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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-211
In the Matter of
) Acct. No. 201032100028
Entone, Inc.
) FRN No. 0019824069
)
ORDER
Adopted: May 14, 2010 Released: May 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 Entone, Inc. ("Entone").
The Consent Decree terminates an investigation by the Bureau into
whether Entone violated Section 302(b) of the Communications Act of
1934, as amended, ("Act"), and Sections 2.803(a), 2.925, 2.1074,
2.1204, and 15.19 of the Commission's Rules ("Rules") regarding the
marketing, labeling, and identification of unauthorized radio
frequency devices.
2. The Bureau and Entone 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 there are no substantial or material questions of fact as to
whether Entone 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 Entone
before the Bureau related to the above-captioned-investigation as of
the date of this Consent Decree ARE DISMISSED.
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 Entone, Inc., Stefan M. Lopatkiewicz, Esq.,
Dorsey & Whitney LLP, 1801 K Street N.W., Suite 750, 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-08-SE-211
In the Matter of
) Acct. No. 201032100028
Entone, Inc.
) FRN No. 0019824069
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Entone, Inc. ("Entone"), by their
authorized representatives, hereby enter into this Consent Decree for the
purpose of terminating the Bureau's investigation into whether Entone
violated Section 302(b) of the Communications Act of 1934, as amended,
("Act"), and Sections 2.803(a), 2.925, 2.1074, 2.1204, and 15.19 of the
Commission's Rules ("Rules") regarding the marketing, labeling, and
identification of unauthorized radio frequency 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. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
f. "Entone" means Entone, Inc., its predecessors-in-interest and
corporate successors-in-interest.
g. "Investigation" means the investigation commenced by the August 19,
2009 Bureau letter of inquiry regarding possible violations by Entone
of Section 302(b) of the Act and Sections 2.803(a), 2.925, 2.1074,
2.1204, and 15.19 of the Rules by marketing unauthorized radio
frequency devices within the United States.
h. "Parties" means Entone and the Commission.
i. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. Background
1. Pursuant to Section 302(b) of the Act and Section 2.803(a) of the
Rules, a radio frequency device may not be marketed within the United
States unless the device complies with the applicable technical and
administrative provisions of the Rules. Section 15.201(b) of the Rules
requires that intentional radiators, not otherwise exempted by the
Rules, be authorized by Certification prior to marketing. Pursuant to
Section 15.101(a) of the Rules, Class B digital devices must be
authorized by Verification, and television interface devices may be
authorized either by Certification or by Declaration of Conformity.
Radio frequency devices must also comply with all applicable
identification and labeling requirements prior to marketing. Under
Section 2.1203 of the Rules, no radio frequency device may be imported
into the Customs territory of the United States unless the device has
been properly declared.
2. On August 19, 2009, the Bureau issued a Letter of Inquiry to Entone.
The LOI directed Entone to respond to a series of questions regarding
the advertising, sale, importation, labeling, and identification of
television interface devices and related radio frequency equipment.
Entone responded to the LOI on October 5, 2009.
III. Terms of Agreement
3. 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.
4. Jurisdiction. Entone 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.
5. 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.
6. 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. In consideration for the termination of the
Investigation, Entone 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, 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 Entone concerning the matters that
were the subject of the Investigation. The Bureau also agrees that it
will not use the facts developed in the Investigation, 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 Entone with respect to Entone's basic qualifications,
including its character qualifications, to be a Commission licensee or
to hold Commission licenses or authorizations.
7. Compliance Plan. For purposes of settling the matters set forth
herein, Entone agrees to create 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. Entone will designate a senior corporate officer
("Compliance Officer") who will be responsible for administering the
company's Compliance Plan.
b. Training. Entone will train and provide materials concerning the
Commission's equipment authorization rules to all of its employees
responsible for the development, marketing and sourcing of radio
frequency devices by Entone in the United States, including employees
located at its Hong Kong R&D facility.
c. Compliance Reports. Entone 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
Entone 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 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 Pittman at
kevin.pittman@fcc.gov and to JoAnn Lucanik at JoAnn.Lucanik@fcc.gov.
d. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire 24 months after the Effective Date.
8. Voluntary Contribution. Entone agrees that it will make a voluntary
contribution to the United States Treasury in the amount of
thirty-five thousand dollars ($35,000). The payment shall be made
within thirty (30) calendar 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
02130004, 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). Entone will also send
electronic notification on the date said payment is made to Kevin M.
Pittman at Kevin.Pittman@fcc.gov and JoAnn Lucanik at
JoAnn.Lucanik@fcc.gov.
9. Waivers. Entone 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. Entone 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
Entone nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Entone shall waive any statutory
right to a trial de novo. Entone 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.
10. 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.
11. 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 Entone does not expressly
consent) that provision will be superseded by such Commission Rule or
Order.
12. Successors and Assigns. Entone agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
13. 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.
14. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
15. 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.
16. Authorized Representative. Each Party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
17. 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
________________________________
Steve McKay
Chief Executive Officer
Entone, Inc.
________________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803(a), 2.925, 2.1074, 2.1204, and 15.19.
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, 2.1074, 2.1204, and 15.19.
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: 15.201(b).
47 C.F.R. S: 15.101(a).
47 C.F.R. S: 15.3(i).
47 C.F.R. S: 15.3(y).
See 47 C.F.R. S:S: 2.925, 2.954, 2.1074, 15.19(a)-(b).
47 C.F.R. S: 2.1203; see also 47 C.F.R. S:S: 2.1204, 2.1205.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, to Steve McKay, Chief Executive Officer, Entone, Inc.
(August 19, 2009).
See Letter from Stefan M. Lopatkiewicz, Counsel for Entone, Inc., to
Marlene H. Dortch, Secretary, Federal Communications Commission (October
5, 2009).
Federal Communications Commission DA 10-804
2
Federal Communications Commission DA 10-804