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Smith Bagley, Inc. dba Cellular One

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Released: August 14, 2012

Federal Communications Commission

DA 12-1274

Before the

Federal Communications Commission

Washington, D.C. 20554

)
In the Matter of
)
File Nos.: EB-10-SE-121
)
EB-09-SE-161
Smith Bagley, Inc.
)
dba Cellular One
)
Acct. No.: 201232100037
)
)
FRN: 0002154706
)

ORDER

Adopted: August 14, 2012


Released: August 14, 2012

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 (Commission) and Smith
Bagley, Inc. dba Cellular One (Smith Bagley). The Consent Decree resolves and terminates the Bureau’s
investigations into Smith Bagley’s compliance with Sections 20.19(c)(3) and 20.19(d)(3) of the
Commission’s rules (Rules) 1 pertaining to the deployment of hearing aid-compatible digital wireless
handsets.
2.
The Bureau and Smith Bagley have negotiated the Consent Decree that resolves this
matter. A copy of the Consent Decree is attached hereto and incorporated herein 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
investigations.
4.
In the absence of material new evidence relating to this matter, we conclude that our
investigations raise no substantial or material questions of fact as to whether Smith Bagley 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 Sections 4(i) and 503(b) 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

.


1 47 C.F.R. § 20.19(c)(3), (d)(3).
2 47 U.S.C. §§ 154(i), 503(b).
3 47 C.F.R. §§ 0.111, 0.311.

Federal Communications Commission

DA 12-1274

6.

IT IS FURTHER ORDERED

that the above-captioned investigations

ARE

TERMINATED

.
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 Louise Finnegan, Chief Executive
Officer, Smith Bagley, Inc. dba Cellular One, 500 South White Mountain Road, Suite 103, Show Low,
AZ 85901 and to David LaFuria, Esq. and Todd Slamowitz, Esq., counsel for Smith Bagley, Inc. dba
Cellular One, Lukas, Nace, Gutierrez & Sachs, LLP, 8300 Greensboro Drive, Suite 1200, McLean, VA
22102.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
2

Federal Communications Commission

DA 12-1274

Before the

Federal Communications Commission

Washington, D.C. 20554

)
In the Matter of
)
File Nos.: EB-10-SE-121
)
EB-09-SE-161
Smith Bagley, Inc.
)
dba Cellular One
)
Acct. No.: 201232100037
)
)
FRN: 0002154706
)

CONSENT DECREE

The Enforcement Bureau of the Federal Communications Commission and Smith Bagley, Inc.
dba Cellular One, by their authorized representatives, hereby enter into this Consent Decree for the
purpose of terminating the Enforcement Bureau’s investigations into possible violations of Sections
20.19(c)(3) and 20.19(d)(3) of the Commission’s rules1 pertaining to the deployment of digital wireless
hearing aid-compatible handsets.

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)
“Bureau” means the Enforcement Bureau of the Federal Communications
Commission.
(d)
“Commission” and “FCC” mean the Federal Communications Commission and
all of its bureaus and offices.
(e)
“Communications Laws” means collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to which
Smith Bagley is subject by virtue of its business activities, including but not
limited to, the Hearing Aid Compatibility Rules.
(f)
“Compliance Plan” means the compliance obligations, program, and procedures
described in this Consent Decree at paragraph 10.
(g)
“Covered Employees” means all employees and agents of Smith Bagley who
perform, or supervise, oversee, or manage the performance of, duties that relate
to Smith Bagley’s responsibilities under the Hearing Aid Compatibility Rules.


1 47 C.F.R. § 20.19(c)(3), (d)(3).

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DA 12-1274

(h)
“Effective Date” means the date on which the Bureau releases the Adopting
Order.
(i)
“Hearing Aid Compatibility Rules” means Section 20.19 of the Rules and other
Communications Laws governing digital wireless hearing aid compatibility, such
as the Rules governing the design, selection, or acquisition of digital wireless
handsets and the marketing or distribution of such handsets to consumers in the
United States.
(j)
“Investigations” means collectively, the 2008 Reporting Period Investigation and
the 2009 Reporting Period Investigation.
(k)
NAL” means the Notice of Apparent Liability for Forfeiture issued by the
Commission against Smith Bagley on November 25, 2009.2
(l)
“Operating Procedures” means the standard, internal operating procedures and
compliance policies established by Smith Bagley to implement the Compliance
Plan.
(m)
“Parties” means Smith Bagley and the Bureau, each of which is a “Party.”
(n)
“Rules” means the Commission’s regulations found in Title 47 of the Code
Federal Regulations.
(o)
“Smith Bagley” means Smith Bagley, Inc. dba Cellular One and its predecessors-
in-interest and successors-in-interest.
(p)
“2008 Reporting Period Investigation” means the investigation initiated by the
Bureau regarding Smith Bagley’s deployment of digital wireless hearing aid-
compatible handset models during the July 1, 2008, to December 31, 2008,
reporting period, which culminated in the issuance of the NAL.
(q)
“2009 Reporting Period Investigation” means the investigation commenced by
the Bureau’s October 1, 2010, letter of inquiry3 regarding Smith Bagley’s
deployment of digital wireless hearing aid-compatible handset models during the
January 1, 2009, to December 31, 2009, reporting period.

II.

BACKGROUND

2.
In the 2003 Hearing Aid Compatibility Order, the Commission adopted several measures
to enhance the ability of consumers with hearing loss to access digital wireless telecommunications.4 The


2 See Smith Bagley, Inc. dba Cellular One of NE Arizona, Notice of Apparent Liability for Forfeiture, 24 FCC Rcd
14113 (Enf. Bur. 2009).
3 See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division, FCC Enforcement Bureau, to
Zechariah H. Crook, Handset Development Coordinator, Smith Bagley, Inc. (Oct. 1, 2010) (on file in EB-10-SE-
121).
4 The Commission adopted these requirements for digital wireless telephones under the authority of the Hearing Aid
Compatibility Act of 1988, Pub. L. No. 100-394, 102 Stat. 976 (codified at 47 U.S.C. §§ 609 note, 610, 610 note).
See Section 68.4(a) of the Commission’s Rules Governing Hearing Aid-Compatible Telephones, Report and Order,
18 FCC Rcd 16753, 16787, para. 89 (2003); Erratum, 18 FCC Rcd 18047 (2003) (Hearing Aid Compatibility
Order
); Order on Reconsideration and Further Notice of Proposed Rulemaking, 20 FCC Rcd 11221 (2005).
2

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Commission established technical standards for radio frequency interference (the M rating) and inductive
coupling (the T rating)5 that digital wireless handsets must meet to be considered compatible with hearing
aids operating in acoustic coupling and inductive coupling (telecoil) modes, respectively. For each of
these standards, the Commission further established deadlines by which manufacturers and service
providers must offer specified numbers or percentages of digital wireless handsets per air interface6 that
are compliant with the relevant standard.7 In February 2008, as part of a comprehensive reconsideration
of the effectiveness of the Hearing Aid Compatibility Rules, the Commission released an order that,
among other things, adopted new hearing aid-compatible handset deployment benchmarks beginning in
2008.8
3.
Smith Bagley provides commercial mobile wireless service in Arizona, New Mexico, and
Utah, and has extensive wireless coverage throughout Native American lands, including federally
recognized tribal lands such as the Navajo Nation and the White Mountain Apache Indian Reservation.
On January 15, 2009, Smith Bagley submitted its annual hearing aid compatibility status report for the
July 1, 2008, to December 31, 2008, reporting period.9 On August 6, 2009, Smith Bagley filed an
amendment to its January 15, 2009, annual hearing aid compatibility status report in response to an


5 As subsequently amended, Section 20.19(b)(1) provides that, for the period beginning June 6, 2008, and ending
December 31, 2009, a newly certified wireless handset is deemed hearing aid-compatible for radio frequency
interference if, at minimum, it meets the M3 rating associated with the technical standard set forth in either the
standard document “American National Standard Methods of Measurement of Compatibility between Wireless
Communication Devices and Hearing Aids,” ANSI C63.19-2006 (June 12, 2006) or ANSI C63.19-2007 (June 8,
2007). Beginning January 1, 2010, a newly certified handset must meet at least an M3 rating under ANSI C63.19-
2007 to be considered hearing aid-compatible for radio frequency interference. 47 C.F.R. § 20.19(b)(1). Section
20.19(b)(2) provides that, for the period beginning June 6, 2008, and ending December 31, 2009, a newly certified
wireless handset is deemed hearing aid-compatible for inductive coupling if, at minimum, it meets the T3 rating
associated with the technical standard as set forth in ANSI C63.19-2006 or ANSI C63.19-2007, and beginning
January 1, 2010, it is deemed hearing aid-compatible for inductive coupling if it meets at least a T3 rating under
ANSI C63.19-2007. Id. § 20.19(b)(2). Grants of certification issued before June 6, 2008, under previous versions
of ANSI C63.19 remain valid for hearing aid compatibility purposes. A recently adopted further amendment to
Section 20.19(b) of the Rules will permit manufacturers to test handsets for hearing aid compatibility using the 2011
version of the ANSI standard (ANSI C63.19-2011) as an alternative to ANSI C63.19-2007. See Amendment of the
Commission’s Rules Governing Hearing Aid-Compatible Mobile Handsets
, Third Report and Order, 27 FCC Rcd
3732 (WTB/OET 2012).
6 The term “air interface” refers to the technical protocol that ensures compatibility between mobile radio service
equipment, such as handsets, and the service provider’s base stations. Currently, the leading air interfaces include
Code Division Multiple Access (CDMA), Global System for Mobile Communications (GSM), Integrated Digital
Enhanced Network (iDEN), and Wideband Code Division Multiple Access (WCDMA) a/k/a Universal Mobile
Telecommunications System (UMTS).
7 See Hearing Aid Compatibility Order, 18 FCC Rcd at 16780, para. 65; 47 C.F.R. § 20.19(c), (d).
8 See Amendment of the Commission’s Rules Governing Hearing Aid-Compatible Mobile Handsets, First Report and
Order, 23 FCC Rcd 3406 (2008); Order on Reconsideration and Erratum, 23 FCC Rcd 7249 (2008). These handset
deployment requirements do not apply to service providers and manufacturers that meet the de minimis exception.
The de minimis exception provides that manufacturers or mobile service providers that offer two or fewer digital
wireless handset models per air interface are exempt from the hearing aid compatibility requirements, and
manufacturers or service providers that offer three digital wireless handset models per air interface must offer at
least one compliant model. 47 C.F.R. § 20.19(e). Effective September 10, 2012, the de minimis exception will not
be available to manufacturers or mobile service providers that do not meet the definition of a “small entity”
beginning two years after their initial offerings. Id. § 20.19(e)(1)(ii); see also Amendment of the Commission’s
Rules Governing Hearing Aid-Compatible Mobile Handsets
, Policy Statement and Second Report and Order and
Further Notice of Proposed Rulemaking, 25 FCC Rcd 11167, 11180-89, paras. 35-59 (2010).
9 See Smith Bagley, Inc., Hearing Aid Compatibility Status Report, Docket No. 07-250 (Jan. 15, 2009), at
http://fjallfoss.fcc.gov/ecfs/document/view?id=6520193537.
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inquiry from the Wireless Telecommunications Bureau (Wireless Bureau).10 On September 16, 2009, the
Wireless Bureau referred Smith Bagley’s apparent violations of the hearing aid-compatible digital
wireless handset deployment requirements during the July 1, 2008, to December 31, 2008, reporting
period to the Bureau for investigation and possible enforcement action. On November 25, 2009, the
Bureau’s Spectrum Enforcement Division (Division) released the NAL against Smith Bagley for its
apparent willful and repeated violation of Section 20.19(c)(3) of the Rules by apparently failing to offer to
consumers the requisite number or percentage of digital wireless handset models that met or exceeded the
radio frequency interference standards for hearing aid compatibility set forth in Section 20.19(b)(1) of the
Rules.11
4.
On January 21, 2010, Smith Bagley submitted its annual hearing aid compatibility status
report for the January 1, 2009, to December 31, 2009, reporting period.12 On August 12, 2010, the
Wireless Bureau referred Smith Bagley’s apparent violations of the hearing aid-compatible digital
wireless handset deployment requirements during the 2009 reporting period to the Bureau for
investigation and possible enforcement action. On October 1, 2010, the Division issued a letter of inquiry
(LOI) to Smith Bagley.13 The LOI directed Smith Bagley to submit a sworn written response to a series
of questions related to Smith Bagley’s compliance with Sections 20.19(c)(3) and 20.19(d)(3) of the Rules.
Smith Bagley responded to the LOI on October 21, 2010.14 In its LOI Response, Smith Bagley claimed
that in 2009 the company had procedures in place to ensure compliance with the hearing aid-compatible
handset deployment requirements.15 Smith Bagley also argued that as a Tier III rural GSM carrier, it
relies on third-party vendors who do not always convey accurate hearing aid compatibility information.16
The Bureau and Smith Bagley entered into tolling agreements to toll the statute of limitations,17 and
negotiated the terms of this Consent Decree.18

III.

TERMS OF AGREEMENT

5.

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.


10 See Smith Bagley, Inc., Amendment to Hearing Aid Compatibility Status Report, Docket No. 07-250
(Aug. 6, 2009), at http://fjallfoss.fcc.gov/ecfs/document/view?id=7019934625.
11 See NAL, 24 FCC Rcd at 14118, paras. 12-13.
12 See Smith Bagley, Inc., Hearing Aid Compatibility Report, Docket No. 07-250 (Jan. 21, 2010), at
http://wireless.fcc.gov/hac_documents/100317/Smith%20Bagley%20INC_51.PDF.
13 See supra note 3.
14 See Letter from David A. LaFuria, Esq. and Todd Slamowitz, Esq., counsel for Smith Bagley, Inc., Lukas, Nace,
Gutierrez & Sachs, LLP, to Marlene H. Dortch, FCC (Oct. 21, 2010) (on file in EB-10-SE-121) (LOI Response).
15 Id. at 2.
16 Id.
17 See, e.g., Tolling Agreement Extension, File No. EB-10-SE-121, executed by and between John D. Poutasse,
Chief, Spectrum Enforcement Division, FCC Enforcement Bureau, and Gayle L. Gouker, Chief Financial Officer,
Smith Bagley, Inc. (Apr. 16, 2012).
18 The Bureau analyzed Smith Bagley’s possible violations of Sections 20.19(c)(3) and 20.19(d)(3) of the Rules
consistent with the new base forfeiture calculation methodology set forth in the Commission’s recent T-Mobile
decision (see T-Mobile USA, Inc., Notice of Apparent Liability for Forfeiture, 27 FCC Rcd 4405 (2012)) and applied
the statutory factors set forth in Section 503(b)(2)(E) of the Act. We also took into consideration the fact that
settlement negotiations over the terms of this Consent Decree were nearly complete prior to the release of the T-
Mobile decision.
4

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6.

Jurisdiction

. Smith Bagley agrees that the Bureau has jurisdiction over it and the
matters contained in this Consent Decree and that the Bureau has the authority to enter into and adopt this
Consent Decree.
7.

Effective Date; Violations

. The Parties agree that this Consent Decree shall become
effective on the Effective Date as defined herein. As of the Effective Date, the Adopting Order and this
Consent Decree shall have the same force and effect as any other order of the Commission. Any violation
of the Adopting Order or of the terms of this Consent Decree shall constitute a separate violation of a
Commission order, entitling the Commission to exercise any rights and remedies attendant to the
enforcement of a Commission order.
8.

Termination of Investigations

. In express reliance on the covenants and representations
in this Consent Decree and to avoid further expenditure of public resources, the Bureau agrees to
terminate the Investigations. In consideration for the termination of the Investigations, Smith Bagley
agrees to the terms, conditions, and procedures contained herein. The Bureau further agrees that in the
absence of new material evidence, the Bureau will not use the facts developed in the Investigations
through the Effective Date, or the existence of this Consent Decree, to institute on its own motion any
new proceeding, formal or informal, or take any action on its own motion against Smith Bagley
concerning the matters that were the subject of the Investigations. The Bureau also agrees that in the
absence of new material evidence it will not use the facts developed in these Investigations through the
Effective Date, or the existence of this Consent Decree, to institute on its own motion any proceeding,
formal or informal, or take any action on its own motion against Smith Bagley with respect to Smith
Bagley’s basic qualifications, including its character qualifications, to be a Commission licensee or to
hold Commission licenses or authorizations.
9.

Compliance Officer

. Within thirty (30) calendar days after the Effective Date, Smith
Bagley shall designate a senior corporate manager with the requisite corporate and organizational
authority to serve as Compliance Officer and to discharge the duties set forth below. The person
designated as the Compliance Officer shall be responsible for developing, implementing, and
administering the Compliance Plan and ensuring that Smith Bagley complies with the terms and
conditions of the Compliance Plan and this Consent Decree. In addition to the general knowledge of the
Communications Laws necessary to discharge his/her duties under this Consent Decree, the Compliance
Officer shall have specific knowledge of the Hearing Aid Compatibility Rules prior to assuming his/her
duties.
10.

Compliance Plan

. For purposes of settling the matters set forth herein, Smith Bagley
agrees that it shall within sixty (60) calendar days after the Effective Date, develop and implement a
Compliance Plan designed to ensure future compliance with the Communications Laws and with the
terms and conditions of this Consent Decree. With respect to the Hearing Aid Compatibility Rules, Smith
Bagley shall implement the following procedures:
(a)

Operating Procedures on Hearing Aid Compatibility

. Within sixty (60)
calendar days after the Effective Date, Smith Bagley shall establish Operating
Procedures that all Covered Employees must follow to help ensure Smith
Bagley’s compliance with the Hearing Aid Compatibility Rules. Smith Bagley’s
Operating Procedures shall include internal procedures and policies specifically
designed to ensure that Smith Bagley offers the requisite number or percentage of
hearing aid-compatible digital wireless handset models to consumers as required
by the Hearing Aid Compatibility Rules. Smith Bagley also shall develop a
Compliance Checklist that describes the steps that a Covered Employee must
follow to ensure that the inclusion of a new handset model, or discontinuance of
an existing handset model offering, will not result in a violation of the
5

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Commission’s digital wireless hearing aid-compatible handset deployment
requirements. At a minimum, the Compliance Checklist shall require Covered
Employees to verify the hearing aid compatibility rating of each existing and
proposed handset model offering using the Commission’s equipment
authorization database.
(b)

Compliance Manual

. Within sixty (60) calendar days after the Effective Date,
the Compliance Officer shall develop and distribute a Compliance Manual to all
Covered Employees. The Compliance Manual shall explain the Hearing Aid
Compatibility Rules and set forth the Operating Procedures that Covered
Employees shall follow to help ensure Smith Bagley’s compliance with the
Hearing Aid Compatibility Rules. Smith Bagley shall periodically review and
revise the Compliance Manual as necessary to ensure that the information set
forth therein remains current and complete. Smith Bagley shall distribute any
revisions to the Compliance Manual promptly to all Covered Employees.
(c)

Compliance Training Program

. Smith Bagley shall establish and implement a
Compliance Training Program on compliance with the Hearing Aid
Compatibility Rules and the Operating Procedures. As part of the Compliance
Training Program, Covered Employees shall be advised of Smith Bagley’s
obligation to report any noncompliance with the Hearing Aid Compatibility
Rules under paragraph 11 of this Consent Decree and shall be instructed on how
to disclose noncompliance to the Compliance Officer. All Covered Employees
shall be trained pursuant to the Compliance Training Program within sixty (60)
calendar days after the Effective Date, except that any person who becomes a
Covered Employee at any time after the Effective Date shall be trained within
thirty (30) calendar days after the date such person becomes a Covered
Employee. Smith Bagley shall repeat the compliance training on an annual basis,
and shall periodically review and revise the Compliance Training Program as
necessary to ensure that it remains current and complete and to enhance its
effectiveness.
(d)

Outreach Program

. As more fully described in Smith Bagley’s proposal and
presentation to the Bureau on May 4, 2012 (which is incorporated herein by
reference), within sixty (60) calendar days after the Effective Date, Smith Bagley
shall implement a comprehensive hearing aid compatibility outreach program to
residents of Navajo County and Apache County, Arizona, targeting consumers
who are undergoing hearing diagnostics or other examinations for hearing
problems and may need a hearing aid. The purpose of the outreach program will
be to educate these consumers about the ratings and capabilities of hearing aid-
compatible digital wireless handset models and to help ensure that these
consumers have access to reliable information about the hearing aid-compatible
handset model most suited to their hearing aid or other assistive device. Smith
Bagley represents that it will partner with a local audiology services provider,
White Mountain Hearing Services, L.L.C. (WMHS), which offers hearing care
services in the target counties. As part of the outreach program, Smith Bagley
shall make available at the WMHS clinic a full range of its hearing aid-
compatible handset models which comply with the Commission’s wireless
hearing aid compatibility rules, provide assistance to WMHS staff concerning the
demonstration and testing of the handset models, and provide a sizeable discount
to the target consumers toward the purchase of any new hearing aid-compatible
wireless handset. Smith Bagley shall implement the outreach program as
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described herein and in its presentation to the Bureau and shall widely publicize
the availability of the program to the residents of Navajo and Apache Counties
and of nearby Native American tribal reservations via its website and other
means as appropriate to reach the target population.
11.

Reporting Noncompliance

. Smith Bagley shall report any noncompliance with the
Hearing Aid Compatibility Rules and with the terms and conditions of this Consent Decree within fifteen
(15) calendar days after discovery of such noncompliance. Such reports shall include a detailed
explanation of (i) each instance of noncompliance; (ii) the steps that Smith Bagley has taken or will take
to remedy such noncompliance; (iii) the schedule on which such remedial actions will be taken; and (iv)
the steps that Smith Bagley has taken or will take to prevent the recurrence of any such noncompliance.
All reports of noncompliance shall be submitted to the Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, Room 3-C366, 445 12th Street, S.W.,
Washington, D.C. 20554, with a copy submitted electronically to Nissa Laughner at
Nissa.Laughner@fcc.gov and to Pamera Hairston at Pamera.Hairston@fcc.gov.
12.

Compliance Reports

. Smith Bagley shall file Compliance Reports with the Commission
ninety (90) calendar days after the Effective Date, twelve (12) months after the Effective Date, and
twenty-four (24) months after the Effective Date.
(a)
Each compliance report shall include a detailed description of Smith Bagley’s
efforts during the relevant period to comply with the terms and conditions of this
Consent Decree and the Hearing Aid Compatibility Rules. In addition, each
Compliance Report shall include a certification by the Compliance Officer, as an
agent of and on behalf of Smith Bagley, stating that the Compliance Officer has
personal knowledge that Smith Bagley (i) has established and implemented the
Compliance Plan; (ii) has conducted the Outreach Program as set forth in
paragraph 10(d); (iii) has utilized the Operating Procedures since the
implementation of the Compliance Plan; and (iv) is not aware of any instances of
noncompliance with the terms and conditions of this Consent Decree, including
the reporting obligations set forth in paragraph 11 hereof.
(b)
The Compliance Officer’s certification shall be accompanied by a statement
explaining the basis for such certification and must comply with Section 1.16 of
the Rules19 and be subscribed to as true under penalty of perjury in substantially
the form set forth therein.
(c)
If the Compliance Officer cannot provide the requisite certification, the
Compliance Officer, as an agent of and on behalf of Smith Bagley, shall provide
the Commission with a detailed explanation of the reason(s) why and describe
fully (i) each instance of noncompliance; (ii) the steps that Smith Bagley has
taken or will take to remedy such noncompliance, including the schedule on
which proposed remedial actions will be taken; and (iii) the steps that Smith
Bagley has taken or will take to prevent the recurrence of any such
noncompliance, including the schedule on which such preventive action will be
taken.
(d)
All Compliance Reports shall be submitted to the Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission, Room 3-
C366, 445 12th Street, S.W., Washington, D.C. 20554, with a copy submitted


19 47 C.F.R. § 1.16.
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electronically to Nissa Laughner at Nissa.Laughner@fcc.gov and to Pamera
Hairston at Pamera.Hairston@fcc.gov.
13.

Termination Date

. Unless stated otherwise, the requirements of paragraphs 9 through
12 of this Consent Decree shall expire twenty-four (24) months after the Effective Date.
14.

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 Smith Bagley or its affiliates for alleged violations of the Act, or for any
other type of alleged misconduct, regardless of when such misconduct took place. The Commission’s
adjudication of any such complaints will be based solely on the record developed in that proceeding.
Except as expressly provided in this Consent Decree, this Consent Decree shall not prevent the
Commission from investigating new evidence of noncompliance by Smith Bagley with the
Communications Laws.
15.

Voluntary Contribution

. Smith Bagley agrees that it will make a voluntary contribution
to the United States Treasury in the amount of sixty-five thousand dollars ($65,000) within thirty (30)
calendar days after the Effective Date. Smith Bagley shall also send electronic notification of payment to
Nissa Laughner at Nissa.Laughner@fcc.gov and to Samantha Peoples at Sam.Peoples@fcc.gov on the
date said payment is made. The payment must be made by check or similar instrument, wire transfer, or
credit card, and must include the NAL/Account number and FRN referenced above. Regardless of the
form of payment, a completed FCC Form 159 (Remittance Advice) must be submitted.20 When
completing the FCC Form 159, enter the Account Number in block number 23A (call sign/other ID) and
enter the letters “FORF” in block number 24A (payment type code). Below are additional instructions
you should follow based on the form of payment you select:
Ÿ
Payment by check or money order must be made payable to the order of the Federal
Communications Commission. Such payments (along with the completed Form 159) must be
mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-
9000, or sent via overnight mail to U.S. Bank – Government Lockbox #979088, SL-MO-C2-
GL, 1005 Convention Plaza, St. Louis, MO 63101.
Ÿ
Payment by wire transfer must be made to ABA Number 021030004, receiving bank
TREAS/NYC, and Account Number 27000001. To complete the wire transfer and ensure
appropriate crediting of the wired funds, a completed Form 159 must be faxed to U.S. Bank
at (314) 418-4232 on the same business day the wire transfer is initiated.
Ÿ
Payment by credit card must be made by providing the required credit card information on
FCC Form 159 and signing and dating the Form 159 to authorize the credit card payment.
The completed Form 159 must then be mailed to Federal Communications Commission, P.O.
Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank –
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101.
If you have questions regarding payment procedures, please contact the Financial Operations Group Help
Desk by phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
16.

Waivers

. Smith Bagley waives any and all rights it may have to seek administrative or
judicial reconsideration, review, appeal, or stay, or to otherwise challenge or contest the validity of this
Consent Decree and the Adopting Order, provided the Bureau issues an Adopting Order as defined
herein. Smith Bagley shall retain the right to challenge Commission interpretation of the Consent Decree


20 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
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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 Smith Bagley nor the Commission
shall contest the validity of the Consent Decree or of the Adopting Order, and Smith Bagley shall waive
any statutory right to a trial de novo. Smith Bagley hereby agrees to waive any claims it may have under
the Equal Access to Justice Act,21 relating to the matters addressed in this Consent Decree.
17.

Invalidity

. In the event that this Consent Decree in its entirety is rendered invalid by any
court of competent jurisdiction, it shall become null and void and may not be used in any manner in any
legal proceeding.
18.

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 Smith Bagley does not expressly
consent), that provision will be superseded by such Rule or Commission order.
19.

Successors and Assigns

. Smith Bagley agrees that the provisions of this Consent Decree
shall be binding on its successors, assigns, and transferees.
20.

Final Settlement

. The Parties agree and acknowledge that this Consent Decree shall
constitute a final settlement between the Parties with respect to the Investigations. The Parties further
agree that this Consent Decree does not constitute either an adjudication on the merits or a factual or legal
finding or determination regarding any compliance or noncompliance with the Communications Laws.
21.

Modifications

. This Consent Decree cannot be modified without the advance written
consent of both Parties.
22.

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.
23.

Authorized Representative

. The individual signing this Consent Decree on behalf of
Smith Bagley represents and warrants that he is authorized by Smith Bagley to execute this Consent
Decree and to bind Smith Bagley to the obligations set forth herein. The FCC signatory represents that
she is signing this Consent Decree in her official capacity and that she is authorized to execute this
Consent Decree.


21 Equal Access to Justice Act, Pub L. No. 96-481, 94 Stat. 2325 (1980) (codified at 5 U.S.C. § 504); see also
47 C.F.R. §§ 1.1501-1.1530.
9

Federal Communications Commission

DA 12-1274

24.

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.
________________________________
P. Michele Ellison
Chief
Enforcement Bureau
________________________________
Date
_____________________________
Louise Finnegan
Chief Executive Officer
Smith Bagley, Inc. dba Cellular One
_____________________________
Date
10

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