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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No. EB-09-SE-192
In the Matter of )
Acct. No. 201032100023
Enhanced Vision Systems, Inc. )
FRN No. 0019467430
)
)
ORDER
Adopted: April 5, 2010 Released: April 7, 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 Enhanced Vision Systems,
Inc. ("Enhanced Vision"). The Consent Decree terminates an
investigation by the Bureau against Enhanced Vision for possible
violations of Section 302(b) of the Communications Act of 1934, as
amended, and Sections 2.803(a), 15.19, 15.21, and 15.105 of the
Commission's Rules ("Rules") regarding the marketing of Class B
Digital Devices, specifically, vision assistance products for the
legally blind.
2. The Bureau and Enhanced Vision 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 Enhanced Vision 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 a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Kamran Siminou, Chief Executive Officer, Enhanced
Vision, 5882 Machine Drive, Huntington Beach, CA 92649 and to counsel
for Enhanced Vision, Maureen R. Jeffreys, Esq., Arnold & Porter LLP,
555 Twelfth Street, NW, Washington, DC 20004-1206.
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-192
In the Matter of
) Acct. No. 201032100023
Enhanced Vision Systems, Inc.
) FRN No. 0019467430
)
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Enhanced Vision Systems, Inc.
("Enhanced Vision"), by their authorized representatives, hereby enter
into this Consent Decree for the purpose of terminating the Bureau's
investigation into whether Enhanced Vision complies with Section 302(b) of
the Communications Act of 1934, as amended, and Sections 2.803(a), 15.19,
15.21, and 15.105 of the Commission's Rules ("Rules") regarding the
marketing of Class B Digital Devices, specifically, vision assistance
products for the legally blind.
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. "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), 15.19,
15.21, and 15.105 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. "Enhanced Vision" means Enhanced Vision Systems, Inc. and its
predecessors-in-interest and successors-in-interest.
i. "Investigation" means the investigation commenced by the Bureau's
September 30, 2009, Letter of Inquiry regarding whether Enhanced
Vision violated Section 302(b) of the Act and Sections 2.803(a),
15.19, 15.21, and 15.105 of the Rules.
j. "Parties" means Enhanced Vision and the Bureau.
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. Class B Digital Devices such
as Enhanced Vision's products can be authorized using either the
verification, Declaration of Conformity or certification procedures
set forth in Part 2 of the Rules, 47 C.F.R. S:S: 2.901-2.1093.
Finally, Class B digital devices must comply with labeling
requirements contained in Section 15.19.
3. On September 30, 2009, the Bureau issued a Letter of Inquiry ("LOI")
to Enhanced Vision. The September 30, 2009 LOI directed Enhanced
Vision, among other things, to submit a sworn written response to a
series of questions relating to its marketing of certain vision
assistance products for the legally blind. Enhanced Vision responded
to the September 30, 2009 LOI on October 27, 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. Enhanced Vision 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 its
investigation and dismiss the Complaints. In consideration for the
termination of said investigation and dismissal of the Complaints,
Enhanced Vision 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 Enhanced Vision 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 Enhanced Vision with respect
to Enhanced Vision's basic qualifications, including its character
qualifications, to be a Commission licensee or hold Commission
authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, Enhanced Vision agrees to create within 30 days and maintain
a Compliance Plan related to future compliance with the Act, the
Commission's Rules, and the Commission's Orders. The Plan will provide
for the following components:
a. FCC Compliance Procedures. Enhanced Vision will develop and update as
necessary appropriate FCC Compliance Procedures, particularly in the
areas of labeling and user information requirements. Relevant Enhanced
Vision personnel will be made aware of the FCC Compliance Procedures
and will be required to follow them. The FCC Compliance Procedures
will, among other things, address evaluating all new products to
ensure compliance with applicable Commission rules.
b. Compliance Officer. Enhanced Vision will designate a Compliance
Officer who will be responsible for implementing and administering the
Compliance Plan.
c. Compliance Reports. Enhanced Vision will file reports with the
Commission ninety days after the Effective Date, twelve months after
the Effective Date, and twenty-four months after the Effective Date.
Each report shall include a compliance certificate from an officer, as
an agent of Enhanced Vision, stating that the officer has personal
knowledge that Enhanced Vision has established operating procedures
intended to ensure compliance with this Consent Decree, together with
an accompanying statement explaining the basis for the officer's
compliance certification. All reports shall be submitted to the Chief,
Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C.
20554. All reports shall also be submitted electronically to Linda
Nagel at Linda.Nagel@fcc.gov and to Kathy Berthot at
Kathy.Berthot@fcc.gov.
d. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire twenty-four months after the Effective
Date.
9. Voluntary Contribution. Enhanced Vision agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
forty five thousand dollars ($45,000). The payment will be made within
30 days after the Effective Date of the Adopting Order. 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). Enhanced Vision will also
send electronic notification to Linda Nagel at Linda.Nagel@fcc.gov and
Kathryn Berthot at Kathy.Berthot@fcc.gov on the date said payment is
made.
10. Waivers. Enhanced Vision 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 Order adopting this Consent Decree, provided the Bureau issues
an Order adopting the Consent Decree without change, addition,
modification, or deletion. Enhanced Vision 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 Enhanced Vision nor the Commission shall
contest the validity of the Consent Decree or the Adopting Order, and
Enhanced Vision shall waive any statutory right to a trial de novo.
Enhanced Vision 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 Enhanced Vision does not
expressly consent) that provision will be superseded by such
Commission rule or Order.
13. Successors and Assigns. Enhanced Vision 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
________________________________
Kamran Siminou
Chief Executive Officer
Enhanced Vision Systems, Inc.
________________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a), 15.19, 15.21, and 15.105.
A Class B digital device is "[a] digital device that is marketed for use
in a residential environment notwithstanding use in commercial, business
and industrial environments." 47 C.F.R. S: 15.3(i).
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), 2.1077, 15.19, 15.21, and 15.105.
A Class B digital device is "[a] digital device that is marketed for use
in a residential environment notwithstanding use in commercial, business
and industrial environments." 47 C.F.R. S: 15.3(i).
See Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission to Mr. Hal
Reisiger, President, Enhanced Vision (September 30, 2009) ("September 30,
2009 LOI").
47 C.F.R. S: 15.19.
See September 30, 2009 LOI.
See Letter from Maureen R. Jeffreys, Esq., Arnold & Porter LLP, counsel
for Enhanced Vision Systems, Inc. to Marlene H. Dortch, Secretary, Federal
Communications Commission (October 27, 2009).
Federal Communications Commission DA 10-521
5
Federal Communications Commission DA 10-521