Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-03-SE-291
Schumacher Electric ) NAL/Acct. No. 200432100010
Corporation, ) FRN # 0010291185
Mt. Prospect, Illinois
ORDER
Adopted: May 14, 2004 Released: May 18, 2004
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent
Decree entered into between the Enforcement Bureau and Schumacher
Electric Corporation (``Schumacher''). The Consent Decree
terminates the forfeiture proceeding initiated by the Enforcement
Bureau against Schumacher for its apparent failure to comply with
the equipment requirements set forth in Section 302(b) of the
Act1 and Section 2.803(a) of the Commission's Rules (``Rules'').2
2. The Enforcement Bureau and Schumacher have
negotiated the terms of a Consent Decree that would resolve this
matter and terminate the forfeiture proceeding. A copy of the
Consent Decree is attached hereto and incorporated by reference.
3. Based on the record before us, we conclude that no
substantial or material questions of fact exist with respect to
this matter as to whether Schumacher possesses the basic
qualifications, including those related to character, to hold or
obtain any FCC license or authorization.
4. After reviewing the terms of the Consent Decree,
we find that the public interest will be served by adopting the
Consent Decree and terminating the forfeiture proceeding.
5. Accordingly, IT IS ORDERED that, pursuant to
Sections 4(i), 4(j) and 503(b) of the Communications Act of 1934,
as amended,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 Enforcement
Bureau's forfeiture proceeding against Schumacher IS TERMINATED.
7. IT IS FURTHER ORDERED that Schumacher Electric
Corporation shall make its voluntary contribution to the United
States Treasury, as specified in the Consent Decree, by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note
NAL/Acct. No. 200432100010 and FRN 0010291185.
8. 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 John Waldron,
Executive Vice President, Schumacher Electric Corporation, 801
Business Center Drive, Mount Prospect, Illinois 20056-2179, and
to David E. Hilliard, Wiley, Rein & Fielding, LLP, 1776 K Street,
N.W., Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
CONSENT DECREE
The Enforcement Bureau (``Bureau'') of the Federal
Communications Commission (``Commission'') and Schumacher
Electric Corporation (``Schumacher'') hereby enter into this
Consent Decree regarding possible violations of Section 302(b) of
the Communications Act of 1934, as amended (``Act''),5 and
Section 2.803(a) of the Commission's Rules (``Rules'')6
concerning certain switching power supply battery chargers
displayed by Schumacher.
Background
1. Under Parts 2 and 15 of the Commission's Rules, certain
external switching power supplies must be authorized in
accordance with the Commission's verification procedure and
comply with all applicable technical standards, including
emission limits, and labeling requirements prior to the
initiation of marketing in the United States. On November 5,
2003, the Bureau received a complaint alleging that Schumacher
was marketing a new line of SpeedCharge automobile battery
chargers (``SpeedChargers'') at the ongoing Automobile
Aftermarket Products Expo (``AAPEX'') in Las Vegas. The
complaint alleged that Schumacher did not label the exhibited
SpeedChargers under Section 15.19(a)(3) of the Rules7, and did
not display the trade show notice under Section 2.803(c) of
the Rules.
2. In response to the Bureau's Letter of Inquiry (``LOI'')
dated November 15, 2003, Schumacher stated that it exhibited
``mock-ups'' (i.e. non-working display units ) of SpeedCharger
models SC 600A, SSC 1000A, SC 1200A, SSC 1500A, SC 2500A, SC
4000A, SC6000A and SC 10000A. Schumacher represented that it
did not sell and/or take orders to sell any of the exhibited
SpeedChargers at AAPEX. Of the exhibited Speedchargers,
Schumacher further represented that models SC 600A, SSC 1000A,
SC 1200A, SSC 1500A, and SC 6000A had been verified prior to
the AAPEX, and provided each verification report for the
models, but, that models SC 2500A, SC 4000A and SC 10000A had
not been verified prior to the AAPEX. The Bureau found that
Schumacher appeared to have violated Section 302(b) of the Act
and Section 2.803(a) of the Rules by displaying at AAPEX non-
working mock-ups of models SC2500A, SC4000A and SC10000A
without the requisite disclaimer notice, and on April 12
issued a Notice of Apparent Liability for Forfeiture
(``NAL'').8
Definitions
3. For the purposes of this Consent Decree the following
definitions shall apply:
(a) ``Commission'' means the Federal Communications
Commission;
(b) ``Bureau'' means the Enforcement Bureau of the
Commission;
(c) ``Schumacher'' means Schumacher Electric Corporation,
its subsidiaries, affiliates and any successors or assigns;
(d) ``Parties'' means Schumacher and the Bureau;
(e) ``Enforcement Proceeding'' means the investigation of
the alleged Rule violation by Schumacher culminating in the
Notice of Apparent Liability for Forfeiture.
(f) ``Notice of Apparent Liability for Forfeiture'' or
``NAL'' means Schumacher Electric Corporation, DA 04-976
(Enf. Bur. April 12, 2004).
(g) ``Adopting Order'' means an order of the Bureau
adopting this Consent Decree;
(h) ``Effective Date'' means the date the Adopting Order is
released by the Bureau;
(i) ``Rules'' means the Commission's Rules found in Title
47 of the Code of Federal Regulations; and
(j) ``Act'' means the Communications Act of 1934, as
amended, 47 U.S.C. §§151 et seq.
Terms of Settlement
4. 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.
5. The Parties agree that this Consent Decree shall become
binding on the Parties on the Effective Date. Upon release, the
Adopting Order and this Consent Decree shall have the same force
and effect as any other final order of the Commission and any
violation of the terms or conditions of this Consent Decree shall
constitute a violation of a Commission order.
6. Schumacher acknowledges that the Bureau has
jurisdiction over the matters contained in this Consent Decree
and the authority to enter into and adopt this Consent Decree.
7. The Parties waive any rights they 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 that the Adopting
Order adopts the Consent Decree without change, addition or
modification.
8. Schumacher waives any rights it may have under any
provision of the Equal Access to Justice Act, 5 U.S.C. § 504 and
47 C.F.R. § 1.1501 et seq., relating to the matters discussed in
this Consent Decree.
9. The Parties agree that this Consent Decree does not
constitute either an adjudication on the merits or a factual or
legal finding or determination of any compliance or noncompliance
with the Act or the Rules. The Parties further agree that this
Consent Decree is for settlement purposes only and that by
agreeing to this Consent Decree, Schumacher does not admit or
deny any liability for violating the Act or the Rules in
connection with the matters that are the subject of this Consent
Decree.
10. In express reliance on the covenants and
representations in this Consent Decree, the Bureau agrees to
terminate the Enforcement Proceeding at such time as both Parties
sign this Consent Decree and the Bureau adopts this Consent
Decree.
11. Schumacher agrees that, as of the Effective Date of
this Consent Decree, every model of switching power supply
battery charger subject to the Rules that is imported and/or
marketed by Schumacher shall be verified and labeled in
accordance with applicable Rules before importation and
marketing. Schumacher further agrees to undertake the
development of a regulatory compliance program (``RCP'') to
educate employees involved in the design, development and
marketing of its products as to the Commission's Rules and their
applicability to Schumacher's products, and to maintain this RCP
for twenty-four (24) months. The RCP includes Schumacher's
appointment of a regulatory compliance officer charged with
oversight of personnel responsible for ensuring that switching
power supply battery chargers comply with all applicable Rules
prior to importation and marketing. Schumacher will submit
details of its RCP to the Bureau no later than thirty (30) days
after the Effective Date. Schumacher may submit its RCP on a
confidential basis pursuant to Sections 0.457 and 0.459 of the
Commission's Rules.9
12. The Parties acknowledge and agree that this Consent
Decree shall constitute a final and binding settlement between
Schumacher and the Bureau regarding possible violations of the
Act and the Rules prior to the Effective Date of this Consent
Decree with respect to the switching power supply battery charger
models that Schumacher displayed at AAPEX, and that were subject
to the NAL. In consideration for termination by the Bureau of the
Enforcement Proceeding and in accordance with the terms of this
Consent Decree, Schumacher agrees to the terms set forth herein
13. The Bureau agrees that it will not entertain, or
institute on its own motion, any new proceeding, formal or
informal, take any action on its own motion, or recommend to the
full Commission any forfeiture or other sanction, against
Schumacher for any alleged violation of the Act or the Rules
prior to the Effective Date of this Consent Decree with respect
to the switching power supply battery charger models that
Schumacher displayed at AAPEX, and that were subject to the NAL.
Nothing in this Consent Decree shall prevent the Bureau from
instituting investigations or enforcement proceedings against
Schumacher in the event of any other alleged misconduct that
violates this Consent Decree or that violates any provision of
the Act or the Rules.
14. The Parties agree that each is required to comply with
each individual condition of this Consent Decree. Each specific
condition is a separate condition of the Consent Decree as
approved. To the extent that Schumacher fails to satisfy any
condition, in the absence of Commission alteration of the
condition, it will be deemed noncompliant and may be subject to
possible future enforcement action with respect to such failure
to satisfy the condition.
15. The Parties agree that any provision of this Consent
Decree which conflicts with any subsequent rule, order of general
applicability or other decision of general applicability adopted
by the Commission will be superseded by such Commission rule,
order or other decision.
16. Schumacher agrees to make a voluntary contribution to
the United States Treasury in the amount of seven thousand
dollars ($7,000) within thirty (30) days of the Effective Date.
Such contribution shall be made, without further protest or
recourse, by credit card through the Commission's Debt and Credit
Management Center at (202) 418-1995, or by mailing a check or
similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, Forfeiture Collection Section, Finance Branch, P.O.
Box 73482, Chicago, Illinois 60673-7482. The payment should
reference NAL/Acct. No. 200432100010 and FRN 0010291185.
17. If any Party (or the United States on behalf of the
Commission) brings a judicial action to enforce the terms of the
Adopting Order, neither Schumacher nor the Commission shall
contest the continuing validity of the Consent Decree or Adopting
Order. The Parties agree to comply with, defend and support the
validity of this Consent Decree and the Adopting Order in any
proceeding seeking to nullify, void, or otherwise modify the
Consent Decree or the Adopting Order.
18. The Parties agree that in the event that any court of
competent jurisdiction renders this Consent Decree invalid, this
Consent Decree shall become null and void and may not be used in
any manner in any legal proceeding.
19. This Consent Decree cannot be modified without the
advance written consent of all of the Parties.
20. This Consent Decree may be signed in counterparts.
For the Enforcement Bureau:
By:
David H. Solomon
Chief, Enforcement Bureau
For Schumacher Electric Corporation:
By: _____________________________
John Walton
Executive Vice President
_________________________
1 47 U.S.C. § 302(b).
2 47 C.F.R. § 2.803(a).
3 47 U.S.C. §§ 4(i), 4(j) and 503(b).
4 47 C.F.R. §§ 0.111, 0.311.
5 47 U.S.C. § 302(b).
6 47 C.F.R. § 2.803(a).
7 47 C.F.R. § 15.19(a)(3).
8 Schumacher Electric Corporation, DA 04-976, (Enf. Bur. April
12, 2004).
9 47 C.F.R. §§ 0.457, 0.459.