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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-159
In the Matter of
) Acct. No. 200932100042
Pro Tech Monitoring, Inc.
) FRN No. 0011314879
)
ORDER
Adopted: February 5, 2009 Released: February 9, 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 Pro Tech Monitoring,
Inc. ("Pro Tech"). The Consent Decree terminates an investigation of
Pro Tech by the Bureau for possible violations of Section 302(b) of
the Communications Act of 1934, as amended ("Act"), and Sections
2.803(a) and 90.203 of the Commission's Rules ("Rules") regarding the
marketing and selling of a model of radio frequency transmitting
equipment, specifically a Global Positioning System ("GPS") based
tracking device.
2. The Bureau and Pro Tech 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 Pro Tech possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to section 4(i) of the Act,
and sections 0.111 and 0.311 of the Rules, the Consent Decree attached
to this Order IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Steve Chapin, Chief Executive Officer and President, Pro
Tech Monitoring, Inc., 2549 Success Drive, Odessa, Florida 33556 and
Donna A. Balaguer, Esq., Fish & Richardson P.C., 1425 K Street, N.W.,
Washington, D.C. 20005.
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-159
In the Matter of
) Acct. No. 200932100042
Pro Tech Monitoring, Inc.
) FRN No. 0011314879
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Pro Tech Monitoring, Inc. ("Pro
Tech"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
of Pro Tech for possible violations of Section 302(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 2.803(a) and
90.203 of the Commission's Rules ("Rules") regarding the marketing and
selling of radio frequency transmitting equipment, specifically a Global
Positioning System based tracking device.
I. DEFINITIONS
1. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Act" means the Communications Act of 1934, as amended 47 U.S.C. S:
151 et seq.
b. "Adopting Order" means an Order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
e. "Compliance Plan" means the program described in this Consent Decree
at paragraph 8.
f. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
g. "Investigation" means the investigation commenced by the Bureau's
July 16, 2008 letter of inquiry ("LOI") to Pro Tech regarding
possible violations of Section 302(b) of the Act and Sections
2.803(a) and 90.203 of the Rules.
h. "Parties" means Pro Tech and the Bureau.
i. "Pro Tech" means Pro Tech Monitoring, Inc. and its subsidiaries and
its predecessors-in-interest and successors-in-interest.
j. "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) and 90.203
of the Rules, radio frequency devices subject to certification may not
be marketed or sold unless authorized by the Commission in accordance
with the applicable technical and administrative provisions of the
Rules.
3. On July 16, 2008, the Bureau issued a letter of inquiry (LOI) to Pro
Tech. The LOI directed Pro Tech, among other things, to submit a sworn
written response to a series of questions relating to the marketing
and selling of radio frequency transmitting equipment, specifically a
Global Positioning System ("GPS") based tracking device. Pro Tech
responded to the LOI on August 29, 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. Pro Tech 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, Pro Tech 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 Pro Tech 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 Pro Tech
with respect to Pro Tech's basic qualifications, including its
character qualifications, to be a Commission licensee or to hold
Commission licenses or authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, Pro Tech 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. Pro Tech will designate a senior corporate
officer ("Compliance Officer") who is responsible for administering
the Compliance Plan.
b. Training. Pro Tech will retrain, and provide materials concerning
Parts 2 and 15 of the Rules and the requirements of the Consent
Decree to, all of its employees who are involved directly or
indirectly in the marketing and distribution of the radio frequency
products imported, marketed and sold by Pro Tech in the United
States.
c. Compliance Reports. Pro Tech 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 Compliance
Officer has personal knowledge that Pro Tech 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 Linda Nagel at
Linda.Nagel@fcc.gov and Ricardo Durham at Ricardo.Durham@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. Pro Tech agrees that it will make a voluntary
contribution to the United States Treasury in the amount of seven
thousand dollars ($7,000). 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). Pro Tech will also send
electronic notification on the date said payment is made to
Linda.Nagel@fcc.gov and Ricardo.Durham@fcc.gov.
10. Waivers. Pro Tech 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. Pro Tech 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
Pro Tech nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Pro Tech shall waive any statutory
right to a trial de novo. Pro Tech 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 Pro Tech does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
13. Successors and Assigns. Pro Tech 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
________________________________
Steve Chapin
Chief Executive Officer and President
Pro Tech Monitoring, Inc.
________________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803(a), 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) and 90.203.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Steve Chapin,
President and CEO, Pro Tech Monitoring, Inc. (July 16, 2008) ("LOI").
See LOI.
See Letter from Steve Chapin, Chief Executive Officer and President, Pro
Tech Monitoring, Inc. to Marlene H. Dortch, Secretary, Federal
Communications Commission (August 29, 2008) ("LOI Response").
Federal Communications Commission DA 09-182
4
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Federal Communications Commission DA 09-182