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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-1307
In the Matter of
) Acct. No. 200932100021
Arkion Systems, LLC
) FRN No. 0017026220
)
ORDER
Adopted: January 13, 2009 Released: January 15, 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 Arkion Systems, LLC
("Arkion"). The Consent Decree is for the purpose of terminating the
Bureau's investigation into whether Arkion violated Section 302(b) of
the Communications Act of 1934, as amended ("Act"), and Sections
2.803(a), 2.925 and 15.19 of the Commission's rules ("Rules")
regarding the marketing and use of four models of utility meter
transmitters.
2. The Bureau and Arkion 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 Arkion 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 Seyamak Keyghobad, Chief Executive Officer, Arkion
Systems, LLC, 230 Union Street, New Bedford, MA 02740, 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-08-SE-1307
In the Matter of
) Acct. No. 200932100021
Arkion Systems, LLC
) FRN No. 0017026220
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Arkion Systems, LLC ("Arkion"), by
their authorized representatives, hereby enter into this Consent Decree
for the purpose of terminating the Bureau's investigation into whether
Arkion violated Section 302(b) of the Communications Act of 1934, as
amended ("Act"), and Sections 2.803(a), 2.925, and 15.19 of the
Commission's rules ("Rules"), regarding the marketing and use of four
models of utility meter transmitters.
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. "Arkion" means Arkion Systems, LLC and its subsidiaries and their
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. "Compliance Plan" means the program described in this Consent Decree
at paragraph eight (8).
g. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
h. "Investigation" means the matter disclosed to the Bureau by Arkion on
December 16, 2008, regarding possible violations of Section 302(b) of
the Act and Sections 2.803(a), 2.925 and 15.19 of the Rules.
i. "Parties" means Arkion 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 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 2.925 of the Rules, equipment that is required to be certified
must be labeled with a permanently affixed nameplate or label that
lists the FCC identifier, and Section 15.19 of the Rules imposes
additional labeling requirements.
3. On December 16, 2008, Arkion voluntarily disclosed to the Bureau that
four models of utility meter transmitters marketed by Arkion and
deployed in three communities had not been certificated.
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. Arkion 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 Arkion. In consideration for the termination of said
Investigation, Arkion 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 Arkion 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 Arkion with respect to
Arkion'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, Arkion agrees to maintain a Compliance Plan related to future
compliance with the Act, the Commission's Rules, and the Commission's
Orders. The Plan will include, at a minimum, the following components:
(a) Authorization of Devices. Arkion will ensure that all models of its
radio frequency devices marketed and deployed after the Effective Date
comply with the Commission's technical standards and have been
certificated.
(b) Replacement of Devices. Within fifteen (15) months after the Effective
Date, Arkion will replace all utility meters containing non-certificated
radio frequency devices that were deployed prior to the Effective Date
with utility meters containing certificated radio frequency devices.
(c) Labeling. Within fifteen (15) months after the Effective Date, Arkion
will affix the required FCC labels to all utility meters deployed as of
the Effective Date.
(d) Operations. During the fifteen (15) month period following the
Effective Date, Arkion, or its agents, will be permitted to continue to
operate all utility meters deployed prior to the Effective Date in the
normal management of the utility systems in the communities in which the
meters are located, subject to the requirements of Section 15.5 of the
Rules.
(e) Compliance Report. Arkion will file compliance reports with the
Commission six (6) months after the Effective Date and fifteen (15) months
after the Effective Date. Each compliance report shall include a
compliance certificate from an officer, as an agent of Arkion, stating
that the officer has personal knowledge that Arkion 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
Neal McNeil at Neal.McNeil@fcc.gov and Kathryn Berthot at
Kathy.Berthot@fcc.gov.
(f) Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire fifteen (15) months after the Effective Date.
9. Voluntary Contribution. Arkion agrees that it will make a voluntary
contribution to the United States Treasury in the amount of eighteen
thousand dollars ($18,000). 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). Arkion will also send
electronic notification on the date said payment is made to
Neil.McNeil@fcc.gov and Kathy.Berthot@fcc.gov.
10. Waivers. Arkion 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. Arkion 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
Arkion nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Arkion shall waive any statutory
right to a trial de novo. Arkion 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 Arkion does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
13. Successors and Assigns. Arkion 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,
Arkion 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
________________________________
Seyamak Keyghobad
Chief Executive Officer
Arkion Systems, LLC
________________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803(a), 2.925, 15.19.
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), 2.925 and 15.19.
47 U.S.C. S: 302(b).
47 C.F.R. S: 2.803(a).
47 C.F.R. S: 2.925.
47 C.F.R. S: 15.5.
Federal Communications Commission DA 09-7
2
Federal Communications Commission DA 09-7