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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-09-SE-209
In the Matter of
) Acct. No.: 201132100012
RF Linx Corporation
) FRN: 0020374724
)
ORDER
Adopted: December 7, 2010 Released: December 8, 2010
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and RF Linx Corporation ("RF
Linx"). The Consent Decree terminates an investigation by the Bureau
against RF Linx for possible violations of section 302(b) of the
Communications Act of 1934, as amended ("Act"), and sections 2.803(a),
2.925, and 15.204(d)(1), (2) of the Commission's rules ("Rules"),
regarding RF Linx's marketing of external radio frequency power
amplifiers.
2. The Bureau and RF Linx 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 RF Linx 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 all third-party complaints against RF Linx
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 counsel for RF Linx, Michelle W. Cohen, Esq., Thompson
Hine LLP, 1920 N Street, NW, Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-09-SE-209
In the Matter of
) Acct. No.: 201132100012
RF Linx Corporation
) FRN: 0020374724
)
CONSENT DECREE
The Enforcement Bureau and RF Linx Corporation by their authorized
representatives, hereby enter into this Consent Decree for the purpose of
terminating the Bureau's Investigation into whether RF Linx violated
section 302(b) of the Communications Act of 1934, as amended, and sections
2.803(a), 2.925, and 15.204(d)(1), (2) of the Commission's rules,
regarding the marketing of external radio frequency power amplifiers
("amplifiers") for individual sale.
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. "Complaint" means a third-party complaint that may have been received
by, or is in the possession of, the Commission alleging violations of
section 302(b) of the Act and sections 2.803(a), 2.925, and
15.204(d)(1), (2) of the Rules.
f. "Compliance Plan" means the program described in this Consent Decree
at paragraph 8.
g. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
h. "Investigation" means the investigation commenced by the Bureau's
October 30, 2009 letter of inquiry regarding RF Linx's marketing of
external radio frequency power amplifiers.
i. "Parties" means RF Linx and the Bureau, and each a "Party".
j. "RF Linx" means RF Linx Corporation and its predecessors-in-interest
and 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, 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 15.204(d)(1) of the
Rules provides that an external radio frequency power amplifier
intended for use with a Part 15 intentional radiator may only be
marketed for individual sale where the external radio frequency power
amplifier is of a design such that it can only be connected as part of
a system in which it has been previously authorized. Section
15.204(d)(2) of the Rules provides that the outside packaging and user
manual for external radio frequency power amplifiers marketed for
individual sale in accordance with Section 15.204(d)(1) must include
notification that the amplifier can be used only in a system in which
it has obtained authorization and that such notification must identify
the authorized system by FCC Identifier. External radio frequency
power amplifiers must also comply with all applicable identification
and labeling requirements prior to marketing.
3. On October 30, 2009, the Bureau's Spectrum Enforcement Division issued
a LOI to RF Linx. The LOI directed RF Linx, among other things, to
submit a sworn written response to a series of questions relating to
whether RF Linx was marketing unauthorized and non-compliant external
radio frequency power amplifiers, including for individual sale in
contravention of the Rules. RF Linx responded to the LOI on December
18, 2009.
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. RF Linx 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 and dismiss the Complaint. In consideration for the
termination of the Investigation and dismissal of the Complaint, RF
Linx 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 RF
Linx 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 RF Linx with
respect to RF Linx'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, RF Linx
initiated certain remedial measures in addition to its ongoing
compliance efforts and, for purposes of settling the matters herein,
agrees to implement, within thirty (30) days of the Effective Date, 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, RF
Linx will designate a Compliance Officer who will be responsible for
administering the Compliance Plan.
(b) Training. Within sixty (60) days of the Effective Date, RF Linx will
provide training regarding the authorization and marketing of external
radio frequency power amplifiers under the Rules and the requirements of
the Consent Decree to all of its employees who are involved directly or
indirectly in the marketing of amplifiers by RF Linx. Further, within
thirty (30) days of hire, RF Linx will similarly provide training to all
new employees involved directly or indirectly in the marketing of
amplifiers sold by RF Linx.
(d) Compliance Reports. RF Linx 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 RF Linx, stating that
the Compliance Officer has personal knowledge (i) that RF Linx has
established operating procedures intended to ensure compliance with the
terms and conditions of this Consent Decree, and with sections 2.803(a),
2.925, and
15.204(d)(1), (2) of the Rules, together with an accompanying statement
explaining the basis for the Compliance Officer's certification; (ii) that
RF Linx has been utilizing those procedures since the commencement of the
Compliance Plan; and (iii) that RF Linx 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 RF Linx, 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 RF Linx 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 Kevin M. Pittman at Kevin.Pittman@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. RF Linx agrees that it will make a voluntary
contribution to the United States Treasury in the amount of seven
thousand five hundred dollars ($7,500). 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). RF Linx shall also send
electronic notification to Kevin M. Pittman at Kevin.Pittman@fcc.gov
and to JoAnn Lucanik at JoAnn.Lucanik@fcc.gov on the date said payment
is made.
10. Waivers. RF Linx 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. RF Linx 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
RF Linx nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and RF Linx shall waive any statutory
right to a trial de novo. RF Linx 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 RF Linx does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
13. Successors and Assigns. RF Linx 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.
________________________________
P. Michele Ellison
Chief, Enforcement Bureau
________________________________
Date
______________________________
Joseph Janning
President
RF Linx Corporation
______________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803(a), 2.925, 15.204(d)(1), (2).
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, 15.204(d)(1), (2).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Joe Janning,
President, RF Linx (October 30, 2009) ("LOI").
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: 15.204(d)(1).
47 C.F.R. S: 15.204(d)(2).
See 47 C.F.R. S: 2.925. The Rules provide for certain exceptions to the
aforementioned requirements, allowing amplifiers to be marketed and sold
in certain limited instances to manufacturers and wholesalers, for export,
or for use by the Government of the United States. See 47 C.F.R. S:S:
2.803(b), 2.803(d), 2.807(b), 2.807(d).
See supra n.3.
See Letter from Michelle W. Cohen, Esq., Thompson Hine LLP, counsel for RF
Linx, to Marlene H. Dortch, Secretary, Federal Communications Commission
(Dec. 18, 2009) ("LOI Response").
(...continued from previous page)
(continued....)
Federal Communications Commission DA 10-2290
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Federal Communications Commission DA 10-2290
6