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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-705
In the Matter of
) Acct. No. 201132100026
MetroPCS California, LLC
) FRN No. 0005824974
)
ORDER
Adopted: June 1, 2011 Released: June 2, 2011
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 and MetroPCS California, LLC ("MetroPCS").
The Consent Decree terminates an investigation by the Bureau into
MetroPCS's possible violations of Part 4 of the Commission's rules
regarding the reporting of network outages.
2. The Bureau and MetroPCS have negotiated the terms of a Consent Decree
that resolves 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 MetroPCS 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, and sections 0.111 and 0.311
of the Commission's Rules, 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 a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Roger D. Linquist, President and CEO, MetroPCS
Communications, Inc., 2250 Lakeside Boulevard, Richardson, TX 75082
and to Carl W. Northrop, Esq., counsel for MetroPCS, Paul, Hastings,
Janofsky, Walker LLP, 875 15th Street, NW, Washington, DC 20005.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-705
In the Matter of
) Acct. No. 201132100026
MetroPCS California, LLC
) FRN No. 0005824974
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission ("Bureau")
and MetroPCS California, LLC ("MetroPCS" or "Company"), by their
authorized representatives, hereby enter into this Consent Decree for the
purpose of terminating the Bureau's Investigation into whether MetroPCS
violated Section 4.9(e) of the Commission's Rules ("Rules").
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. S:S:
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) "Compliance Plan" means the program described in this Consent Decree
at paragraph 9.
(f) "Effective Date" means the date on which the Bureau releases the
Adopting Order.
(g) "Investigation" means the investigation commenced by the Bureau's
April 8, 2009 letter of inquiry relating to whether MetroPCS violated
Section 4.9(e) of the Rules.
(h) "MetroPCS" means MetroPCS California, LLC, its affiliates,
predecessors-in-interest and successors-in-interest.
(i) "Parties" means MetroPCS and the Bureau.
(j) "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
2. Pursuant to Section 4.9(e) of the Rules, a wireless communications
provider is required to submit to the Commission an electronic
Notification within 120 minutes after discovering that it has
experienced a network outage of at least 30 minutes duration: (1) of a
Mobile Switching Center; (2) that potentially affects at least 900,000
user minutes of either telephony or paging; (3) that affects at least
1,350 DS3 minutes; (4) that potentially affects any special offices
and facilities, as defined in Section 4.5(b) of the Rules, other than
airports through direct service facility agreements; or (5) that
potentially affects a 911 special facility, as defined by the Rules.
Within 72 hours after discovering such an outage, a wireless
communications provider is required to submit electronically an
Initial Communications Outage Report, and within 30 days after
discovering such an outage, a wireless communications provider is
required to submit electronically a Final Communications Outage
Report.
3. MetroPCS is a wireless service provider offering commercial mobile
radio service ("CMRS") as defined in the Rules and is subject to the
network outage reporting regulations in Part 4 of the Commission's
Rules with respect to its provision of CMRS.
4. In 2008, the Public Safety and Homeland Security Bureau referred
MetroPCS to the Enforcement Bureau for potential violations of the
network outage reporting requirements specified in Section 4.9(e) of
the Rules. On April 8, 2009, the Bureau initiated the Investigation by
issuing the LOI to MetroPCS. The LOI directed MetroPCS, among other
things, to submit a sworn written response to a series of questions
relating to MetroPCS' compliance with the Commission's network outage
reporting rules. MetroPCS responded to the LOI on May 8, 2009. The
Bureau and MetroPCS executed a Tolling Agreement on May 26, 2009 and
thereafter executed a series of Tolling Agreement Extensions.
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
without change, addition, modification, or deletion.
6. Jurisdiction. MetroPCS 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.
7. 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.
8. 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 the
Investigation. In consideration for the termination of said
Investigation, MetroPCS agrees to the terms, conditions, and
procedures contained herein. The Bureau further agrees that in the
absence of new material evidence with respect to this Investigation,
the Bureau will not use the facts developed in the Investigation
through the Effective Date of the Consent Decree, or the existence of
this Consent Decree, to institute, on its own motion, any new
proceeding, formal or informal, or take any action on its own motion
against MetroPCS concerning the matters that were the subject of the
Investigation. The Bureau also agrees that it will not, in the absence
of new material evidence, use the facts developed in the 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
MetroPCS with respect to MetroPCS' basic qualifications, including its
character qualifications, to be a Commission licensee.
9. Compliance Plan. For purposes of settling the matters set forth
herein, MetroPCS agrees to have in place, within thirty (30) days of
the Effective Date, a Compliance Plan designed to facilitate MetroPCS'
future compliance with the Communications Act, the Commission's Rules,
and the Commission's Orders related to Section 4.9 of the Commission's
Rules. The Compliance Plan will include the following components:
a. Compliance Training Program. MetroPCS shall establish and maintain an
FCC outage reporting training program, as detailed below, for all
employees who are responsible for gathering and/or analyzing
information regarding MetroPCS' network outages for purposes of
compiling and/or submitting MetroPCS' outage reports to the
Commission, entering that information into any MetroPCS database(s)
and/or record(s) that forms the basis of MetroPCS' reporting of
network outages to the Commission, or compiling and/or submitting
MetroPCS' outage reports to the Commission.
i. MetroPCS' Compliance Training Program shall be designed to address, at
a minimum, the FCC's Rules governing the reporting of network outages, the
information and calculations required by the FCC's Rules to determine
whether an outage is reportable under the FCC's Rules, the time periods
during which notifications and reports of reportable outages must be
submitted to the FCC and the methods and procedures adopted by MetroPCS in
an effort to identify and report those network outages in accordance with
the FCC's reporting criteria in order to facilitate compliance with the
FCC's outage reporting Rules. The training program also shall include
information on the potential internal and regulatory consequences of
failing to comply with MetroPCS' methods and procedures and/or the FCC's
outage reporting requirements.
ii. MetroPCS shall provide the foregoing outage reporting training within
six months of the Effective Date and will update the training at least
annually for all of its employees who are responsible for gathering and/or
analyzing information regarding MetroPCS' network outages for purposes of
compiling and/or submitting MetroPCS' network outage reports to the
Commission, entering that information into any MetroPCS database(s) and/or
record(s) that forms the basis of MetroPCS' reporting of network outages
to the Commission, or compiling and/or submitting MetroPCS' outage reports
to the Commission. MetroPCS also will provide training to all new
employees responsible for these activities within three (3) months of
their hiring date.
iii. MetroPCS periodically shall take such steps as are reasonable,
necessary and appropriate to update and enhance the foregoing training
regarding the FCC's outage reporting requirements.
b. Compliance Reports. MetroPCS will file compliance reports with the
Commission ninety (90) days after the Effective Date, twelve (12)
months and twenty-four (24) months after the Effective Date. Each
compliance report shall include a compliance certificate from an
officer, as an agent of MetroPCS, stating that the officer has
personal knowledge that MetroPCS has established operating procedures
intended to comply with this Consent Decree, together with an
accompanying statement explaining the basis for the officer's
compliance certification. All compliance reports shall be submitted to
the Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C.
20554. All reports shall also be submitted electronically to Ricardo
M. Durham, Senior Deputy Chief, Spectrum Enforcement Division,
Enforcement Bureau, Ricardo.Durham@fcc.gov, and Linda Nagel, Attorney
Advisor, Spectrum Enforcement Division, Enforcement Bureau,
Linda.Nagel@fcc.gov.
c. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire two (2) years after the Effective Date.
10. 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 MetroPCS 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 MetroPCS with the Act, the Rules, or
Commission Orders.
11. Voluntary Contribution. MetroPCS agrees to make a voluntary
contribution to the United States Treasury, in the amount of forty
five thousand dollars ($45,000) within thirty (30) calendar 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). MetroPCS will also send electronic
notification on the date said payment is made to
Ricardo.Durham@fcc.gov and Linda.Nagel@fcc.gov.
12. Waivers. MetroPCS 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
adopting the Consent Decree without change, addition, modification, or
deletion. MetroPCS 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
MetroPCS nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and MetroPCS shall waive any statutory
right to a trial de novo. MetroPCS hereby agrees to waive any claims
it may otherwise have under the Equal Access to Justice Act, 5 U.S.C.
S: 504 and 47 C.F.R. S: 1.1501 et seq., relating to the matters
addressed in this Consent Decree.
13. 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.
14. 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 MetroPCS does not expressly
consent), that provision will be superseded by such Commission Rule or
Order.
15. Successors and Assigns. MetroPCS agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees, and the Commission agrees that the provisions of this
Consent Decree shall inure to the benefit of such successors, assigns
and transferees.
16. 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. The
Parties agree that this Consent Decree is for settlement purposes only
and that by agreeing to this Consent Decree, MetroPCS does not admit
noncompliance, violation or liability for violating the Act or the
Rules in connection with the matters that are the subject of this
Consent Decree.
17. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
18. 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.
19. Authorized Representatives. Each Party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
20. 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
____________________________
Roger D. Linquist
President and CEO
MetroPCS California, LLC
____________________________
Date
47 C.F.R. S: 4.1 et seq.
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S: 4.9(e).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Mark A. Stachiw,
Executive Vice President Metro PCS Communications, Inc. ("LOI")
47 C.F.R. S: 4.9(e).
47 C.F.R. S: 4.5(b).
See LOI.
See Letter from J. Christopher Luna, Staff Vice President and Assistant
General Counsel, MetroPCS, to Susan M. Stickley, Esq., Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission ("LOI Response").
See Tolling Agreement, File No. EB-08-SE-705, executed by and between
Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission, and Roger D. Linquist,
President and CEO, MetroPCS Communications, Inc. (May 26, 2009).
See Tolling Agreement Extensions, File No. EB-08-SE-705, executed by and
between Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, and Roger D.
Linquist, President and CEO, MetroPCS Communications, Inc. (September 4,
2009, January 7, 2010, March 23, 2010, June 16, 2010, September 15, 2010,
and November 15, 2010) and Tolling Agreement Extension, File No.
EB-08-SE-705, executed by and between Ricardo M. Durham, Acting Chief,
Spectrum Enforcement Division, Enforcement Bureau, Federal Communications
Commission, and Roger D. Linquist, President and CEO, MetroPCS
Communications, Inc. (December 23, 2010).
Under this provision, MetroPCS will not be required to provide outage
reporting compliance training to employees whose responsibilities do not
include gathering, analysis, or data entry of information regarding
MetroPCS' network outages or compiling MetroPCS' outage reports, or whose
involvement in MetroPCS' outage reporting activities is limited to
performing job functions that are not specific to outage reporting under
the Commission's Rules.
See supra note 4.
Federal Communications Commission DA 11-968
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Federal Communications Commission DA 11-968
Federal Communications Commission DA 11-968
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Federal Communications Commission DA 11-968