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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-09-SE-127
In the Matter of
) Acct. No. 201032100027
Axxcelera Broadband Wireless, Inc.
) FRN No. 0009559089
)
Order
Adopted: April 23, 2010 Released: April 26, 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 Axxcelera Broadband
Wireless, Inc. ("Axxcelera"). The Consent Decree terminates the
Bureau's investigation into Axxcelera's possible violations of Section
302(b) the Communications Act of 1934, as amended, and Sections
2.803(a)(1) and 15.407(h)(2) of the Commission's Rules, regarding the
marketing of unlicensed National Information Infrastructure ("U-NII")
devices.
2. The Bureau and Axxcelera 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 that terminates 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 Axxcelera 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 Axxcelera Broadband Wireless, Inc., Jack
Richards, Keller and Heckman LLP, 1001 G Street, N.W., Suite 500 West,
Washington, D.C. 20001.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
)
) File No. EB-09-SE-127
In the Matter of
) Acct. No. 201032100027
Axxcelera Broadband Wireless, Inc.
) FRN No. 0009559089
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Axxcelera Broadband Wireless, Inc.
("Axxcelera"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
of Axxcelera for possible violations of Section 302(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 2.803(a)(1)
and 15.407(h)(2) of the Commission's Rules ("Rules") regarding the
marketing 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. "Axxcelera" means Axxcelera Broadband Wireless, Inc. and its
subsidiaries and its predecessors-in-interest and
successors-in-interest.
d. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
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 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
July 30, 2009 letter of inquiry ("LOI") to Axxcelera regarding
possible violations of Section 302(b) of the Act and Sections
2.803(a)(1) and 15.407(h)(2) of the Rules.
i. "Parties" means Axxcelera and the Bureau.
j. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
2. Section 302(b) of the Act and Section 2.803(a)(1) of the Rules
prohibit the marketing of radio frequency devices in the United States
unless such devices comply with the applicable technical and
administrative provisions of the Rules. Pursuant to Section
15.407(h)(2) of the Rules, U-NII devices operating in the 5.25-5.35
GHz and 5.47-5.725 GHz bands must employ a Dynamic Frequency Selection
("DFS") radar detection mechanism.
3. On July 30, 2009, the Bureau issued a LOI to Axxcelera. The LOI
directed Axxcelera, among other things, to submit a sworn written
response to a series of questions relating to its marketing of its
ABMAX U-NII device. Axxcelera responded to the LOI on September 14,
2009.
4. In its response, Axxcelera explained that it began marketing the ABMAX
U-NII device (FCC ID: OJB-APDXYZ) upon receipt of the Commission's grant
of equipment authorization on November 6, 2008. Axxcelera reported that in
May 2009, it became aware during a routine quality audit that some ABMAX
units were showing degraded DFS performance. Axxcelera immediately stopped
shipments. Axxcelera stated that it subsequently determined that the
change in DFS performance was caused by variations in the production
version of a subcontractor chip used in the radio receiver chain. .
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. Axxcelera 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, Axxcelera 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 Axxcelera 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 Axxcelera
with respect to Axxcelera's basic qualifications, including its
character qualifications, to be a Commission licensee or to hold
Commission authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, Axxcelera agrees to maintain 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. Within 30 days of the Effective Date, Axxcelera
will designate a Compliance Officer who will be responsible for
administering the Compliance Plan.
b. Remedial Measures. Axxcelera has developed and distributed to its
United States customers a firmware upgrade for its ABMAX U-NII device
that resolves any degradation in the performance of the DFS radar
detection mechanism in the units addressed in the LOI. In addition,
Axxcelera asserts that it has contacted all of its clients and
verified that the software was received and installed.
c. Training. Within 90 days of the Effective Date, and annually
thereafter, Axxcelera will provide training concerning compliance
with Parts 2 and 15 of the Rules to all of its officers and employees
who are responsible for the marketing and distribution of radio
frequency products imported, marketed, and sold by Axxcelera in the
United States.
d. Compliance Reports. Axxcelera 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
Axxcelera 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. All compliance reports shall also be submitted electronically
to Holly.Berland@fcc.gov and Kathy.Berthot@fcc.gov.
e. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire 24 months after the Effective Date.
9. Voluntary Contribution. Axxcelera agrees that it will make a voluntary
contribution to the United States Treasury in the amount of five
thousand dollars ($5,000). The payment will be made within 30 days
after the Effective Date of the Adopting Order. The payment must be
made by check, wire transfer, credit card 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). Axxcelera will
also send electronic notification on the date said payment is made to
Holly.Berland@fcc.gov and Kathy.Berthot@fcc.gov.
10. Waivers. Axxcelera 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. Axxcelera 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
Axxcelera nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Axxcelera shall waive any statutory
right to a trial de novo. Axxcelera 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 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 Axxcelera does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
13. Successors and Assigns. Axxcelera 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. Confidentiality. By entering into this Consent Decree, Axxcelera
neither waives nor alters its right to assert and seek protection from
disclosure of any privileged or otherwise confidential and protected
documents and information, or to seek appropriate safeguards of
confidentiality for any competitively sensitive or proprietary
information.
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.
_______________________________
Kathryn S. Berthot
Chief
Spectrum Enforcement Division
Enforcement Bureau
________________________________
Date
________________________________
Christopher Moritz
Senior Director System Engineering
Axxcelera Broadband Wireless, Inc.
________________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803(a)(1) and 15.407(h)(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)(1), 15.407(h)(2).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Christopher
Moritz, Sr., Axxcelera Broadband Wireless, Inc. (July 30, 2009) ("LOI").
47 U.S.C. S: 302a(b); 47 C.F.R. S: 2.803(a)(1).
47 C.F.R. S: 15.407(h)(2).
See LOI.
See Letter from Jack Richards, Esq. and Greg Kunkle, Esq., Keller and
Heckman, LLP to Thomas D. Fitz-Gibbon, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (September 14, 2009)
("LOI Response").
To the extent that the Bureau receives a Freedom of Information Act
request concerning this proceeding, the Bureau will follow the procedures
set forth in Section 0.461 of the Rules, 47 C.F.R. S: 0.461.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 10-689
2
Federal Communications Commission DA 10-689