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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-06-SE-174
In the Matter of
) Acct. No. 200932100046
Audiovox Corporation
) FRN No. 0017363979
)
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 Audiovox Corporation
("Audiovox"). The Consent Decree terminates an investigation by the
Bureau into whether certain satellite radio equipment imported and
marketed by Audiovox and intended for use with XM Radio, Inc.'s ("XM")
satellite radio service complies with 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 Audiovox 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 Audiovox 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 all third-party complaints against Audiovox
before the Bureau related to the above-captioned-investigation as of
the date of this Consent Decree ARE DISMISSED.
8. 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 Mr. Patrick M. Lavelle, President and Chief Executive
Officer, Audiovox Corporation, 180 Marcus Blvd., Hauppauge, New York
11788, and to its counsel, Albert H. Kramer, Esq., Dickstein Shapiro
LLP, 1825 Eye Street NW, Washington DC 20006-5403.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-06-SE-174
In the Matter of
) Acct. No. 200932100046
Audiovox Corporation
) FRN No. 0017363979
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Audiovox Corporation ("Audiovox"),
by their authorized representatives, hereby enter into this Consent Decree
for the purpose of terminating the Bureau's investigation into whether
certain satellite radio equipment imported and marketed by Audiovox and
intended for use with XM Radio, Inc.'s ("XM") satellite radio service
complies with Section 302(b) of the Communications Act of 1934, as
amended, and Parts 2 and 15 of the Commission's rules.
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. "Audiovox" means Audiovox Corporation and its 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. "Complaints" means third-party complaints that may have been received
by, or are in the possession of, the Commission or Bureau alleging
that certain radio receivers imported by Audiovox and intended for use
with XM's satellite radio service are not or may not be in compliance
with Section 302(b) of the Act and Parts 2 and 15 of the Rules.
g. "Compliance Plan" means the program described in this Consent Decree
at paragraph 8.
h. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
i. "Investigation" means the investigation commenced by the Bureau's May
10, 2006, Letter of Inquiry regarding whether certain satellite radio
receivers (with wireless FM modulators) imported and marketed by
Audiovox and intended for use with XM Radio, Inc.'s ("XM") satellite
radio service comply with Section 302(b) of the Act and Parts 2 and
15 of the Rules.
j. "Parties" means Audiovox 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 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 prior to
importation into, or marketing in, the United States.
3. On May 10, 2006, the Bureau issued a Letter of Inquiry ("LOI") to
Audiovox initiating an investigation into the manufacture,
authorization, importation, distribution and marketing of certain
satellite radio receivers (with wireless FM modulators) intended for
use with XM's satellite radio service. The May 10, 2006 LOI directed
Audiovox, among other things, to submit a sworn written response to a
series of questions relating to potential violation of the operating
bandwidth specifications and/or the radiated emission limits of
sections 15.239(a) and/or 15.239(b) of the Rules. Audiovox responded
to the May 10, 2006 LOI on June 22, 2006.
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. Audiovox 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 dismiss the Complaints. In consideration for the
termination of said investigation and dismissal of the Complaints,
Audiovox 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 Audiovox 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 Audiovox with respect to
Audiovox'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, Audiovox agrees to create within 30 days and maintain a
Compliance Plan related to future compliance with the Act, the
Commission's Rules, and the Commission's Orders. The Plan will provide
for the following components:
a. Compliance Officer. Audiovox will designate a Compliance Officer who
will be responsible for implementing and administering the Compliance
Plan.
b. Compliance Measures. Audiovox will establish procedures to ensure that
Audiovox maintains its control over products to be licensed to
Audiovox throughout the equipment authorization process, from testing
and/or submission for testing to final certification. The procedures
will be designed also to ensure there is no material variance between
the product as tested for certification and as manufactured and sold.
All employees involved in the process will be instructed in the
procedures and the need for adherence to them.
9. Compliance Reports. Audiovox will file 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
report shall include a compliance certificate from an officer, as an
agent of Audiovox, stating that the officer has personal knowledge
that Audiovox 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 reports shall be submitted to 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.
10. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire twenty-four months after the Effective
Date.
11. Voluntary Contribution. Audiovox agrees that it will make a voluntary
contribution to the United States Treasury in the amount of five
thousand dollars ($5,000). 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). Audiovox will also send
electronic notification on the date said payment is made to
Neil.McNeil@fcc.gov and Kathy.Berthot@fcc.gov.
12. Waivers. Audiovox 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 Order adopting this Consent Decree, provided the Bureau issues
an Order adopting the Consent Decree without change, addition,
modification, or deletion. Audiovox 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 Audiovox nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and Audiovox
shall waive any statutory right to a trial de novo. Audiovox 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.
13. 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.
14. 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 Audiovox does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
15. Successors and Assigns. Audiovox agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
16. 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.
17. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
18. 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.
19. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
20. 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.
_______________________________
Kris Anne Monteith
Chief
Enforcement Bureau
________________________________
Date
________________________________
Thomas C. Malone
Senior Vice President
Audiovox Corporation
________________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.1 et seq. and S: 15.101 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: 15.101 et seq.
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.1 et seq. and 15.1 et seq.
See Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau to Mr. Patrick Lavelle, President, Audiovox
Corporation ("May 10, 2006 LOI").
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.1 et seq. and 15.1 et seq.
See May 10, 2006 LOI.
See Letter from Albert H. Kramer, Esq., Dickstein Shapiro Morin & Oshinsky
LLP, to Neal McNeil, Spectrum Enforcement Division, Enforcement Bureau
(June 22, 2006).
Federal Communications Commission DA 09-229
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