_ Federal Communications Commission DA 08-914 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Edge Wireless Licenses, LLC ) ) ) ) ) File No. EB-07-SE-270 Acct. No. 200832100046 FRN No. 0004119483 ORDER Adopted: May 7, 2008 Released: May 9, 2008 By the Deputy Chief, Enforcement Bureau: 1. In this Order, we adopt the attached Consent Decree entered into between the Enforcement Bureau (“Bureau”) and Edge Wireless Licenses, LLC (“Edge”). The Consent Decree terminates an investigation by the Bureau against Edge 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 Edge 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 Edge 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 Rules,3 the Consent Decree attached to this Order IS ADOPTED. 6. IT IS FURTHER ORDERED that the above-captioned investigation IS TERMINATED. 7. IT IS FURTHER ORDERED that Edge shall make its voluntary contribution to the United States Treasury, as specified in the Consent Decree, by credit card through the Commission’s Revenue and Receivables Operations Group at (202) 418-1995, or by mailing a check or similar 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 08-914 2 instrument payable to the Order of the Federal Communications Commission, to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S. Bank – Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be made to ABA Number 021030004, receiving bank TREAS/NYC, and account number 27000001. For payment by credit card, an FCC Form 159 (Remittance Advice) must be submitted. When completing the FCC Form 159, enter the Account number in block number 23A (call sign/other ID), and enter the letters “FORF” in block number 24A (payment type code). 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 Thomas Gutierrez, Esq., Lukas, Nace, Gutierrez & Sachs, Chartered, 1650 Tysons Blvd., Suite 1500, McLean, Virginia 22102. FEDERAL COMMUNICATIONS COMMISSION Susan McNeil Deputy Chief, Enforcement Bureau _ Federal Communications Commission DA 08-914 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Edge Wireless Licenses LLC ) ) ) ) ) File No. EB-07-SE-270 Acct. No. 200832100046 FRN No. 0004119483 CONSENT DECREE The Enforcement Bureau (“Bureau”) and Edge Wireless Licenses, LLC (“Edge”), by their authorized representatives, hereby enter into this Consent Decree for the purpose of terminating the Bureau’s investigation into whether Edge violated section 20.19(d)(2) of the Commission’s Rules1 regarding the 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) “Bureau” means the Enforcement Bureau of the Federal Communications Commission. (c) “Commission” and “FCC” mean the Federal Communications Commission and all of its bureaus and offices. (d) “Effective Date” means the date on which the Bureau releases the Adopting Order. (e) “Investigation” means the investigation initiated by the Bureau’s August 13, 2007 Letter of Inquiry2 regarding whether Edge violated the inductive coupling hearing aid compatibility requirements of section 20.19(d)(2) of the Rules. (f) “Edge” means Edge Wireless Licenses, LLC and its predecessors-in-interest and successors-in-interest. 1 47 C.F.R. § 20.19(d)(2). 2 See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal Communications Commission to Edge Wireless Licenses, LLC (August 13, 2007). Federal Communications Commission DA 08-914 2 (g) “Order” or “Adopting Order” means an Order of the Bureau adopting the terms of this Consent Decree without change, addition, deletion, or modification. (h) “Parties” means Edge and the Bureau. (i) “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 3. On August 13, 2007, the Bureau issued a letter of inquiry (LOI) to Edge.4 The August 13, 2007 LOI directed Edge, among other things, to submit a sworn written response to a series of questions relating to its compliance with the inductive coupling hearing aid compatibility requirements. Edge responded to the August 13, 2007 LOI on August 27, 2007.5 On December 14, 2007, applications to transfer control of Edge to New Cingular Wireless PCS, LLC, an indirect, wholly owned subsidiary of AT&T Mobility, LLC, were filed.6 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. Edge 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, Edge 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 3 47 C.F.R. § 20.19(d)(2). 4 Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal Communications Commission to Edge Wireless Licenses, LLC (August 13, 2007). 5 See Letter from Thomas Gutierrez, Esq., and Todd Slamowitz, Esq., Lukas, Nace & Sachs, Chartered to Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau (August 27, 2007). 6 See File Nos. 0003256509, 50000CWTC08, 0003259209 and 0003259627. Federal Communications Commission DA 08-914 3 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 Edge 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 Edge with respect to Edge’s basic qualifications, including its character qualifications, to be a Commission licensee or authorized common carrier. 8. 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 Edge 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 Edge with the Act, the Rules, or the Order. 9. Voluntary Contribution. Edge agrees that it will make a voluntary contribution to the United States Treasury in the amount of $15,000. 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. 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). 10. Waivers. Edge 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, provided the Bureau issues an Order adopting the Consent Decree without change, addition, modification, or deletion. Edge 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 Edge nor the Commission shall contest the validity of the Consent Decree or the Adopting Order, and Edge shall waive any statutory right to a trial de novo. Edge 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. 11. 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. 12. 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 Federal Communications Commission DA 08-914 4 specifically intended to revise the terms of this Consent Decree to which Edge does not expressly consent) that provision will be superseded by such Commission rule or Order. 13. Successors and Assigns. Edge agrees that the provisions of this Consent Decree shall be binding on its successors, assigns, and transferees. 14. 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. 15. Modifications. This Consent Decree cannot be modified without the advance written consent of both Parties. 16. 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. 17. Authorized Representative. Each party represents and warrants to the other that it has full power and authority to enter into this Consent Decree. 18. 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. _______________________________ Susan McNeil Deputy Chief Enforcement Bureau ________________________________ Date ________________________________ Kevin J. Keillor General Counsel Edge Wireless Licenses, LLC ________________________________ Date Federal Communications Commission DA 08-914 5