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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-144
In the Matter of
) Acct. No. 200832100082
Wavetrend Technologies, Ltd.
) FRN No. 0007642531
)
ORDER
Adopted: September 9, 2008 Released: September 11, 2008
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Wavetrend Technologies,
Ltd. ("Wavetrend"). The Consent Decree terminates an investigation by
the Bureau against Wavetrend for possible violation of Section 302(b)
of the Communications Act of 1934, as amended ("Act"), and Section
2.803(a)(1) of the Commission's Rules ("Rules") regarding the
marketing of certain radio frequency identification devices.
2. The Bureau and Wavetrend have negotiated the terms of the Consent
Decree that resolve this matter. 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 this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether Wavetrend 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
Communications Act of 1934, as amended, and sections 0.111 and 0.311
of the Commission's 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 Jeffrey L. Sheldon, Esq., Counsel for Wavetrend
Technologies, Ltd., McDermott Will & Emery LLP, 600 Thirteenth Street,
N.W., Washington, D.C. 20005-3096.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No. EB-08-SE-144
In the Matter of )
Acct. No. 200832100082
Wavetrend Technologies Limited )
FRN No. 0007642531
)
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Wavetrend Technologies Limited
("Wavetrend"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
into whether Wavetrend violated section 302(b) of the Communications Act
of 1934, as amended, and section 2.803(a)(1) of the Commission's Rules
regarding the marketing of certain radio frequency identification ("RFID")
devices.
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. "Adopting Order" means an Order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
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 initiated by the Bureau
regarding whether Wavetrend violated the requirements of section
2.803(a)(1) of the Rules in connection with its marketing of certain
RFID devices.
g. "OET" means the FCC's Office of Engineering and Technology of the
Commission.
h. "Parties" means Wavetrend and the Bureau.
i. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
j. "Wavetrend" means Wavetrend Technologies Limited, and its
predecessors-in-interest and successors-in-interest.
II. BACKGROUND
2. Pursuant to section 302(b) of the Act and section 2.803(a)(1) of the
Rules, radio frequency devices subject to certification may not be
marketed unless authorized by the Commission in accordance with the
applicable technical and administrative provisions of the Rules.
Section 15.231(e) of the Rules requires that devices operating under
the provisions of the section be provided with a means for
automatically limiting operation so that the silent period between
transmissions may be no less than 10 seconds in duration.
3. On February 28, 2008, OET sent a letter to Wavetrend to inquire
whether Wavetrend was marketing certain RFID devices that were
previously certified for operation under section 15.231 of the Rules,
and whether each device complied with the minimum silent period
between transmissions as required by section 15.231(e) of the Rules.
4. Wavetrend responded to the OET Letter on March 10, 2008.
Representatives of Wavetrend met with staff of the Bureau and OET on
March 19, 2008, to discuss the OET Letter and the Wavetrend response.
On May 21, 2008, in response to an informal request by the Bureau,
Wavetrend submitted additional information relating to the Bureau's
investigation of this matter.
III. TERMS OF AGREEMENT
5. 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.
6. Jurisdiction. Wavetrend 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.
7. 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.
8. 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 its
investigation. In consideration for the termination of said
investigation, Wavetrend agrees to the terms, conditions, and
procedures contained herein. The Bureau further agrees that in the
absence of new material evidence related to this matter, 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 Wavetrend
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 Wavetrend with respect to Wavetrend's basic
qualifications to hold Commission licenses or authorizations.
9. Compliance Plan. For purposes of settling the matters set forth
herein, Wavetrend agrees to maintain a Compliance Plan related to
future compliance with the Act, the Commission's Rules, and the
Commission's Orders. The Plan will, at a minimum, include the
following components:
a. Software Development. Wavetrend agrees to develop new firmware for its
RFID tags and new software and firmware for its RFID programmers
intended for the U.S. market that will prevent its tags from being
programmed for a repetition interval that does not comply with the
Rules. Wavetrend will also revise its software licensing agreements
for U.S. customers using such programmers to more clearly mandate that
the programmers and software may not be used to configure devices
outside of the Rules.
b. Device Programmability. Wavetrend will offer each of its U.S.
customers that previously purchased a programmer one of Wavetrend's
new programmers in order to control tag programmability as specified
in the Rules. Until the new software or modified programmers are
available, Wavetrend will continue to program its customers' tags at
no cost to ensure that its new tag orders comply with the Rules.
c. Marketing. Wavetrend will revise its marketing materials in order to
remove any confusion with regards to transmission rates and
programmability of its tags.
d. Compliance Officer. Wavetrend will place compliance with this Consent
Decree under the direct supervision of Wavetrend's CEO, Mr. Saleem
Miyan.
e. Training. Wavetrend will retrain, and provide materials concerning
Parts 2 and 15 of the FCC's Rules and the requirements of the Consent
Decree to, all of its employees who are involved directly or
indirectly in the design, development, testing, marketing, and
distribution of radiofrequency products. Such training will address
the equipment authorization requirements of the Act and the FCC's
Commission's Rules applicable to RFID devices and accessories
imported, marketed, and sold by Wavetrend in the United States.
f. Compliance Reports. Wavetrend 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 the Compliance Officer asserting that the Compliance Officer has
personal knowledge that Wavetrend 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. All reports shall also be submitted electronically to Ricardo
M. Durham at Ricardo.Durham@fcc.gov and Kevin M. Pittman at
Kevin.Pittman@fcc.gov.
g. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire twenty-four (24) months from the Effective
Date.
10. Voluntary Contribution. Wavetrend agrees that it will make a voluntary
contribution to the United States Treasury in the amount of
twenty-eight thousand dollars ($28,000). The payment will be made
within thirty (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). Wavetrend will
also send electronic notification on the date said payment is made to
Ricardo M. Durham at Ricardo.Durham@fcc.gov and Kevin M. Pittman at
Kevin.Pittman@fcc.gov.
11. Waivers. Wavetrend 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 Adopting Order, provided the Bureau issues an Adopting Order
adopting the Consent Decree without change, addition, modification, or
deletion. Wavetrend 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
Wavetrend nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Wavetrend shall waive any statutory
right to a trial de novo. Wavetrend 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.
12. 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, it shall become null and void and
may not be used in any manner in any legal proceeding.
13. 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 Wavetrend does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
14. Successors and Assigns. Wavetrend agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
15. 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.
16. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
17. 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.
18. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
19. 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.
_______________________________
Kathryn S. Berthot
Chief
Spectrum Enforcement Division
Enforcement Bureau
________________________________
Date
________________________________
Saleem Miyan
Chief Executive Officer
Wavetrend Technologies Limited
Parkshot House
5 Kew Road
Richmond, Surrey TW9 2PR
United Kingdom
________________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a)(1).
47 U.S.C. S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a)(1).
47 C.F.R. S: 15.231.
See Letter from Raymond LaForge, Chief, Auditing and Compliance Branch,
Office of Engineering and Technology, Federal Communications Commission,
to Wavetrend Technologies, Ltd. (Feb. 28, 2008) ("OET Letter").
See OET Letter.
See Letter from Saleem Miyan, CEO, Wavetrend, to Raymond LaForge, Chief,
Auditing and Compliance Branch, Office of Engineering and Technology,
Federal Communications Commission (March 10, 2008).
See Letter from Saleem Miyan, CEO, Wavetrend, to Kevin M. Pittman,
Spectrum Enforcement Division, Enforcement Bureau, Federal Communications
Commission (May 21, 2008).
Federal Communications Commission DA 08-2052
5
Federal Communications Commission DA 08-2052