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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-594
In the Matter of
) Acct. No. 200932100063
Mobilarm, Ltd.
) FRN No. 0011045754
)
ORDER
Adopted: June 9, 2009 Released: June 12, 2009
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 Mobilarm, Ltd.
("Mobilarm"). The Consent Decree terminates an investigation by the
Bureau against Mobilarm for possible violations of 302(b) of the
Communications Act of 1934, as amended, (the "Act"), and Sections
2.803 and 80.203(a) of the Communications Rules ("Rules"), regarding
the marketing of an uncertified radio frequency device in the United
States.
2. The Bureau and Mobilarm 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 Mobilarm 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 all third-party complaints against Mobilarm
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 counsel for Mobilarm, Anthony C. DeFillipis, Pepe &
Hazard, LLP, 225 Asylum Square, Hartford, CT 06103-4302.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-08-SE-594
Mobilarm Ltd. ) Acct. No. 200932100063
Applecross, Western Australia ) FRN No. 0011045754
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Mobilarm, Ltd. ("Mobilarm"), by
their authorized representatives, hereby enter into this Consent Decree
for the purpose of terminating the Bureau's investigation into whether
Mobilarm violated Section 302(b) of the Communications Act of 1934, as
amended, (the "Act"), 47 U.S.C. Section 302a(b), and Sections 2.803 and
80.203(a) of the Communications Rules ("Rules"), 47 C.F.R. Sections 2.803
and 80.203(a), in connection with the marketing of the Mobilarm V100
transmitter in the United States.
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 of the equipment marketing rules.
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 commenced by the Bureau's
February 3, 2009 and February 10, 2009 letters of inquiry ("LOIs")
regarding whether Mobilarm violated Section 302(b) of the Act and
Sections 2.803 and 80.203(a) of the Rules in connection with its
marketing of the Mobilarm V100 transmitter.
i. "Mobilarm" means Mobilarm, Ltd. and its predecessors-in-interest and
successors-in-interest.
j. "Parties" means Mobilarm and the Bureau.
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 and 80.203(a)
of the Rules, radio frequency devices such as the Mobilarm V100
transmitter may not be marketed without prior authorization by the
Commission or without appropriate disclaimers in the manner prescribed
pursuant to Section 2.803(c) of the Rules.
3. On February 3, 2009, the Bureau issued a LOI to Mobilarm. This LOI
directed Mobilarm, among other things, to submit a sworn written
response to questions relating to the marketing of the "Mobilarm V100
transmitter" in the United States. Mobilarm responded to the February
3, 2009 LOI on February 6, 2009. On February 10, 2009, the Bureau
issued a follow-up LOI to Mobilarm. Mobilarm replied to the second LOI
on March 6, 2009 and March 11, 2009.
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. Mobilarm 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 Complaints. In consideration for the
termination of said investigation and dismissal of the Complaints,
Mobilarm 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 Mobilarm 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 Mobilarm with respect to
Mobilarm's basic qualifications, including its character
qualifications, to be a Commission licensee or hold Commission
authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, Mobilarm 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 include, at a minimum, the
following components:
l. Compliance Officer. Mobilarm will appoint its Chief Executive Officer,
Lindsay Lyon, as the Compliance Officer who will oversee the
Compliance Plan and enforce the applicable FCC requirements within
Mobilarm.
m. Compliance Measures. To ensure future compliance, Mobilarm will
implement compliance policies and procedures which will: (1) include
compliance with FCC requirements in the company's marketing for sale
of Mobilarm transmitter devices within the jurisdiction of the
Commission; (2) conduct training for key personnel, including all
sales staff, at least semi-annually, regarding the labeling and notice
requirements required in the marketing for sale any such transmitter
device within the Commission's jurisdiction; (3) identify, segregate
and maintain all marketing materials distributed in the United States
or to prospective clients in the United States or used at any trade
show within the United States.
n. Compliance Reports. Mobilarm 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 compliance report shall include a compliance
certificate from an officer, as agent of Mobilarm, stating that the
officer has personal knowledge that Mobilarm 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, SW, Washington,
D.C. 20554.
o. Termination Date. Unless otherwise stated, the requirements of this
Consent Decree will expire twenty-four months after the Effective Date
9. Voluntary Contribution. Mobilarm agrees that it will make a voluntary
contribution to the United States Treasury in the amount of four
thousand dollars ($4,000.00). Such contribution shall be made in four
(4) monthly installments of one thousand dollars ($1,000.00) each. The
first payment is to be made within thirty (30) calendar days of the
Effective Date, and the balance paid in subsequent consecutive monthly
installments as set forth above. Each 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). Mobilarm will also send electronic notification on the dates
said payments are made to Thomas FitzGibbon at
Thomas.FitzGibbon@fcc.gov and Neal McNeil at Neal.McNeil@fcc.gov.
10. Waivers. Mobilarm 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. Mobilarm 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
Mobilarm nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Mobilarm shall waive any statutory
right to a trial de novo. Mobilarm 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 Mobilarm does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
13. Successors and Assigns. Mobilarm agrees that the provisions of this
Agreement 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
_________________________________
Lindsay Lyon
Chief Executive Officer
Mobilarm, Ltd.
_________________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803 and 80.203(a).
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 and 80.203(a).
Letters from Kathryn Berthot, Chief Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Mobilarm,
Ltd. (February 3 and 10, 2009) ("February 3, 2009, LOI" and "February
10, 2009, LOI")
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803 and 80.203(a).
47 C.F.R. S: 2.803(c).
February 3, 2009 LOI.
Letter from Lindsay Lyon, Chief Executive Officer, Mobilarm, Ltd., to
Thomas D. Fitz-Gibbon, Attorney Advisor, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission ,
(February 5, 2009).
February 10, 2009 LOI.
Letters from Anthony DeFilippis, Jr., Counsel for Mobilarm, Ltd., to
Thomas D. Fitz-Gibbon, Attorney Advisor, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission,
(March 6 and 11, 2009)
Federal Communications Commission DA 09-1281
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Federal Communications Commission DA 09-1281
Federal Communications Commission DA 09-1281
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Federal Communications Commission DA 09-1281