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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-09-SE-064
In the Matter of
) Acct. No. 201032100024
Motorola, Inc.
) FRN No. 0013253380
)
ORDER
Adopted: April 13, 2010 Released: April 14, 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 Motorola, Inc.
("Motorola"). The Consent Decree terminates an investigation by the
Bureau against Motorola for possible violations of Section 302(b) of
the Communications Act of 1934, as amended ("Act"), 47 U.S.C. S:
302a(b), and Sections 2.803(a), 2.926(e), 15.37(l), and 15.407(h) of
the Commission's Rules ("Rules"), 47 C.F.R. S:S: 2.803(a), 2.926(e),
15.37(l), and 15.407(h), regarding the marketing and labeling of
Unlicensed National Information Infrastructure (U-NII) devices.
2. The Bureau and Motorola 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 Motorola 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 Steve Sharkey, Senior Director, Regulatory and Spectrum
Policy, Motorola, Inc., 1455 Pennsylvania Ave. NW, Suite 900,
Washington, DC 20004, and to counsel for Motorola, David E. Hilliard,
Esq., Wiley Rein LLP, 1776 K Street, NW, Washington, DC 20006.
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-064
In the Matter of
) Acct. No. 201032100024
Motorola, Inc.
) FRN No. 0013253380
)
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Motorola, Inc. ("Motorola"), by
their authorized representatives, hereby enter into this Consent Decree
for the purpose of terminating the Bureau's investigation of Motorola for
possible violations of Section 302(b) of the Communications Act of 1934,
as amended ("Act"), and Sections 2.803(a), 2.926(e), 15.37(l), and
15.407(h) of the Commission's Rules ("Rules"), regarding the marketing and
labeling of Unlicensed National Information Infrastructure (U-NII)
devices.
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. "Motorola" means Motorola, Inc., and its subsidiaries and its
predecessors-in-interest and successors-in-interest.
h. "Investigation" means the investigation commenced by the Bureau's
March 17, 2009 letter of inquiry ("LOI") to Motorola regarding
possible violations of Section 302(b) of the Act and Sections
2.803(a), 2.926(e), 15.37(l), and 15.407(h) of the Rules.
i. "Parties" means Motorola and the Bureau.
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. U-NII transmitting devices,
which are classified as intentional radiators under the Rules, can be
authorized under Certification pursuant to Section 15.201(b) of the
Rules. In accordance with Section 2.926(e) U-NII devices must exhibit
the FCC ID number associated with the grant of equipment
authorization. Further, pursuant to Section 15.407(h) U-NII devices
that operate in the 5.25 - 5.35 GHz and 5.47- 5.725 GHz bands must be
equipped, inter alia, with dynamic frequency selection (DFS)
capability to avoid transmitting when radar signals are detected.
Further, pursuant to Section 15.37(l), if a U-NII device operating in
the 5.25 - 5.35 MHz band was approved under a certification
application filed on or after July 20, 2006, the device must have
complied with the DFS requirements if imported or marketed on or after
July 20, 2007.
3. On April 20, 2009, the Bureau issued an LOI to Motorola. The LOI
directed Motorola to submit a sworn written response to a series of
questions relating to the marketing and selling of U-NII devices.
Motorola responded to the LOI on May 20, 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. Motorola 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. In consideration for the termination of said
investigation, Motorola 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 Motorola 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 Motorola
with respect to Motorola'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, Motorola agrees to create within 60 days 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. Compliance Officer. Motorola will designate a senior corporate
manager ("Compliance Officer") who is responsible for administering
the Compliance Plan.
b. Training. Motorola will train and provide materials concerning
Section 302(b) of the Act and Parts 2 and 15 of the Rules pertaining
to U-NII devices and the requirements of the Consent Decree to those
of its employees who are involved directly in the development and
marketing of U-NII devices imported, marketed and sold by Motorola in
the United States.
c. Compliance Reports. Motorola will file compliance reports with the
Commission 90 days after the Effective Date, 12 months after the
Effective Date, and 24 months after the Effective Date. Each report
shall include a compliance certificate from the Compliance Officer
stating that the Compliance Officer has personal knowledge that
Motorola has established operating procedures intended to ensure
compliance with this Consent Decree, together with an accompanying
statement explaining the basis for the Compliance Officer's
compliance certification. All compliance reports shall be submitted
to Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W. Washington, D.C.
20554, with a copy submitted electronically to Linda Nagel at
Linda.Nagel@fcc.gov and to Kathryn Berthot at Kathy.Berthot@fcc.gov.
d. Divestment of Business Unit(s). In the event that Motorola divests a
business unit, the terms of any such divestment shall require the
divested unit(s) to agree to abide by the terms of this Consent
Decree including appointment of a Compliance Officer, conducting
training, and filing compliance reports on the dates such reports
would next be due under this Consent Decree if the divested business
unit develops, imports, or markets any U-NII device.
e. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire 24 months after the Effective Date.
9. Voluntary Contribution. Motorola agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $9,000.
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). Motorola will also send electronic notification on the date
said payment is made to Linda.Nagel@fcc.gov and Kathy.Berthot@fcc.gov.
10. Waivers. Motorola 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. Motorola 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
Motorola nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Motorola shall waive any statutory
right to a trial de novo. Motorola 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 Motorola does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
13. Successors and Assigns. Motorola 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
________________________________
Vice President
Motorola, Inc.
________________________________
Date
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), 2.926(e), 15.37(l), and 15.407(h).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Steve Sharkey,
Motorola, Inc. (April 20, 2009) ("April 20, 2009 LOI").
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a).
47 C.F.R. S: 15.3(o).
See April 20, 2009 LOI.
See Letter from Steve B. Sharkey, Senior Director, Regulatory and Spectrum
Policy. Motorola, Inc., to Marlene H. Dortch, Secretary, Federal
Communications Commission dated May 30, 2009 ("LOI Response").
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