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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File Nos. EB-06-SE-148 and
In the Matter of ) EB-06-SE-356
XM Radio, Inc. ) Acct. No. 200832100062
) FRN No. 0007714579
)
ORDER
Adopted: July 25, 2008 Released: August 5, 2008
By the Commission: Chairman Martin and Commissioners Adelstein and Tate
issuing separate statements.
1. In this Order, we adopt the attached Consent Decree entered into
between the Federal Communications Commission ("Commission") and XM
Radio, Inc. ("XM"). The Consent Decree terminates investigations by
the Commission into whether (a) certain radio receivers intended for
use with XM's satellite radio service and manufactured and marketed by
or on behalf of XM were in compliance with Section 302(b) of the
Communications Act of 1934, as amended, (the "Act"), and Parts 2 and
15 of the Commission's rules; and (b) XM constructed and operated
terrestrial repeaters without Commission authorization in violation of
Section 25.120 of the Commission's Rules.
2. The Commission and XM have negotiated the terms of the Consent Decree
that resolve these matters. A copy of the Consent Decree is attached
hereto and incorporated herein 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 investigations. We do
not come to this conclusion easily. The apparently intentional nature
of some of the violations resolved by this Order and Consent Decree
and the apparent involvement of certain XM personnel in these
violations are very troubling. Indeed, the ability and willingness to
conform one's conduct to the requirements of the Commission's Rules
are central to the qualifications of any Commission licensee. We must
balance our concern, however, against the public's interest in the
continued availability and viability of XM's satellite radio service
and the impact on the public and other licensees that XM's violations
precipitated. These considerations, taken together with the rigorous
oversight and reporting obligations and substantial voluntary
contribution prescribed in this Order and the Consent Decree, persuade
us that settlement of these matters would best serve the public
interest.
4. In the absence of new material evidence relating to this matter,
therefore, we conclude that our investigations raise no substantial or
material questions of fact as to whether XM 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,
the Consent Decree attached to this Order IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigations ARE
TERMINATED.
7. IT IS FURTHER ORDERED that all third-party complaints against XM
before the Commission related to the above-captioned-investigations 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 counsel for XM, Scott Blake Harris, Esq., Harris,
Wiltshire & Grannis LLP, 1200 Eighteenth St., NW, Washington, DC 20036
and to James S. Blitz, Esq., Vice President and Regulatory Counsel,
1500 Eckington Place, NE, Washington, DC 20002-2164.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File Nos. EB-06-SE-148 and
In the Matter of ) EB-06-SE-356
XM Radio, Inc. ) Acct. No. 200832100062
) FRN No. 0007714579
)
CONSENT DECREE
The Federal Communications Commission ("Commission" or "FCC") and XM
Radio, Inc. ("XM"), by their authorized representatives, hereby enter into
this Consent Decree for the purpose of terminating the Commission's
investigations into whether (a) certain radio receivers intended for use
with XM's satellite radio service and manufactured and marketed by or on
behalf of XM were in compliance with Section 302(b) of the Communications
Act of 1934, as amended, (the "Act"), and Parts 2 and 15 of the
Commission's rules; and (b) XM constructed and operated terrestrial
repeaters without Commission authorization in violation of Section 25.120
of the Commission's Rules.
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 Commission 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
that certain radio receivers intended for use with XM's satellite
radio service and manufactured and marketed by or on behalf of XM are
not in compliance with Section 302(b) of the Act and Parts 2 and Part
15 of the Rules, or that XM failed to comply in all respects with the
special temporary authority to operate its terrestrial repeaters
granted pursuant to Section 25.120 of the Rules.
f. "Compliance Plan" means the program described in this Consent Decree
at paragraph 10.
g. "Effective Date" means the date on which the Commission releases the
Adopting Order.
h. "Investigations" means (i) the investigation in File No. EB-06-SE-148
commenced by the Bureau's April 20, 2006 Letter of Inquiry into the
manufacture, authorization, importation, distribution and marketing of
the Radio Receivers; and (ii) the investigation in File No.
EB-06-SE-356 commenced by the Bureau's February 15, 2007 Letter of
Inquiry relating to XM's operation of its terrestrial repeaters.
i. "Parties" means XM and the Commission.
j. "Radio Receivers" means all satellite radio receivers with built-in
wireless FM modulators manufactured, sold or distributed for use with
XM's satellite radio service on or before the Effective Date under FCC
ID Numbers BGAXMXP01, RS2SA10101, RS2R101, RS2SA10177, RS2SA10113,
RS2GEX-AWARE1, RS2TXM 1000, RS2SA 10085, SICXR9, RS2GEXINNO1,
RS2YX-M1, and RS2YP-XZC.
k. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
l. "XM" means XM Radio, Inc. and its predecessors-in-interest and
successors-in-interest.
II. BACKGROUND
2. Pursuant to section 302(b) of the Act and Parts 2 and 15 of the Rules,
certain radio frequency devices, including wireless FM modulators,
must be authorized in accordance with the processes set forth in the
Rules and comply with all applicable technical standards and labeling
requirements prior to importation into, or marketing in, the United
States. On April 20, 2006, the Bureau issued a Letter of Inquiry to XM
in File No. EB-06-SE-148 initiating an investigation into the
manufacture, authorization, importation, distribution and marketing of
certain satellite radio receivers (with wireless FM modulators)
intended for use with XM's satellite radio service.
3. When the Commission adopted service rules for the Satellite Digital
Audio Radio Service ("SDARS"), it recognized that some SDARS
applicants intended to use terrestrial repeaters to improve reception
of the service in "urban canyons" and other areas where it might be
difficult to receive SDARS signals transmitted by satellite, and it
sought comment on the rules that should be applicable to those
repeaters. Pending adoption of permanent rules for terrestrial
repeaters, the FCC has authorized repeaters through the grant of
special temporary authority ("STA") pursuant to Section 25.120 of the
Rules. XM filed an STA request on July 12, 2001, to begin commercial
service using its terrestrial repeater network, along with subsequent
STAs through September 2006, which were granted per the specifications
in XM's requests.
4. On September 20, 2006, XM voluntarily disclosed to the Commission that
it had constructed and was operating 479 repeaters for which it had
not asked for authorization or which varied either slightly or
significantly from what it was originally authorized to do and thus
operated unauthorized and in an unlawful manner. Of the 479 repeaters,
there are 19 repeaters for which it had not asked for authorization,
four of which continue to operate. Of the remaining 460 repeaters, 317
of them continue to operate unauthorized and in an unlawful manner.
Some repeaters had multiple violations. Specifically, there are 711
violations associated with these 460 repeaters, 354 of which varied
slightly and 357 of which varied significantly from what XM was
originally authorized to do. There are 495 violations associated with
the 317 variant repeaters XM continues to operate, 136 of which varied
significantly from what XM was originally authorized to do and 359 of
which varied slightly. The Enforcement Bureau ("Bureau") sent an LOI
to XM on February 15, 2007. XM submitted a response to the LOI on
March 12, 2007.
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 Commission by
incorporation of such provisions by reference in the Adopting Order
without change, addition, modification, or deletion.
6. Jurisdiction. XM agrees that the Commission 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 FCC 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
Commission. Any violation of the Adopting Order or of the terms of
this Consent Decree shall constitute a separate violation of a
Commission Order, entitling the Commission to exercise any rights and
remedies attendant to the enforcement of a Commission Order, including
imposition of the maximum statutory forfeiture for any such
violations. Similar penalties shall be imposed for any violation of
the underlying rules at issue in this proceeding.
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 Commission agrees to terminate
its investigations and dismiss the complaints. In consideration for
the termination of said investigations and dismissal of the
complaints, XM agrees to the terms, conditions, and procedures
contained herein. The Commission further agrees that in the absence of
new material evidence, the Commission will not use the facts developed
in these investigations 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 XM concerning the matters that were the
subject of the investigations or with respect to XM's basic
qualifications, including its character qualifications, to be a
Commission licensee or hold Commission authorizations, provided,
however, that the Commission may consider the facts in this proceeding
in any future proceeding involving violations by XM of the same rules
at issue in this proceeding or involving misrepresentation or lack of
candor by XM in its dealings with the Commission.
9. Terrestrial Repeaters. With respect to any of the 100 repeaters listed
in Attachment C, within a period of 60 days from the Effective Date of
this Consent Decree, XM shall cease operating 50 of these repeaters
and must bring the remaining 50 repeaters into compliance with the
specifications that they were originally authorized or cease operating
them. The Commission, as of the Effective Date of this Consent Decree,
shall also grant XM's request for STA to operate for a period of
thirty (30) days those repeaters for which it seeks authority listed
in Attachment D. Concurrently, the Commission shall place on public
notice XM's request for STA to operate these repeaters for a period of
180 days.
10. Compliance Plan. For purposes of settling the matters set forth
herein, XM agrees to implement a Compliance Plan related to future
compliance with the Act, the Commission's Rules, and the Commission's
Orders. XM will submit a copy of the Compliance Plan to the Bureau
prior to the Effective Date. The Plan will include, at a minimum, the
following components:
a. FCC Compliance Officer. XM has hired an FCC Compliance Officer, who is
responsible for overseeing the FCC-related aspects of the company's
operations, ensuring XM's compliance with all FCC Rules, and serving
as point of contact for XM management, employees, FCC staff, and the
public with reference to XM's FCC regulatory compliance. The FCC
Compliance Officer will report directly to XM's General Counsel.
b. Equipment Design and Certification. By September 1, 2008, XM will
adopt a Procedural Guide for satellite radio receivers ("Procedural
Guide") establishing step-by-step procedures that XM employees must
follow in connection with testing and obtaining FCC certification of
any new radio receivers, as well as making any modifications to
existing radio receivers where such changes may implicate FCC rules or
certifications. XM will submit a copy of the Procedural Guide to the
Bureau within five days of its adoption. In addition, XM will
implement the following internal procedures related to equipment
design and certification for radios intended to be sold at retail: (i)
the FCC Compliance Officer will have ultimate responsibility over FCC
testing and certification; (ii) authority over the design and
manufacture of XM radio receivers will be separated from authority
over FCC testing and certification for those radio receivers; (iii)
prior to commencing manufacturing of commercial quantities of any
devices governed by FCC rules, the FCC Compliance Officer will be
required to certify directly to XM's Chief Executive Officer and
General Counsel that such device has been designed to comply with
those rules; and (iv) the FCC Compliance Officer will supervise the
audit of randomly selected radio receivers manufactured for retail
distribution in order to help ensure the continued compliance of those
devices with FCC rules.
c. Modification of Vendor Agreements. XM will ensure that all new
agreements it enters into with vendors to manufacture radio receivers
specifically require that such devices be manufactured in accordance
with specifications provided or approved by XM and in compliance with
applicable FCC rules. All existing agreements will be conformed to
similarly ensure that devices are manufactured in accordance with
specifications provided or approved by XM and in compliance with
applicable FCC rules.
d. Repeater Licensing and Modifications. To ensure its compliance with
FCC rules relating to its terrestrial repeaters, XM will adopt a
Repeater Change Guide establishing procedures to be followed before
any changes can be made to XM's terrestrial repeater network,
including adding any new repeater sites or making changes to existing
repeaters. XM will submit a copy of the Repeater Change Guide to the
Bureau by September 1, 2008. Pursuant to the Repeater Change Guide,
any construction or other changes to XM's repeater network must be
approved in advance by the Senior Vice President, Ground Systems
Engineering and the FCC Compliance Officer. Where the FCC Compliance
Officer determines that FCC approval is needed before a change is
made, no construction or modification may be made until such FCC
approval is received, and pursuant to the direction of the Senior Vice
President, Ground Systems Engineering and the FCC Compliance Officer.
e. Compliance Training. XM will establish an FCC Compliance Training
Program for all current employees who engage in activities subject to
FCC regulation. The training program will be developed and fully
implemented no later than December 1, 2008. XM will conduct refresher
training programs for relevant employees at least annually and will
train relevant new employees within 90 days of their employment.
11. Voluntary Contribution. XM agrees that it will make a voluntary
contribution to the United States Treasury in the amount of
$17,394,375. The payment will be made within thirty (30) days after
the Effective Date. 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). XM will also send electronic notification on the date said
payment is made to Kathy Berthot at Kathy.Berthot@fcc.gov.
12. Waivers. XM 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 Commission
issues an Order adopting the Consent Decree without change, addition,
modification, or deletion. XM 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 XM nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and XM shall
waive any statutory right to a trial de novo. XM 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.
13. Radio Receivers. The Commission will allow operation of the Radio
Receivers that have been sold or distributed on or before the
Effective Date. With regard to these existing Radio Receivers, XM will
undertake the following efforts:
a. With respect to potentially non-compliant Radio Receivers purchased by
a consumer but activated after the Effective Date, XM will use
reasonable efforts to identify such consumers, and shortly after such
consumer contacts the company to activate such device, offer such
consumer at no charge to the consumer the choice, as appropriate, of:
(1) a ferrite package, with instructions for how to attach the
ferrites to the consumer's radio cables (including on the cables of
radios that have been professionally installed); (2) a replacement
cassette adaptor (for consumer whose vehicles have cassette players);
or (3) a ferrite package and an installation kit with hardware to use
in connection with a professional installation of the consumer's Radio
Receiver, along with a coupon redeemable at no charge to the consumer
for professional installation. XM will deliver to such consumers one
of the above referenced solutions and a written communication to
explain the benefits to consumers.
b. Within seven (7) business days of the Effective Date, XM will
commence sending notices to, and make substantial progress towards
notifying, by U.S. or electronic mail, all XM subscribers with Radio
Receivers as of the Effective Date. The notice will inform subscribers
that the subscriber's Radio Receiver may not be in compliance with FCC
Rules and it may interfere with others' FM radio reception. The notice
will direct subscribers to a website or a toll-free customer service
number for further information and to choose from among the following
options. For each subscriber who uses a Radio Receiver in the wireless
FM modulator mode or who uses a Radio Receiver that has been
professionally installed, XM will send the subscriber at no cost to
the subscriber his or her choice of either:
i. A ferrite package, with instructions for how to attach the ferrites
to the subscriber's radio cables (including on the cables of radios
that have been professionally installed);
ii. A replacement cassette adaptor (for subscribers whose vehicles have
cassette players); or
iii. For subscribers whose vehicles do not have cassette players, a
ferrite package and an installation kit with hardware to use in
connection with a professional installation of the subscriber's
radio, along with a coupon redeemable at no charge to the consumer
for professional installation.
Each such notice, which will be substantially in the form included in
Attachment A, will also contain a hyperlink or an address to a website
maintained by XM that allows subscribers to search for open FM frequencies
by zip code. Distribution to subscribers of these solutions will be
effected based upon subscriber responses and will begin within five (5)
business days following receipt by XM, or a third party retained by XM, of
the solutions.
c. The website and toll-free customer service number will advise all
subscribers using a Radio Receiver with a cassette adaptor in a
vehicle or with an RCA cable in a fixed location that if there is a
menu setting enabling the FM modulator to be turned "off," it should
be turned "off" when the cassette adaptor or RCA cable is attached.
d. XM will also provide such notice to subscribers via its website,
subscriber newsletter and automated telephone response.
e. XM will cause all non-compliant Radio Receivers returned by consumers
to XM for repair or warranty claims to be modified to be compliant
with Section 302(b) of the Act and Parts 2 and 15 of the rules or
replaced with compliant devices.
f. Within seven (7) business days of the Effective Date, XM will begin
broadcasting an on-air notice regarding the Radio Receivers on a daily
basis on high listenership news, talk and entertainment programming
selected by XM. XM will continue such on-air notices for three months
after the Effective Date. The Commission shall have the option of
extending the on-air notice requirement for three additional months by
notifying XM in writing of the need for such an extension one week
prior to the termination of the initial three month period. The on-air
notice shall contain in substantial form the information in Attachment
B.
14. Marketing of Radio Receivers. XM agrees that every radio receiver that
is marketed by XM in the United States on or after the Effective Date
of this Consent Decree shall be designed to be compliant with Section
302(b) of the Act and Parts 2 and 15 of the Rules.
15. Compliance Reports. XM will file compliance certifications and reports
with the Commission as follows:
a. Beginning on September 1, 2008, and continuing at three (3)-month
intervals thereafter until the expiration of this Consent Decree, XM
shall provide a report detailing:
i. to its knowledge, the total number of Radio Receivers that remain
activated as of the most recent date on which that information is
available to XM;
ii. the status of its compliance efforts set forth in paragraph 13 and a
certification that XM has provided the notices required in paragraph
13(b); and
iii. any changes in the technical parameters at which its terrestrial
repeaters are operating.
b. Each report shall include a compliance certificate from XM's Senior
Vice President, Ground Systems Engineering, as an agent of XM, stating
that the officer has personal knowledge that XM has established and
implemented 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 the 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 Kathy Berthot at
Kathy.Berthot@fcc.gov.
16. Termination Date. Except with respect to paragraph 10(e), the
requirements of this Consent Decree will expire five (5) years after
the Effective Date.
17. 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.
18. 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 XM does not expressly consent)
that provision will be superseded by such Commission rule or Order.
19. Successors and Assigns. XM agrees that the provisions of this Consent
Decree shall be binding on its successors, assigns, and transferees.
20. 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,
provided, however, that the Commission may consider the facts in this
proceeding in any future proceeding involving violations by XM of the
same rules at issue in this proceeding or involving misrepresentation
or lack of candor by XM in its dealings with the Commission. The
Parties agree that this Consent Decree is for settlement purposes only
and that by agreeing to this Consent Decree, XM does not admit or
deny noncompliance, violation or liability for violating the Act or
Rules in connection with the matters that are the subject of this
Consent Decree.
21. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
22. 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.
23. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
24. 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.
Marlene H. Dortch
Secretary
Federal Communications Commission
Date
Gary N. Parsons
Chairman of the Board of Directors
XM Radio, Inc.
Date
ATTACHMENT A
Draft Text of Customer Notice
Dear XM Subscriber,
The FCC has notified XM that some of our older receiver models (generally,
those purchased before August, 2006) may not operate in the manner
required by the FCC and may cause interference to FM radio users depending
on how the XM radio is installed or used.
The receiver models include the Roady2, SkyFi2, MyFi, Airware, Tao,
RoadyXT, Xpress, Sportscaster, XR9-XCX9, Jensen JXR9, Inno, Helix, and
Nexus. Please note this notice does not apply to you if your new car came
installed with an XM receiver.
If you do have one of the receivers mentioned above and use it with the
wireless FM option or you have had the receiver professionally installed,
then we have several options available at no cost to you to alleviate this
possible interference. Please visit our website at www.#####.com or call
us toll-free at ###-###-#### to choose one of the following three options:
Option A: We will send you ferrite beads to attach to your XM antenna and
power adaptor cables. (Ferrite beads are typically placed on the end of
data cables to reduce interference.)
Option B: We will send you a replacement cassette adapter to use with your
XM radio. Only choose this option if your car radio has a cassette player.
Option C: For subscribers whose vehicles do not have cassette players, a
ferrite package and an installation kit with hardware to use in connection
with a professional installation of the subscriber's radio, along with a
coupon redeemable at no charge to the consumer for professional
installation.
Please visit the following website, www.######.com for more information
and to select your option. If you do not have access to the Internet, you
may call our toll-free automated telephone response system at ###-###-####
for information on how to alleviate this possible interference.
Thank you for your attention to this matter.
Best Regards,
XM Management
ATTACHMENT B
Draft Text of On-Air Announcement
The FCC has notified XM that some of our older receiver models could cause
interference to FM radio users. If you are currently using one of the
affected models, you will receive an email or letter from XM with
information to assist you in deciding whether your receiver needs changes
and what changes you should make. Please visit our website www.#####.com
or call us toll-free at ###-###-#### for further information. Please note
that this notice does not apply to you if your new car came installed with
an XM receiver. Thank you for your attention to this matter.
ATTACHMENT C
No. Market Area Repeater ID
1 Akron AKR004A
2 Albuquerque ALQ004A
3 Atlanta ATL009A
4 Atlanta ATL046A
5 Atlanta ATL095A
6 Atlanta ATL003C
7 Buffalo BUF001A
8 Buffalo BUF003A
9 Buffalo BUF012A
10 Charlotte CHA007B
11 Charlotte CHA015B
12 Charlotte CHA021B
13 Charlotte CHA037A
14 Charlotte CHA009F
15 Charlotte CHA038B
16 Chicago CHI137B
17 Chicago CHI106B
18 Chicago CHI125A
19 Chicago CHI222A
20 Chicago CHI238A
21 Chicago CHI241D
22 Cincinnati CIN025C
23 Cincinnati CIN041B
24 Dallas DFW507B
25 Dayton DAY011B
26 Detroit DET005D
27 Detroit DET035A
28 Detroit DET037A
29 Detroit DET043A
30 Detroit DET030A
31 Greenville GRV027B
32 Harrisburg HAB008A
33 Hartford HAR035A
34 Houston HOU020A
35 Jacksonville JAC009A
36 Kansas City KAC022C
37 Los Angeles LAX645B
38 Los Angeles LAX011A
39 Los Angeles LAX020B
40 Los Angeles LAX108A
41 Los Angeles LAX144A
42 Los Angeles LAX024A
43 Los Angeles LAX103A
44 Los Angeles LAX117C
45 Los Angeles LAX116A
46 Miami MIA019B
47 Miami MIA022A
48 Minneapolis MIN027A
49 Minneapolis MIN030A
50 Nashville NAS508A
51 Nashville NAS001A
52 Nashville NAS038D
53 New Orleans NOX004A
54 New York NYC192C
55 New York NYC010A
56 Norfolk NOR003A
57 Orlando ORL005C
58 Pittsburgh PIT011C
59 Pittsburgh PIT033A
60 Pittsburgh PIT037B
61 Portland POR003B
62 Portland POR028A
63 Raleigh RAL009A
64 Raleigh RAL016C
65 Raleigh RAL017B
66 Raleigh RAL021B
67 Raleigh RAL029B
68 Raleigh RAL022A
69 Sacramento SAC006A
70 San Francisco SFX007A
71 San Francisco SFX716B
72 San Francisco SFX058A
73 San Francisco SFX064A
74 San Francisco SFX117A
75 San Francisco SFX214B
76 Seattle SEA007A
77 Seattle SEA012A
78 Seattle SEA016A
79 Seattle SEA021B
80 St. Louis STL009D
81 St. Louis STL001A
82 St. Louis STL020A
83 St. Louis STL023A
84 Tampa TAM015A
85 Tampa TAM003A
86 Tampa TAM008A
87 Tampa TAM009C
88 Tampa TAM001A
89 Tampa TAM002A
90 Tampa TAM013A
91 Tampa TAM014A
92 Washington DC WDC430A
93 Washington DC WDC232E
94 Washington DC WDC502A
95 Washington DC WDC220C
96 Washington DC WDC227E
97 Washington DC WDC501B
98 Washington DC WDC515A
99 Washington DC WDC519A
100 Washington DC WDC215B
ATTACHMENT D
No. Market Area Repeater ID
1 Akron AKR002B
2 Albany ALB006D
3 Albany ALB013B
4 Atlanta ATL007A
5 Atlanta ATL010B
6 Atlanta ATL016C
7 Atlanta ATL024A
8 Atlanta ATL030B
9 Atlanta ATL043B
10 Atlanta ATL063A
11 Atlanta ATL064C
12 Atlanta ATL067A
13 Atlanta ATL068A
14 Atlanta ATL069A
15 Atlanta ATL110B
16 Atlanta ATL525A
17 Austin AUS003A
18 Birmingham BIR006A
19 Boston BOS101E
20 Boston BOS109B
21 Boston BOS122A
22 Boston BOS124A
23 Boston BOS125A
24 Boston BOS127A
25 Boston BOS128A
26 Boston BOS132A
27 Boston BOS134A
28 Boston BOS135A
29 Boston BOS202C
30 Boston BOS226A
31 Boston BOS232B
32 Buffalo BUF004A
33 Buffalo BUF006A
34 Chicago CHI115D
35 Chicago CHI116F
36 Chicago CHI118E
37 Chicago CHI121A
38 Chicago CHI123F
39 Chicago CHI133A
40 Chicago CHI134D
41 Chicago CHI136C
42 Chicago CHI140A
43 Chicago CHI142B
44 Chicago CHI201E
45 Chicago CHI213A
46 Chicago CHI225B
47 Chicago CHI250A
48 Chicago CHI251E
49 Chicago CHI255B
50 Chicago CHI604B
51 Cleveland CLE002A
52 Cleveland CLE005D
53 Cleveland CLE006A
54 Cleveland CLE027A
55 Columbus COL020F
56 Columbus COL501A
57 Dallas DFW011A
58 Dayton DAY013A
59 Detroit DET001A
60 Detroit DET008A
61 Detroit DET012A
62 Detroit DET014A
63 Detroit DET016A
64 Detroit DET029B
65 Detroit DET031C
66 Detroit DET034A
67 Detroit DET038A
68 Detroit DET040A
69 Detroit DET044A
70 Detroit DET047A
71 Detroit DET048A
72 Detroit DET515A
73 Detroit DET549A
74 Greensboro GRE003A
75 Greenville GRV005B
76 Harrisburg HAB014A
77 Hartford HAR040A
78 Indianapolis IND002C
79 Kansas City KAC025A
80 Kansas City KAC125A
81 Kansas City KAC225A
82 Knoxville KNO001A
83 Las Vegas LVX003A
84 Las Vegas LVX005A
85 Los Angeles LAX001B
86 Los Angeles LAX012C
87 Los Angeles LAX014A
88 Los Angeles LAX018A
89 Los Angeles LAX028B
90 Los Angeles LAX037B
91 Los Angeles LAX101B
92 Los Angeles LAX105A
93 Los Angeles LAX109A
94 Los Angeles LAX110A
95 Los Angeles LAX111A
96 Los Angeles LAX113B
97 Los Angeles LAX118C
98 Los Angeles LAX126A
99 Los Angeles LAX130A
100 Louisville LOU005A
101 Louisville LOU007B
102 Louisville LOU009B
103 Memphis MEM003A
104 Memphis MEM011B
105 Miami MIA003F
106 Miami MIA005A
107 Miami MIA007B
108 Miami MIA008A
109 Miami MIA009A
110 Miami MIA010A
111 Miami MIA029C
112 Miami MIA101E
113 Minneapolis MIN012A
114 Minneapolis MIN014B
115 Minneapolis MIN016D
116 Monterey MON008C
117 Nashville NAS009A
118 Nashville NAS017B
119 Nashville NAS020A
120 New York NYC003A
121 New York NYC004A
122 New York NYC008B
123 New York NYC009A
124 New York NYC012B
125 New York NYC017C
126 New York NYC019F
127 New York NYC020B
128 New York NYC027A
129 New York NYC028C
130 New York NYC031D
131 New York NYC035A
132 New York NYC046A
133 New York NYC053E
134 New York NYC055A
135 New York NYC058D
136 New York NYC070G
137 New York NYC132H
138 New York NYC136C
139 New York NYC141A
140 New York NYC161A
141 New York NYC172A
142 New York NYC193B
143 New York NYC195B
144 New York NYC196A
145 New York NYC200A
146 New York NYC205A
147 New York NYC214B
148 New York NYC222C
149 New York NYC611B
150 New York NYC614B
151 Oklahoma City OKC001B
152 Orlando ORL001C
153 Philadelphia PHI002A
154 Philadelphia PHI049A
155 Phoenix PHO006A
156 Phoenix PHO101A
157 Pittsburgh PIT002A
158 Pittsburgh PIT004D
159 Pittsburgh PIT019C
160 Pittsburgh PIT042B
161 Portland POR017B
162 Portland POR021A
163 Portland POR030A
164 Portland POR035A
165 Providence PRO001B
166 Raleigh RAL004A
167 Raleigh RAL007A
168 Raleigh RAL028A
169 Richmond RIC008A
170 Richmond RIC020A
171 Richmond RIC033A
172 Richmond RIC034A
173 Rochester ROC002A
174 Sacramento SAC001C
175 Salt Lake City SLC001A
176 Salt Lake City SLC004B
177 San Antonio SAN001A
178 San Diego SDX002B
179 San Diego SDX019C
180 San Francisco SFX005A
181 San Francisco SFX009C
182 San Francisco SFX139B
183 San Francisco SFX250A
184 Seattle SEA001B
185 Seattle SEA002A
186 Seattle SEA011A
187 Seattle SEA014A
188 Seattle SEA019C
189 Seattle SEA033B
190 Seattle SEA034A
191 Seattle SEA050A
192 Seattle SEA053A
193 Seattle SEA056A
194 Springfield SPR001A
195 Springfield SPR003B
196 St. Louis STL003A
197 St. Louis STL006A
198 St. Louis STL012C
199 St. Louis STL017E
200 Syracuse SYR004A
201 Syracuse SYR008F
202 Tampa TAM011A
203 Toledo TOL505A
204 Tulsa TUL001A
205 Washington DC WDC102E
206 Washington DC WDC105F
207 Washington DC WDC202A
208 Washington DC WDC203B
209 Washington DC WDC222A
210 Washington DC WDC223A
211 Washington DC WDC230A
212 Washington DC WDC307A
213 Washington DC WDC313B
214 Washington DC WDC314B
215 Washington DC WDC325A
216 Washington DC WDC329A
217 Washington DC WDC401B
218 Washington DC WDC405A
219 Washington DC WDC409A
220 Washington DC WDC500B
221 Washington DC WDC513A
STATEMENT OF
CHAIRMAN KEVIN J. MARTIN
Re: Sirius Satellite Radio Inc.
Re: XM Radio, Inc.
The Commission has longstanding technical rules regarding the marketing of
equipment, including FM modulators, and the construction and operation of
terrestrial repeaters pursuant to Special Temporary Authority. These rules
serve important consumer protection and competitive goals. As I have said
before, the Commission takes a licensee's obligation to comply with our
rules very seriously and will not tolerate non-compliance.
In order to resolve the Commission's investigation into whether these
license holders were violating the Commission's technical requirements
regarding FM modulators, as well as our rules regarding the construction
and operation of terrestrial repeaters, the two companies have agreed to
undertake significant corrective actions and implement various reforms to
ensure future compliance with the Commission's rules. They also have
agreed to make significant contributions to the U.S. Treasury totaling
nearly $19.6 million.
In reaching a conclusion to these investigations, the apparently
intentional nature of some of the violations was troubling. Indeed, the
ability and willingness to conform one's conduct to the requirements of
the Commission's rules are central to the qualifications of any Commission
licensee. On balance, however, the public's interest in the continued
availability and viability of satellite radio services and the impact on
the public and other licensees that the violations precipitated, taken
together with the rigorous oversight and reporting obligations and
substantial voluntary contribution, persuade me that settlement of these
matters would best serve the public interest.
Through this strong enforcement action that we take today, the Commission
has provided clear guidance to the licensees that we expect them to
conform their conduct to the Commission's rules and sends a strong message
that we will not tolerate non-compliance.
STATEMENT OF
COMMISSIONER JONATHAN S. ADELSTEIN
Re: Sirius Satellite Radio Inc.
Re: XM Radio, Inc.
Today, we approve one of the largest voluntary contributions ever agreed
upon by the Commission for violations of Commission rules. XM and Sirius
have agreed to pay a total amount of $19.5 million for their intentional
and repeated violations of rules intended to protect other licensees and
the public. The brazen nature of these violations indeed warrants this
substantial monetary contribution and rigorous oversight and reporting
obligations.
It is my hope that the Commission will vigorously enforce all elements of
today's Order and Consent Decree, but history suggests otherwise. In April
and June 2006, the Commission launched an investigation into alleged
noncompliant XM and Sirius satellite radio devices; and that fall, the
Commission learned about widespread unauthorized use of terrestrial
repeaters. XM, for example, had constructed and was operating 479
unauthorized or variant repeaters. In light of such unprecedented
violations, it is stunning that the Commission was poised to approve the
merger of XM and Sirius before resolving these enforcement matters. It is
inconceivable to me that we would even consider approving such a merger
with such a large and serious number of outstanding violations unresolved.
That would have never crossed our minds if the transactions involved
terrestrial broadcasters. I commend my colleague, Commissioner Tate, for
insisting that we conclude enforcement action prior to concluding the
merger transaction.
In the same vein, I am discouraged that the Commission has not yet decided
the interference issues between the SDARS and Wireless Communications
Service ("WCS") in the 2.3 GHz band. That these issues have been before
the Commission for over a decade is completely unacceptable. This
enforcement action implicates a number of transmitters that are now
operating with special temporary authority (STAs). These STAs would no
longer be necessary, and they could operate under regular authorization,
if this matter were resolved. It should have been done before or
concurrent with this enforcement matter, and certainly before the merger
was approved. The longer we delay implementing rules governing the
coexistence of SDARS and WCS, the longer we delay WCS rollout of critical
wireless broadband services to rural, unserved and underserved areas. It
is not enough to talk about rural broadband deployment. We need to do
something about it. Here, we are in fact standing in the way. We need to
act, and do so in a way which promotes broadband and protects listeners of
satellite radio. Today, I urge my colleagues to determine final technical
rules so that WCS licensees can manufacture compliant equipment and
devices.
STATEMENT OF
COMMISSIONER DEBORAH TAYLOR TATE
Re: XM Radio, Inc.
Beginning in 1927 with its predecessor, one of the core purposes for the
Federal Communications Commission was to ensure that licensees operate in
accordance with technical specifications of their license. Adherence to
Commission authorizations ensures that all spectrum licensees can make
efficient use of the bandwidth they have been allocated. That is why I
felt it imperative to resolve these outstanding enforcement issues before
moving to consideration of this merger.
The licensee that is the subject of today's voluntary forfeiture and
consent decree failed to comply-knowingly and repeatedly, at the highest
levels of management-with the specifications for its FM modulators and the
terms of its Special Temporary Authorizations ("STAs") for more than five
years. I believe the Consent Decree we adopt today reflects the gravity of
the violations, and the seriousness with which I view them.
XM has agreed to a voluntary contribution of $17,394,375 for operating
terrestrial repeaters at variance from their specification, and
authorizing non-compliant FM modulators. In addition, XM has entered into
a consent decree that mandates strict compliance with certifications,
reporting requirements, and penalties associated with future violations.
Specifically, XM has agreed to the following:
sB A Compliance Plan to remain in effect for five (5) years, requiring
reporting every three (3) months; almost twice the FCC's customary
compliance plan period.
* Hire FCC Compliance Officer responsible for ensuring future compliance
with Act and Commission rules;
* Adopt Procedural Guide establishing procedures for testing, certifying
and making modifications to satellite radio receivers and Repeater
Change Guide establishing procedures for making any changes to
terrestrial repeater network;
* Conduct audits of randomly selected satellite radio receivers to
ensure compliance;
* Establish an FCC Compliance Training Program for all employees who
engage in activities subject to FCC regulation;
* Provide notices to subscribers offering various technical fixes to
non-compliant radio receivers at no cost to subscriber via its
website, subscriber newsletter and automated telephone response;
* Broadcast on-air notices to subscribers regarding non-compliant radio
receivers;
* Replace non-compliant radio receivers returned by consumers for repair
or warranty claims with compliant devices; and
* Submit periodic compliance reports to FCC.
With regard to terrestrial repeaters, within 60 days XM will shut down or
bring into compliance 100 of its repeaters. All others will be referred to
the FCC's International Bureau for processing.
Administration of effective spectrum policy requires that licensees comply
with Commission rules and that the Commission is vigilant in its
oversight. This will foster a level playing field for competition and
encourage technological innovation. The American public requires and
deserves no less.
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.1 et seq. and S: 15.101 et seq.
47 C.F.R. S: 25.120.
47 U.S.C. S: 154(i).
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.1 et seq. and S: 15.101 et seq.
47 C.F.R. S: 25.120.
See Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, FCC, to William J. Bailey, Senior Vice
President, Regulatory and Government Affairs, XM Radio Inc. (April 20,
2006) ("April 20, 2006 LOI").
See Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, FCC, to James Blitz, Vice President &
Regulatory Counsel, XM Radio Inc. (February 15, 2007) ("February 15, 2007
LOI").
47 U.S.C. 302a(b).
47 C.F.R. S:S: 2.1 et seq. and 15.1 et seq.
See April 20, 2006 LOI.
Establishment of Rules and Policies for the Digital Audio Radio Satellite
Service in the 2310-2360 MHz Frequency Band, Report and Order, Memorandum
Opinion and Order and Further Notice of Proposed Rulemaking, 12 FCC Rcd
5745, 5810 (1997).
SAT-STA-20020815-00153; SAT-STA-20031112-00371.
See File No. SAT-STA-20010712-00063.
Of the repeaters that were powered down, several have other, less
significant violations associated with them.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, FCC, to James Blitz, Vice President and Regulatory
Counsel, XM Radio, Inc. (February 15, 2007).
See Letter from James Blitz, Vice President and Regulatory Counsel, XM
Radio, Inc. to Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, FCC (March 12, 2007).
See SAT-STA-20061002-0014. The conditions for all 30-day STA grants
include but are not limited to:
1. Any actions taken as a result of this STA are solely at the applicant's
own risk. This STA shall not prejudice the outcome of the final rules
adopted by the Commission in IB Docket No. 95-91. The issue concerning
EIRP raised by the WCS Coalition will be addressed in that proceeding.
Operations prior to such action will be subject to condition 2 below.
2. Operation of all SDARS repeaters authorized pursuant to this STA is on
a non-interference basis with respect to all permanently authorized
radiocommunication facilities. The operator shall provide the information
and follow the process set forth in paragraphs 14 and 17 in 16 FCC Rcd
16773 (Int'l Bur. 2001) and 16 FCC Rcd 16781 (Int'l Bur. 2001), as
modified by 16 FCC Rcd 18481 (Int'l Bur. 2001) and 16 FCC Rcd 18484 (Int'l
Bur. 2001).
See SAT-STA-20061013-00119. These repeaters in Attachment C are a subset
of the STA requests made by XM on October 2, 2006, as modified by XM's
filing of March 22, 2007. The same conditions noted above would apply to
any 180-day STA, if granted. See note 19, above.
Federal Communications Commission FCC 08-177
19
Federal Communications Commission FCC 08-177