Federal Communications Commission DA 08-1716 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Airadigm Communications, Inc. ) ) ) ) ) File No. EB-08-SE-119 Acct. No. 200832100059 FRN No. 0002701688 ORDER Adopted: July 30, 2008 Released: August 1, 2008 By the Chief, Spectrum Enforcement Division, Enforcement Bureau: 1. In this Order, we adopt the attached Consent Decree entered into between the Enforcement Bureau (“Bureau”) and Airadigm Communications, Inc. (“Airadigm”). The Consent Decree terminates an investigation by the Bureau against Airadigm for possible violations of section 20.19(d)(2) of the Commission’s Rules (“Rules”)1 regarding the inductive coupling hearing aid compatibility requirements. 2. The Bureau and Airadigm have negotiated the terms of the Consent Decree that resolve this matter. A copy of the Consent Decree is attached hereto and incorporated by reference. 3. After reviewing the terms of the Consent Decree and evaluating the facts before us, we find that the public interest would be served by adopting the Consent Decree 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 Airadigm 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 Communications Act of 1934, as amended,2 and sections 0.111 and 0.311 of the Commission’s Rules,3 the Consent Decree attached to this Order IS ADOPTED. 6. IT IS FURTHER ORDERED that the above-captioned investigation IS TERMINATED. 1 47 C.F.R. § 20.19(d)(2). 2 47 U.S.C. § 154(i). 3 47 C.F.R. §§ 0.111, 0.311. Federal Communications Commission DA 08-1716 2 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 Todd B. Lantor, Esq., Lukas, Nace, Gutierrez & Sachs, Chartered, 1650 Tysons Blvd., Suite 1500, McLean, VA 22102, counsel for Airadigm Communications, Inc., and Linda J. Springer, Director of Finance, Airadigm Communications, Inc., 2301 Kelbe Drive, Little Chute, Wisconsin 54140. FEDERAL COMMUNICATIONS COMMISSION Kathryn S. Berthot Chief, Spectrum Enforcement Division Enforcement Bureau Federal Communications Commission DA 08-1716 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Airadigm Communications, Inc. ) ) ) ) ) File No. EB-08-SE-119 Acct. No. 200832100059 FRN No. 0002701688 CONSENT DECREE The Enforcement Bureau (“Bureau”) and Airadigm Communications, Inc. (“Airadigm”), by their authorized representatives, hereby enter into this Consent Decree for the purpose of terminating the Bureau’s investigation into whether Airadigm violated section 20.19(d)(2) of the Commission’s Rules (“Rules”)1 regarding inductive coupling hearing aid compatibility requirements. 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. § 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) “Airadigm” means Airadigm Communications, Inc. and its predecessors-in-interest and successors-in-interest. (d) “Bureau” means the Enforcement Bureau of the Federal Communications Commission. (e) “Commission” and “FCC” mean the Federal Communications Commission and all of its bureaus and offices. (f) “Compliance Plan” means the program described in this Consent Decree at paragraph 8. (g) “Effective Date” means the date on which the Bureau releases the Adopting Order. (h) “Investigation” means the investigation commenced by the Bureau regarding whether Airadigm violated the inductive coupling hearing aid compatibility requirements of section 20.19(d)(2) of the Rules. (i) “Parties” means Airadigm and the Bureau. 1 47 C.F.R. § 20.19(d)(2). Federal Communications Commission DA 08-1716 2 (j) “Rules” means the Commission’s regulations found in Title 47 of the Code of Federal Regulations. II. BACKGROUND 2. Pursuant to section 20.19(d)(2) of the Rules, carriers were required to offer at least two handset models for each air interface that meet the inductive coupling standards for hearing aid compatibility by September 18, 2006. 3. On September 19, 2006, Airadigm filed a Petition for Temporary Waiver requesting a temporary waiver of the requirements in section 20.19(d)(2) of the Rules.2 Airadigm supplemented its Petition for Temporary Waiver with filings on May 29, 20073 and June 13, 2007.4 On February 27, 2008, the Commission released a Memorandum Opinion and Order denying Airadigm’s Petition for Temporary Waiver and referring Airadigm’s alleged violations to the Commission’s Enforcement Bureau.5 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. Airadigm 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 date on which the Bureau releases the Adopting Order. Upon release, the Adopting Order and this Consent Decree shall have the same force and effect as any other Order of the Bureau. Any violation of the Adopting Order or of the terms of this Consent Decree shall constitute a separate violation of a Bureau Order, entitling the Bureau to exercise any rights and remedies attendant to the enforcement of a Commission Order. 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 its investigation. In consideration for the termination of said investigation, Airadigm 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 this investigation through the Effective Date of the Consent Decree, or the existence of this Consent Decree, to institute, on its own motion, any new proceeding, formal or informal, or take any action on its own motion against Airadigm concerning the matters that were the subject of the investigation. The Bureau also agrees that it will not use the facts developed in this investigation through the Effective Date of this Consent Decree, or the existence of this Consent Decree, to institute on its own motion any proceeding, formal or informal, or take any action on its own motion against Airadigm with respect to Airadigm’s basic qualifications, including its character qualifications, to be a Commission licensee or authorized common carrier. 2 Airadigm Petition for Temporary Waiver, WT Docket No. 01-309 (filed Sept. 19, 2006). 3 Airadigm Supplement to Petition for Temporary Waiver, WT Docket No. 01-309 (filed May 29, 2007). 4 Airadigm Further Supplement to Petition for Temporary Waiver, WT Docket No. 01-309 (filed June 13, 2007). 5 Petitions for Waiver of Section 20.19 of the Commission’s Rules, Memorandum Opinion and Order, 23 FCC Rcd 3352 (2008) (“Waiver Order”). Federal Communications Commission DA 08-1716 3 8. Compliance Plan. For purposes of settling the matters set forth herein, Airadigm agrees to maintain a Compliance Plan related to future compliance with the Act, the Commission’s Rules, and the Commission’s Orders. The Plan will include, at a minimum, the following components: (a) Compliance Officer. Airadigm will designate its Marketing Manager as its hearing aid compatibility compliance officer. The designated hearing aid compatibility compliance officer will be familiar with the FCC’s hearing aid compatibility regulations and associated selling and labeling benchmarks. The designated hearing aid compatibility compliance officer will also review the FCC’s hearing aid compatibility regulations on a monthly basis in order to stay abreast of pending benchmarks and any new hearing aid compatibility requirements. (b) Training. The designated hearing aid compatibility compliance officer will be responsible for ensuring that all Airadigm retail staff receives training regarding the hearing aid compatibility capabilities of the handsets Airadigm offers for sale. Such training will be completed within ninety days of the Effective Date and any new employees will receive training within sixty days of their employment. (c) Consumer Outreach. Airadigm will advertise the availability of hearing aid-compatible handsets to ensure that all of its retail customers are aware that hearing aid-compatible handsets are available. (d) Compliance Reports. Airadigm will file compliance reports with the Commission ninety (90) days after the Effective Date, twelve (12) months after the Effective Date, and twenty- four (24) months after the Effective Date. Each report shall include a compliance certificate from an officer, as an agent of Airadigm, stating that the officer has personal knowledge that Airadigm has established operating procedures intended to ensure compliance with this Consent Decree, together with an accompanying statement explaining the basis for the officer’s compliance certification. All compliance reports shall be submitted to Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal Communications Commission, 445 12th Street, S.W., Washington, D.C. 20554. All reports shall also be submitted electronically to Jennifer Burton, Esq., Jennifer.Burton@fcc.gov, and JoAnn Lucanik, Deputy Division Chief, JoAnn.Lucanik@fcc.gov. (e) Termination Date. Unless stated otherwise, the requirements of this Consent Decree will expire twenty-four (24) months 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 Airadigm 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 Airadigm with the Act, the Rules, or Commission Orders. 10. Voluntary Contribution. Airadigm agrees that it will make a voluntary contribution to the United States Treasury in the amount of eleven thousand dollars ($11,000.00). The payment will be made within 30 days after the Effective Date of the Adopting Order. The payment must be made by check or similar instrument, payable to the order of the Federal Communications Commission. The payment must include the Account Number and FRN Number referenced in the caption to the Adopting Order. Payment by check or money order may be mailed to Federal Communications Commission, P.O. Federal Communications Commission DA 08-1716 4 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). Airadigm will also send electronic notification on the date said payment is made to Jennifer Burton, Esq., Jennifer.Burton@fcc.gov, and JoAnn Lucanik, Deputy Division Chief, JoAnn.Lucanik@fcc.gov. 11. Waivers. Airadigm 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 Adopting Order, provided the Adopting Order adopts the Consent Decree without change, addition, modification, or deletion. Airadigm 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 Airadigm nor the Commission shall contest the validity of the Consent Decree or the Adopting Order, and Airadigm shall waive any statutory right to a trial de novo. Airadigm hereby agrees to waive any claims it may otherwise have under 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. 12. Severability. The Parties agree that if any of the provisions of the Adopting Order or the Consent Decree shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Adopting Order or Consent Decree, but rather the entire Adopting Order or Consent Decree shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of the Parties shall be construed and enforced accordingly. 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 Airadigm does not expressly consent), that provision will be superseded by such Commission rule or Order. 14. Successors and Assigns. Airadigm 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 requirements of the Act or the Commission’s Rules and Orders. 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. Federal Communications Commission DA 08-1716 5 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. _______________________________ Kathryn S. Berthot, Chief, Spectrum Enforcement Division Enforcement Bureau ________________________________ Date ________________________________ Linda J. Springer Director of Finance and Accounting Airadigm Communications, Inc. ________________________________ Date