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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Dr. Bonnie O'Day, ) File No. EB-03-TC-F-004
)
Complainant, )
)
v. )
)
Audiovox Communications Corporation, )
)
Defendant. )
ORDER
Adopted: December 30, 2003
Released: January 5, 2004
By the Chief, Telecommunications Consumers Division, Enforcement
Bureau:
1. In this Order, we grant the Joint Motion to Dismiss with
Prejudice (``Joint Motion'') filed on December 17, 2003, by
Complainant Dr. Bonnie O'Day and Defendant Audiovox
Communications Corporation.1 With the mediation assistance of
Commission staff, O'Day and Audiovox have settled the first
formal complaint filed with the Commission pursuant to Section
255 of the Communications Act of 1934, as amended, (the
``Act'').2 We find that granting the parties' Joint Motion to
dismiss the formal complaint, in the manner described herein,
will ensure the most efficient use of the parties' and the
Commission's resources without materially prejudicing either
party.
I. BACKGROUND
2. On February 21, 2003, pursuant to Section 255 of the Act
and the Commission's implementing rules and orders,3 Dr. Bonnie
O'Day (``O'Day'') filed a formal complaint against defendant
Audiovox Communications Corporation (``Audiovox'').4 In her
complaint, O'Day contends that Audiovox violated Section 255 of
the Act by, among other things, failing to make features of the
wireless telephone handset that Audiovox manufactured accessible
to O'Day, a visually-impaired user. O'Day requests that the
Commission require Audiovox to make available for downloading
into O'Day's wireless telephone the software needed to deploy
``text to speech'' capability. O'Day contends that such software
would allow the essential functions and services available
through a wireless telephone's visual menu to be accessible to
her through audio prompts.5
3. On April 1, 2003, Audiovox filed a Motion to Dismiss the
formal complaint and an Answer denying the allegations in O'Day's
complaint.6 O'Day filed a Reply to the Answer and an Opposition
to Audiovox's Motion to Dismiss.7 In her Reply, O'Day proposed
that the Commission hold a technical conference at which the
parties, together with their engineering and legal personnel,
could discuss accessibility issues at length.8 Commission staff
convened such a conference on June 12, 2003. The parties, their
attorneys, and their respective engineers and technical experts
attended the conference. Commission staff facilitated the
discussion and encouraged participants to discuss potential
settlement opportunities.
4. Since the technical conference, O'Day and Audiovox have
engaged in extensive settlement discussions, with assistance from
Commission staff, to resolve the disputed issues raised in
O'Day's formal complaint. As a result of these discussions, the
parties recently executed a settlement agreement and filed the
above-referenced Joint Motion for dismissal of O'Day's formal
complaint against Audiovox.
II. DISCUSSION AND ORDERING CLAUSES
5. The Commission has broad discretion to conduct complaint
proceedings ``in a manner that will best conduce to the proper
dispatch of business and to the ends of justice.''9 Although the
Commission does not have a specific rule relating to the
dismissal of formal complaints, we generally follow the well-
established principle that dismissal should be allowed unless it
will materially prejudice either party.10
6. Under the circumstances of this case, dismissing the
complaint with prejudice is appropriate and does not materially
prejudice either O'Day or Audiovox. Dismissal is in the public
interest because it ensures the efficient use of the Commission's
formal complaint process and eliminates the need for further
litigation and expenditure of additional time and resources of
the parties and the Commission. Hence, we find that the parties
have shown good cause for us to dismiss O'Day's formal complaint
with prejudice.
7. Accordingly, IT IS ORDERED, pursuant to sections 4(i),
4(j), and 208 of the Communications Act of 1934, as amended, 47
U.S.C. §§ 154(i), 154(j), and 208, and section 1.727 of the
Commission's rules, 47 C.F.R. § 1.727, and the authority
delegated in sections 0.111 and 0.311 of the Commission's rules,
47 C.F.R. §§ 0.111, 0.311, that the Joint Motion to Dismiss
Formal Complaint with Prejudice filed by the parties to this
proceeding IS GRANTED.
8. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j),
and 208 of the Communications Act of 1934, as amended, 47 U.S.C.
§§ 154(i), 154(j), and 208, and section 1.727 of the Commission's
rules, 47 C.F.R. § 1.727, and the authority delegated in sections
0.111 and 0.311 of the Commission's rules, 47 C.F.R. §§ 0.111,
0.311, that O'Day's formal complaint is hereby DISMISSED WITH
PREJUDICE and that the above-captioned formal complaint
proceeding IS TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION
Colleen K. Heitkamp
Chief, Telecommunications Consumers
Division
Enforcement Bureau
_________________________
1 See Notice of Settlement and Joint Motion to Dismiss Formal
Complaint with Prejudice, Dr. Bonnie O'Day & Audiovox
Communications Corporation, File No. EB-03-TC-F-004, filed Dec.
17, 2003.
2 See 47 U.S.C. § 255. Section 255 provides, in pertinent
part, that manufacturers of telecommunications equipment or
customer premises equipment, as well as providers of
telecommunications services, must make their products and
services ``accessible'' to and usable by individuals with
disabilities, if ``readily achievable.''
3 Sections 6.1 - 7.23 of the Commission's rules, 47 C.F.R. §§
6.1 - 7.23, implement Section 255. See also In the Matter of
Implementation of Sections 255 and 251(a)(2) of the
Communications Act, Access to Telecommunications Service,
Telecommunications Equipment and Customer Premises Equipment by
Persons with Disabilities, Report and Order, 16 FCC Rcd 6417
(1999) (``Section 255 Order''). In the Section 255 Order, the
Commission noted that ``[p]rompt and efficient enforcement of
Section 255 and the rules adopted in this Order is a crucial
component of successful implementation of the accessibility
requirements . . . .'' Section 255 Order, 15 FCC Rcd at 6441.
4 O'Day's formal complaint was supported by the American
Council for the Blind, a national advocacy organization for blind
and visually-impaired persons. At the same time, O'Day filed a
similar formal complaint against Verizon Wireless, File No. EB-
03-TC-F-001. This Order deals only with O'Day's formal complaint
against Audiovox.
5 See O'Day Formal Complaint, File No. EB-03-TC-F-004, filed
Feb. 21, 2003.
6 See Audiovox, Answer and Motion to Dismiss O'Day Formal
Complaint, File No. EB-03-TC-F-004, filed April 1, 2003.
7 See O'Day Reply to Audiovox Answer, File No. EB-03-TC-F-004,
filed April 18, 2003 (``O'Day Reply''); O'Day Opposition to
Audiovox Motion to Dismiss, File No. EB-03-TC-F-004, filed April
18, 2003.
8 See O'Day Reply.
9 47 U.S.C. § 4(i), see also 47 U.S.C. § 4(j).
10 See Wright & Miller, Federal Practice & Procedure: Civil 2d
§ 2364.