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Before the
Federal Communications Commission
Washington, D.C. 20554
)
File No. EB-07-SE-208
In the Matter of )
Acct. No. 200832100079
Comtech Mobile Datacom Corporation )
FRN: 0007773005
)
ORDER
Adopted: September 5, 2008 Released: September 8, 2008
By the Deputy Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Comtech Mobile Datacom
Corporation ("CMDC"). The Consent Decree terminates an investigation
by the Bureau against CMDC for possible violations of section 301 of
the Communications Act of 1934, as amended ("Act"), and sections
25.102, 25.117, 25.136(d) and 25.276(a) of the Commission's Rules
("Rules") regarding CDMC's modification and operation of its mobile
earth terminal ("MET") system.
2. The Bureau and CMDC have negotiated the terms of a Consent Decree that
resolve these matters. A copy of the Consent Decree is attached hereto
and incorporated by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and terminating the investigation.
4. In the absence of material new evidence relating to these matters, we
conclude that our investigations raise no substantial or material
questions of fact as to whether CMDC possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the Act,
and sections 0.111 and 0.311 of Rules, the Consent Decree attached to
this Order IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
7. 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 Joan M. Griffin, Esq., Counsel for Comtech Mobile
Datacom Corporation, Kelley Drye & Warren LLP, Washington Harbour,
Suite 400, 3050 K Street, N.W., Washington, D.C., 20007-5108 and
Daniel S. Wood, President, Comtech Mobile Datacom Corporation, 20430
Century Blvd., Germantown, Maryland 20874.
FEDERAL COMMUNICATIONS COMMISSION
Susan McNeil
Deputy Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
File No. EB-07-SE-208
In the Matter of )
Acct. No. 200832100079
Comtech Mobile Datacom Corporation )
FRN No. 0007773005
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Comtech Mobile Datacom Corporation
("CMDC"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
into whether CMDC violated section 301 of the Communications Act of 1934,
as amended ("Act") and sections 25.102, 25.117, 25.136(d) and 25.276(a) of
the Commission's Rules by modifying and operating its mobile earth
terminal ("MET") system without appropriate authorization.
I. DEFINITIONS
1. 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:
151 et seq.
b. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
c. "CMDC" means Comtech Mobile Datacom Corporation and its
predecessors-in-interest and successors-in-interest.
d. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
e. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
f. "Investigation" means the investigation commenced by the Bureau's
August 27, 2007 Letter of Inquiry ("LOI") regarding whether CMDC
violated section 301 of the Act and sections 25.102, 25.117, 25.136(d)
and 25.276(a) of the Commission's Rules by modifying and operating its
MET system without appropriate authorization.
g. "MET" means mobile earth terminal.
h. "Order" or "Adopting Order" means an Order of the Bureau adopting the
terms and conditions of this Consent Decree without change, addition,
deletion, or modification, and formally terminating the Investigation.
i. "Parties" means CMDC and the Bureau.
j. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
2. Under section 301 of the Act, "[n]o person shall use or operate any
apparatus for the transmission of energy or communications or signals
by radio ... except under and in accordance with this Act and with a
license in that behalf granted under the provisions of this Act."
Under section 25.102 of the Rules, "[n]o person shall use or operate
apparatus for the transmission of energy or communications or signals
by space or earth stations except under, and in accordance with, an
appropriate authorization granted by the Federal Communications
Commission." Section 25.276(a) of the Rules requires that earth
stations transmit to appropriate points of communications, while
section 25.136(d) of the Rules requires that earth stations operating
in the lower part of the L-band have certain minimum capabilities "to
ensure compliance with footnote 5.353A and the priority and real-time
preemption requirements imposed by Footnote US 315" as set forth in
section 2.106 of the Rules. Pursuant to section 25.117 of the Rules,
no modification which affects the parameters or terms and conditions
of a station authorization may be made except upon application to and
grant of such application by the Commission.
3. On August 27, 2007, the Bureau issued the LOI to CMDC. The LOI
directed CMDC, among other things, to submit a sworn written response
to a series of questions relating to the modification and operation of
CMDC's MET system. CMDC responded to the LOI on September 26, 2007.
III. TERMS OF AGREEMENT
4. Adopting Order. 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
without change, addition, modification, or deletion.
5. Jurisdiction. CMDC agrees that the Bureau has jurisdiction over it and
the matters contained in this Consent Decree and has the authority to
enter into and adopt this Consent Decree.
6. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the date on which the Bureau releases the
Adopting Order. Upon release, the Adopting Order and this Consent
Decree shall have the same force and effect as any other order of the
Bureau. Any violation of the Adopting Order or of the terms of this
Consent Decree shall constitute a separate violation of a Bureau
order, entitling the Bureau to exercise any rights and remedies
attendant to the enforcement of a Commission order.
7. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate the
Investigation. In consideration for the termination of the
Investigation, CMDC agrees to the terms, conditions, and procedures
contained herein. The Bureau further agrees that in the absence of new
material evidence, the Bureau will not use the facts developed in this
investigation through the Effective Date of the Consent Decree, or the
existence of this Consent Decree, to institute, on its own motion, any
new proceeding, formal or informal, or take any action on its own
motion against CMDC concerning the matters that were the subject of
the investigation. The Bureau also agrees that it will not use the
facts developed in this investigation through the Effective Date of
this Consent Decree, or the existence of this Consent Decree, to
institute on its own motion any proceeding, formal or informal, or
take any action on its own motion against CMDC with respect to CMDC's
basic qualifications, including its character qualifications, to be a
Commission licensee or authorized common carrier.
8. Compliance Plan. For purposes of settling the matters set forth
herein, CMDC agrees to maintain a Compliance Plan to ensure future
compliance with the Act, the Commission's Rules, and the Commission's
orders. Specifically, CMDC has taken and will continue to take the
following steps:
a. Compliance Officer. CMDC has designated one member of its senior
management team (no less than vice president or equivalent) to be the
FCC compliance officer. The FCC compliance officer will be
knowledgeable about the configuration and operation of CMDC's MET
system. The FCC compliance officer will also be familiar with CMDC's
blanket MET system license and the FCC Rules applicable to operation
under and modification of the terms and conditions of the license. The
FCC compliance officer may rely on outside consultants in complying
with these requirements.
b. Staff training. The FCC compliance officer will be responsible for
ensuring that all appropriate CMDC staff receive training regarding
CMDC's blanket MET system license and the FCC Rules applicable to
operation under and modification of the terms and conditions of the
license. Such training will be completed within ninety days of the
Effective Date. Any new employees for whom such training would be
appropriate will receive training within sixty days of the
commencement of their employment.
c. Compliance Reports. CMDC will file compliance reports with the
Commission ninety (90) days after the Effective Date, twelve (12)
months after the Effective Date, and twenty-four (24) months after the
Effective Date. Each report shall include a compliance certificate
from an officer, as an agent of CMDC, stating that the officer has
personal knowledge that CMDC has established operating procedures
intended to ensure compliance with this Consent Decree, together with
an accompanying statement explaining the basis for the officer's
compliance certification. All reports shall be submitted to Chief,
Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C.
20554.
d. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire twenty-four (24) months from the Effective
Date.
e. Entire Agreement. The Parties agree that this Consent Decree contains
the entire agreement between the Parties with respect to its subject
matter and supersedes any prior or contemporaneous agreements or
understandings of any kind with respect to such subject matter. For
the purposes of 47 U.S.C. S: 503(b)(6)(B), the Parties agree that the
relevant date is May 30, 2007.
9. Voluntary Contribution. CMDC agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $25,000.
The payment will be made within 30 days after the Effective Date of
the Adopting Order. The payment must be made by check or similar
instrument, payable to the order of the Federal Communications
Commission. The payment must include the Account Number and FRN Number
referenced in the caption to the Adopting Order. Payment by check or
money order may be mailed to Federal Communications Commission, P.O.
Box 979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code).
10. Waivers. CMDC waives any and all rights it 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 Order adopting this Consent Decree, provided the Bureau issues
an Order adopting the Consent Decree without change, addition,
modification, or deletion. CMDC shall retain the right to challenge
Commission interpretation of the Consent Decree or any terms contained
herein. 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 CMDC nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and both CMDC
and the Commission shall waive any statutory right to a trial de novo
with respect to the issuance of the Adopting Order and shall consent
to a judgment incorporating the terms of this Consent Decree. CMDC
hereby agrees to waive any claims it may otherwise have under 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. By
this Consent Decree, CMDC neither waives nor alters its right to
assert and seek protection from disclosure of any privileged or
otherwise confidential and protected documents and information, or to
seek appropriate safeguards of confidentiality for any competitively
sensitive or proprietary information.
11. Severability. The Parties agree that if any of the provisions of the
Adopting Order or the Consent Decree shall be invalid or
unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable the entire Adopting Order or
Consent Decree, but rather the entire Adopting Order or Consent Decree
shall be construed as if not containing the particular invalid or
unenforceable provision or provisions, and the rights and obligations
of the Parties shall be construed and enforced accordingly. In the
event that this Consent Decree in its entirety is rendered invalid by
any court of competent jurisdiction, the Consent Decree shall become
null and void and may not be used in any manner in any legal
proceeding.
12. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent rule or order adopted
by the Commission (except an order specifically intended to revise the
terms of this Consent Decree to which CMDC does not expressly
consent), that provision will be superseded by such Commission rule or
order.
13. Successors and Assigns. CMDC agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
14. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further 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 agree that this Consent Decree is for settlement purposes
only, and that by agreeing to this Consent Decree, CMDC does not admit
or deny any noncompliance, violation, or liability associated with or
arising from its actions or omissions involving the Act or the
Commission's Rules.
15. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
16. Paragraph Headings. The headings of the Paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
17. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
18. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
_______________________________ ________________________________
Susan McNeil Daniel S. Wood
Deputy Bureau Chief President
Enforcement Bureau Comtech Mobile Datacom Corporation
________________________________ ________________________________
Date Date
47 U.S.C. S: 301.
47 C.F.R. S:S: 25.102, 25.117, 25.136(d) and 25.276(a).
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111 and 0.311.
47 U.S.C. S: 301.
47 C.F.R. S:S: 25.102, 25.117, 25.136(d) and 25.276(a).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division
Enforcement Bureau to Joan M. Griffin, Counsel for Comtech Mobile Datacom
Corporation (August 27, 2007).
See Letter from Joan M. Griffin, Esq., counsel to Comtech Mobile Datacom
Corporation, to Marlene H. Dortch, Secretary, Federal Communications
Commission (Sept. 26, 2007).
Federal Communications Commission DA 08-2034
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Federal Communications Commission DA 08-2034