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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-10-SE-015
)
Callaway Golf Company ) Acct. No. 201132100001
)
) FRN No. 0019509942
ORDER
Adopted: October 4, 2010 Released: October 4, 2010
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Callaway Golf Company
("Callaway"). The Consent Decree terminates an investigation by the Bureau
into whether Callaway violated Section 302(b) of the Communications Act of
1934, as amended ("Act"), and Sections 2.803, 15.19, 15.31(j), and
15.107(a) of the Commission's rules ("Rules"), regarding the marketing of
computer peripheral devices and a battery charger.
2. The Bureau and Callaway 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 there are no substantial or material questions of fact as to
whether Callaway 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 Callaway Golf Company, Terry Mahn and Robert J.
Ungar, Fish & Richardson P.C., 1425 K Street, N.W., 11th floor,
Washington, D.C. 20005.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington D.C. 20554
In the Matter of ) File No. EB-10-SE-015
)
Callaway Golf Company ) Acct. No. 201132100001
)
) FRN No. 0019509942
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Callaway Golf Company ("Callaway"),
by their authorized representatives, hereby enter into this Consent Decree
for the purpose of terminating the Bureau's investigation into whether
Callaway violated Section 302(b) of the Communications Act of 1934, as
amended ("Act"), and Sections 2.803, 15.19, 15.31(j), and 15.107(a) of the
Commission's Rules, regarding the marketing of computer peripheral devices
and a battery charger.
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. "Callaway" means Callaway Golf Company and its subsidiaries and their
predecessors-in-interest and successors-in-interest.
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 initiated by the Bureau in File
Number EB-10-SE-015, based on information disclosed to the Bureau by
Callaway regarding possible violations of Section 302(b) of the Act
and Sections 2.803(a), 15.19, 15.31(j), and 15.107(a) of the Rules.
i. "Parties" means Callaway and the Bureau.
j. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
2. Radio frequency devices that are subject to Section 2.803(a)(2) of the
Commission's rules must comply with the applicable technical and
administrative provisions of the Rules prior to being marketed within the
United States. In addition, Section 15.19 of the Rules specifies labeling
requirements for radio frequency devices. Section 15.31(j) of the Rules
provides that when the equipment under test for technical compliance
consists of a central control unit and a peripheral, and the peripheral or
central control unit would normally be marketed or used with equipment
from a different entity, the testing of the peripheral or central control
unit must be performed using the specific combination of equipment which
is intended to be marketed or used together. Finally, Section 15.107(a) of
the Rules prescribes conducted emission limits for unintentional
radiators.
3. On January 5, 2010, in a meeting with the staff of the Bureau, and on
January 22, 2010, in a letter following that meeting, Callaway voluntarily
disclosed to the Bureau that two models of its uPro hand-held range
finding devices had not been tested by the methodology prescribed for
devices subject to a Declaration of Conformity as required by Section
15.31(j). In addition, Callaway disclosed that the battery charger for one
model did not meet the Commission's conducted field strength limits as
required by Section 15.107(a).
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. Callaway 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 the Investigation. In
consideration for the termination of said Investigation, Callaway 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 Callaway 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 Callaway with
respect to Callaway'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,
Callaway agrees to implement 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) Replacement of Old Devices. Callaway represents that it has replaced
most of the non-compliant battery chargers for the uPro sold between April
8, 2008 and October 9, 2009, and will continue to replace any such
remaining chargers registered in 2010. Through contact information
supplied by customers during the initial registration of the uPro
software, Callaway will arrange to provide each such customer with a
compliant battery charger.
(b) Compliance Officer. Callaway will designate a Director of Quality
Assurance and Regulatory Compliance, who will serve as the compliance
officer responsible for administering the compliance plan.
(c) Training. Within ninety (90) days, Callaway will provide training and
materials concerning Parts 2 and 15 of the Rules and the requirements of
the Consent Decree to all of its employees who are involved directly or
indirectly in the design, engineering, or quality assurance of devices
subject to Commission regulation. Callaway will similarly provide training
to all new employees who are involved directly or indirectly in the
design, engineering, or quality assurance of devices subject to Commission
regulation within ninety (90) days of their employment.
(d) Compliance Report. Callaway 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 Callaway, stating that
the Compliance Officer has personal knowledge that Callaway (i) has
established operating procedures intended to ensure compliance with the
terms and conditions of this Consent Decree and 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 Callaway, 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 Callaway 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 JoAnn Lucanik at
JoAnn.Lucanik @ fcc.gov, Kevin Pittman at Kevin.Pittman@fcc.gov, and
Kathryn Berthot at Kathy.Berthot@fcc.gov.
(e) Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire twenty four (24) months after the Effective
Date.
9. Voluntary Contribution. Callaway agrees that it will make a voluntary
contribution to the United States Treasury in the amount of ten thousand
dollars ($10,000). The payment will be made within 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 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). Callaway will also send electronic notification to
JoAnn.Lucanik@fcc.gov, Kevin.Pittman@fcc.gov, and Kathy.Berthot@fcc.gov on
the date said payment is made.
10. Waivers. Callaway 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.
Callaway 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 Callaway nor the
Commission shall contest the validity of the Consent Decree or the
Adopting Order, and Callaway shall waive any statutory right to a trial de
novo. Callaway 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 Callaway does not expressly consent) that
provision will be superseded by such Commission Rule or Order.
13. Successors and Assigns. Callaway 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. The Parties
agree that this Consent Decree is for settlement purposes only and that by
agreeing to this Consent Decree, Callaway 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.
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
________________________________
David A. Laverty
Senior Vice President, Global Operations
Callaway Golf Company
________________________________
Date
47 U. S. C. S: 302a(b).
47 C.F.R. S:S: 2.803, 15.19, 15.31(j), 15.107(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), 15.19, 15.31(j), 15.107(a).
A "Declaration of Conformity is a procedure where the responsible party .
. . makes measurements or takes other necessary steps to ensure that the
equipment complies with the appropriate technical standards." 47 C.F.R. S:
2.906.
Federal Communications Commission DA 10- 1897
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Federal Communications Commission DA 10- 1897
Federal Communications Commission DA 10-1897
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