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Before the
Federal Communications Commission
Washington, D.C. 20554
)
File No. EB-08-SE-819
In the Matter of )
NAL/Acct. No. 200932100066
Midland Radio Corporation )
FRN 0005867551
)
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 Midland Radio
Corporation. ("Midland"). The Consent Decree terminates an
investigation and Notice of Apparent Liability for Forfeiture ("NAL")
by the Bureau against Midland for possible violations of Section
302(b) of the Communications Act of 1934, as amended, (the "Act"), and
Section 2.803(g) of the Commission's Rules ("Rules") regarding the
marketing of General Mobile Radio Service (GMRS) transmitters equipped
with voice scrambling technology.
2. The Bureau and Midland 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, which terminates the investigation and
cancels the NAL.
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 Midland 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 sections 4(i) and 503(b)
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 and the Notice of Apparent Liability for Forfeiture IS
CANCELLED.
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 Midland, Mitchell Lazarus, Peter Tannenwald
and Davina Sashkin, Fletcher, Heald & Hildreth, PLC, 1300 North 17th
Street, 11th Floor, Arlington, VA 22209.
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-819
In the Matter of )
NAL/Acct. No. 200932100066
Midland Radio Corporation )
FRN 0005867551
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Midland Radio Corporation
("Midland"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
into whether Midland violated Section 302(b) of the Communications Act of
1934, as amended ("Act"), and Section 2.803(g) of the Commission's Rules
("Rules") by marketing General Mobile Radio Service ("GMRS") transmitters
equipped with voice scrambling technology.
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. "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 9.
f. "Effective Date" means the date on which the Bureau releases the
Adopting Order
g. "GMRS" means General Mobile Radio Service.
h. "Investigation" means the investigation commenced by the Bureau's
March 9, 2009, Letter of Inquiry ("LOI") regarding whether Midland
marketed GMRS
transmitters equipped with voice scrambling technology, in violation of
Section 302(b) of the Act and Section 2.803(g) of the Rules.
i. "Midland" means Midland Radio Corporation and its
predecessors-in-interest and its successors-in-interest.
j. "NAL" means the Notice of Apparent Liability for Forfeiture, Midland
Radio Corporation, 24 FCC Rcd 8392 (Enf. Bur., Spectrum Enf. Div.
2009).
k. "Parties" means Midland and the Bureau.
l. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
2. Section 302(b) of the Act provides that "[n]o person shall
manufacture, import, sell, offer for sale, or ship devices or home
electronic equipment and systems, or use devices, which fail to comply
with regulations promulgated pursuant to this section." Section
2.803(g) of the Rules prohibits the marketing of radio frequency
devices that could not be authorized or legally operated under the
current rules. Section 95.183(a)(4) of the Rules provides in pertinent
part that "[a GMRS] station operator must not communicate ... coded
messages or messages with hidden meanings."
3. On March 3, 2009, the Bureau issued a letter of inquiry ("LOI") to
Midland. The March 3, 2009, LOI directed Midland, among other things,
to submit a sworn written response to a series of questions relating
to the marketing of GMRS transmitters equipped with a voice scrambling
feature. Midland responded to the March 3, 2009, LOI on April 2, 2009.
On June 25, 2009, the Bureau issued a Notice of Apparent Liability for
Forfeiture ("NAL") proposing that Midland be held liable for a
forfeiture of $21,000 under Section 503(b)(1)(B) of the Act, and
ordered the Company either to pay the proposed forfeiture or file a
written response within thirty (30) days of the NAL release date
stating why the proposed forfeiture should be reduced or canceled.
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. Midland 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 to cancel its NAL. In consideration for the
termination of said investigation, Midland 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, the NAL, 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 Midland
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, the
NAL, 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 Midland with respect to Midland's basic
qualifications, including its character qualifications, to be a
Commission licensee or hold Commission authorizations.
8. Importing and Marketing GMRS Transmitters. Midland agrees that every
GMRS transmitter imported or marketed in the United States by Midland
on or after the Effective Date of this Consent Decree shall be
compliant with Part 95 of the Rules before importation and marketing
by Midland.
9. Compliance Plan. For purposes of settling the matters set forth
herein, Midland agrees to maintain a Federal Communications Commission
Regulatory Compliance Plan ("FCC Compliance Plan") related to
Midland's future compliance with the Act, the Commission's Rules, and
the Commission's Orders. The FCC Compliance Plan will include, at a
minimum, the following components:
a. FCC Compliance Procedures. Midland shall develop and update as
necessary appropriate FCC Compliance Procedures. Relevant Midland
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 importance of evaluating all new
product features and functions to ensure compliance with applicable
Commission Rules. Midland shall also maintain a relationship with
outside regulatory counsel familiar with FCC regulations and
interpretations to ensure that Midland remains current with respect to
such matters.
a. Compliance Officer. Midland shall designate an FCC Compliance Officer
("Compliance Officer") who will administer the FCC Compliance Plan,
supervise Midland's compliance with the Commission's Rules,
interpretations thereof, and this Consent Decree, and serve as the
Midland point of contact for all FCC-related compliance matters. The
Compliance Officer will be assigned responsibility within Midland for
determining whether features and functions incorporated into products
marketed by Midland in the United States are in compliance with FCC
Compliance Procedures.
a. Review and Monitoring. Midland will review the FCC Compliance Plan
annually to ensure that it is maintained in a proper manner and
continues to address the objectives set forth therein.
a. Compliance Reports. Midland will file compliance reports with the
Commission three months, twelve months and twenty four months after
the Effective Date. Each compliance report shall include a compliance
certificate from an officer, as an agent of Midland, stating that the
officer has personal knowledge that Midland 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 Thomas Fitz-Gibbon at Thomas.Fitz-Gibbon@fcc.gov,
Neal McNeil at Neal.McNeil@fcc.gov and to Kathy 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.
10. Voluntary Contribution. Midland agrees that it will make a voluntary
contribution to the United States Treasury in the amount of fourteen
thousand dollars ($14,000). The payment will be made within 30 days
after the Effective Date of this Consent Decree. 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). Midland will also send
electronic notification on the date said payment is made to
Thomas.Fitz-Gibbon@fcc.gov and Kathy.Berthot@fcc.gov.
11. Waivers. Midland 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. Midland shall retain the right to challenge Commission
interpretation of the Consent Decree or any terms contained herein.
Midland further shall retain the right to seek a change in any
existing Commission Rules or to challenge any future Commission
interpretation of its Rules regarding what constitutes coded messaging
on GMRS devices. 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 Midland nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and Midland
shall waive any statutory right to a trial de novo. Midland 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 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.
13. 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 Midland does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
14. Successors and Assigns. Midland 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.
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.
_______________________________
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
________________________________
Date
________________________________
Eric Schenck
Vice President-Finance
Midland Radio Corporation
________________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(g)..
47 U.S.C. S:S: 154(i) and 503(b).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(g).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission, to
Midland Radio Corporation (March 3, 2009) .
47 C.F.R. S: 95.183(a)(4).
See March 3, 2009, LOI.
See Letter from Peter Tannenwald and Davina Sashkin, Counsel for
Midland Radio Corporation, to Thomas D. Fitz-Gibbon, Esq., Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission (April 3, 2009) ("LOI Response").
Midland Radio Corporation, 24 FCC Rcd 8392 (Enf. Bur., Spectrum Enf.
Div 2009).
The Bureau has extended the response time until September 10, 2009.
Federal Communications Commission DA 09-2216
5
Federal Communications Commission DA 09-2216