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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-09-SE-102
In the Matter of
) Acct. No. 201032100036
Qomo HiteVision, LLC
) FRN No. 0019084136
)
ORDER
Adopted: July 19, 2010 Released: July 20, 2010
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 Qomo HiteVision, LLC
("Qomo"). The Consent Decree terminates an investigation by the Bureau
against Qomo for possible violations of Section 302(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 2.803(a)
and 15.201(b) of the Commission's Rules ("Rules") regarding the
marketing of unauthorized radio frequency response systems.
2. The Bureau and Qomo 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 Qomo 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
Communications Act of 1934, as amended, and sections 0.111 and 0.311
of the Commission's 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 Qomo
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 Ms. Jenny Zheng, COO, Qomo HiteVision, LLC, 28265 Beck
Road, Suite C1, Wixom, MI 48393.
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-102
In the Matter of
) Acct. No. 2010321000xx
Qomo HiteVision, LLC
) FRN No. 0019084136
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Qomo HiteVision, LLC ("Qomo"), by
their authorized representatives, hereby enter into this Consent Decree
for the purpose of terminating the Bureau's investigation into whether
Qomo violated Section 302(b) of the Communications Act of 1934, as amended
("Act"), and Sections 2.803(a) and 15.201(b) of the Commission's Rules
("Rules") regarding the marketing of unauthorized radio frequency response
systems.
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 8.
f. "Complaints" means third-party complaints that may have been received
by, or are in the possession of, the Commission or Bureau alleging
violations of Section 302(b) of the Act and Sections 2.803(a) and
15.201(b) of the Rules.
g. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
h. "Investigation" means the investigation commenced by the Bureau's
August 18, 2009 letter of inquiry regarding whether Qomo violated
Section 302(b) of the Act and Sections 2.803(a) and 15.201(b) of the
Rules by marketing unauthorized radio frequency devices within the
United States.
i. "Parties" means Qomo and the Commission.
j. "Qomo" means Qomo HiteVision, LLC, its predecessors-in-interest and
corporate successors-in-interest.
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 Section 2.803(a) of the
Rules, a radio frequency device may not be marketed within the United
States unless the device complies with the applicable technical and
administrative provisions of the Rules. Section 15.201 of the Rules
requires intentional radiators to be approved prior to marketing
through the equipment certification procedures described in Sections
2.1031 - 2.1060 of the Rules. Radio frequency devices must also comply
with all applicable identification and labeling requirements prior to
marketing.
3. On August 18, 2009, the Bureau issued a Letter of Inquiry to Qomo. The
LOI directed Qomo to respond to a series of questions regarding the
advertising, sale, importation, and labeling of certain of its radio
frequency response systems. Qomo responded to the LOI on September 18,
2009.
On December 15, 2009, the Division issued a follow-up LOI to Qomo. Qomo
responded to the follow-up LOI on January 8, 2010.
III. Terms of Agreement
1. 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.
2. Jurisdiction. Qomo 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.
3. 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.
4. 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 the
investigation and dismiss the Complaint. In consideration for the
termination of the investigation and dismissal of the Complaint, Qomo
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 Qomo 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 the
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 Qomo with respect to Qomo's basic
qualifications, including its character qualifications, to be a
Commission licensee or to hold Commission licenses or authorizations.
4. Compliance Plan. For purposes of settling the matters set forth
herein, Qomo agrees to create and 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. Compliance Officer. Qomo will designate a Compliance Officer who will
be responsible for administering the company's Compliance Plan.
b. Training. Within 60 days of the Effective Date, Qomo will train and
provide materials concerning the Commission's equipment authorization
rules to all of its employees responsible for the development,
marketing and sourcing of radio frequency devices by Qomo in the
United States, including employees located at its Fujian, China
facility. Such training will be provided to new employees within 30
days of the start of their employment.
c. Compliance Reports. Qomo will file Compliance Reports with the
Commission ninety (90) days after the Effective Date, twelve (12)
months after the Effective Date, and twenty-four (24) months after
the Effective Date. Each Compliance Report shall include a
certification by the Compliance Officer, as an agent of and on behalf
of Qomo, stating that the Compliance Officer has personal knowledge
that Qomo (i) has established operating procedures intended to ensure
compliance with the terms and conditions of this Consent Decree and
with section 20.19 of the Rules, together with an accompanying
statement explaining the basis for the Compliance Officer's
certification; (ii) has been utilizing those procedures since the
previous Compliance Report was submitted; and (iii) is not aware of
any instances of non-compliance. The certification must comply with
section 1.16 of the Rules and be subscribed to as true under penalty
of perjury in substantially the form set forth therein. If the
Compliance Officer cannot provide the requisite certification, the
Compliance Officer, as an agent of and on behalf of Qomo, shall
provide the Commission with a detailed explanation of: (i) any
instances of non-compliance with this Consent Decree and the Rules,
and (ii) the steps that Qomo has taken or will take to remedy each
instance of non-compliance and ensure future compliance, and the
schedule on which proposed remedial actions will be taken. 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, with a
copy submitted electronically to Jennifer Burton at
Jennifer.Burton@fcc.gov and to JoAnn Lucanik at
JoAnn.Lucanik@fcc.gov.
d. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire 24 months after the Effective Date.
5. Voluntary Contribution. Qomo agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $12,000.
The payment shall be made within thirty (30) calendar days after the
Effective Date. 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 02130004, 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). Qomo will also send electronic notification to Jennifer Burton,
Esq. at Jennifer.Burton@fcc.gov and JoAnn Lucanik at
JoAnn.Lucanik@fcc.gov on the date said payment is made.
6. Waivers. Qomo 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. Qomo 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
Qomo nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Qomo shall waive any statutory right
to a trial de novo. Qomo 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.
7. 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.
8. 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 Qomo does not expressly consent)
that provision will be superseded by such Commission Rule or Order.
9. Successors and Assigns. Qomo agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
10. 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.
11. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
12. 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.
13. Authorized Representative. Each Party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
14. 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
________________________________
Jenny Zheng, COO
Qomo HiteVision, LLC
________________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803(a), 15.201(b).
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), 15.201(b).
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a).
Section 2.803(e)(4) of the Rules defines "marketing" as the "sale or
lease, or offering for sale or lease, including advertising for sale or
lease, or importation, shipment, or distribution for the purpose of
selling or leasing or offering for sale or lease." 47 C.F.R. S:
2.803(e)(4).
47 C.F.R. S: 15.201.
A certification is an equipment authorization issued by the Commission,
based on representations and test data submitted by the applicant. See 47
C.F.R. S: 2.907(a).
47 C.F.R. S:S: 2.1031 - 2.1060.
See 47 C.F.R. S: 2.925.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Ms. Jenny Zheng,
COO, Qomo Hite Vision, LLC. (August 18, 2009).
See Letter from Ms. Jenny Zheng, COO, Qomo Hite Vision, LLC., to Kathryn
S. Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau
(September 18, 2009). On September 26, 2009, Qomo's Model QRF300 radio
frequency response system was certificated in accordance with the
Commission's equipment authorization procedures. See FCC IDs XQGQRF300-RES
and XQGQRF300-RET (granted: September 25, 2009 and September 26, 2009,
respectively; grantee: Qomo HiteVision LLC., Wixom, Michigan). On
September 27, 2009, Qomo's Model QRF600 radio frequency response system
was certificated in accordance with the Commission's equipment
authorization procedures. See FCC IDs XQGQRF600-RE and XQGQRF600-TR
(granted: September 27, 2009; grantee: Qomo HiteVision LLC., Wixom,
Michigan).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Ms. Jenny Zheng,
COO, Qomo Hite Vision, LLC (December 15, 2009).
See Letter from Ms. Jenny Zheng, COO, Qomo Hite Vision, LLC., to Kathryn
S. Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau
(January 8, 2010).
Federal Communications Commission DA 10-1321
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Federal Communications Commission DA 10-1321
Federal Communications Commission DA 10-1321
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Federal Communications Commission DA 10-1321