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
)
)
) File No. EB-07-SE-059
In the Matter of
) NAL/Acct. No. 200832100007
Broadcast Microwave Services, Inc.
) FRN: 0007212525
)
)
ORDER
Adopted: December 5, 2007 Released: December 10, 2007
By the Chief, Enforcement Bureau
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") of the Federal
Communications Commission ("FCC" or "Commission") and Broadcast
Microwave Services, Inc. ("Broadcast Microwave"). The Consent Decree
terminates the Bureau's investigation into whether Broadcast Microwave
manufactured, imported, marketed, leased and/or sold certain 4.9 GHz
equipment in violation of Section 302(b) of the Communications Act of
1934, as amended ("Act"), and Parts 2 and 90 of the Commission's Rules
("Rules").
2. The Bureau and Broadcast Microwave have negotiated the terms of the
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 relating to this matter, we
conclude that no substantial or material questions of fact exist with
respect to this matter as to whether Broadcast Microwave 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 the authority delegated by Sections 0.111 and 0.311 of the Rules,
the attached Consent Decree IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigatory
proceeding IS TERMINATED.
7. IT IS FURTHER ORDERED that Broadcast Microwave 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 copies of this Order shall be sent by
regular first class mail and certified mail - return receipt
requested, to Graham Bunney, Broadcast Microwave Services, Inc., 12367
Crosthwaite Circle, Poway, California 92064, and to its counsel, David
Hilliard, Esq. and John Kuzin, Esq., Wiley Rein LLP, 1776 K St., NW,
Washington, DC 20006.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
CONSENT DECREE
I. INTRODUCTION
1. The Enforcement Bureau ("Bureau") of the Federal Communications
Commission ("Commission") and Broadcast Microwave Services, Inc. ("BMS"),
by their respective authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
into whether BMS violated Section 302(b) of the Communications Act of
1934, as amended ("Act"), and certain of the Commission's rules regarding
the manufacture, importation, marketing, lease and/or sale of certain 4.9
GHz equipment used by public safety agencies to transmit real-time video
and data; and the identification, labeling and notice requirements for
such equipment.
II. DEFINITIONS
2. For the purposes of this Consent Decree, the following definitions
shall apply:
(a) "Act" means the Communications Act of 1934, as amended, 47 U.S.C.
S:S:151 et seq.
(b) "Adopting Order" means an order of the Bureau adopting the terms and
conditions of this Consent Decree.
(c) "BMS" means Broadcast Microwave Services, Inc., its subsidiaries,
affiliates and any successors or assigns.
(d) "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
(e) "CCII" means the 4.9 GHz Carry-Coder II COFDM Digital Wireless Camera
System.
(f) "Commission" and "FCC" mean the Federal Communications Commission.
(g) "Effective Date" means the date on which the Bureau releases the
Adopting Order.
(h) "Investigation" means the investigation commenced by the Bureau's May
23, 2007 Letter of Inquiry regarding whether BMS violated Section 302(b)
of the Act and/or Section 2.803 of the Rules.
(i) "Parties" means BMS and the Bureau.
(j) "Rules" means the Commission's Rules found in Title 47 of the Code of
Federal Regulations.
III. BACKGROUND
3. BMS manufactures and distributes the Carry-Coder II ("CCII") COFDM
Digital Wireless Camera System that operates in the 4.9 GHz band. The CCII
System provides law enforcement and public safety agencies with real-time
video and data transmission capabilities.
4. On May 23, 2007, the Bureau initiated an investigation by issuing a
Letter of Inquiry ("LOI") directing BMS to provide information relating to
its compliance with the Commission's equipment authorization and marketing
rules for BMS's CCII equipment. BMS submitted its response to the Bureau's
LOI on June 22, 2007.
5. Pursuant to Section 302(b) of the Act and Parts 2 and 90 of the Rules,
BMS's CCII equipment must be authorized in accordance with the
Commission's regulations prior to the marketing or sale of such equipment.
IV. TERMS OF AGREEMENT
6. 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.
7. 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 by BMS 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, BMS 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.
8. The Parties agree that this Consent Decree shall become binding on the
Parties on the Effective Date. Upon the Effective Date, 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
entitling the Commission to exercise any rights and remedies attendant to
the enforcement of a Commission order.
9. The Parties acknowledge and agree that this Consent Decree shall
constitute a final and binding settlement between BMS and the Bureau
regarding possible violations of the Act and the Rules with respect to the
manufacture, marketing, lease, or sale by BMS of any CCII equipment prior
to the Effective Date of this Consent Decree.
10. 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
BMS may have violated the Act or the Commission's Rules with respect to
the manufacture, importation, marketing, lease, use or sale by BMS of any
CCII equipment prior to the Effective Date of this Consent Decree.
11. In consideration for termination by the Bureau of the investigation
and in accordance with the terms of this Consent Decree, BMS agrees to the
terms set forth herein.
12. BMS acknowledges, and the Bureau agrees, that the Bureau has
jurisdiction over the matters contained in this Consent Decree and the
authority to enter into and adopt this Consent Decree.
13. BMS will implement an FCC Regulatory Compliance Plan ("RCP") related
to BMS's future compliance with the Act, the Commission's Rules, and the
Commission's orders. The entire RCP will include the following components:
(a) FCC Compliance Procedures. BMS shall develop and update, as necessary
and in association with legal counsel, appropriate FCC Compliance
Procedures. Relevant BMS personnel shall be made aware of the FCC
Compliance Procedures and be required to follow them. The FCC Compliance
Procedures will, among other things, address the equipment authorization
and marketing requirements of the Act and the Commission's Rules in Part 2
that apply to the devices manufactured, imported, marketed, leased and
sold by BMS in the United States and covered by this Consent Decree.
(b) Compliance Engineer. BMS shall designate a Regulatory Compliance
Engineer ("Compliance Engineer") who will administer the RCP, supervise
BMS's compliance with the Act, the Commission's Rules and this Consent
Decree, and serve as the BMS point of contact for all Commission-related
compliance matters. The Compliance Engineer will report to the President
of BMS, who will retain ultimate responsibility within BMS for determining
whether the manufacture, importation, marketing, sale, lease, labeling and
notice requirements for such devices are in compliance with the FCC
Compliance Procedures.
(c) Review and Monitoring. BMS will review the RCP annually, in
association with legal counsel, to ensure that it is maintained in a
proper manner and continues to address the objectives set forth therein.
14. The Bureau agrees that, in the absence of new material evidence, 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 or in response to a third party complaint 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 BMS for any
alleged violation of the Act or the Rules with respect to the CCII
equipment that was manufactured, imported, marketed, leased, or sold by
BMS prior to the Effective Date of this Consent Decree. The Commission
further agrees that, in the absence of new material evidence, it will not
use the facts developed in this Investigation through the Effective Date,
or the existence of this Consent Decree, to institute on its own motion or
in response to a third party complaint any proceeding, formal or informal,
or take any action on its own motion, against BMS with respect to its
basic qualifications, including its character qualifications, to be a
Commission licensee. Nothing in this Consent Decree shall prevent the
Bureau from instituting, or recommending to the Commission, new
investigations or enforcement proceedings against BMS, in the event of any
alleged future misconduct for violation of this Consent Decree or for
violation of the Act or the Commission's Rules, consistent with the
provisions of this Consent Decree.
15. BMS agrees that the CCII equipment that is distributed by BMS on or
after the Effective Date of this Consent Decree shall be compliant with
the Commission's Rules.
16. Each Party agrees that it 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 BMS 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.
17. The Parties agree that BMS's obligations set forth in paragraph 13 of
this Consent Decree shall remain in effect for twenty-four (24) months
from the Effective Date of this Consent Decree.
18. BMS agrees that it will make a voluntary contribution to the United
States Treasury in the amount of Five Thousand Dollars ($5,000) 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, 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 include NAL/Acct. No. 200832100007 and FCC Registration Number
0007212525.
19. BMS'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.
20. 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.
21. In the event that any court of competent jurisdiction renders invalid
this Consent Decree, it shall become null and void and may not be used in
any manner in any legal proceeding.
22. 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 BMS nor the Commission shall contest the continuing validity of
this Consent Decree or the Adopting Order, and BMS and the Commission will
waive any right to a trial de novo with respect to any matter upon which
the Adopting Order is based and will consent to a judgment incorporating
the terms of this Consent Decree. 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.
23. 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.
24. BMS 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.
25. This Consent Decree cannot be modified without the advance written
consent of both Parties.
26. This Consent Decree may be signed in counterparts.
For the Enforcement Bureau:
________________________________
Kris Anne Monteith
Chief, Enforcement Bureau
________________________________
Date
For Broadcast Microwave Services, Inc.
________________________________
Graham Bunney
President and General Manager
________________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: Parts 2 and 90.
47 C.F.R. S:S: 0.111, 0.311.
See, e.g., 47 C.F.R. Parts 2 and 90.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, FCC, to Graham Bunney, President, BMS (May 23, 2007).
See Letter from David E. Hilliard, Esq., Attorney for BMS, to Jacqueline
Ellington, Esq., Spectrum Enforcement Division, Enforcement Bureau (June
22, 2007).
Federal Communications Commission DA 07-4894
1