*Pages 1--17 from Microsoft Word - 21970.doc* Federal Communications Commission FCC 02- 283 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of ) ) AT& T Wireless Services, Inc. ) File No. EB- 02- TS- 018 ) NAL/ Acct. No. 200232100002 ) FRN 0003- 7665- 32 ORDER Adopted: October 8, 2002 Released: October 9, 2002 By the Commission: 1. In this Order, we adopt a Consent Decree terminating the above- captioned proceeding 1 regarding possible violations by AT& T Wireless Services, Inc. (“ AT& T Wireless”) of the enhanced 911 (“ E911”) Phase II provisions of Section 20.18 of the Commission’s Rules (“ Rules”), 2 Sections 1.17 and 1.65 of the Rules, 3 and the supplemental filing requirement set forth in the Commission order granting AT& T Wireless a waiver of the E911 Phase II rules for its Global System for Mobile Communications/ General Packet Radio Service network. 4 2. The Commission and AT& T Wireless have negotiated the terms of a Consent Decree that would resolve this matter and terminate the above- captioned proceeding. 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 as to whether AT& T Wireless 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 approving the Consent Decree and terminating the above- captioned proceeding. 5. Accordingly, IT IS ORDERED, pursuant to Sections 4( i), 4( j) and 503( b) of the Communications Act of 1934, as amended, 5 that the attached Consent Decree IS ADOPTED. 6. AT& T Wireless shall make its voluntary contribution to the United States Treasury by mailing a check or similar instrument, payable to the order of the Federal Communications Commission, 1 AT& T Wireless Services, Inc., Notice of Apparent Liability for Forfeiture, 17 FCC Rcd 9903 (2002) (“ NAL”). 2 47 C. F. R. § 20.18. 3 47 C. F. R. §§ 1.17 and 1.65. 4 Revision of the Commission’s Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, (Request for Waiver by AT& T Wireless Services, Inc.), CC Docket No. 94- 102, 16 FCC Rcd 18253 (2001). 5 47 U. S. C. §§ 154( i), 154( j) and 503( b). 1 Federal Communications Commission FCC 02- 283 2 to the Federal Communications Commission, Forfeiture Collection Section, Finance Branch, P. O. Box 73482, Chicago, Illinois 60673- 7482. The payment should reference NAL/ Acct. No. 200232100002 and FRN 0003- 7665- 32. 7. IT IS FURTHER ORDERED that the May 20, 2002 Notice of Apparent Liability for Forfeiture issued to AT& T Wireless Services, Inc. IS CANCELLED and the above- captioned proceeding IS TERMINATED. 8. IT IS FURTHER ORDERED that the Secretary SHALL SIGN the Consent Decree on behalf of the Commission. FEDERAL COMMUNICATIONS COMMISSION Marlene H. Dorch Secretary 2 Federal Communications Commission FCC 02- 283 3 CONSENT DECREE The Federal Communications Commission (“ FCC”) and AT& T Wireless Services, Inc. (“ AT& T Wireless”) hereby enter into a Consent Decree resolving possible violations by AT& T Wireless of the E911 Phase II provisions of Section 20.18 of the Commission’s Rules, 47 C. F. R. § 20.18, Sections 1.17 and 1.65 of the Commission’s Rules, 47 C. F. R. §§ 1.17 and 1.65, and the supplemental filing requirement set forth in the Commission order granting AT& T Wireless a waiver of the E911 Phase II provisions for its Global System for Mobile Communications/ General Packet Radio Service (“ GSM”) network. Statement of Facts 1. On October 2, 2001, the Commission adopted an order approving AT& T Wireless’s plan to deploy a hybrid network and handset- based technology called Enhanced Observed Time Difference of Arrival (“ E- OTD”) across its planned Global System for Mobile Communications/ General Packet Radio Service network and granting AT& T Wireless a temporary, conditional waiver of the accuracy requirements for handset- based location technologies to permit implementation of this plan. 6 The Commission granted AT& T Wireless’s waiver request subject to the following four specific conditions: (1) that, effective October 1, 2001, all E- OTD- capable handsets provide ALI with an accuracy of 100 meters/ 67 percent of calls and 300 meters/ 95 percent of calls; (2) that all E- OTD- capable handsets sold and activated on or after October 1, 2003 comply with an accuracy of 50 meters/ 67 percent of calls and 150 meters/ 95 percent of calls; (3) that AT& T Wireless file Quarterly Reports on its progress and compliance with the terms and conditions of its implementation plan and the E911 rules beginning February 1, 2002 and continuing through November 1, 2003; and (4) that, in the event that its E- OTD solution fails to comply with the accuracy requirements by October 1, 2003, AT& T Wireless propose a solution that does comply with those requirements and the other applicable Phase II rules. The Commission also directed AT& T Wireless to make a supplemental filing notifying the Commission to the extent that unexpected problems affecting its ability to perform arise in the period between Quarterly Reports. 2. On May 20, 2002, the Commission released a Notice of Apparent Liability for Forfeiture (“ NAL”) following an investigation into whether AT& T Wireless violated the E911 Phase II rules with respect to its GSM network and whether AT& T Wireless made inaccurate statements in its request for a waiver of the E911 Phase II rules for its GSM network. 7 The NAL found AT& T Wireless apparently liable for a $2.2 million forfeiture for: (1) apparently failing to begin selling and activating location-capable handsets by October 1, 2001, in willful and repeated violation of Section 20.18( g)( 1)( i) of the Commission’s Rules; (2) apparently failing to implement any network or infrastructure upgrades necessary to provide E911 Phase II service and begin providing service within six months of a valid request by a Public Safety Answering Point or by October 1, 2001, whichever is later, in willful and repeated violation of Section 20.18( g)( 2) of the Commission’s Rules; (3) apparently failing to notify the Commission within 30 days that information contained in its E911 waiver request was no longer 6 Revision of the Commission’s Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, (Request for Waiver by AT& T Wireless Services, Inc.), CC Docket No. 94- 102, 16 FCC Rcd 18253 (2001) (“ GSM Waiver Order”). 7 AT& T Wireless Services, Inc., 17 FCC Rcd 9903 (2002). 3 Federal Communications Commission FCC 02- 283 4 substantially accurate or complete in all respects, in willful and repeated violation of Section 1.65 of the Commission’s Rules; and (4) apparently failing to make a supplementary filing notifying the Commission that it was not going to comply with the deployment schedule requirements set forth in the E911 rules in willful and repeated violation of the GSM Waiver Order. The NAL also noted that the Enforcement Bureau was continuing to investigate this matter to determine whether AT& T Wireless may have engaged in misrepresentation in violation of Section 1.17 of the Commission’s Rules. AT& T Wireless filed a response to the NAL on June 19, 2002. 8 Terms of Settlement 3. For the purposes of this Consent Decree and the attached Compliance Plan, the following definitions shall apply: (a) “FCC” or “Commission” means the Federal Communications Commission. (b) “Parties” means AT& T Wireless Services, Inc. and the Federal Communications Commission. (c) “AT& T Wireless” means AT& T Wireless Services, Inc., its subsidiaries, and any successors or assigns. (d) “Adopting Order” means an order of the FCC adopting this Consent Decree. (e) “Effective Date” means the date on which the FCC releases the Adopting Order. (f) “Rules” means the Commission’s regulations found in Title 47 of the Code of Federal Regulations. (g) “Act” means the Communications Act of 1934, as amended, 47 U. S. C. § 151 et seq. (h) “Valid PSAP Request” means a Public Safety Answering Point (“ PSAP”) request for Phase I or Phase II service as defined in the Commission’s rules governing E911 and any orders of the Commission interpreting such rules. (i) “Deploy” means installation at the cell site of all hardware and base release software necessary to provide Phase II service. 4. The Parties agree that the provisions of this Consent Decree shall be subject to final approval by the FCC by incorporation of such provisions by reference in an Adopting Order. 5. The Parties agree that this Consent Decree shall become effective on the date on which the FCC 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 Commission and any violation of any term of this Consent Decree shall constitute a violation of a Commission order entitling the FCC to exercise any and all rights and to seek any and all remedies authorized by law for the enforcement of a Commission order. 6. AT& T Wireless agrees that the FCC has jurisdiction over the matters contained in this Consent Decree and the authority to enter into and adopt this Consent Decree. 7. The Parties agree and acknowledge that this Consent Decree shall constitute a final settlement between AT& T Wireless and the FCC regarding the possible violations addressed in the NAL of the E911 Phase II rules for its GSM network, Sections 1.17 and 1.65 of the Rules, and the 8 AT& T Wireless Services, Inc. Response to Notice of Apparent Liability, CC Docket 94- 102 (filed June 19, 2002). 4 Federal Communications Commission FCC 02- 283 5 supplemental filing requirement set forth in the GSM Waiver Order. In consideration for termination by the Commission of its investigation into whether AT& T Wireless has violated the E911 Phase II rules for its GSM network, Sections 1.17 and 1.65 of the Rules, and the supplemental filing requirement set forth in the GSM Waiver Order and for cancellation of the NAL, and in accordance with the terms of this Consent Decree, AT& T Wireless agrees to the terms set forth herein and in the accompanying and incorporated Compliance Plan. To ensure AT& T Wireless’s future compliance with the Act and the Commission’s rules, AT& T Wireless agrees, effective thirty days after the release of the Order, to implement the specific measures contained in the attached Compliance Plan. 8. In express reliance on the covenants and representations in this Consent Decree, the FCC agrees to terminate its investigation into whether AT& T Wireless has violated the E911 Phase II rules for its GSM network, Sections 1.17 and 1.65 of the Rules, and the supplemental filing requirement set forth in the GSM Waiver Order as addressed in the NAL and to cancel the NAL. 9. AT& T Wireless agrees to comply with the E911 Phase II rules modified as follows: (a) First, AT& T Wireless agrees: (1) To deploy a Phase II compliant technology at a minimum of 1,000 cell sites on its GSM network by January 31, 2003. 9 In meeting this benchmark, AT& T Wireless must give priority to fulfilling pending PSAP requests first. (2) To deploy a Phase II compliant technology at a minimum of 2,000 cell sites on its GSM network by March 31, 2003. In meeting this benchmark, AT& T Wireless must give priority to fulfilling pending PSAP requests first. (3) To deploy a Phase II compliant technology at a minimum of 4,000 cell sites on its GSM network and provide Phase II service at 2,000 of these sites by June 30, 2003. In meeting this benchmark, AT& T Wireless must give priority to fulfilling pending PSAP requests first. (4) To deploy a Phase II compliant technology at a minimum of 6,000 cell sites on its GSM network by December 31, 2003, if necessary to meet a valid PSAP request pending more than six months as of that date. (5) To deploy a Phase II compliant technology at a minimum of 8,000 cell sites on its GSM network by June 30, 2004, if necessary to meet a valid PSAP request pending more than six months as of that date. 9 AT& T Wireless currently plans to employ a network- based location technology that has not yet been fully validated on AT& T Wireless’s network, but which AT& T Wireless currently expects will meet the Phase II accuracy requirements and for which AT& T Wireless expects full validation in seven months. AT& T Wireless must report to the Commission the results of its validation tests within 30 days of completion pursuant to the reporting requirement of paragraph 11( d). To the extent this network- based location technology does not comply with the Commission’s Phase II accuracy requirements, AT& T must request approval from the Commission to employ an alternative location technology that does comply with those requirements. See infra paragraph 11( d). 5 Federal Communications Commission FCC 02- 283 6 (6) For any valid PSAP requests for Phase II service on its GSM network received by AT& T Wireless on or before September 30, 2002, AT& T Wireless must provide its Phase II compliant solution to 100% of those PSAPs’ coverage areas or population by November 30, 2003. (7) For valid PSAP requests received after September 30, 2002, but on or before April 30, 2003, AT& T Wireless must provide its Phase II compliant solution to 50% of those PSAPs’ coverage areas or population by November 30, 2003, and to 100% of those PSAPs’ coverage areas or population by June 30, 2004. (8) For valid PSAP requests received after April 30, 2003, AT& T Wireless must provide its Phase II compliant service to 50% of those PSAPs’ coverage areas or population within six months of receipt of such request and to 100% of those PSAPs’ coverage areas or population within 15 months of receipt of a PSAP request. (b) Second, AT& T Wireless agrees that its classification of a PSAP request as invalid will not insulate it from enforcement action if the Commission determines that the request was valid. (c) Third, AT& T Wireless states that it is relying on vendor representations in agreeing to the deployment schedule set forth herein and for its belief that a network- based solution will satisfy the Commission’s accuracy requirements. 10 (d) Fourth, in any market where AT& T Wireless has received a valid PSAP request and has not yet deployed its network- based solution, when 100 percent of new digital GSM handsets being activated by AT& T Wireless are location capable, AT& T Wireless may satisfy that request using a Phase II compliant handset- based technology to provide Phase II E911 service instead of its network-based technology. (e) Fifth, AT& T Wireless agrees that in the event it fails to comply with any of the benchmarks set forth in paragraph 9( a)( 1) through (5), it will make a voluntary contribution to the United States Treasury in the amount of $450,000 for the first missed benchmark, $900,000 for the second missed benchmark and $1,800,000 for the third missed benchmark and any subsequently missed benchmarks. Any such voluntary contribution will be made within thirty (30) days of the missed 10 As required by Section 20.18( h)( 1) of the Commission’s Rules AT& T Wireless’s network- based technology for delivering E911 Phase II location information must meet the following standard for location accuracy: 100 meters for 67 percent of calls, 300 meters for 95 percent of calls. If AT& T Wireless is required to use the E- OTD technology in the alternative, see supra n. 9, that technology will meet the following standards for location accuracy: initially, 100 meters for 67 percent of calls, 300 meters for 95 percent of calls; after October 1, 2003, 50 meters for 67 percent of calls, 150 meters for 95 percent of calls. Regardless of the technology used, AT& T Wireless will derive its network- wide location accuracy measurements by selecting the 67 percent and 95 percent accuracy numbers from test data weighted in accordance with OET Bulletin No. 71, Guidelines for Testing and Verifying the Accuracy of Wireless E911 Location Systems, Apr. 12, 2000. AT& T Wireless’s location accuracy testing should be consistent with the guidelines in OET Bulletin No. 71, which states that accuracy testing may be based on the coverage areas of local PSAPs that request Phase II deployment or the wireless carrier’s entire advertised coverage area within a metropolitan area. 6 Federal Communications Commission FCC 02- 283 7 benchmark or within five business days of a Commission decision denying a request to modify the benchmark date, whichever is later, by mailing a check or similar instrument, payable to the order of the Federal Communications Commission, to the Federal Communications Commission, Forfeiture Collection Section, Finance Branch, P. O. Box 73482, Chicago, Illinois 60673- 7482. The payment should reference NAL/ Acct. No. 200232100002, as well as AT& T Wireless’s FCC Registration Number (“ FRN”) 0003- 7665- 32. (f) Sixth, AT& T Wireless must file Quarterly Reports, on its progress and compliance with the terms and conditions of the Consent Decree and the wireless E911 rules, as set forth in paragraphs 10- 12, infra. 11 (g) Seventh, with its November 1, 2002 Quarterly Report, AT& T Wireless must submit a Phase II rollout plan describing how it will prioritize PSAP requests and deploy Phase II service in its GSM network. 10. To assist in monitoring and enforcing each of the conditions imposed on AT& T Wireless, AT& T Wireless must file Quarterly Reports with the Chief of the Enforcement Bureau and the Chief of the Wireless Telecommunications Bureau regarding its GSM network. 12 11. Specifically, the Quarterly Reports must include the following information: (a) The Report must include information on all pending Phase I and Phase II requests in AT& T Wireless’s GSM network, including the name of the PSAP, the date the request was received by the carrier, whether or not AT& T Wireless considers it valid, and its status. To the extent any PSAP request for Phase II service in AT& T Wireless’s GSM network received after April 30, 2003 has been pending for more than six months, AT& T Wireless must identify the specific reasons underlying the failure to provide the requested service, the steps AT& T Wireless has taken to resolve the problems, and the anticipated date of full completion of the work necessary to deliver the requested information to the PSAP in question. If AT& T Wireless believes there are questions concerning a PSAP’s compliance with the conditions necessary for a valid Phase I or II request, such as its readiness to receive and utilize Phase I or Phase II information, it should identify specifically the question and the efforts it has undertaken, including the communications it has had with the PSAP, to resolve the question. AT& T Wireless agrees to serve this report on the Association of Public- Safety Communications Officials- International, Inc., the National Emergency Number Association, and the National Association of State Nine One One Administrators. 13 In addition, the Commission will post this information on its website. 14 The Parties 11 These requirements are in lieu of the Quarterly Report requirements set forth in the October 12, 2001 GSM Waiver Order, but are in addition to the Quarterly Report requirements set forth in the June 18, 2002 TDMA Consent Decree. AT& T Wireless may, however, combine the information required with respect to its GSM network and its TDMA/ AMPS networks into a single Quarterly Report. 12 Each of the conditions imposed on AT& T Wireless as described in this Consent Decree pertains only to AT& T Wireless’s GSM network. 13 AT& T Wireless should serve the Executive Director of each organization as well as its counsel, to the extent such counsel has been identified in the record in response to AT& T Wireless’s request for relief. 14 See . 7 Federal Communications Commission FCC 02- 283 8 agree that the Wireless Telecommunications Bureau may require any additional steps necessary to ensure PSAP access to this information. (b) Each Quarterly Report also must contain statements regarding whether AT& T Wireless has met each deployment benchmark falling due in the period immediately preceding the Quarterly Report, and, if not, the reasons for its failure to comply. Each Quarterly Report must contain: (1) a statement of whether AT& T Wireless has commenced offering service on its GSM network and, if so, on what date it began offering its GSM service; (2) a statement of whether AT& T Wireless’s network- based technology for delivering E911 Phase II location information meets the Commission’s network-based accuracy requirements of 100 meters for 67 percent of calls and 300 meters for 95 percent of calls; (3) for the January 31, 2003 benchmark, a statement of whether AT& T Wireless has deployed a Phase II compliant technology at 1,000 cell sites, giving priority to fulfilling pending PSAP requests, and identifying the 1,000 cell sites; (4) for the March 31, 2003 benchmark, a statement of whether AT& T Wireless has deployed a Phase II compliant technology at 2,000 cell sites, giving priority to fulfilling pending PSAP requests, and identifying the 2,000 cell sites; (5) for the June 30, 2003 benchmarks, a statement of (i) whether AT& T Wireless has deployed a Phase II compliant technology at 4,000 cell sites, giving priority to fulfilling pending PSAP requests, and identifying the 4,000 cell sites, and (ii) whether AT& T Wireless is providing Phase II service at 2,000 of these sites, and identifying the 2,000 cell sites; (6) for the December 31, 2003 benchmark, a statement of whether AT& T Wireless has deployed a compliant Phase II technology at 6,000 cell sites; (7) for the June 30, 2004 benchmark in paragraph 9( a)( 5), a statement of whether AT& T Wireless has deployed a compliant Phase II technology at 8,000 cell sites; (8) for the June 30, 2004 benchmark in paragraph 9( a)( 7), a statement of whether, for any valid PSAP requests for Phase II service on its GSM network received by AT& T Wireless after September 30, 2002, but on or before April 30, 2003, AT& T Wireless has provided its Phase II compliant solution to 100% of those PSAPs’ coverage areas or population; and (9) for any valid PSAP request received after April 30, 2003, a statement of whether AT& T Wireless has provided its Phase II compliant service to 50% of those PSAPs’ coverage areas or population within six months of receipt of the request and to 100% of those PSAPs’ coverage areas or population within 15 months of receipt of the request. 8 Federal Communications Commission FCC 02- 283 9 (c) AT& T Wireless must support each Quarterly Report with an affidavit, from an officer or director of AT& T Wireless, attesting to the truth and accuracy of the report. 15 (d) In addition to the requirements of paragraph 11( b), AT& T Wireless must notify the Commission of the results of its validation tests of its network- based location technology within 30 days of completion. Further, to the extent AT& T Wireless anticipates that it will fail to satisfy any one of the conditions herein, it also must advise the Commission of the problem within 30 days. Seeking relief from that condition will not, in and of itself, insulate AT& T Wireless from possible enforcement in cases where AT& T Wireless has violated a condition of this Consent Decree. AT& T Wireless agrees that the Commission will not entertain requests for additional relief that seek changes in the conditions of this Consent Decree absent extraordinary circumstances. (e) AT& T Wireless must also file a supplemental report on December 15, 2003 containing, for the November 30, 2003 benchmark, statements of whether: (i) for any valid PSAP requests for Phase II service on its GSM network received by AT& T Wireless on or before September 30, 2002, AT& T Wireless has provided its Phase II compliant solution to 100% of those PSAPs’ coverage areas or population; and (ii) for any valid PSAP requests for Phase II service on its GSM network received by AT& T Wireless after September 30, 2002, but on or before April 30, 2003, AT& T Wireless has provided its Phase II compliant solution to 50% of those PSAPs’ coverage areas or population. (f) To the extent AT& T Wireless cannot provide the information required under this paragraph in its next Quarterly Report following the respective benchmark, it must file with the Chief, Enforcement Bureau, a request for extension of time to file the required information. Such request must be filed as early as possible before the Quarterly Report filing date, but generally no later than 10 business days prior to the Quarterly Report filing date. The request must specify the reasons for the request. (g) AT& T Wireless’s Quarterly Reports are due February 1, May 1, August 1, and November 1 of each year, beginning November 1, 2002 and continuing through February 1, 2006. To the extent that AT& T Wireless cannot provide any of the information required in its final report, it must file with the Chief, Enforcement Bureau, a request for extension of time to file the required information in accordance with the procedures set forth above. 12. The Parties agree that the Chiefs of the Wireless Telecommunications Bureau and the Enforcement Bureau may require AT& T Wireless to provide additional information in its Quarterly Reports, in order to evaluate AT& T Wireless’ compliance with the terms and conditions of the Consent Decree, and its progress in deploying Phase I and Phase II E911 services. 13. To the extent unexpected problems arise affecting AT& T Wireless’s ability to perform any of the requirements set forth in paragraph 9( a) in the period between reports, AT& T Wireless agrees to notify the Commission through a supplementary filing to be filed within 30 days of AT& T Wireless’s discovery of the problem. This supplemental filing must include specific details regarding the problems AT& T Wireless has encountered affecting its ability to comply with the benchmark requirements. 14. As of the effective date hereof, this Consent Decree shall supersede the GSM Waiver Order and the requirements contained therein and such Order and requirements shall be of no force or 15 See 47 CFR §1.16. 9 Federal Communications Commission FCC 02- 283 10 effect. 15. The Parties agree that the terms of the accompanying Compliance Plan are incorporated into this Consent Decree. 16. AT& T Wireless agrees that it is required to comply with each individual condition of this Consent Decree, including the reporting requirements set forth above and the terms of the accompanying Compliance Plan. Each specific condition and Quarterly Report is a separate condition of the Consent Decree as approved. In addition, AT& T Wireless remains subject to all other requirements of the Commission’s wireless E911 rules apart from those specifically modified in this Consent Decree, and ultimately responsible for providing timely, compliant Phase II service. To the extent that AT& T Wireless fails to satisfy any condition or Commission rule, in the absence of Commission alteration of the condition or rule, it will be deemed noncompliant and referred to the Commission’s Enforcement Bureau for possible action, including but not limited to revocation of the relief, a requirement to deploy an alternative ALI technology, letters of admonishment or forfeitures. At that time an assertion that a vendor, manufacturer or other entity was unable to supply compliant products will not excuse noncompliance. However, AT& T Wireless’s “concrete and timely” actions taken with a vendor, manufacturer or other entity may be considered as possible mitigation factors in such an enforcement context. To the extent that the Commission, in response to petitions for reconsideration pending in Revision of the Commission’s Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, Request for Waiver by Nextel Communications, Inc., 16 FCC Rcd 18277 (2001), Revision of the Commission’s Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, Request for Waiver by Cingular Wireless LLC, 16 FCC Rcd 18305 (2001), or Revision of the Commission’s Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, Request for Waiver by Verizon Wireless, 16 FCC Rcd 18364 (2001), or in connection with any court order on review of those proceedings, imposes a standard regarding compliance and enforcement action that is different than set forth in this Consent Decree, that subsequent standard shall apply. 17. AT& T Wireless agrees to make a voluntary contribution to the United States Treasury in the amount of Two Million Dollars ($ 2,000,000) within thirty (30) days after the Effective Date. AT& T Wireless will make this contribution without further protest or recourse by mailing a check or similar instrument, payable to the order of the Federal Communications Commission, to the Federal Communications Commission, Forfeiture Collection Section, Finance Branch, P. O. Box 73482, Chicago, Illinois 60673- 7482. The payment should reference NAL/ Acct. No. 200232100002 and FRN 0003- 7665- 32. 18. The FCC agrees that it will not institute, on its own motion, any new proceeding, formal or informal, or take any action on its own motion against AT& T Wireless for the possible violations addressed in the NAL of the E911 Phase II rules for its GSM network, Sections 1.17 and 1.65 of the Rules, and the supplemental filing requirement set forth in the GSM Waiver Order. The FCC also agrees that, in the absence of material new evidence related to this matter, it will not use the facts developed in this proceeding 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 AT& T Wireless with respect to its basic qualifications, including the character qualifications, to be a Commission licensee. Nothing in this Consent Decree shall prevent the FCC from instituting new investigations or enforcement proceedings against AT& T Wireless pursuant to Sections 4( i), 403 and 503 of the Act, 47 U. S. C. §§ 4( i), 403 and 503, in the event of any alleged future misconduct, for violation of this Consent Decree, or for violation of the E911 Phase II rules consistent with the provisions of this 10 Federal Communications Commission FCC 02- 283 11 Consent Decree. 19. Nothing in this Consent Decree shall prevent the FCC from adjudicating complaints filed pursuant to Section 208 of the Act, 47 U. S. C. § 208, against AT& T Wireless or its subsidiaries for alleged violations of Section 20.18 of the Rules as modified by this Consent Decree, or for any other type of alleged misconduct, regardless of when such misconduct took place. If any such complaint is made, the FCC’s adjudication of that complaint will be based solely on the record developed in that proceeding. 20. AT& T Wireless 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 Adopting Order adopts the Consent Decree without change, addition or modification. 21. If either Party (or the United States on behalf of the FCC) brings a judicial action to enforce the terms of the Adopting Order, neither AT& T Wireless nor the FCC shall contest the validity of the Consent Decree or Adopting Order, and AT& T Wireless and the FCC shall waive any statutory right to a trial de novo with respect to any matter upon which the Adopting Order is based and shall consent to a judgment incorporating the terms of this Consent Decree. 22. AT& T Wireless 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 discussed in this Consent Decree. 23. In the event that this Consent Decree is rendered invalid by any court of competent jurisdiction, this Consent Decree shall become null and void and may not be used in any manner in any legal proceeding. 24. 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 with the requirements of the Act and the Rules, including Sections 1.17, 1.65 and 20.18 of the Rules, and the supplemental filing requirement set forth in the GSM Waiver Order. The Parties agree that this Consent Decree is for settlement purposes only and that by agreeing to this Consent Decree, AT& T Wireless does not admit or deny any liability for violating Commission rules in connection with the matters that are the subject of this Consent Decree. 25. The Parties agree that any provision of the Consent Decree that would require AT& T Wireless to act in violation of a future rule or order adopted by the Commission will be superseded by such Commission rule or order. In this regard, the Parties agree that any Commission rule or order that is more stringent than any provision of the Consent Decree supersedes such provision of the Consent Decree. 11 Federal Communications Commission FCC 02- 283 12 26. This Consent Decree may be signed in counterparts. For the Federal Communications Commission For AT& T Wireless Services, Inc. ______________________________ ______________________________ Marlene H. Dortch Douglas I. Brandon Secretary Vice President - External Affairs & Law ______________________________ ______________________________ Date Date 12 Federal Communications Commission FCC 02- 283 13 COMPLIANCE PLAN 1. Compliance Officer. Within 30 days of the Effective Date, AT& T Wireless will appoint an E911 Compliance Officer (“ Compliance Officer”), who will administer the compliance program described below. The Compliance Officer also will supervise AT& T Wireless’s compliance with the FCC’s E911 rules and the requirements of this consent decree, including the need to keep the FCC apprised in a timely manner of developments affecting compliance with all E911 rules and requirements. 2. Written Advisory. Within 60 days of the Effective Date, the Compliance Officer will send a written advisory on the E911 rules, the requirements of this consent decree, and sections 1.17 and 1.65 of the FCC’s rules to (1) each officer of AT& T Wireless, (2) each employee in AT& T Wireless’s External Affairs Group, and (3) all employees, contractors, consultants, and any other persons or entities associated with AT& T Wireless who have or will have E911- related responsibilities for or on behalf of AT& T Wireless. The written advisory shall be substantially in the form of Attachment A hereto. 3. Non- Compliance Admonition. Distributed with the advisory shall be a written admonition that (1) non- compliance with the FCC’s E911 rules, this consent decree, or section 1.17 or 1.65 of the FCC’s rules in connection with AT& T Wireless’s E911 deployment, or (2) the failure to report information about non- compliance or possible non- compliance to the Compliance Officer within ten (10) business days after receiving such information, will result, in every case, in disciplinary action, which may include dismissal. Not later than twenty (20) days after a person begins performance of his or her duties as an officer of AT& T Wireless, AT& T Wireless External Affairs employee, or other covered employee, AT& T Wireless shall provide that person with a copy of the advisory and accompanying admonition. 4. Semi- Annual Meetings. The Compliance Officer will meet not less than twice a year with all AT& T Wireless personnel materially involved in E911 compliance to review and explain the FCC’s E911 rules, the FCC’s rules regarding truthful statements and the obligation to maintain the accuracy and completeness of any pending FCC application, and the requirements of this consent decree. AT& T Wireless will maintain written certification from each covered employee certifying that he or she has attended the meeting( s), received the advisory and accompanying admonition, and understands AT& T Wireless’s obligations to comply with such rules and requirements. 5. Quarterly Report Verification. AT& T Wireless will institute a requirement that any employee who signs and submits a quarterly report or other required filing regarding E911 compliance on behalf of AT& T Wireless confer with the Compliance Officer to discuss compliance with the FCC’s E911 rules, the requirements of this consent decree, and sections 1.17 and 1.65 of the FCC’s rules before signing and submitting such report or other filing. 6. List of Employees Verifying Information in Quarterly Reports. AT& T Wireless will maintain a list of those employees who, after the effective date of this consent decree, verify the factual assertions contained in a quarterly report or other required filing regarding E911 compliance. The list will specify which reports or other filings, or portions of reports or filings, the employee verified. 7. Quarterly Report Statement. AT& T Wireless will require that any quarterly report or other required filing regarding E911 compliance signed by an employee include a statement that the employee has attended the semi- annual compliance meeting( s), received the advisory and accompanying admonition, and understands AT& T Wireless’s obligations to comply with all E911 rules, the requirements of this consent decree, and sections 1.17 and 1.65 of the FCC’s rules. 13 Federal Communications Commission FCC 02- 283 14 8. Compliance Tracking. AT& T Wireless will assign a manager in its External Affairs Group the responsibility of tracking compliance with the requirements above, including the maintenance of records documenting such compliance. 9. Disciplinary Action. If, after an internal investigation and based upon a preponderance of the evidence, AT& T Wireless concludes that one of its employees has intentionally made any misrepresentation, or engaged in any willful material omission in any submission to the FCC, either orally or in writing, AT& T Wireless will take appropriate disciplinary action, up to and including dismissal. 14 Federal Communications Commission FCC 02- 283 15 ATTACHMENT A FCC E911 RULES IMPORTANT NOTICE Non- compliance with the FCC’s E911 rules, the GSM Consent Decree, or section 1.17 or 1.65 of the FCC’s rules, or the failure to report information about non- compliance or possible non- compliance to the Compliance Officer within ten (10) business days after receiving such information, will result, in every case, in disciplinary action, which may include dismissal. € FCC Phase II E911 Rules. Under Phase II of the FCC’s wireless E911 rules, wireless carriers are required to provide to the designated Public Safety Answering Point (“ PSAP”) the location of wireless 911 callers, a capability known as Automatic Location Identification (“ ALI”), using handset-based or network- based location technologies. Handset- based location technologies must provide the location of wireless 911 calls with an accuracy of 50 meters for 67 percent of calls and 150 meters for 95 percent of calls. A carrier using a handset- based solution must begin to offer one entry- level model with location capability no later than October 1, 2001, and must ensure that 95 percent of its customers have location-capable handsets no later than December 31, 2005. Network- based location technologies must provide the location of wireless 911 calls with an accuracy of 100 meters for 67 percent of calls and 300 meters for 95 percent of calls. A carrier using a network- based solution must provide ALI to 50 percent of its coverage area, or 50 percent of its population, beginning on October 1, 2001 or within six months of a PSAP request, whichever is later, and to 100 percent of callers within 18 months of that request or by October 1, 2002, whichever is later. € GSM Consent Decree Deployment and Service Requirements. Under the terms of the Consent Decree entered into by AWS and the FCC to resolve possible violations by AWS of the FCC’s E911 Phase II rules for its GSM network, AWS must deploy a Phase II compliant technology in accordance with the following schedule: A minimum of 1,000 cell sites on its GSM network by January 31, 2003, giving priority to fulfilling pending PSAP requests first. A minimum of 2,000 cell sites on its GSM network by March 31, 2003, giving priority to fulfilling pending PSAP requests first. A minimum of 4,000 cell sites, with service to 2,000 of those sites, by June 30, 2003, giving priority to fulfilling pending PSAP requests first. A minimum of 6,000 cell sites on its GSM network by December 31, 2003, if necessary to meet a valid PSAP request pending more than six months as of that date. A minimum of 8,000 cell sites on its GSM network by June 30, 2004, if necessary to meet a valid PSAP request pending more than six months as of that date. 15 Federal Communications Commission FCC 02- 283 16 For any valid PSAP requests for Phase II service on its GSM network received by AWS on or before September 30, 2002, AT& T Wireless must provide its Phase II compliant solution to 100% of those PSAPs’ coverage areas or population by November 30, 2003. For valid PSAP requests received after September 30, 2002, but on or before April 30, 2003, AWS must provide its Phase II compliant solution to 50% of those PSAPs’ coverage areas or population by November 30, 2003, and to 100% of those PSAPs’ coverage areas or population by June 30, 2004. For valid PSAP requests received after April 30, 2003, AWS must provide its Phase II compliant service to 50% of those PSAPs’ coverage areas or population within six months of receipt of such request and to 100% of those PSAPs’ coverage areas or population within 15 months of receipt of a PSAP request. The Consent Decree specifies a number of reporting requirements. AWS must file Quarterly Reports on its progress and compliance with the terms and conditions of the Consent Decree and the wireless E911 rules. These Quarterly Reports are due February 1, May 1, August 1, and November 1 of each year, beginning November 1, 2002 and continuing through February 1, 2006. In addition, AWS must file a supplemental report on December 15, 2003 regarding its progress in meeting the November 30, 2003 benchmarks described above. To the extent AT& T Wireless cannot provide the information required in a Quarterly Report following the respective benchmark, it must file with the Chief, Enforcement Bureau, a request for extension of time to file the required information. Such request must be filed as early as possible before the Quarterly Report filing date, but generally no later than 10 business days prior to the Quarterly Report filing date. To the extent AWS anticipates that it will fail to satisfy any one of the conditions in the Consent Decree, it must advise the Commission of the problem within 30 days. To the extent unexpected problems arise affecting AWS’ ability to perform any of the deployment or service requirements in the Consent Decree in the period between reports, AT& T Wireless agrees to notify the Commission through a supplementary filing to be filed within 30 days of AWS discovery of the problem. This supplemental filing must include specific details regarding the problems AWS has encountered affecting its ability to comply with the benchmark requirements. € Truthful Written Statements to FCC. Under section 1.17 of the FCC’s rules, AWS may not make any misrepresentation or willful material omission in any response to any FCC correspondence or inquiry or in any application, pleading, report or any other written statement submitted to the FCC. € Continuing Accuracy and Completeness of Information Furnished to FCC. Under section 1.65 of the FCC’s rules, AWS is responsible for ensuring the continuing accuracy and completeness of information provided to the FCC in a pending application or in Commission proceedings involving a pending application. If the information in a pending application is no longer substantially accurate 16 Federal Communications Commission FCC 02- 283 17 and complete in all significant respects, AWS must amend the pending application to provide additional or corrected information as promptly as possible and in any event within 30 days. If there is a substantial change as to any other matter that may be significant to the FCC, AWS must submit a statement furnishing additional or corrected information as promptly as possible and in any event within 30 days. € E911 Compliance Officer. AWS has appointed [name, title] to serve as its E911 Compliance Officer, who can be reached at [contact information]. The E911 Compliance Officer supervises AWS’ compliance with the FCC’s E911 rules and the GSM Consent Decree, including the need to keep the FCC apprised in a timely manner of developments affecting compliance with all E911 rules and requirements. Any officer, employee, contractor, consultant or any other person or entity associated with AWS who has E911- related responsibilities for or on behalf of AWS must notify the E911 Compliance Officer within ten (10) business days if he or she receives any information about non- compliance or possible non- compliance with the FCC’s E911 rules, the GSM Consent Decree, or sections 1.17 or 1.65 of the FCC’s rules in connection with AWS’ E911 deployment. 17