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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-09-SE-001
In the Matter of
) Acct. No. 200932100006
Silver Spring Networks
) FRN No. 0017775842
)
ORDER
Adopted: January 13, 2009 Released: January 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 Silver Spring Networks
("Silver Spring"). The Consent Decree terminates an investigation by
the Bureau into whether Silver Spring violated Section 302(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 2.803(a)
and 15.212(a)(vi)(A) of the Commission's rules ("Rules") regarding the
marketing and labeling of a modular utility meter transmitter.
2. The Bureau and Silver Spring have negotiated the terms of a Consent
Decree that resolves 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 there are no substantial or material questions of fact as to
whether Silver Spring 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 Jordan Breslow, General Counsel and Secretary, Silver
Spring Networks, 575 Broadway Street, Redwood City, CA 94063, and to
Robert J. Ungar, Esq. and Terry G. Mahn, 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-09-SE-001
In the Matter of
) Acct. No. 200932100006
Silver Spring Networks
) FRN No. 0017775842
)
------------------------------------------------------
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Silver Spring Networks ("Silver
Spring"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
into whether Silver Spring violated Section 302(b) of the Communications
Act of 1934, as amended ("Act"), and Sections 2.803(a) and
15.212(a)(vi)(A) of the Commission's rules ("Rules") regarding the
marketing and labeling of a modular utility meter transmitter.
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 eight (8).
f. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
g. "Investigation" means the matter disclosed to the Bureau by Silver
Spring on December 16, 2008, regarding a possible violation of
Section 302(b) of the Act and Sections 2.803(a) and 15.212(a)(vi)(A)
of the Rules.
h. "Parties" means Silver Spring and the Bureau.
i. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
j. "Silver Spring " means Silver Spring Networks and its subsidiaries
and their predecessors-in-interest and successors-in-interest.
II. BACKGROUND
2. Pursuant to Section 302(b) of the Act and Section 2.803(a) of the
Rules, radio frequency devices subject to certification may not be
marketed unless authorized by the Commission in accordance with the
applicable technical and administrative provisions of the Rules. Under
Section 15.212(a)(vi)(A) of the Rules, a device containing a modular
transmitter with a permanently affixed label that is not visible must
also display a label referring to the enclosed module.
3. On December 16, 2008, Silver Spring voluntarily disclosed to the
Bureau that one model of utility meter incorporating a modular
transmitter had an incorrect exterior label.
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. Silver Spring 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 of Silver Spring. In consideration for the termination
of said Investigation, Silver Spring 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 Silver Spring 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 Silver
Spring with respect to Silver Spring'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, Silver Spring 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) Labeling of New Devices. Silver Spring will ensure that all models of
its radio frequency modular transmitters are properly labeled by
instituting a review process at all stages of meter assembly.
(b) Labeling of Deployed Devices.. Silver Spring will provide utility
companies with labels to affix to deployed meters during maintenance,
repair or replacement.
(c) Distribution of Information. Silver Spring will distribute lists of
meter locations and correct labels to specified public utilities and to
FCC regional offices upon FCC request.
(d) Compliance Report. Silver Spring will file reports with the
Commission six months after the Effective Date and 12 months after the
Effective Date. Each compliance report shall include a compliance
certificate from an officer, as an agent of Silver Spring, stating that
the officer has personal knowledge that Silver Spring 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 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
Neil.McNeil@fcc.gov and Kathryn Berthot at Kathy.Berthot@fcc.gov.
(e) Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire twelve (12) months after the Effective Date.
9. Voluntary Contribution. Silver Spring agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
four thousand dollars ($4,000). 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). Silver Spring will also send
electronic notification on the date said payment is made to
Neil.McNeil@fcc.gov and Kathy.Berthot@fcc.gov.
10. Waivers. Silver Spring 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. Silver Spring 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
Silver Spring nor the Commission shall contest the validity of the
Consent Decree or the Adopting Order, and Silver Spring shall waive
any statutory right to a trial de novo. Silver Spring 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 Silver Spring does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
13. Successors and Assigns. Silver Spring agrees that the provisions of
this Consent Decree shall be binding on its successors, assigns, and
transferees.
14. Final Settlement. The Parties agree that this Consent Decree is for
settlement purposes only and that by agreeing to this Consent Decree,
Silver Spring does not admit or deny noncompliance, violation or
liability for violating the Act, Commission's Rules or Orders in
connection with the matters that are the subject of this Consent
Decree. 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
________________________________
Jordan Breslow
General Counsel and Secretary
Silver Spring Networks
________________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803(a) and 15.212(a)(vi)(A).
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 15.212(a)(vi)(A).
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a).
47 C.F.R. S: 15.212(a)(iv)(A).
Federal Communications Commission DA 09-27
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Federal Communications Commission DA 09-27