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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-09-SE-196
In the Matter of
) Acct. No. 201132100032
Smith Bagley, Inc.
) FRN No. 0002154706
)
ORDER
Adopted: July 6, 2011 Released: July 7, 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 Smith Bagley, Inc. ("SBI"). The Consent Decree terminates
an investigation initiated by the Bureau regarding SBI's compliance with
section 4.9(e) of the Commission's rules ("Rules") pertaining to the
reporting of certain network outages.
2. The Bureau and Smith Bagley have negotiated the terms of the Consent
Decree that would resolve 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 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 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 section 4(i) of the Act,
and sections 0.111 and 0.311 of the 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 counsel for Smith Bagley, Inc., Todd Slamowitz, Esq., Lukas,
Nace, Gutierrez & Sachs, LLP, 1650 Tysons Blvd., Suite 1500, McLean, VA
22102, and to Justin E. Hinkle, Chief Operating Officer, Smith Bagley,
Inc., 500 South White Mountain Road, Suite 103, Show Low, AZ 85901.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-09-SE-196
In the Matter of
) Acct. No. 201132100032
Smith Bagley, Inc.
) FRN No. 0002154706
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and Smith
Bagley, Inc., by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
into whether Smith Bagley, Inc. violated section 4.9(e) of the
Commission's 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:
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 compliance obligations and compliance
program described in this Consent Decree at Paragraph 8.
(f) "Effective Date" means the date on which the Bureau releases the
Adopting Order.
(g) "Investigation" means the investigation commenced by the Bureau's
February 17, 2010 Letter of Inquiry regarding whether SBI violated section
4.9(e) of the Rules.
(h) "Parties" means SBI and the Bureau, each of which is a "Party."
(i) "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
(j) "SBI" means Smith Bagley, Inc., and its subsidiaries as well as its
predecessors-in-interest and its successors-in-interest.
II. BACKGROUND
2. Under section 4.9(e) of the Rules, a wireless communications provider,
such as SBI, is required to submit to the Commission an electronic
Notification within 120 minutes after discovering that it has experienced,
on any facilities that it owns, operates, leases or otherwise utilizes, a
network outage of a Mobile Switching Center of at least 30 minutes
duration that: (1) potentially affects at least 900,000 user minutes of
either telephony or paging service; (2) affects at least 1,350 DS3
minutes; (3) potentially affects any special offices and facilities, as
defined in sections 4.5(a) through 4.5(d) of the Rules, other than
airports through direct service facility agreements; or (4) potentially
affects a 911 special facility, as defined in section 4.5(e) of the Rules.
The provider also is required to submit electronically an Initial
Communications Outage Report within 72 hours after discovering such an
outage and a Final Communications Outage Report within 30 days after
discovering such an outage.
3. On February 17, 2010, the Bureau issued a Letter of Inquiry ("LOI") to
SBI. The LOI directed SBI to submit a sworn written response to a series
of questions relating to SBI's compliance with the Commission's network
outage reporting rules. SBI responded to the LOI on March 19, 2010. The
Bureau and SBI executed a Tolling Agreement on June 2, 2010, and Tolling
Agreement Extensions on October 4, 2010, and December 22, 2010. These
agreements, among other things, permitted the Parties to continue
discussion of the law and facts relating to the matter under review in
this Investigation.
III. TERMS OF AGREEMENT
4. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order
without change, addition, modification, or deletion.
5. Jurisdiction. SBI agrees that the Bureau has jurisdiction over it and
the matters contained in this Consent Decree and has the authority to
enter into and adopt this Consent Decree.
6. Effective Date; Violations. The Parties agree that this Consent
Decree shall become effective on the Effective Date as defined herein.
Upon release, 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.
7. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate its
Investigation. In consideration for the termination of said
Investigation, SBI 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
Investigation 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 SBI
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, 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 SBI with respect to SBI's basic
qualifications, including its character qualifications, to be a
Commission licensee.
8. Compliance Plan. For purposes of settling the matters set forth
herein, SBI agrees to implement, within thirty (30) days of the
Effective Date, a Compliance Plan designed to facilitate SBI's future
compliance with the Act, the Rules, and the Commission's orders
relating to the Commission's network outage reporting requirements.
The Compliance Plan will include, at a minimum, the following
components:
a. Compliance Officer. SBI shall designate a senior corporate manager to
serve as the Compliance Officer for FCC network outage reporting, who
will be responsible for implementing and administering SBI's
Compliance Plan.
b. Compliance Training Program. SBI shall establish and maintain an FCC
network outage reporting training program ("Compliance Training
Program"), as detailed below, for all employees of SBI whose
responsibilities include gathering and/or analyzing technical
information regarding SBI's network outages for purposes of compiling
and/or submitting SBI's outage reports to the Commission's Network
Outage Reporting System ("NORS"); entering that information into any
SBI database(s) and/or record(s) that is used by SBI to prepare and
file its NORS reports; or preparing or submitting SBI's NORS reports
(each employee of SBI who performs any of the foregoing duties shall
be referred to herein as a "Covered Employee").
i. SBI's Compliance Training Program shall address, at a minimum, the
following subjects in order to facilitate compliance with the FCC's
network outage reporting Rules: (A) the Rules governing the reporting of
network outages; (B) the information and calculations required by the
Rules to determine whether a network outage is reportable under the Rules;
(C) the time periods within which NORS reports must be submitted to the
FCC; and (D) the standard internal operating procedures adopted by SBI to
identify and report those network outages in accordance with the FCC's
reporting criteria ("Operating Procedures"). Covered Employees also shall
be advised of the regulatory consequences in the event that SBI fails to
comply with the FCC's outage reporting requirements.
ii. Employees of SBI who are Covered Employees as of the Effective Date
shall complete the Compliance Training Program within sixty (60) days of
the Effective Date. New or re-assigned employees of SBI who become Covered
Employees at any time after the Effective Date shall complete the
Compliance Training Program within thirty (30) days of the date of their
employment or re-assignment.
iii. SBI shall repeat such training annually, and shall take such steps as
are reasonable, necessary and appropriate to update and enhance the
Compliance Training Program to ensure that it is accurate and complete.
c. Outage Reporting. Beginning sixty (60) days after the Effective Date
and thereafter, SBI shall include in any NORS report filed with the
Commission the date and time that SBI discovered the outage was
reportable using the following two separate fields: (1) Date Outage
Determined Reportable and (2) Local Time Outage Determined Reportable
(24 hr clock (nnnn)).
d. Reporting Non-Compliance. SBI shall report any non-compliance with
section 4.9(e) of the Rules to the Bureau within fifteen (15) calendar
days after the discovery of such non-compliance. Such reports shall
include a detailed explanation of (i) each instance of non-compliance;
(ii) the steps that SBI has taken or will take to remedy such
non-compliance, including the schedule on which proposed remedial
actions will be taken; and (iii) the steps that SBI has taken or will
take to prevent the recurrence of any such non-compliance, including
the schedule on which such preventive action will be taken. All such
reports of non-compliance shall be submitted to Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street, S.W., Washington, D.C. 20554, with a copy
submitted electronically to JoAnn Lucanik at JoAnn.Lucanik@fcc.gov,
and Nissa Laughner at Nissa.Laughner@fcc.gov.
e. Compliance Reports. SBI shall file compliance reports with the Bureau
ninety (90) days after the Effective Date, twelve (12) months after
the Effective Date and twenty-four (24) months after the Effective
Date.
i. Each Compliance Report shall include a certification by the Compliance
Officer, as an agent of and on behalf of SBI, stating that the Compliance
Officer has personal knowledge that SBI (A) has established and
implemented the Compliance Plan; (B) has utilized the Operating Procedures
since the implementation of the Compliance Plan; and (C) is not aware of
any instances of non-compliance with the terms and conditions of this
Consent Decree.
ii. The certification shall be accompanied by a statement explaining the
basis for the Compliance Officer's certification and must comply with
section 1.16 of the Rules and be subscribed to as true under penalty of
perjury in substantially the form set forth therein.
iii. If the Compliance Officer cannot provide the requisite certification,
the Compliance Officer, as an agent of and on behalf of SBI, shall provide
the Commission with a detailed explanation of (A) each instance of
non-compliance; (B) the steps that SBI has taken or will take to remedy
such non-compliance, including the schedule on which proposed remedial
actions will be taken; and (C) the steps that SBI has taken or will take
to prevent the recurrence of any such non-compliance, including the
schedule on which such preventive action will be taken.
iv. All Compliance Reports shall be submitted to Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street, S.W., Washington, D.C. 20554, with a copy
submitted electronically to JoAnn Lucanik at JoAnn.Lucanik@fcc.gov, and
Nissa Laughner at Nissa.Laughner@fcc.gov.
f. Termination Date. Unless stated otherwise, the terms of the Compliance
Plan will expire twenty-four (24) months after the Effective Date.
9. 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 SBI 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 SBI with the Act, the Rules, or
Commission orders.
10. Voluntary Contribution. SBI agrees to make a voluntary contribution to
the United States Treasury, in the amount of fifty-two thousand
dollars ($52,000). The contribution will be made within thirty (30)
calendar days after the Effective Date. 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 referenced in the caption to the Adopting Order. Payment by
check or money order may be mailed to the 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). SBI will also send electronic notification of the
payment to JoAnn.Lucanik@fcc.gov and Nissa.Laughner@fcc.gov on the
date said payment is made.
11. Waivers. SBI 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. SBI 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
SBI nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and SBI shall waive any statutory right
to a trial de novo. SBI 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.
12. 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.
13. 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 SBI does not expressly consent),
that provision will be superseded by such Rule or order.
14. Successors and Assigns. SBI 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.
15. 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, SBI 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.
16. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
17. 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.
18. Authorized Representatives. Each Party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
19. 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
____________________________
Justin E. Hinkle
Chief Operating Officer
Smith Bagley, Inc.
____________________________
Date
47 C.F.R. S: 4.9(e).
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 Richard Watkins,
Chief Operating Officer, Smith Bagley, Inc. (February 17, 2010).
47 C.F.R. S: 4.5(a) - 4.5(d).
47 C.F.R. S: 4.5(e).
See supra note 2.
See Letter from David A. LaFuria, Esq. and Todd Slamowitz, Esq., Counsel
for Smith Bagley, Inc., Lukas, Nace, Gutierrez & Sachs, LLP, to Nissa
Laughner, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission (March 19, 2010).
See Tolling Agreement, File No. EB-09-SE-196, executed by and between
Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission, and C. Barry Thomas, Chief
Operating Officer, Smith Bagley, Inc. (June 2, 2010).
See Tolling Agreement Extension, File No. EB-09-SE-196, executed by and
between Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, and C. Barry
Thomas, Chief Operating Officer, Smith Bagley, Inc. (October 4, 2010).
See Tolling Agreement Extension, File No. EB-09-SE-196, executed by and
between Ricardo M. Durham, Acting Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, and C. Barry
Thomas, Chief Operating Officer, Smith Bagley, Inc. (December 22, 2010).
(Continued from previous page)
(continued....)
Federal Communications Commission DA 11-1052
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Federal Communications Commission DA 11-1052