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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-04-SE-085
St. Louis Music, Inc. ) NAL/Acct. No. 200532100007
) FRN # 0012456836
ORDER
Adopted: January 10, 2005 Released: January 12,
2005
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent
Decree entered into between the Enforcement Bureau and St. Louis
Music, Inc. (``SLM''). The Consent Decree terminates an
investigation initiated by the Enforcement Bureau into whether
SLM's manufacture, importation, marketing and sale of certain
Class B digital audio devices violated Section 302(b) of the
Communications Act of 1934, as amended, (``Act'')1 and Sections
2.803(a), 15.19 and 15.105(b) of the Commission's Rules
(``Rules'').2
2. The Enforcement Bureau and SLM have negotiated the
terms of a Consent Decree that would resolve this matter and
terminate the investigation. 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 SLM 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 investigation.
5. Accordingly, IT IS ORDERED that, pursuant to
Section 4(i) 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 Enforcement
Bureau's investigation IS TERMINATED.
7. IT IS FURTHER ORDERED that St. Louis Music, Inc.
shall make its voluntary contribution to the United States
Treasury, as specified in the Consent Decree, 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. Payment by overnight mail may be sent to Bank One/LB
73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.
Payment by wire transfer may be made to ABA Number 071000013,
receiving bank Bank One, and account number 1165259. The payment
should reference the NAL/Acct. No. and FRN number referenced
above.
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 Donald J. Collins,
Vice President - Finance, St. Louis Music, Inc., 1400 Ferguson
Avenue, St. Louis, MO 63133, and to Alan G. Fishel, Esq., Arent
Fox PLLC, 1050 Connecticut Avenue, N.W., Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
CONSENT DECREE
The Enforcement Bureau (``Bureau'') of the Federal
Communications Commission (``Commission'') and St. Louis Music,
Inc. (``SLM'') hereby enter into this Consent Decree for the
purpose of terminating the Bureau's investigation into whether
SLM violated Section 302(b) of the Communications Act of 1934, as
amended (the ``Act'')5, and Section 2.803 of the Commission's
Rules (the ``Rules''),6 regarding the manufacture, importation,
marketing and sale of Class B digital audio products, as well as
Sections 15.19 (labeling requirements) and 15.105(b) (user manual
statements) of the Rules.7
Background
1. Pursuant to Section 302(b) of the Act and Sections
2.803(a)(2) and 15.101(a) of the Rules,8 Class B digital
equipment must be authorized pursuant to the Commission's
verification procedures prior to, inter alia, the importation or
initiation of marketing of such equipment. Such equipment is
also subject to Commission rules requiring labeling (47 C.F.R.
§15.19(a)) and user manual statements (47 C.F.R. §15.105(b)).
2. SLM manufactures Class B digital audio equipment,
including guitar amplifiers and mixers. On May 21, 2004, after
receiving information regarding potential violations, the Bureau
initiated an investigation by issuing a Letter of Inquiry
(``LOI'') directing SLM to provide information regarding, among
other matters, its compliance with the Commission's equipment
authorization, labeling and user manual requirements. SLM
submitted its initial response (``Response'') to the Bureau's LOI
on June 24, 2004, with respect to the devices identified by the
Bureau in the LOI, as well as additional devices voluntarily
disclosed by SLM. On September 2, 2004, SLM submitted its First
Supplement to the Response. On September 23, 2004,
representatives of SLM, along with counsel, met with Bureau and
Office of Engineering and Technology staff to discuss issues
relevant to the LOI. On November 8, 2004, SLM submitted its
Second Supplement to the Response.
Definitions
3. For the purposes of this Consent Decree, the
following definitions shall apply:
(a) ``Commission'' and ``FCC'' mean the Federal
Communications Commission.
(b) ``Bureau'' means the Enforcement Bureau of the Federal
Communications Commission.
(c) ``SLM'' means St. Louis Music, Inc., its subsidiaries,
affiliates and any successors or assigns.
(d) ``Parties'' means SLM and the Bureau.
(e) ``Adopting Order'' means an order of the Bureau
adopting the terms and conditions of this Consent Decree. (f)
``Effective Date'' means the date on which the Bureau releases
the Adopting Order.
(g) ``Investigation'' means the investigation commenced by
the Bureau's May 21, 2004 Letter of Inquiry9 regarding
whether SLM violated Section 302(b) of the Act and/or
Section 2.803 of the Rules, as well as Sections 15.19 and
15.105(b) of the Rules.
(h) ``Rules'' means the Commission's Rules found in Title
47 of the Code of Federal Regulations.
(i) ``Act'' means the Communications Act of 1934, as
amended, 47 U.S.C. §§151 et seq.
Terms of Agreement
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 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 further agree that
this Consent Decree is for settlement purposes only and that by
agreeing to this Consent Decree, SLM does not admit or deny
liability for violating any statute, regulation, or
administrative rule in connection with matters that are the
subject of this Consent Decree.
6. 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.
7. The Parties acknowledge and agree that this
Consent Decree shall constitute a final and binding settlement
between SLM and the Bureau regarding possible violations of the
Act and the Rules with respect to any Class B digital device
manufactured, imported, marketed or sold by SLM prior to the
Effective Date of this Consent Decree.
8. In express reliance on the covenants and
representations in this Consent Decree and to avoid further
expenditure of scarce public resources, the Bureau agrees to
terminate its Investigation into whether SLM may have violated
the Act or the Rules with respect to any Class B digital devices
manufactured, imported, marketed or sold by SLM prior to the
Effective Date of this Consent Decree.
9. In consideration for termination by the Bureau of
the Investigation and in accordance with the terms of this
Consent Decree, SLM agrees to the terms set forth herein.
10. SLM 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.
11. SLM will implement a Federal Communications
Commission Regulatory Compliance Plan (``RCP'') related to SLM's
future compliance with the Act, the Commission's Rules, and the
Commission's orders. The RCP will include, at a minimum, the
following components:
(a) FCC Compliance Procedures. SLM shall develop and
update as necessary appropriate FCC Compliance Procedures.
Relevant SLM personnel shall be made aware of the FCC
Compliance Procedures and are to follow them. The FCC
Compliance Procedures will, among other things, address the
equipment authorization requirements of the Act and the
Commission's Rules applicable to all Class B digital devices
manufactured, imported, marketed and sold by SLM in the
United States, as well as the Commission's Rules regarding
labeling and user manual statements for such devices. The
Compliance Engineer will be assigned ultimate responsibility
within SLM for determining whether the manufacture,
importation, marketing, sale, labeling and user manual
statements for such devices are in compliance with the FCC
Compliance Procedures.
(b) Compliance Engineer. SLM shall designate a
Regulatory Compliance Engineer (``Compliance Engineer'') who
will administer the RCP, supervise SLM's compliance with the
Act, the Commission's Rules and the Consent Decree, and
serve as the SLM point of contact for all Commission-related
compliance matters.
(c) Review and Monitoring. SLM will review the RCP
annually to ensure that it is maintained in a proper manner
and continues to address the objectives set forth therein.
12. The Bureau agrees that it will not entertain or
institute, or use the facts developed in this Investigation or
the existence of this Consent Decree to institute, on its own
motion, any new proceeding, formal or informal, nor take any
action on its own motion, or recommend to the full Commission any
forfeiture or other sanction, against SLM for any alleged
violation of the Act or the Rules with respect to any of the
Class B digital devices manufactured, imported, marketed or sold
by SLM prior to the Effective Date of this Consent Decree.
13. SLM agrees that every Class B digital device which
is manufactured, imported, marketed or sold by SLM on or after
the Effective Date of this Consent Decree shall be compliant with
the Commission's technical and labeling Rules before importation
and marketing by SLM, and that user manual statements compliant
with the Commission's Rules will be implemented with respect to
such devices.
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 SLM 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 SLM's obligations set forth
in paragraphs 11 and 13 of this Consent Decree shall remain in
effect for twenty-four (24) months from the Effective Date.
16. SLM agrees that it will make a voluntary
contribution to the United States Treasury in the amount of
Forty-Two Thousand Dollars ($42,000) within 30 calendar days
after 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. Payment by
overnight mail may be sent to Bank One/LB 73482, 525 West Monroe,
8th Floor Mailroom, Chicago, IL 60661. Payment by wire transfer
may be made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259. The payment should reference NAL/Acct.
No. 200532100007 and FRN # 0012456836.
17. SLM's decision to enter into this Consent Decree
is expressly contingent upon the Bureau's issuance of an Adopting
Order that is consistent with this Consent Decree, and which
adopts the Consent Decree without change, addition, modification,
or deletion.
18. The Parties waive any and all 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 Degree and the Adopting Order, provided that the
Adopting Order adopts the Consent Decree without change,
addition, modification, or deletion.
19. In the event that this Consent Decree is rendered
invalid by any court of competent jurisdiction, this Consent
Decree shall become null and void and may not be used in any
manner in any legal proceeding.
20. 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 SLM nor the Commission shall contest
the continuing validity of this Consent Decree or the 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.
21. 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.
22. SLM 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 addressed in
this Consent Decree.
23. This Consent Decree cannot be modified without the
advance written consent of both Parties.
24. This Consent Decree may be signed in counterparts.
For the Enforcement Bureau:
________________________________
David H. Solomon
Chief, Enforcement Bureau
________________________________
Date
For St. Louis Music, Inc.:
________________________________
Donald J. Collins
Vice President - Finance
________________________________
Date
_________________________
1 47 U.S.C. § 302a(b).
2 47 C.F.R. §§ 2.803(a), 15.19 and 15.105(b).
3 47 U.S.C. § 154(i).
4 47 C.F.R. §§ 0.111, 0.311.
5 47 U.S.C. § 302a(b).
6 47 C.F.R. § 2.803.
7 47 C.F.R. §§ 15.19, 15.105(b).
8 47 U.S.C. § 302a(b); 47 C.F.R. §§ 2.803(a)(2), 15.101(a).
9 See Letter from Joseph P. Casey, Chief, Spectrum Enforcement
Division, Enforcement Bureau, FCC, to Eugene Kornblum, President,
SLM (May 21, 2004).