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Before the
Federal Communications Commission
Washington, D.C. 20554
)
File No. EB-05-SE-077
In the Matter of )
Acct. No. 200632100006
San Jose Navigation, Inc. )
FRN # 0010366078
)
ORDER
Adopted: December 3, 2009 Released: February 16, 2010
By the Commission:
1. In this Order, we adopt the attached Consent Decree entered into
between the Commission and San Jose Technology, Inc. (formerly known
as San Jose Navigation, Inc.) (collectively "San Jose"). The Consent
Decree terminates the Commission's enforcement proceeding regarding
San Jose's compliance with the equipment requirements set forth in
Section 302(b) of the Communications Act of 1934, as amended ("Act"),
and Sections 2.803 and 15.205 of the Commission's Rules.
2. The Commission and San Jose have negotiated the terms of a Consent
Decree that would resolve this matter and terminate the enforcement
proceeding. A copy of the Consent Decree is attached hereto and
incorporated by reference.
3. Based on the available facts related to this matter, we conclude that
there are no substantial or material questions of fact as to whether
San Jose possesses the basic qualifications, including those related
to character, to hold or obtain any FCC license or authorization.
4. After reviewing the terms of the Consent Decree, we find that the
public interest will be served by adopting the Consent Decree and
terminating the Commission's enforcement proceeding.
5. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 503(b)
of the Act, the Consent Decree attached to this Order IS ADOPTED.
6. IT IS FURTHER ORDERED that San Jose shall make its voluntary
contribution to the United States Treasury, as specified in the
Consent Decree, by mailing a check or similar instrument payable to
the order of the Federal Communications Commission, 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). San Jose will also send electronic
notification on the date said payment is made to Ricardo Durham at
ricardo.durham@fcc.gov and Ava Holly Berland at holly.berland@fcc.gov.
7. IT IS FURTHER ORDERED that the Commission's enforcement proceeding IS
TERMINATED.
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 San Jose Navigation, Inc., Donald J. Evans,
Esq., Fletcher, Heald & Hildreth, PLC, 1300 North 17th Street, 11th
Floor, Arlington, Virginia 22209.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
CONSENT DECREE
The Federal Communications Commission (the "Commission" or "FCC") and San
Jose Technology, Inc. (formerly known as San Jose Navigation, Inc.)
(collectively "San Jose") by their authorized representatives, hereby
enter into this Consent Decree for the purpose of terminating the
Commission's Enforcement Proceeding regarding whether San Jose's marketing
of Global Positioning Satellite ("GPS") signal re-radiators violated
Section 302(b) of the Communications Act of 1934, as amended (the "Act"),
and Sections 2.803 and 15.205 of the Commission's Rules ("Rules").
I. BACKGROUND
1. San Jose manufactured and marketed four models of GPS signal
re-radiators in the United States, namely the RA-45, the RA-46, the
RK-104, and the RK-304. In early 2005, the Commission received
complaints from the National Telecommunications and Information
Administration and other federal agencies expressing concern that
these devices could possibly interfere with federal GPS operations. On
May 4, 2005, the Bureau issued a Letter of Inquiry ("LOI") to San Jose
initiating an investigation into the matter. San Jose submitted its
response to the LOI on June 20, 2005. San Jose acknowledged the
manufacture of the devices and the distribution of 5,000 units in the
United States between March 15, 2002 and March 15, 2005. Following
receipt of the LOI, San Jose immediately ceased distribution of the
products in the U.S. and recalled 2,500 unsold units. The Commission
issued a Notice of Apparent Liability for Forfeiture on March 14,
2006, and a Forfeiture Order on January 16, 2007. San Jose has filed a
petition for reconsideration of the Forfeiture Order.
II. DEFINITIONS
2. 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.
Sections 151 et seq.
(b) "Adopting Order" means an Order of the Commission adopting the terms
and conditions of this Consent Decree.
(c) "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
(d) "Commission" and "FCC" mean the Federal Communications Commission.
(e) "Effective Date" means the date on which the Commission releases the
Adopting Order.
(f) "Enforcement Proceeding" means the Bureau's investigation of San
Jose's compliance with the equipment marketing requirements, culminating
in the Notice of Apparent Liability for Forfeiture and the Forfeiture
Order.
(g) "Forfeiture Order" means San Jose Navigation, Inc., 22 FCC Rcd 1040
(2007).
(h) "Notice of Apparent Liability for Forfeiture" or "NAL" means San Jose
Navigation, Inc., 21 FCC Rcd 2873 (2006).
(i) "Parties" means San Jose and the Commission.
(j) "Rules" means the Commission's Rules found in Title 47 of the Code of
Federal Regulations.
(k) "San Jose" means San Jose Technology, Inc. (formerly known as San Jose
Navigation, Inc.), as well as any of their affiliated entities
(collectively "San Jose").
III. TERMS OF AGREEMENT
3. The Parties agree that the provisions of this Consent Decree shall be
subject to final approval by the Commission by incorporation of such
provisions by reference in the Adopting Order.
4. San Jose agrees that the Commission has jurisdiction over it and the
subject matter contained in this Consent Decree and the authority to
enter into and adopt this Consent Decree.
5. The Parties agree and acknowledge that this Consent Decree shall
constitute a final and binding settlement between San Jose and the
Commission regarding the matters that were the subject of the
Enforcement Proceeding. In express reliance on the covenants and
representations contained herein, the Commission agrees to terminate
the Enforcement Proceeding. In consideration for the termination of
this Enforcement Proceeding and in accordance with the terms of this
Consent Decree, San Jose agrees to the terms, conditions and
procedures contained herein.
6. The Parties agree that this Consent Decree shall become binding on the
Parties on the Effective Date. Upon release, the Adopting Order and
this Consent Decree shall have the same force and effect as any other
final order of the Commission and any violation of the terms or
conditions of this Consent Decree shall constitute a violation of a
Commission order.
7. The Parties 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 by San Jose
with the requirements of the Act or the Commission's rules or orders.
The Parties also agree that this Consent Decree is for settlement
purposes only and that by agreeing to this Consent Decree, San Jose
does not admit or deny any liability for violations of the Act or the
Rules in connection with matters that are the subject of this Consent
Decree.
8. San Jose agrees that it will make a voluntary contribution to the
United States Treasury in the amount of $50,000. The payment will be
made within thirty (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). San Jose will
also send electronic notification on the date said payment is made to
Ricardo Durham at ricardo.durham@fcc.gov and Ava Holly Berland at
holly.berland@fcc.gov.
9. San Jose agrees that it will develop an internal compliance plan to
ensure its future compliance with the Act and the Rules regarding the
manufacture and marketing of radio frequency equipment. The Compliance
Plan will include the establishment of an FCC Engineering Compliance
Committee ("Committee") with the following responsibilities:
(a) The Committee will be responsible for being familiar with and
implementing all FCC requirements pertinent to manufacturing, importing
and marketing of radio frequency devices in the United States.
(b) The Committee will be updated semi-annually on new developments and
interpretations to ensure that product designers remain current with FCC
requirements.
(c) The Committee will review all models of radio frequency devices
marketed in the United States to ensure that the models are eligible for
authorization in the U.S., and, that the models are compliant with the
Commission's equipment authorization procedures and related requirements.
(d) The Committee will consult experienced FCC counsel in the United
States to resolve any uncertainties about FCC requirements.
10. The Commission agrees that, in the absence of new material evidence,
it will not institute on its own motion or in response to third-party
objection, any new proceeding, formal or informal, or take any action
on its own motion against San Jose regarding the matters that were the
subject of the Enforcement Proceeding. The Commission further agrees
that, in the absence of new material evidence, it will not use the
facts developed in the Enforcement Proceeding through the Effective
Date to initiate on its own motion, any proceeding, formal or
informal, or take any action on its own motion against San Jose with
respect to San Jose's basic qualifications to hold Commission licenses
or authorizations.
11. San Jose's decision to enter into this Consent Decree is expressly
contingent upon the Commission's issuance of an Adopting Order that is
consistent with this Consent Decree, and which adopts the Consent
Decree without change, addition or modification.
12. Provided the Commission issues an Adopting Order adopting the Consent
Decree without change, addition or modification, San Jose 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.
13. The Parties agree that 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 San Jose nor the Commission shall contest
the validity of the Consent Decree or the Adopting Order, and San Jose
will waive any statutory right to a trial de novo regarding the terms
or validity of the Consent Decree. San Jose may, however, present
evidence that it has not violated the Consent Decree.
14. In the event that this Consent Decree in its entirety is rendered
invalid by a court of competent jurisdiction, it shall become null and
void and may not be used in any manner in any legal proceeding.
15. By entering into this Consent Decree, San Jose 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. The Parties agree that each is required to comply with each individual
condition of this Consent Decree. Each specific condition is a
separate condition of the Consent Decree as approved. To the extent
that San Jose fails to satisfy any condition, in the absence of
Commission alteration of the condition, it will be deemed noncompliant
and may be subject to possible future enforcement action with respect
to such failure to satisfy the condition.
17. San Jose agrees that any violation of any term of this Consent Decree
shall constitute a separate violation of a Commission order, entitling
the Commission to exercise any rights and remedies attendant to the
enforcement of a Commission order.
18. The Parties agree that if any provision of this Consent Decree
conflicts with any subsequent rule, order of general applicability or
other decision of general applicability adopted by the Commission
(except an order specifically intended to revise the terms of this
Consent Decree to which San Jose does not consent), that provision
will be superseded by such Commission rule or order.
19. San Jose waives any rights it may have under any provision of 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.
20. This Consent Decree cannot be modified without the advance written
consent of both Parties.
21. The Parties agree that the requirements of this Consent Decree will
remain in effect for twenty-four (24) months from the Effective Date.
22. San Jose agrees that it will request withdrawal of its petition for
reconsideration of the Forfeiture Order within five (5) business days
of the Effective Date.
23. Nothing in this Consent Decree shall preclude San Jose from
petitioning the Commission for relief as to future obligations under
the equipment authorization requirements of Section 302 of the Act and
Parts 2 and 15 of the Rules.
24. the individual signing this Consent Decree on behalf of San Jose
Technology, Inc. (formerly known as San Jose Navigation, Inc.), hereby
represents and warrants that San Jose Technology, Inc. is the same
entity as San Jose Navigation, Inc. Further, this individual
represents and warrants that he is authorized by San Jose Technology,
Inc. (formerly known as San Jose Navigation, Inc.), to execute this
Consent Decree and to legally bind that company which is the subject
of the investigation terminated by this Consent Decree.
25. This Consent Decree may be signed in counterparts.
For the Federal Communications Commission:
____________________________
Marlene H. Dortch
Secretary
____________________________
Date
For San Jose Technology, Inc. (formerly known as San Jose Navigation,
Inc.):
____________________________
Thomas Chen
President
____________________________
Date
San Jose has represented to the Commission that it remains the same
entity, but changed its corporate legal name from San Jose Navigation,
Inc., to San Jose Technology, Inc., to reflect that the company has
expanded its array of radio frequency products. See Letter from Jerry
Huang, Sales and Marketing Director, San Jose Technology, Inc. to the
Federal Communications Commission, dated Aug. 18, 2009 (informing the
Commission of the name change); Email from Linda Elliot, FCC Customer
Service Branch to Jerry Huang, dated Aug. 21, 2009 (approving the grantee
name change); see also E-mail from Donald Evans, counsel for San Jose
Navigation, Inc. and San Jose Technology, Inc., to Holly Berland,
Attorney, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission, dated December 28, 2009; E-mail from Donald
Evans, counsel for San Jose Navigation, Inc. and San Jose Technology,
Inc., to Thomas D. Fitz-Gibbon, Attorney, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, dated December 10,
2009.
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803 and 15.205.
47 U.S.C. S:S: 154(i) and 503(b).
San Jose has represented to the Commission that it remains the same
entity, but changed its corporate legal name from San Jose Navigation,
Inc., to San Jose Technology, Inc., to reflect that the company has
expanded its array of radio frequency products. See Letter from Jerry
Huang, Sales and Marketing Director, San Jose Technology, Inc. to the
Federal Communications Commission, dated Aug. 18, 2009 (informing the
Commission of the name change); Email from Linda Elliot, FCC Customer
Service Branch to Jerry Huang, dated Aug. 21, 2009 (approving the grantee
name change); see also E-mail from Donald Evans, counsel for San Jose
Navigation, Inc. and San Jose Technology, Inc., to Holly Berland,
Attorney, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission, dated December 28, 2009; E-mail from Donald
Evans, counsel for San Jose Navigation, Inc. and San Jose Technology,
Inc., to Thomas D. Fitz-Gibbon, Attorney, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, dated December 10,
2009.
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803 and 15.205.
(Continued from previous page)
(continued)
Federal Communications Commission FCC 09-107
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Federal Communications Commission FCC 09-107