database, upcoming renewal deadlines, and the timely filing of renewal applications. 15. The Bureau agrees that, in the absence of new material evidence, it shall not on its own motion or in response to third-party objection, initiate any inquiries, investigations, forfeiture proceedings, hearings, or other sanctions or actions against Alltel based in whole or in part on the Investigation. The Bureau also agrees that, in the absence of new material evidence, it will not initiate or recommend to the Commission any new proceeding, formal or informal, against Alltel regarding the matters that were the subject of the Investigation. The Bureau further agrees that, in the absence of new material evidence, it will not use the facts developed in the Investigation through the Effective Date to initiate on its own motion, or recommend to the Commission, any proceeding, formal or informal, or take any action on its own motion against Alltel with respect to Alltel’s basic qualifications to hold Commission licenses or authorizations. Consistent with the foregoing, nothing in this Consent Decree limits the Commission’s authority to consider and adjudicate any complaint that may be filed pursuant to Section 208 of the Act,12 and to take any action in response to such complaint. The Commission’s adjudication of any such complaint will be based solely on the record established in that proceeding. 16. Alltel’s decision to enter into this Consent Decree is expressly contingent upon the Bureau’s issuance of an Order that is consistent with this Consent Decree, and which adopts the Consent Decree without change, addition or modification. 17. Provided the Bureau issues an Order adopting the Consent Decree without change, addition or modification, Alltel 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. 18. 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 Alltel nor the Commission shall contest the validity of the Consent Decree or the Adopting Order, and Alltel and the Commission will waive any statutory right to a trial de novo with respect to the issuance of the Adopting Order and shall consent to a judgment incorporating the terms of this Consent Decree. 19. In the event that this Consent Decree is rendered invalid by a court of competent jurisdiction, it shall become null and void and may not be used in any manner in any legal proceeding. 6 47 U.S.C. § 208. Federal Communications Commission DA 07-43 5 20. Alltel agrees that any violation of the Order or 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. 21. The Parties agree that if any provision of this 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 Alltel does not consent), that provision will be superseded by such Commission rule or order. 22. Alltel waives any rights it may have under any provision of the Equal Access to Justice Act, 5 U.S.C. § 504 and 47 C.F.R. § 1.1501 et seq., relating to the matters addressed in this Consent Decree. 23. This Consent Decree cannot be modified without the advance written consent of both Parties. 24. The Parties agree that the terms and conditions of this Consent Decree shall remain in effect for a period of twenty-four (24) months from the Effective Date. 25. This Consent Decree may be signed in counterparts. For: Alltel Corporation ______________ _________________________ Date Glenn S. Rabin Vice President-Federal Communications Counsel For: Enforcement Bureau Federal Communications Commission ______________ ________________________ Date Kris Anne Monteith Chief, Enforcement Bureau