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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
) File No. EB-09-IH-1911
In the Matter of
) Acct. No. 201132080003
Shared Data Networks, LLC
) FRN No. 0003827888
)
)
ORDER
Adopted: November 5, 2010 Released: November 8, 2010
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") of the Federal
Communications Commission and Shared Data Networks, LLC ("Shared
Data"). The Consent Decree terminates an investigation by the Bureau
against Shared Data for possible violations of sections 301 and 310(d)
of the Communications Act of 1934, as amended ("Act"), and sections
25.102, 25.119, and 25.121(e) of the Commission's rules, regarding the
transfer of control of various satellite earth station licenses held
by Shared Data, the renewal of a license to operate an earth station
for a fixed satellite service, and the operation of an earth station
for a fixed satellite service.
2. The Bureau and Shared Data 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 that our investigation raises no substantial or material
questions of fact as to whether Shared Data 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 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 a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to William P. Cook and Robert G. Allen, P.C., DLA Piper,
LLC, 500 Eighth Street, N.W., Washington, DC 20004.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
) File No. EB-09-IH-1911
In the Matter of
) Acct. No. 201132080003
Shared Data Networks, LLC
) FRN No. 0003827888
)
)
)
CONSENT DECREE
1. The Enforcement Bureau of the Federal Communications Commission and
Shared Data Networks, LLC, by their authorized representatives, hereby
enter into this Consent Decree for the purpose of terminating the
Enforcement Bureau's investigation of compliance by Shared Data with
sections 301 and 310(d) of the Communications Act of 1934, as amended, and
sections 25.102, 25.119, and 25.121(e) of the Commission's rules in
connection with the unauthorized transfer of control of various satellite
earth station licenses held by Shared Data, the failure to renew a license
to operate an earth station for a fixed satellite service, and the
operation of an earth station for a fixed satellite service without
Commission authorization.
I. DEFINITIONS
2. 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" or "Order" means an Order of the Commission 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" or "FCC" means the Federal Communications Commission and
all of its bureaus and offices.
(e) "Compliance Plan" means the program described in this Consent Decree
at paragraph 10.
(f) "Effective Date" means the date on which the Commission releases the
Adopting Order.
(g) "Investigation" means the Bureau's investigation commenced by the
Bureau's Letter of Inquiry dated November 9, 2009 to Shared Data
regarding whether Shared Data violated sections 301 and 310(d) of the Act
and sections 25.102, 25.119 and 25.121(e) of the Commission's rules by
willfully and repeatedly failing to renew a license to operate an earth
station for a fixed satellite service, by operating an earth station for a
Very Small Aperture Terminal fixed satellite service without Commission
authorization, and by the consummation of an unauthorized transfer of
control of Shared Data.
(h) "Parties" means Shared Data Networks, LLC and the Enforcement Bureau
of the Federal Communications Commission, and each a "Party".
(i) "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
(j) "Shared Data" or the "Company" means Shared Data Networks, LLC and its
predecessors-in-interest and successors-in-interest.
II. BACKGROUND
3. Pursuant to sections 301 and 310(d) of the Act and sections 25.102,
25.119 and 25.121(e) of the Commission's rules, satellite communications
providers must obtain a license from the FCC prior to providing such
service, must renew such license within a period commencing no earlier
than 90 days and ending no later than 30 days prior to the expiration of
the existing license, and must obtain prior approval from the Commission
before consummating a transaction that transfers control over a license.
4. Shared Data provides satellite communications services and holds
multiple Commission licenses to operate a Very Small Aperture Terminal
("VSAT") fixed satellite service. On November 11, 2008, in an application
to transfer control, Shared Data reported to the International Bureau
that it consummated an unauthorized transfer of control. Almost seven
months later in a June 4, 2009 application for Special Temporary Authority
("STA") to continue operating its VSAT network facilities, Shared Data
reported to the International Bureau that it engaged in other violations
of the Commission's rules. In 2009, Shared Data discovered that one of its
FCC licenses (Call Sign E881406) had expired on February 3, 2009, and not
only had Shared Data neglected to seek a license renewal in accordance
with the Commission's rules but it had also operated that license under an
expired authorization for 180 days. The International Bureau granted the
STA request effective August 4, 2009.
5. The Enforcement Bureau issued a letter of inquiry ("LOI") to Shared
Data directing the Company to submit a sworn written response to a series
of questions relating to the Bureau's Investigation of the alleged
violations. Shared Data admitted in the LOI response that it provided
satellite communications services without authorization from the
expiration of its license on February 3, 2009 until the grant of its STA
application on August 4, 2009 and that it had transferred control of its
licenses without prior approval. Shared Data requested that the Bureau
consider resolving its Investigation with a Consent Decree.
III. TERMS OF AGREEMENT
6. 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.
7. Jurisdiction. Shared Data 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.
8. 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 Bureau order.
9. 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 on the
Effective Date. In consideration for the termination of the Investigation,
Shared Data 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 the 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 Shared
Data 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 the 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 Shared Data with respect to
Shared Data's basic qualifications, including its character qualifications
to be a Commission licensee or to hold Commission authorizations.
10. Compliance Plan. Shared Data agrees that it will implement a
comprehensive Compliance Plan for purposes of ensuring its compliance with
sections 301 and 310(d) of the Act, and sections 25.102, 25.119 and
25.121(e) of the Rules. The Compliance Plan shall include, at a minimum,
the following components:
(a) Compliance Officer. Within 60 calendar days of the Effective Date,
Shared Data will designate a Compliance Officer who will administer the
Compliance Plan, supervise Shared Data's compliance with the Act and the
Rules, and serve as the point of contact on behalf of Shared Data for all
FCC-related compliance matters.
(b) Compliance Manual. Within 60 calendar days of the Effective Date, the
Compliance Officer will develop and distribute a Compliance Manual to
employees and others who perform duties at Shared Data that trigger or may
trigger compliance-related responsibilities. The Compliance Manual will
include (i) an overview of the Commission's requirements, including the
need for prior approval for license assignments and transfers of control,
and the requirements set forth in the rules at issue in the Investigation;
(ii) a description of the regulatory requirements applicable to the
accurate reporting of information in FCC applications; and (iii)
instructions regarding due diligence for FCC applications. The Compliance
Manual will be updated from time to time, as needed.
(c) Compliance Training Program. Within 90 calendar days of the Effective
Date, Shared Data will begin administering a Compliance Training Program
for employees and others who perform duties at Shared Data that trigger or
may trigger compliance-related responsibilities. This Compliance Training
Program will be presented to new employees who are engaged in such
activities, within the first 60 calendar days of employment. This
Compliance Training Program will track the Compliance Manual, focusing on
proper implementation of the Compliance Manual and tailored to specific
user groups.
(d) Compliance Reports. Shared Data will submit a Compliance Report to the
Commission 90 days after the Effective Date and annually thereafter on the
anniversary of the Effective Date until the Termination Date. Each
Compliance Report will include a certification by the Compliance Officer,
as an agent of and on behalf of Shared Data, stating that he/she has
personal knowledge that: (i) Shared Data has established operating
procedures intended to ensure compliance with the terms and conditions of
this Consent Decree and with section 301 and 310(d) of the Act, and
sections 25.102, 25.119 and 25.121(e) of the Rules, together with an
accompanying statement explaining the basis for the certification; (ii)
Shared Data has been utilizing those procedures since the previous
Compliance Report was submitted; and (iii) the Compliance Officer 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, he/she 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 Shared Data 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
directed to the Chief, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street, S.W.,
Washington, D.C. 20554.
(f) Termination. The requirements relating to the Compliance Plan shall
expire 36 months after the Effective Date.
11. Voluntary Contribution. Shared Data agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
$25,500.00. The payment shall be made within 30 days after the Effective
Date of the Adopting Order. The payment shall 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 the 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 Federal Reserve Bank of New York, and account number
27000001. Shared Data will also send electronic notification within 48
hours of the date payment is made to Hillary.DeNigro@fcc.gov and to
Robert.Krinsky@fcc.gov.
12. Waivers. Shared Data agrees to waive 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 Consent Decree is adopted
without change, addition, modification, or deletion. Shared Data 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 Shared Data nor the Commission
shall contest the validity of the Consent Decree or the Adopting Order,
and Shared Data shall waive any statutory right to a trial de novo. Shared
Data 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.
13. 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 Shared Data does not expressly consent)
that provision shall be superseded by such Commission rule or Order.
14. Successors and Assigns. Shared Data agrees that the terms and
conditions of this Consent Decree shall be binding on its successors,
assigns, and transferees.
15. 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.
16. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
17. 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.
18. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
19. 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.
By: _____________________________________ By:
_______________________________
P. Michele Ellison Dennis Ewald
Chief, Enforcement Bureau Operations Manager
Federal Communications Commission Shared Data Networks, LLC
Date: ___________________________________ Date:
_____________________________
47 U.S.C. S:S: 301, 310(d).
47 C.F.R. S:S: 25.102, 25.119, 25.121(e).
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S:S: 301, 310(d).
47 C.F.R. S:S: 25.102, 25.119, 25.121(e).
47 U.S.C. S:S: 301, 310(d); 47 C.F.R. S:S: 25.102, 25.119 and 25.121(e).
IBFS File No. SES-STA-20090604-00691.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 10-2139
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Federal Communications Commission DA 10-2139