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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-365
In the Matter of
) Acct. No. 200932100016
Honeywell International, Inc.
) FRN No. 0009705021
)
ORDER
Adopted: November 21, 2008 Released: November 25, 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 Honeywell International,
Inc. ("Honeywell"). The Consent Decree terminates an investigation of
Honeywell by the Bureau for possible violations of Section 301 of the
Communications Act of 1934, as amended ("Act"), and Sections 25.102,
25.117, and 25.119 of the Commission's Rules ("Rules") regarding the
operation and pro forma assignment of an earth station license.
2. The Bureau and Honeywell 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 Honeywell 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 the 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 Donna A. Balaguer, Esq., Fish & Richardson P.C., 1425 K
Street, N.W., Washington, D.C. 20005 and Mark J. Larson, Vice
President & Chief Litigation Counsel, Honeywell Aerospace, 1944 East
Sky Harbor Circle, Phoenix, AZ 85034.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-365
In the Matter of
) Acct. No.
Honeywell International, Inc.
) FRN No. 0009705021
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Honeywell International, Inc.
("Honeywell"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
of Honeywell for possible violations of Section 301 of the Communications
Act of 1934, as amended ("Act"), and Sections 25.102, 25.117, and 25.119
of the Commission's Rules ("Rules") regarding the operation and pro forma
assignment of an earth station license under call sign E000156.
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. "Compliance Plan" means the program described in this Consent Decree
at paragraph 8.
f. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
g. "Honeywell" means Honeywell International, Inc. and its subsidiaries
and its and their predecessors-in-interest and
successors-in-interest.
h. "Investigation" means the investigation commenced by the Bureau's
February 28, 2008 letter of inquiry ("LOI") to Honeywell regarding
possible violations of Section 301 of the Act and Sections 25.102 and
25.117 of the Rules and the possible violation of Section 25.119 of
the Rules reported by Honeywell.
i. "Parties" means Honeywell 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, 47 C.F.R. S: 25.102, "[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." Pursuant to section 25.117 of the
Rules, 47 C.F.R. S: 25.117, 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. Pursuant to section 25.119 of the Rules, 47 C.F.R. S:
25.119, no assignment of a station authorization may be made except
upon application to and grant of such application by the Commission.
3. On February 28, 2008, the Bureau issued the LOI to Honeywell to
inquire about Honeywell's operations under earth station E000156.
Honeywell responded to the LOI on June 18, 2008. On July 25, 2008,
Honeywell filed an application seeking approval of a pro forma
assignment of the license for earth station E000156 that took place in
June, 2002.
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. Honeywell 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 its
investigation. In consideration for the termination of said
investigation, Honeywell 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 Honeywell 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 Honeywell
with respect to Honeywell's basic qualifications, including its
character qualifications, to be a Commission licensee or to hold
Commission licenses or authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, Honeywell agrees to maintain a Compliance Plan related to
future compliance with the Act, the Commission's Rules and the
Commission's Orders. The Compliance Plan will include, at a minimum,
the following components:
a. Compliance Officer. Honeywell Aerospace will designate a senior
corporate officer ("Compliance Officer") who is responsible for
administering the Compliance Plan for Honeywell.
b. Compliance Plan. Honeywell Aerospace will maintain and update its
database listing relevant information regarding all FCC licenses held
by Honeywell Aerospace, including call sign E000156. Honeywell
Aerospace will monitor the information contained in the database for
compliance purposes. Honeywell Aerospace may be assisted by outside
consultants to meet this requirement.
c. Compliance Reports. Honeywell will file compliance reports with the
Commission ninety days after the Effective Date and twelve months
after the Effective Date. Each compliance report shall include a
compliance certificate from an officer, as an agent of Honeywell,
stating that the officer has personal knowledge that Honeywell 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
compliance 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 Linda.Nagel@fcc.gov and
Kathy.Berthot@fcc.gov.
d. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire twelve months after the Effective Date.
9. Voluntary Contribution. Honeywell agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $40,000.
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). Honeywell will also send electronic notification on the date
said payment is made to Linda.Nagel@fcc.gov and Kathy.Berthot@fcc.gov.
10. Waivers. Honeywell 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. Honeywell 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
Honeywell nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Honeywell shall waive any statutory
right to a trial de novo. Honeywell 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.
11. Invalidity. 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.
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 Honeywell does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
13. Successors and Assigns. Honeywell 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.
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.
_______________________________
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
________________________________
Date
________________________________
Mark J. Larson
Vice President & Chief Litigation Counsel
Honeywell Aerospace
________________________________
Date
47 U.S.C. S: 301.
47 C.F.R. S:S: 25.102, 25.117, 25.119.
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S: 301.
47 C.F.R. S:S: 25.102, 25.117, 25.119.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Honeywell, Inc.
(Feb. 28, 2008).
See Letter from Pete Samuel, Honeywell, Inc. to Marlene H. Dortch,
Secretary, Federal Communications Commission (June 18, 2008) ("LOI
Response")
See File No. SES -ASG -20080725 -00989.
Federal Communications Commission DA 08-2540
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Federal Communications Commission DA 08-2540