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Before the
Federal Communications Commission
Washington, D.C. 20554
)
File No. EB-06-SE-134
In the Matter of )
Acct. No. 200932100043
Wistron NeWeb Corporation )
FRN # 0006053789
)
ORDER
Adopted: February 12, 2009 Released: February 13, 2009
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Wistron NeWeb
Corporation ("WNC"). The Consent Decree terminates an investigation
initiated by the Bureau into whether certain satellite radio equipment
manufactured and sold by WNC in Taiwan and imported and marketed in
the United States by third parties comply with the requirements of
Section 302(b) of the Communications Act of 1934, as amended, ("Act")
and Parts 2 and 15 of the Commission's Rules ("Rules").
2. The Bureau and WNC have negotiated the terms of a Consent Decree that
would resolve this matter and terminate the investigation. A copy of
the Consent Decree is attached hereto and incorporated by reference.
3. After reviewing the terms of the Consent Decree, we find that the
public interest will 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 WNC possesses the basic
qualifications, including those related to character, to hold or
obtain any FCC 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 Bureau's 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 counsel for Wistron NeWeb Corporation, John Janka, Esq.,
Latham & Watkins LLP, 555 Eleventh Street, N.W., Suite 1000,
Washington, D.C. 20004.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
File No. EB-06-SE-134
In the Matter of )
Acct. No. 200932100043
Wistron NeWeb Corporation )
FRN # 0006053789
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") of the Federal Communications Commission
("Commission") and Wistron NeWeb Corporation ("WNC") hereby enter into
this Consent Decree for the purpose of terminating the Bureau's
investigation into whether certain satellite radio equipment manufactured
and sold by WNC in Taiwan and imported and marketed in the United States
by third parties comply with the requirements of Section 302(b) of the
Communications Act of 1934, as amended, ("Act") and Parts 2 and 15 of the
Commission's Rules ("Rules").
II. 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 and
conditions 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.
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
April 20, 2006 Letter of Inquiry to WNC regarding whether certain
satellite radio receivers (with wireless FM modulators) manufactured
and marketed by WNC comply with Section 302(b) of the Act and Parts 2
and 15 of the Rules.
h. "Parties" means WNC and the Bureau.
i. "Rules" means the Commission's Rules found in Title 47 of the Code of
Federal Regulations.
j. "WNC" means Wistron NeWeb Corporation, 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.
3. On April 20, 2006, the Bureau issued a Letter of Inquiry ("LOI") to
WNC. The April 20, 2006 LOI directed WNC, among other things, to
submit a sworn written response to a series of questions relating to
its manufacture and marketing of certain satellite radio receivers
(with wireless FM modulators). WNC responded to the April 20, 2006 LOI
on June 2, 2006, and filed a supplemental response on July 24, 2006.
II. 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. WNC 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, WNC 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 WNC 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 WNC with respect to WNC'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, WNC agrees to maintain a Federal Communications Commission
Regulatory Compliance Plan ("RCP") related to WNC's future compliance
with the Act, the Commission's Rules, and the Commission's Orders. The
RCP will include, at a minimum, the following components:
a. FCC Compliance Procedures. WNC shall develop and update as necessary
appropriate FCC Compliance Procedures. Relevant WNC personnel shall be
made aware of the FCC Compliance Procedures and shall be required to
follow them. The FCC Compliance Procedures will, among other things,
address the equipment authorization requirements of the Act and the
Commission's Rules applicable to consumer electronics devices that are
intentional radiators and are manufactured, imported, marketed and
sold by WNC in the United States.
b. Compliance Officer. WNC shall designate a Regulatory Compliance
Officer ("Compliance Officer") who will administer the RCP, supervise
WNC's compliance with the Act, the Commission's Rules and the Consent
Decree, and serve as the WNC point of contact for all
Commission-related compliance matters. The Compliance Officer will be
assigned responsibility within WNC for determining whether the
manufacture, importation, marketing, and sale of such devices are in
compliance with FCC Compliance Procedures.
c. Review and Monitoring. WNC will review the RCP annually to ensure that
it is maintained in a proper manner and continues to address the
objectives set forth therein.
d. Compliance Reports. WNC will file compliance reports with the
Commission ninety days after the Effective Date, twelve months after
the Effective Date, and twenty-four months after the Effective Date.
Each compliance report shall include a compliance certificate from an
officer, as an agent of WNC, stating that the officer has personal
knowledge that WNC 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
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 Neal
McNeil at Neal.McNeil@fcc.gov and to Kathy Berthot at
Kathy.Berthot@fcc.gov.
e. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire twenty-four months after the Effective
Date.
9. Marketing of Radio Frequency Devices. WNC agrees that every radio
frequency device that is imported or marketed by WNC in the United
States on or after the Effective Date of this Consent Decree shall be
compliant with Parts 2 and 15 of the Rules before importation and
marketing by WNC.
10. Voluntary Contribution. WNC agrees that it will make a voluntary
contribution to the United States Treasury in the amount of Thirty
Thousand Dollars ($30,000). The payment will be made within thirty
(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). WNC will also send electronic
notification on the date said payment is made to Neal McNeil at
Neal.McNeil@fcc.gov and to Kathy Berthot at Kathy.Berthot@fcc.gov.
11. Waivers. WNC 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 Degree
and the Adopting Order, provided the Bureau issues the Adopting Order
adopting the Consent Decree without change, addition, modification, or
deletion. WNC 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
WNC nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and WNC shall waive any statutory right
to a trial de novo. WNC 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.
12. Invalidity. In the event that this Consent Decree is rendered invalid
by any court of competent jurisdiction, this Consent Decree shall
become null and void and may not be used in any manner in any legal
proceeding.
13. Subsequent Rule or Order. The Parties agree that if any provision of
this 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 WNC does not
expressly consent), that provision will be superseded by such
Commission rule or Order.
14. Successors and Assigns. WNC agrees that the provisions of this Consent
Decree shall be binding on its successors, assigns, and transferees.
15. 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. The
Parties agree that this Consent Decree is for settlement purposes only
and that by agreeing to this Consent Decree, WNC 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.
16. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
17. 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.
18. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
19. 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.
For the Enforcement Bureau:
________________________________
Kris Anne Monteith
Chief, Enforcement Bureau
________________________________
Date
For Wistron NeWeb Corporation:
________________________________
Jeffrey Gau
Chief Operating Officer
________________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.1 et seq. and S: 15.1 et seq.
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: 2.1 et seq. and S: 15.1 et seq.
Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, to Edward Yeh, Wistron NeWeb Corporation
(April 20, 2006) ("April 20, 2006 LOI").
47 U.S.C. S: 302a(b).
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.1 et seq. and 15.1 et seq.
April 20, 2006 LOI.
Letter from Jeffrey Gau, Vice President of SatCom Business Unit, Wistron
NeWeb Corporation, to Neal McNeil, Spectrum Enforcement Division,
Enforcement Bureau (June 2, 2006).
Letter from Jeffrey Gau, Vice President of SatCom Business Unit, Wistron
NeWeb Corporation, to Neal McNeil, Spectrum Enforcement Division,
Enforcement Bureau (July 24, 2006).
Federal Communications Commission DA 09-215
5
Federal Communications Commission DA 09-215