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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-664
In the Matter of
) Acct. No. 200932100018
Redflex Traffic Systems, Inc.
) FRN No. 0018359760
)
ORDER
Adopted: December 19, 2008 Released: December 23, 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 Redflex Traffic Systems,
Inc. ("Redflex"). The Consent Decree terminates an investigation by
the Bureau against Redflex for possible violations of Section 302(b)
of the Communications Act of 1934, as amended ("Act"), and Sections
2.803(a), 2.925, 15.19, 15.201 and 90.203 of the Commission's rules
("Rules") regarding the marketing and use of two models of radar speed
meter equipment.
2. The Bureau and Redflex 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 Redflex 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 all third-party complaints against Redflex
before the Bureau related to the above-captioned-investigation as of
the date of this Consent Decree ARE DISMISSED.
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 Karen Finley, Chief Executive Officer and President,
Redflex Traffic Systems, Inc., 23751 N. 23rd Avenue, Suite 150
Phoenix, Arizona 85085-1854 and Robert J. Ungar, Esq., Fish &
Richardson P.C., 1425 K Street, N.W., Washington, D.C. 20005.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-664
In the Matter of
) Acct. No. 200932100018
Redflex Traffic Systems, Inc.
) FRN No. 0018359760
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Redflex Traffic Systems, Inc.
("Redflex"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
into whether Redflex violated Section 302(b) of the Communications Act of
1934, as amended ("Act"), and Sections 2.803(a), 2.925, 15.19, 15.201 and
90.203 of the Commission's rules ("Rules") regarding the marketing and use
of two models of radar speed meter equipment.
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. "Complaints" means third-party complaints that may have been received
by, or are in the possession of, the Commission or Bureau alleging
violations by Redflex of the rules governing the marketing and use of
two models of radar speed meter equipment.
f. "Compliance Plan" means the program described in this Consent Decree
at paragraph 8.
g. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
h. "Investigation" means the investigation the investigation commenced
by the Bureau's October 9, 2008 letter of inquiry ("LOI") into whether
Redflex violated Section 302(b) of the Act and Sections 2.803(a),
2.925, 15.19, 15.201 and 90.203 of the Rules.
i. "Parties" means Redflex and the Bureau.
j. "Redflex" means Redflex Traffic Systems, Inc. and its
predecessors-in-interest and successors-in-interest.
k. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
2. Pursuant to Section 302(b) of the Act and Sections 2.803(a), 15.201
and 90.203 of the Rules, radio frequency devices subject to
certification may not be marketed or used unless authorized by the
Commission in accordance with the applicable technical and
administrative provisions of the Rules. Under Section 2.925 of the
Rules, equipment that is required to be certified must be labeled with
a permanently affixed nameplate or label that lists the FCC
identifier, and Section 15.19 of the Rules imposes additional labeling
requirements.
3. On October 9, 2008, the Bureau issued anLOI to Redflex. The October 9,
2008 LOI directed Redflex, among other things, to submit a sworn
written response to a series of questions relating to the marketing of
two models of radar speed meters. Redflex responded to the October 9,
2008 LOI on November 10, 2008.
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. Redflex 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 and dismiss the Complaint. In consideration for the
termination of said investigation and dismissal of the Complaint,
Redflex 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 Redflex 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 Redflex with respect to
Redflex's basic qualifications, including its character
qualifications, to be a Commission licensee or hold Commission
licenses or authorizations
8. Compliance Plan. For purposes of settling the matters set forth
herein, Redflex 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. Redflex will designate its Director of
Technology, Charles Carpinteri ("Compliance Officer") to be
responsible for administering the Compliance Plan.
b. Training. Redflex will retrain, and provide materials concerning
Parts 2, 15 and 90 of the Rules and the requirements of the Consent
Decree to all of its employees who are involved directly or
indirectly in the use and distribution or use of the radio frequency
products imported and used by Redflex in the United States.
c. Compliance Reports. Redflex 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 Redflex has established operating
procedures intended to ensure compliance with this Consent Decree,
together with an accompanying statement explaining the basis for the
Compliance 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 compliance reports shall
also be submitted electronically to Deborah Broderson at
Deborah.Broderson@fcc.gov and Kathryn Berthot at
Kathy.Berthot@fcc.gov.
d. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire twenty-four (24) months after the
Effective Date.
9. Voluntary Contribution. Redflex agrees that it will make a voluntary
contribution to the United States Treasury in the amount of twenty-two
thousand dollars ($22,000). 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). Redflex will also send
electronic notification on the date said payment is made to
Deborah.Broderson@fcc.gov and Kathy.Berthot@fcc.gov.
10. Waivers. Redflex 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. Redflex 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
Redflex nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Redflex shall waive any statutory
right to a trial de novo. Redflex 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 Redflex does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
13. Successors and Assigns. Redflex 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
________________________________
Karen Finley
Chief Executive Officer and President
Redflex Traffic Systems, Inc.
________________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803(a), 2.925, 15.19, 15.201 and 90.203.
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803(a), 2.925, 15.19, 15.201 and 90.203.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, to Karen Finley, President/CEO, Redflex Traffic
Systems, Inc. (October 9, 2008) ("October 9, 2008 LOI").
47 U.S.C. S: 302a(b); 47 C.F.R. S:S: 2.803(a), 2.925, 15.19, 15.201 and
90.203.
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803(a), 15.201 and 90.203.
47 C.F.R. S: 2.925.
47 C.F.R. S: 15.19.
October 9, 2008 LOI.
See Letter from Karen Finley, President/CEO, Redflex Traffic Systems,
Inc., to Marlene H. Dortch, Secretary, Federal Communications Commission
(November 10, 2008).
Federal Communications Commission DA 08-2734
2
Federal Communications Commission DA 08-2734