Federal Communications Commission DA 09-556 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of PinPoint Wireless, Inc. ) ) ) ) ) File No. EB-07-SE-278 Acct. No. 200832100053 FRN No. 0002377901 ORDER Adopted: March 9, 2009 Released: March 13, 2009 By the Chief, Spectrum Enforcement Division, Enforcement Bureau: 1. In this Order, we adopt the attached Consent Decree entered into between the Enforcement Bureau (“Bureau”) and PinPoint Wireless, Inc. (“PinPoint”). The Consent Decree terminates an investigation and Notice of Apparent Liability for Forfeiture (“NAL”)1 by the Bureau against PinPoint for possible violations of former Section 20.19(d)(2) of the Commission’s Rules (“Rules”)2 regarding the inductive coupling hearing aid compatibility requirements. 2. The Bureau and PinPoint have negotiated the terms of the Consent Decree that resolve this matter. A copy of the Consent Decree is attached hereto and incorporated by reference. 3. After reviewing the terms of the Consent Decree and evaluating the facts before us, we find that the public interest would be served by adopting the Consent Decree, which terminates the investigation and cancels the NAL. 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 PinPoint 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 Act,3 and sections 0.111 and 0.311 of the Rules,4 the Consent Decree attached to this Order IS ADOPTED. 6. IT IS FURTHER ORDERED that the above-captioned investigation IS TERMINATED and the Notice of Apparent Liability for Forfeiture IS CANCELLED. 1 PinPoint Wireless, Inc., Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 9290 (Enf. Bur., Spectrum Enf. Div. 2008). 2 47 C.F.R. § 20.19(d)(2) (2007). 3 47 U.S.C. §§ 154(i), 503(b). 4 47 C.F.R. §§ 0.111, 0.311. Federal Communications Commission DA 09-556 2 7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree shall be sent by first class mail and certified mail, return receipt requested, to Tom Shoemaker, PinPoint Wireless, Inc., 611 Patterson Street, Cambridge, NE 69022, and to its counsel, Kenneth C. Johnson, Esq., Bennet & Bennet, PLLC, 10 G St. NE, Seventh Floor, Washington, DC 20002. FEDERAL COMMUNICATIONS COMMISSION Kathryn S. Berthot Chief, Spectrum Enforcement Division Enforcement Bureau Federal Communications Commission DA 09-556 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of PinPoint Wireless, Inc. ) ) ) ) ) File No. EB-07-SE-278 Acct. No. 200832100053 FRN No. 0002377901 CONSENT DECREE The Enforcement Bureau (“Bureau”) and PinPoint Wireless, Inc. (“PinPoint”), by their authorized representatives, hereby enter into this Consent Decree for the purpose of terminating the Bureau’s investigation relating to whether Pinpoint violated former Section 20.19(d)(2) of the Commission’s Rules (“Rules”)1 by failing to include in its digital wireless handset offerings at least two models for each air interface that comply with the requirements for inductive coupling for hearing aid compatibility by September 18, 2006. 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) “Effective Date” means the date the Bureau releases the Adopting Order. (f) “Investigation” mean the investigation initiated by the Bureau’s August 13, 2007 Letter of Inquiry2 to PinPoint regarding whether PinPoint violated the inductive coupling hearing aid compatibility requirements in former Section 20.19(d)(2) of the Rules. 1 47 C.F.R. § 20.19(d)(2) (2007). In February 2008, as part of a comprehensive reconsideration of the effectiveness of the hearing aid compatibility rules, the Commission made several changes to these rules. See Amendment of the Commission’s Rules Governing Hearing Aid-Compatible Mobile Handsets, First Report and Order, 23 FCC Rcd 3406 (2008) (“Hearing Aid Compatibility First Report and Order”), Order on Reconsideration and Erratum, 23 FCC Rcd 7249 (2008). 2 Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau, to J. Richard Shoemaker, PinPoint Wireless, Inc. (August 13, 2007) (“August 13, 2007 LOI”). Federal Communications Commission DA 09-556 2 (g) “Notice of Apparent Liability for Forfeiture” or “NAL” means PinPoint Wireless, Inc., Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 9290 (Enf. Bur., Spectrum Enf. Div. 2008). (h) “Parties” means PinPoint and the Bureau. (i) “PinPoint” means PinPoint Wireless, Inc. and its predecessors-in-interest and successors-in-interest. (j) “Rules” means the Commission’s regulations found in Title 47 of the Code of Federal Regulations. II. BACKGROUND 2. Pursuant to former Section 20.19(d)(2) of the Rules, carriers were required to offer at least two handset models for each air interface that meet the inductive coupling standards for hearing aid compatibility by September 16, 2006. On November 14, 2006, PinPoint filed a hearing aid compatibility report listing seven handset models that it offered at that time. None of the listed models met the T3 rating for inductive coupling. The Wireless Telecommunications Bureau subsequently referred the matter to the Enforcement Bureau’s Spectrum Enforcement Division for investigation. 3. On August 13, 2007, the Spectrum Enforcement Division issued PinPoint a Letter of Inquiry (“LOI”).3 The August 13, 2007 LOI directed PinPoint, among other things, to submit a sworn written response to a series of questions relating to its compliance with the inductive coupling hearing aid compatibility requirements. PinPoint responded to the August 13, 2007 LOI on August 27, 2007.4 4. On June 13, 2008, the Spectrum Enforcement Division issued a Notice of Apparent Liability for Forfeiture proposing that PinPoint be held liable for a forfeiture of $30,000 under Section 503(b)(1)(B) of the Act, and ordered PinPoint either to pay the proposed forfeiture or file a written response within thirty (30) days of the NAL release date stating why the proposed forfeiture should be reduced or canceled.5 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. PinPoint 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 3 August 13, 2007 LOI. 4 Letter from Michael Bennet, Esq., Bennet & Bennet, PLLC to Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal Communications Commission (August 27, 2007). 5 PinPoint Wireless, Inc., Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 9290 (Enf. Bur., Spectrum Enf. Div. 2008). Federal Communications Commission DA 09-556 3 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 its investigation and to cancel its NAL. In consideration for the termination of said investigation and cancellation of the NAL, PinPoint agrees to the terms, conditions, and procedures contained herein. The Bureau further agrees that in the absence of new material evidence, the Bureau will not use the facts developed in this investigation through the Effective Date of the Consent Decree, or the existence of this Consent Decree, to institute, on its own motion, any new proceeding, formal or informal, or take any action on its own motion against PinPoint concerning the matters that were the subject of the investigation. The Bureau also agrees that it will not use the facts developed in this investigation through the Effective Date of this Consent Decree, or the existence of this Consent Decree, to institute on its own motion any proceeding, formal or informal, or take any action on its own motion against PinPoint with respect to PinPoint’s basic qualifications, including its character qualifications, to be a Commission licensee or authorized common carrier. 9. Compliance Plan. For purposes of settling the matters set forth herein, PinPoint agrees to maintain a Compliance Plan related to future compliance with the Act, the Commission’s Rules, and the Commission’s Adopting Order. The Plan will include, at a minimum, the following components: (a) Compliance Officer. PinPoint has designated Lynn Sewell as its hearing aid compatibility officer. The designated hearing aid compatibility compliance officer will be familiar with the FCC’s hearing aid compatibility regulations and associated selling and labeling benchmarks. The designated hearing aid compatibility compliance officer will also review the FCC’s hearing aid compatibility regulations on a monthly basis in order to stay abreast of pending benchmarks and any new hearing aid compatibility requirements. (b) Training. The designated hearing aid compatibility compliance officer will be responsible for ensuring that all PinPoint retail staff receives training regarding the hearing aid compatibility capabilities of the handsets PinPoint offers for sale. Such training will be completed within ninety (90) days of the Effective Date and any new employees will receive training within sixty (60) days of their employment. (c) Consumer Outreach. PinPoint will advertise the availability of hearing aid-compatible handsets to ensure that all of its retail customers are aware that hearing aid-compatible handsets are available. (d) Compliance Reports. PinPoint will file compliance reports with the Commission ninety (90) days after the Effective Date, twelve (12) months after the Effective Date, and twenty- four (24) months after the Effective Date. Each report shall include a compliance certificate from an officer, as an agent of PinPoint, stating that the officer has personal knowledge that PinPoint has established operating procedures intended to ensure compliance with this Consent Decree, together with an accompanying statement explaining the basis for the officer’s compliance certification. All reports shall be submitted to Kathryn S. Berthot, 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 Kathryn S. Berthot at Kathy.Berthot@fcc.gov. Federal Communications Commission DA 09-556 4 (e) Termination Date. Unless stated otherwise, the requirements of this Consent Decree will expire twenty-four (24) months from 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 PinPoint 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 PinPoint with the Act, the Rules, or the Order. 11. Voluntary Contribution. PinPoint agrees that it will make a voluntary contribution to the United States Treasury in the amount of $18,000. The payment will be made within thirty (30) days after the Effective Date of the Adopting Order. The payment must be made by check or similar instrument, payable to the order of the Federal Communications Commission. The payment must include the Account Number and FRN Number referenced in the caption to the Adopting Order. Payment by check or money order may be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S. Bank – Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be made to ABA Number 021030004, receiving bank TREAS/NYC, and account number 27000001. For payment by credit card, an FCC Form 159 (Remittance Advice) must be submitted. When completing the FCC Form 159, enter the Account number in block number 23A (call sign/other ID), and enter the letters “FORF” in block number 24A (payment type code). PinPoint will also send electronic notification on the date said payment is made to Kathryn S. Berthot at Kathy.Berthot@fcc.gov. 12. Waivers. PinPoint waives any and all rights it may have to seek administrative or judicial reconsideration, review, appeal or stay, or to otherwise challenge or contest the validity of this Consent Decree and the Order adopting this Consent Decree, provided the Bureau issues an Order adopting the Consent Decree without change, addition, modification, or deletion. PinPoint 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 PinPoint nor the Commission shall contest the validity of the Consent Decree or the Adopting Order, and PinPoint shall waive any statutory right to a trial de novo. PinPoint hereby agrees to waive any claims it may otherwise have under the Equal Access to Justice Act, 5 U.S.C. § 504 and 47 C.F.R. § 1.1501 et seq., relating to the matters addressed in this Consent Decree. 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 PinPoint does not expressly consent) that provision will be superseded by such Commission rule or Order. 15. Successors and Assigns. PinPoint agrees that the provisions of this Consent Decree shall be binding on its 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 Federal Communications Commission DA 09-556 5 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. 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 Representative. 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. _______________________________ Kathryn S. Berthot Chief, Spectrum Enforcement Division Enforcement Bureau ________________________________ Date ________________________________ Tom Shoemaker [Title] PinPoint Wireless, Inc. ________________________________ Date