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Before the
Federal Communications Commission
Washington, D.C. 20554
)
File No. EB-07-SE-068
In the Matter of )
NAL/Acct. No. 200732100027
Trimble Navigation, Limited )
FRN # 0014690838
)
ORDER
Adopted: April 20, 2007 Released: April 24, 2007
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau and Trimble Navigation, Limited
("TNL"). The Consent Decree terminates an investigation initiated by
the Enforcement Bureau into whether TNL violated Section 302(b) of the
Communications Act of 1934, as amended (the "Act"), and Section 2.803
of the Commission's Rules (the "Rules"), regarding the manufacture,
importation, marketing and sale of unlicensed wireless devices.
2. The Enforcement Bureau and TNL 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. In the absence of new material evidence, we conclude that no
substantial or material questions of fact exist with respect to this
matter as to whether TNL 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 would 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,
and Sections 0.111 and 0.311 of the Commission's rules, the attached
Consent Decree IS ADOPTED.
6. IT IS FURTHER ORDERED that the Enforcement Bureau's investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that TNL 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, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon Bank/LB
358340, 500 Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment
by wire transfer may be made to ABA Number 043000261, receiving bank
Mellon Bank, and account number 911-6106.
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 Raul R. Rodriguez, Esq., Leventhal Senter & Lerman PLLC,
2000 K Street, NW, Suite 600, Washington, DC 20006-1809.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
CONSENT DECREE
The Enforcement Bureau ("Bureau") of the Federal Communications Commission
("Commission") and Trimble Navigation, Limited ("TNL"), hereby enter into
this Consent Decree for the purpose of terminating the Bureau's
investigation into whether TNL violated Section 302(b) of the
Communications Act of 1934, as amended (the "Act"), and Section 2.803 of
the Commission's Rules (the "Rules"), regarding the manufacture,
importation, marketing and sale of unlicensed wireless devices.
I. BACKGROUND
1. In 1999, TNL received Commission certification to manufacture, sell
and distribute a communications device under FCC ID: JUP-7112-900IP.
In 2005, as part of a design upgrade of this device, Trimble changed
the power circuitry of this device, which was determined at the time
to be a Class I Permissive Change in accordance with Section 2.1043 of
the Commission's Rules. In October 2006, during additional testing of
this device Trimble discovered that the 2005 design change to the
power circuitry had caused the RF conducted power to exceed the peak
power limits by approximately 1.4 dB. As soon as Trimble discovered
the increase in conducted RF power limits, it ceased production of
these devices, corrected the design of the radio to bring it into full
compliance with the Commission's Rules, and brought this matter to the
attention of the Commission.
II. DEFINITIONS
2. For purposes of this Consent Decree, the following definitions shall
apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C.
SS151 et seq.
b. "Adopting Order" means an Order of the Bureau adopting the terms
and conditions of this Consent Decree.
c. "Bureau" means the Enforcement Bureau of the Federal
Communications Commission.
d. "Commission" and "FCC" means the Federal Communications
Commission.
e. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
f. "Investigation" means the investigation initiated by the Bureau
regarding the device certified under FCC ID: JUP-7112-900IP.
g. "Parties" means TNL and the Bureau.
h. "Rules" means the Commission's Rules found in Title 47 of the
Code of Federal Regulations.
i. "TNL" means Trimble Navigation, Limited, its subsidiaries,
affiliates and any successors or assigns.
III. TERMS OF AGREEMENT
3. 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.
4. 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 or orders. The
Parties further agree that this Consent Decree is for settlement
purposes only and that by agreeing to this Consent Decree, TNL does
not admit or deny any liability for violating any statute, regulation
or administrative rule in connection with the matters that are the
subject of this Consent Decree.
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. The Parties agree and acknowledge that this Consent Decree shall
constitute a final and binding settlement between TNL and the Bureau
regarding possible violations of the Act and the Rules with respect to
the device that was the subject of the Investigation prior to the
Effective Date of this Consent Decree.
7. 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 TNL may have violated the Act or the Rules with respect to the
device that was the subject of the Investigation prior to the
Effective Date of this Consent Decree.
8. In consideration for termination by the Bureau of the Investigation
and in accordance with the terms of this Consent Decree, TNL agrees to
the terms set forth herein.
9. TNL 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.
10. TNL has updated its in-place Federal Communications Commission
Regulatory Compliance Plan ("RCP") related to TNL's compliance with
the Act, the Commission's Rules, and the Commission's orders. The RCP
includes the following components:
a. FCC Compliance Procedures. TNL has implemented appropriate
additional FCC Compliance Procedures. Relevant TNL personnel are
aware of the FCC Compliance Procedures and are to follow them.
The FCC Compliance Procedures address the equipment authorization
requirements of the Act and the Commission's Rules applicable to
unlicensed wireless devices manufactured, imported, marketed and
sold by TNL in the United States, as well as the Commission's
Rules regarding labeling and user manual statements for such
devices. The Compliance Engineer (defined below) has been
assigned ultimate responsibility within TNL 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. TNL has a designated Regulatory Compliance
Engineer ("Compliance Engineer") who administers the RCP,
supervises TNL's compliance with the Act, the Commission's Rules
and the Consent Decree, and serves as the TNL point of contact
for all Commission-related compliance matters.
c. Review and Monitoring. TNL will review the RCP annually to ensure
that it is maintained in a proper manner and continues to address
the objectives set forth therein.
11. The Bureau agrees that, in the absence of new material evidence, it
will not entertain or institute, or use the facts developed in the
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 TNL for any alleged violation of
the Act or the Rules with respect to the device that was the subject
of the Investigation prior to the Effective Date of this Consent
Decree. The Bureau further agrees that, in the absence of new material
evidence, it will not use the facts developed in the Investigation
through the Effective Date to institute on its own motion, or
recommend to the full Commission, any proceeding, formal or informal,
or take any action on its own motion against TNL with respect to TNL's
basic qualifications to hold Commission authorizations.
12. TNL agrees that every unlicensed wireless device which is
manufactured, imported, marketed or sold by TNL 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 TNL, and that user manual statements compliant with the
Commission's Rules will be implemented with respect to such devices.
13. TNL agrees that it will make a voluntary contribution to the United
States Treasury in the amount of Four Thousand Dollars ($4,000) within
30 calendar days after the Effective Date. Such contribution shall be
made 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, P.O. Box 358340,
Pittsburgh, PA 15251-8340. Payment by overnight mail may be sent to
Mellon Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106. The payment
should reference NAL/Acct. No. 200732100027 and FRN # 0014690838.
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 TNL 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 enforcement action with respect to such failure to
satisfy the condition.
15. The Parties agree that TNL's obligations set forth in this Consent
Decree shall remain in effect for twenty four (24) months from the
Effective Date.
16. TNL's decision to enter into this Consent Decree is expressly
contingent upon the Bureau's issuance of an Order that is consistent
with this Consent Decree, and which adopts the Consent Decree without
change, addition, modification, or deletion.
17. 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 Decree
and the Adopting Order, provided that the Adopting Order adopts the
Consent Decree without change, addition, modification, or deletion.
18. In the event that this Consent Decree is rendered invalid by a court
of competent jurisdiction, this Consent Decree shall become null and
void and may not be used in any manner in any legal proceeding.
19. 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 TNL nor the Commission shall contest the validity of the
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.
20. 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.
21. TNL waives any rights it may have under any provision of 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.
22. This Consent Decree cannot be modified without the advance written
consent of both Parties.
23. This Consent Decree may be signed in counterparts.
For the Enforcement Bureau:
________________________
Kris Anne Monteith
Chief, Enforcement Bureau
________________________
Date
For Trimble Navigation, Limited:
________________________
Bruce E. Peetz
Vice President
Advanced Technology and Systems
________________________
Date
47 U.S.C. S 302a(b).
47 C.F.R. S 2.803.
47 U.S.C. S 154(i).
47 C.F.R. SS 0.111, 0.311.
47 U.S.C. S 302a(b).
47 C.F.R. S 2.803.
47 C.F.R. S 2.1043.
Letter to Mr. Ray LaForge from TNL Counsel dated December 8, 2006.
Federal Communications Commission DA 07-1789
2
Federal Communications Commission DA 07-1789
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2
1
Federal Communications Commission DA 06-