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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-582
In the Matter of
) Acct. No. 200932100065
Alco Electronics Ltd.
) FRN No. 0018724468
)
ORDER
Adopted: June 25, 2009 Released: June 29, 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 Alco Electronics Ltd.
("Alco"). The Consent Decree terminates an investigation by the Bureau
against Alco for possible violations of Section 302(b) of the
Communications Act of 1934, as amended, (the "Act") 47 U.S.C. S:
302a(b), and Sections 2.803(a), 2.948(d), and 15.19(b) of the
Commission's Rules ("Rules"), 47 C.F.R. S:S: 2.803(a), 2.948(d), and
15.19(b), regarding the marketing and labeling of digital television
converter boxes.
2. The Bureau and Alco 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 Alco possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to section 4(i) of the
Communications Act of 1934, as amended, and sections 0.111 and 0.311
of the Commission's Rules, the Consent Decree attached to this Order
IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Mario Boltri, Vice President OEM/EMS Operations, Alco
Electronics Ltd., P.O. Box 40, Buffalo, NY 14226, and counsel for
Alco, Martin L. Stern, Esq., K&L Gates LLP, 1601 K Street, NW,
Washington, DC 20006.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-582
In the Matter of
) Acct. No. 200932100065
Alco Electronics Ltd.
) FRN No. 0018724468
)
-----------------------------------------------------
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Alco Electronics Ltd. ("Alco"), by
their authorized representatives, hereby enter into this Consent Decree
for the purpose of terminating the Bureau's investigation into whether
Alco violated Section 302(b) of the Communications Act of 1934, as amended
("Act"), and Sections 2.803(a), 2.948(d), and 15.19(b) of the Commission's
rules ("Rules") regarding the marketing and labeling of digital television
converter boxes.
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: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. "Alco" means Alco Electronics Ltd. and its subsidiaries and their
predecessors-in-interest and successors-in-interest.
d. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
e. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
f. "Compliance Plan" means the program described in this Consent Decree
at paragraph 8.
g. "DTV" means digital television.
h. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
i. "Investigation" means the investigation commenced by the Bureau's
January 7, 2009 Letter of Inquiry to Alco regarding possible
violations of Section 302(b) of the Act and Sections 2.803(a),
2.948(d) and 15.19 of the Rules regarding the marketing and labeling
of certain digital television ("DTV") converter boxes manufactured by
Alco (the "Equipment").
j. "Parties" means Alco 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 Section 2.803(a) of the
Rules, radio frequency devices may not be marketed in the United
States unless such devices comply with the applicable technical and
administrative provisions of the Rules. DTV converter boxes, which are
classified as television interface devices under the Rules, can be
authorized under a Declaration of Conformity pursuant to Section
15.101(a) of the Rules. In accordance with Section 2.948(d), only
accredited laboratories may test equipment subject to a Declaration of
Conformity. Further, under Section 2.948(e), the accreditation of a
laboratory located outside the United States will be acceptable to the
Commission only under the conditions specified therein. Further, under
Section 15.19(b) of the Rules, a device subject to authorization under
a Declaration of Conformity must be labeled in accordance with the
provisions specified therein.
3. Alco is a manufacturer of DTV converter boxes sold in the United
States and marketed under various trade names and model numbers. On
January 7, 2009, the Bureau issued an LOI to Alco. The LOI directed
Alco to, among other things, submit a sworn written response to a
series of questions regarding the marketing of two models of its DTV
converter boxes. Specifically, the Bureau's inquiry concerned whether,
among other things, the test lab used by Alco was accredited. There
are no technical compliance issues regarding Alco's DTV converter
boxes. Alco responded to the LOI on February 16, 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. Alco 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, Alco 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 concerning the Equipment and associated 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 Alco with respect to Alco's
basic qualifications, including its character qualifications, to be a
Commission licensee or to hold Commission authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, Alco 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. Alco has appointed an FCC Compliance Officer who
will be responsible for overseeing all FCC-related aspects of the
company's operations and compliance with all FCC Rules. The
Compliance Officer will serve as the point of contact for Alco
management and employees with regard to Alco's FCC regulatory
compliance. The Compliance Officer will report directly to Alco's
Product Development Manager, who, in turn, will report directly to
Alco's North American Sales Director. The U.S. point of contact for
FCC staff and the public will be Alco's Vice President, OEM/EMS
Operations.
b. Training. Alco has revised its manufacturing and quality control
personnel training programs to ensure proper FCC compliance,
including labeling procedures and lab selection procedures. Alco's
FCC Compliance Officer will establish an FCC Compliance Training
Program for all current employees who engage in activities subject to
FCC regulation. Refresher training will be given to relevant
employees annually, and new employees who engage in activities
subject to FCC regulations will be trained within 90 days of their
employment. Alco's FCC Compliance Officer will periodically review
and update the training materials to reflect any regulatory changes.
c. Procedural Guide. Alco has adopted a Procedural Guide establishing
step-by-step procedures that Alco employees must follow in connection
with the testing, declaration of conformity, and labeling for new or
modified DTV converter boxes.
d. Compliance Reports. Alco 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 stating that the officer has
personal knowledge that Alco has established operating procedures
intended to ensure compliance with this Compliance Plan, together
with an accompanying statement explaining the basis for the officer's
compliance certification. The Compliance Report shall be submitted to
Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission, 445 12th St S.W. Washington, D.C. 20554.
All compliance reports shall also be submitted electronically to
Linda Nagel at Linda.Nagel@fcc.gov and Kathryn Berthot at
Kathy.Berthot@fcc.gov.
e. Termination. Unless stated otherwise, the requirements of this
Consent Decree will expire twenty four (24) months after the
Effective Date.
9. Voluntary Contribution. Alco agrees that it will make a voluntary
contribution to the United States Treasury in the amount of nine
thousand dollars ($9,000). 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). Alco will also send
electronic notification on the date said payment is made to
Linda.Nagel@fcc.gov and Kathy.Berthot@fcc.gov.
10. Waivers. Alco 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. Alco 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
Alco nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Alco shall waive any statutory right
to a trial de novo. Alco 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 Alco does not expressly consent)
that provision will be superseded by such Commission rule or Order.
13. Successors and Assigns. Alco 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
________________________________
Mario Boltri
Vice President, OEM/EMS Operations
Alco Electronics Ltd.
________________________________
Date
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), 2.948(d), and 15.19.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission to
Mario Boltri, Vice President, OEM/EMS Operations, Alco Electronics,
Ltd. (January 7, 2009) ("LOI").
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803(a), 2.948(d), and 15.19.
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a)(2).
47 C.F.R. S: 15.3(y).
47 C.F.R. S: 15.19(b).
See LOI.
See Letter from Mario Boltri, Vice President, OEM/EMS Operations, Alco
Electronics, Ltd. to Kathryn S. Berthot, Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission
(February 16, 2009) ("LOI Response").
Alco has appointed Mr. Liu Jiuning as its current Compliance Officer.
Mr. Liu was employed by Alco on February 9, 2009, and has an extensive
background in FCC equipment authorization and electromagnetic
compatibility matters. He worked as the Technical Supervisor at
Intertek Testing Services from 2003 to 2008.
Alco's current Vice President, OEM/EMS Operations is Mr. Mario Boltri.
Federal Communications Commission DA 09-1358
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Federal Communications Commission DA 09-1358
Federal Communications Commission DA 09-1358
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Federal Communications Commission DA 09-1358