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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-09-SE-030
In the Matter of
) Acct. No. 201032100001
Imation Corp.
) FRN No. 0017631821
)
ORDER
Adopted: October 14, 2009 Released: October 16, 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 Imation Corp.
("Imation"). The Consent Decree terminates an investigation by the
Bureau against Imation for possible violations of Section 302(b) of
the Communications Act of 1934, as amended ("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
("DTV") converter boxes.
2. The Bureau and Imation 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 Imation 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 Greg J. Bosler, Vice President, Consumer Division,
Americas Region, Imation Corp., 1 Imation Way, Oakdale, MN 55128, and
counsel for Imation, Stefan M. Lopatkiewicz, Esq., Dorsey & Whitney
LLP, 1050 Connecticut Avenue NW, Suite 1250, Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
) File No. EB-09-SE-030
In the Matter of
) Acct. No. 201032100001
Imation Corp.
) FRN No. 0017631821
)
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Imation Corp. ("Imation"), by their
authorized representatives, hereby enter into this Consent Decree for the
purpose of terminating the Bureau's investigation of Imation for possible
violations of Section 302(b) of the Communications Act of 1934, as amended
("Act"), and Sections 2.803(a), 2.948(d) and 15.19 of the Commission's
Rules ("Rules") regarding the marketing of an unintentional radiator,
specifically, a digital television ("DTV") converter box.
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. "Imation" means Imation Corp. and its subsidiaries and its
predecessors-in-interest and successors-in-interest.
h. Investigation" means the investigation commenced by the Bureau's
March 17, 2009 letter of inquiry ("LOI") to Imation regarding
possible violations of Section 302(b) of the Act and Sections
2.803(a), 2.948 and 15.19 of the Rules.
i. "Parties" means Imation and the Bureau.
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 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. On March 17, 2009, the Bureau issued an LOI to Imation. The LOI
directed Imation to submit a sworn written response to a series of
questions relating to the marketing and selling of the model MVCB1000
DTV converter box and other television interface devices. Imation
responded to the LOI on April 20, 2009, and supplemented that response
on April 24 and May 27, 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. Imation 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, Imation 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 Imation 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 Imation with respect to
Imation'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, Imation agrees to create within 60 days 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. Imation will designate a senior corporate manager
("Compliance Officer") who is responsible for administering the
Compliance Plan.
b. Training. Imation will train and provide materials concerning Section
302(b) of the Act and 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 sourcing of the
television interface devices imported, marketed and sold by Imation
in the United States.
c. Compliance Reports. Imation will file compliance reports with the
Commission 90 days after the Effective Date, 12 months after the
Effective Date, and 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
Imation 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, with a copy submitted electronically to Linda Nagel at
Linda.Nagel@fcc.gov and Kathryn Berthot at Kathy.Berthot@fcc.gov.
d. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire 24 months after the Effective Date.
9. Voluntary Contribution. Imation agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $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). Imation will also send electronic notification on the date said
payment is made to Linda.Nagel@fcc.gov and Kathy.Berthot@fcc.gov.
10. Waivers. Imation 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. Imation 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
Imation nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Imation shall waive any statutory
right to a trial de novo. Imation 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 Imation does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
13. Successors and Assigns. Imation 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
________________________________
Greg J. Bosler
Vice President, Consumer Division
Americas Region
Imation Corp.
________________________________
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 Frank P.
Russomanno, Chief Executive Officer, Imation Corp. (March 17, 2009)
("March 17, 2009 LOI").
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 March 17, 2009 LOI.
See Letters from Greg J. Bosler, Vice President, Consumer Division,
Americas Region, Imation Corp. to Marlene H. Dortch, Secretary, Federal
Communications Commission dated April 20, April 24 and May 27, 2009 ("LOI
Responses").
Federal Communications Commission DA 09-2103
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Federal Communications Commission DA 09-2103
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