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Abstract
The Commission said "an overriding factor" in its decision to refer the cases for enforcement action was the fact that the carriers acknowledged they would not have met the deadline even if the software defect had not occurred. Sprint Nextel has said it would have reached only 88% penetration, while Nextel Partners has said it would have hit only 85%. Both waiver requests failed to show that the companies had (1) "made sufficient and effective efforts to encourage subscribers to upgrade noncompliant handsets," and (2) outlined "the requisite path to full compliance," the orders said.
"Given its low penetration levels, Sprint Nextel knew or should have known prior to December 31, 2005 that its modest efforts to meet the deadline were proving inadequate and that more aggressive steps were needed to achieve timely compliance," said the Commission, which cited carrier initiatives such as marketing and promotional campaigns and discounted handsets with two-year service contracts. "However, Sprint Nextel has submitted nothing to indicate that it did anything other than continue to rely on those demonstrably insufficient measures as the deadline approached." The order on Nextel Partners used similar language regarding that carrier's past and future efforts. The efforts both carriers said would result in compliance with the penetration level "lack specifics and firm commitments," the agency said. Sprint Nextel told the FCC in November that its handset-penetration rate had reached 90.1% as of Oct. 31, including figures from Nextel Partners.
The Commission was also critical of Alltel's extension request. "Alltel's waiver request is not 'specific, focused and limited in scope,' fails to articulate a 'clear path to full compliance,' and lacks evidence that Alltel took the necessary concrete steps to come as close as possible to full compliance by the deadline," it said. "We find that Alltel failed to take sufficient efforts in advance of the deadline to assure timely compliance, and has not committed to taking additional steps to ensure that it achieves compliance as quickly as possible."
Regarding U.S. Cellular, the Commission said the company's "compliance efforts prior to December 31, 2005 were insufficient, and it inexcusably delayed, until 2006, instituting more aggressive measures of attaining compliance." The FCC added that it doesn't have confidence in the carrier's ability to achieve compliance even if the waiver were granted because the company has said it's not sure of the location capability of a "significant percentage of its subscribers." U.S. Cellular told the FCC in October that the handset-penetration rate among its "core" subscribers had reached 94.84%; it said it conducted research confirming the location capability of handsets.