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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-09-SE-122
In the Matter of
) Acct. No. 201032100038
Kannad SAS
) FRN No. 0016726580
)
ORDER
Adopted: August 26, 2010 Released: August 27, 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 Kannad SAS ("Kannad").
The Consent Decree terminates an investigation by the Bureau against
Kannad for possible violations of Section 302(b) of the Communications
Act of 1934, as amended ("Act"), and Section 2.803(a) of the
Commission's Rules ("Rules"), regarding Kannad's marketing of
406.0-406.1 MHz emergency locator transmitters ("406 MHz ELTs") that
were not labeled in accordance with Section 87.199(f) the Rules.
2. The Bureau and Kannad 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 Kannad 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 counsel for Kannad, Daniel Brenner, Esq., Hogan Lovells
US LLP, Columbia Square, 555 Thirteenth Street, NW, Washington, DC
20004.
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-122
In the Matter of
) Acct. No. 201032100038
Kannad SAS
) FRN 0016726580
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Kannad SAS ("Kannad") by their
authorized representatives, hereby enter into this Consent Decree for the
purpose of terminating the Bureau's Investigation into whether Kannad
violated Section 302(b) of the Communications Act of 1934, as amended
("Act"), and Section 2.803(a) of the Commission's Rules ("Rules"),
regarding Kannad's marketing of 406.0-406.1 MHz emergency locator
transmitters ("406 MHz ELTs") that were not labeled in accordance with
Section 87.199(f) 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. "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. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
g. "Investigation" means the investigation commenced by the Bureau's
September 29, 2009 Letter of Inquiry regarding Kannad's marketing of
406 MHz ELTs that were not labeled in accordance with Section
87.199(f) of the Rules.
h. "Kannad" means Kannad SAS and its predecessors-in-interest and
successors-in-interest.
i. "Parties" means Kannad and the Bureau, and each a "Party".
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 may not be marketed in the United
States unless such devices comply with the applicable technical and
administrative provisions of the Rules. Section 87.199(f) of the Rules
requires that, in addition to bearing the label required by the
Commission's equipment certification rules in Sections 2.925 and
2.926, each 406 MHz ELT must be provided on the outside with a clearly
discernable permanent plate or label containing the following
statement: "The owner of this 406.0-406.1 MHz ELT must register the
NOAA identification code contained on this label with the National
Oceanic and Atmospheric Administration (NOAA), whose address is:
NOAA/SARSAT Beacon Registration, E/SP3, Federal Building 4, Room 3320,
5200 Auth Road, Suitland, MD 20746-4304."
3. On September 29, 2009, the Bureau's Spectrum Enforcement Division
("Division") issued a Letter of Inquiry ("LOI") to Kannad. The LOI
directed Kannad, among other things, to submit a sworn written
response to a series of questions relating to whether Kannad was
marketing 406 MHz ELTs that were not labeled in accordance with the
Commission's Rules. Kannad responded to the LOI on October 23, 2009.
On March 18, 2010, the Division sent, via email, additional questions
seeking clarification of statements Kannad made in its LOI Response.
On April 6, 2010, Kannad responded to those questions.
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. Kannad 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 Effective Date. 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 the
Investigation. In consideration for the termination of said
Investigation, Kannad 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, 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
Kannad concerning the matters that were the subject of the
Investigation. The Bureau also agrees that in the absence of new
material evidence it will not use the facts developed in this
Investigation through the Effective Date, 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 Kannad with
respect to Kannad's basic qualifications, including its character
qualifications, to be a Commission licensee or to hold Commission
authorizations.
8. Compliance Plan. In response to the Bureau's Investigation, Kannad
initiated certain remedial measures and, for purposes of settling the
matters herein, agrees to implement a Compliance Plan related to
future compliance with the Act, the Rules, and the Commission's
Orders. The Compliance Plan will include, but will not be limited to,
the following components:
(a) Compliance Officer. Within thirty (30) days of the Effective Date,
Kannad will designate a Compliance Officer who will be responsible for
administering the Compliance Plan.
(b) Identification and Labeling of Noncompliant ELTs. Beginning in October
2009, Kannad took steps to bring noncompliant labeled 406 MHz ELTs into
compliance with Commission Rules. These steps included issuing a Service
Bulletin and providing proper labels and instructions for affixing the
missing labels to qualified Kannad service stations, where authorized
agents of Kannad conduct annual reviews and repair or conduct mandatory
inspections every six years (whichever comes first). Kannad also contacted
all distributors of noncompliant 406 MHz ELTs to ascertain the end-user
purchasers, and through its efforts to contact many of these purchasers
about the need to affix the missing labels, has brought some purchased
units into compliance. Kannad will continue its ongoing efforts to bring
the remaining noncompliant Kannad 406 MHz ELTs that were sold in the
United States into compliance by sending the Service Bulletin, proper
labels, instructions for affixing the missing labels and a letter of
explanation to known purchasers of these units. In addition, Kannad will
re-send the Service Bulletin to all qualified Kannad service stations in
the United States within 30 days of the Effective Date and again every
twelve (12) months thereafter for the next twenty-four (24) months. The
Service Bulletin will also indicate that additional labels are available
if a service station needs additional labels.
(c) Training. Kannad will provide training and materials concerning the
labeling requirements for 406 MHz ELTs as provided for under Part 87 of
the Commission's rules and the requirements of the Consent Decree to all
of its employees who are involved directly or indirectly in the
manufacturing and labeling of 406 MHz ELTs sold by Kannad. Further, within
ninety (90) days of hire, Kannad will similarly provide training to all
new employees involved directly or indirectly in the manufacturing and
labeling of 406 MHz ELTs sold by Kannad.
(d) Compliance Reports. Kannad 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 Kannad, stating that
the Compliance Officer has personal knowledge (i) that Kannad has
established operating procedures intended to ensure compliance with the
terms and conditions of this Consent Decree, and with Sections 2.803(a)
and 87.199(f) of the Rules, together with an accompanying statement
explaining the basis for the Compliance Officer's certification; (ii) that
Kannad has been utilizing those procedures since the previous Compliance
Report was submitted; and (iii) that Kannad 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 Kannad, 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 Kannad 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.
(e) Termination Date. Unless stated otherwise, the requirements of this
Paragraph 8 of the Consent Decree will expire twenty-four (24) months from
the Effective Date.
9. Voluntary Contribution. Kannad agrees that it will make a voluntary
contribution to the United States Treasury in the amount of seven
thousand two hundred dollars ($7,200). The payment will be made within
thirty (30) 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 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). Kannad shall also send electronic
notification to Jennifer Burton at Jennifer.Burton@fcc.gov and to
JoAnn Lucanik at JoAnn.Lucanik@fcc.gov on the date said payment is
made.
10. Waivers. Kannad 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. Kannad 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
Kannad nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Kannad shall waive any statutory
right to a trial de novo. Kannad 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 Kannad does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
13. Successors and Assigns. Kannad agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
14. 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.
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
______________________________
Jean Pierre Bardon
Chief Executive Officer
Kannad SAS
______________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a).
47 C.F.R. S: 87.199(f).
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: 2.803(a).
47 C.F.R. S: 87.199(f).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Jean-Pierre
Bardon, CEO, Kannad (Sept. 29, 2009) ("Sept. 29, 2009 LOI").
47 C.F.R. S:S: 2.925, 2.926.
47 C.F.R. S: 87.199(f).
See Sept. 29, 2009 LOI.
See Letter from Daniel L. Brenner, Esq., Hogan & Hartson, counsel for
Kannad, to Marlene H. Dortch, Secretary, Federal Communications Commission
(Oct. 23, 2009) ("LOI Response").
Email from Jennifer Burton, Esq., Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Daniel L.
Brenner, Esq., Hogan & Hartson, counsel for Kannad (March 18, 2010).
Email from Daniel L. Brenner, Esq., Hogan & Hartson, counsel for Kannad,
to Jennifer Burton, Esq., Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (April 6, 2010).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 10-1511
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Federal Communications Commission DA 10-1511
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