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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No.: EB-09-IH-1049
EDS Spectrum Corporation ) NAL/Acct. No.: 201132080013
Hewlett-Packard Company ) FRN: 0001652429
)
ORDER
Adopted: August 12, 2011 Released: August 12, 2011
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau"), EDS Spectrum Corporation
("EDS"), and the ultimate parent company of EDS, Hewlett-Packard
Company ("HP"). The Consent Decree resolves and terminates the
Bureau's investigation into the Companies' compliance with section
310(d) of the Communications Act of 1934, as amended (the "Act"), and
the Commission's Rules and Orders concerning the Companies'
obligations to obtain Commission approval before transferring control
of Commission licenses.
2. The Bureau and the Companies have negotiated the terms of a Consent
Decree that resolves 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 the Companies possess 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 sections 4(i) and 503(b)
of the Act, 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-referenced investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class certified mail, return receipt requested,
to counsel for the Companies, Timothy J. Cooney, Esq., Wilkinson
Barker Knauer, LLP, 2300 N Street, N.W., Suite 700, Washington, D.C.
20037-1128.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No.: EB-09-IH-1049
EDS Spectrum Corporation ) NAL/Acct. No.: 201132080013
Hewlett-Packard Company ) FRN: 0001652429
)
CONSENT DECREE
1. The Enforcement Bureau, EDS Spectrum Corporation, and the ultimate
parent company of EDS, Hewlett-Packard Company, by their authorized
representatives, hereby enter into this Consent Decree for the purpose
of terminating the Bureau's investigation into the Companies'
compliance with section 310(d) of the Communications Act of 1934, as
amended, and the Commission's Rules and Orders concerning the
Companies' obligations to obtain Commission approval before
transferring control of Commission licenses.
I. 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.
S: 151 et seq.
b. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
c. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
d. "Companies" means EDS Spectrum Corporation and Hewlett-Packard
Company.
e. "Compliance Plan" means the program described in this Consent Decree
at paragraph 9.
f. "EDS Spectrum Corporation" or "EDS" means EDS Spectrum Corporation and
its predecessors-in-interest and successors-in-interest.
g. "Effective Date" means the date on which the Commission releases the
Adopting Order.
h. "Hewlett-Packard Company" or "HP" means Hewlett-Packard Company and
its predecessors-in-interest and successors-in-interest.
i. "Investigation" means the investigation commenced by the Bureau's
August 5, 2009, letter of inquiry regarding the Companies' compliance
with section 310(d) of the Act and the Rules and Commission Orders
concerning the Companies' obligations to obtain Commission approval
before transferring control of Commission licenses.
j. "Order" or "Adopting Order" means an Order of the Commission adopting
the terms of this Consent Decree without change, addition, deletion,
or modification.
k. "Parties" means EDS Spectrum Corporation, Hewlett-Packard Company and
the Bureau, each of which is a Party.
l. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
3. Pursuant to section 310(d) of the Act, Commission licensees are
prohibited from transferring or assigning FCC licenses without prior
Commission approval. Furthermore, the Rules require Commission
licensees of wireless communications to apply for, and obtain,
Commission approval before transferring or assigning FCC licenses.
4. On August 5, 2009, the Bureau issued an LOI to EDS. The LOI directed
EDS, among other things, to submit a sworn written response to a
series of questions relating to EDS's compliance with section 310(d)
of the Act and section 25.119 of the Rules. EDS responded to the LOI
on September 4, 2009. Subsequently, the Companies voluntarily
disclosed to the Bureau issues regarding the compliance of HP, the
ultimate parent company of EDS, with requirements of the Act and the
Rules governing the assignment or transfer of control of FCC licenses.
III. TERMS OF AGREEMENT
5. 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.
6. Jurisdiction. The Companies agree that the Bureau has jurisdiction
over them and the matters contained in this Consent Decree, and the
Bureau has the authority to enter into and adopt this Consent Decree.
7. Effective Date: Violations. The Parties agree that this Consent Decree
shall become effective on the Effective Date. Upon the Effective Date,
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.
8. 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, the Companies agree 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, or the
existence of this Consent Decree, to institute, on its own motion or
in response to a third party objection, or recommend to the
Commission, any new proceeding, formal or informal, or take any action
on its own motion, or recommend to the Commission any action, against
the Companies concerning the matters that were the subject of the
Investigation. The Bureau also agrees that it will not, in the absence
of new material evidence, use the facts developed in this
Investigation through the Effective Date, or the existence of this
Consent Decree, to institute on its own motion or in response to a
third party objection, or recommend to the Commission, any proceeding,
formal or informal, or take any action on its own motion, or recommend
to the Commission any action, against the Companies with respect to
the Companies' basic qualifications, including their character
qualifications, to be Commission licensees.
9. Compliance Plan. The Companies agree that they will develop, within
thirty (30) calendar days from the Effective Date, an internal
Compliance Plan to address the Companies' future compliance with the
licensing provisions of the Act and the Rules and Commission Orders
related thereto, including those governing the assignment or transfer
of control of FCC licenses. The Compliance Plan shall include the
following components:
a. Compliance Officer. The Companies will, within thirty (30) calendar
days of the Effective Date, designate a senior corporate officer
("Compliance Officer") who is responsible for administering the
Compliance Plan and ensuring the Companies' future compliance with the
licensing provisions of the Act and the Rules and Commission Orders
related thereto, including those governing the assignment or transfer
of control of FCC licenses.
b. FCC License Database. The Companies will conduct a thorough review of
their holdings and will create, maintain and update a database ("FCC
License Database") listing relevant information regarding FCC licenses
held by HP, EDS, and all other corporate entities controlled by HP.
The FCC License Database will be compiled within ninety (90) calendar
days of the Effective Date. The Companies will monitor and review
every ninety (90) calendar days the information contained in the
database to ensure the information is accurate and for compliance
purposes.
c. Internal Controls. The Companies will institute internal processes
that ensure (i) future transactions contemplating a change in control
of HP, EDS, or any other corporate entities controlled by HP that hold
FCC licenses, are communicated to the Companies' management in advance
of any actual transfer of control; and (ii) that the requirements of
all appropriate regulatory authorities are timely satisfied. The
Companies' management will be informed when transactions that involve
a transfer of FCC licenses require Commission consent to transfer the
licenses.
d. Compliance Manual. Within sixty (60) calendar days of the Effective
Date, the Companies will develop and distribute a Compliance Manual to
employees and others who perform duties at the Companies that trigger
or may trigger responsibilities related to regulatory compliance with
respect to the Companies' FCC licenses. The Compliance Manual will
include an overview of such Commission requirements, including the
need for prior approval for assignments and transfers of FCC licenses
and authorizations. The Compliance Manual will be reviewed annually
and updated as appropriate, and any revisions will be distributed
within thirty (30) calendar days.
e. Compliance Training Program. The Companies will establish within
ninety (90) calendar days of the Effective Date an FCC compliance
training program for employees who, as part of their responsibilities,
are substantially engaged in activities related to the purchase, sale,
acquisition, assignment or transfer of control of companies, entities
or assets potentially subject to FCC regulation. Such employees will
be trained within sixty (60) calendar days of establishing a
Compliance Training Program, and future training sessions will be
conducted at least annually to ensure compliance with those provisions
of the Act and the FCC's regulations and policies pertaining to
assignments and transfers of control. The Compliance Training Program
will contain information regarding the need to conduct due diligence
regarding potential FCC licenses of any company in a potential merger
or acquisition transaction, the need to monitor any corporate
reorganization for potential license assignment or transfer issues,
and the need to obtain prior FCC approval for all assignments and
transfers of control of FCC licenses.
f. Compliance Reports. The Companies will file compliance reports with
the Commission twelve (12) months and twenty-four (24) months after
the Effective Date. Each compliance report shall include a compliance
certificate from the Compliance Officer stating that the officer has
personal knowledge that the Companies (1) have established operating
procedures intended to ensure compliance with the terms and conditions
of this Consent Decree, with Section 310(d) of the Act, and the Rules
and Orders concerning the Companies' obligations to obtain Commission
approval before transferring control of Commission licenses and
authorizations; (2) have been utilizing those procedures at all times
since the previous Compliance Report was submitted; and (3) are not
aware of any instances of non-compliance. If the Compliance Officer is
not able to so certify, he or she shall explain fully the reason(s)
therefore. All Compliance Reports shall be directed to the Chief,
Investigations & Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C.
20554. The certification must comply with section 1.16 of the Rules,
and be substantially in the form set forth therein.
g. Self-Disclosure. Within thirty (30) calendar days of the Compliance
Officer or senior executive management becoming aware of the matter
(whether from a report from an employee or otherwise), the Companies
will report any occurrences of noncompliance with the terms and
conditions of this Consent Decree; with section 310(d) of the Act; or
with the Rules and Orders concerning the Companies' obligations to
obtain Commission approval before transferring control of Commission
licenses, to the Chief, Investigations & Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445 12th
Street, S.W., Washington, D.C. 20554.
h. Termination. The provisions of this paragraph shall remain in effect
for two (2) years from the Effective Date.
10. Subsequent Investigations. Except as expressly provided in this
Consent Decree, this Consent Decree shall not prevent the Commission
from investigating new evidence of noncompliance by the Companies with
the Act, the Rules, or Commission Orders.
11. Voluntary Contribution. HP, on behalf of the Companies, agrees that it
will make a voluntary contribution to the United States Treasury in
the amount of sixty thousand dollars ($60,000) 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 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. The Companies shall send
electronic notification of payment to David Janas at
david.janas@fcc.gov on the date the payment is made.
12. Waivers. The Companies waive any and all rights they 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 Commission
issues an Order adopting the Consent Decree without change, addition,
modification, or deletion. The Companies 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 the Companies nor the Commission shall contest
the validity of the Consent Decree or the Adopting Order, and the
Companies shall waive any statutory right to a trial de novo regarding
the terms and conditions of this Consent Decree. The Companies hereby
agree to waive any claims they may otherwise have under the Equal
Access to Justice Act, relating to the matters addressed in this
Consent Decree.
13. 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.
14. 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 the Companies do not expressly
consent) that provision will be superseded by such Commission Rule or
Order.
15. Successors and Assigns. The Companies agree that the provisions of
this Consent Decree shall be binding on its successors and any entity
to which the Companies assign or transfer substantially all of their
assets.
16. 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 Rules and Orders. The Parties agree
that this Consent Decree is for settlement purposes only and that by
agreeing to this Consent Decree, the Companies do not admit or deny
noncompliance, violation or liability for violating the Act or
Commission Rules or Orders in connection with the matters that are the
subject of this Consent Decree.
17. Modifications. This Consent Decree cannot be modified without the
advance written consent of all Parties.
18. 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.
19. Authorized Representative. Each Party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
20. 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.
________________________________
P. Michele Ellison
Chief
Enforcement Bureau
________________________________
Date
________________________________
Paul T. Porrini
Vice President, Deputy General Counsel and
Assistant Secretary
Hewlett-Packard Company
On behalf of EDS Spectrum Corporation and Hewlett-Packard Company
________________________________
Date
EDS and HP are referred to collectively herein as the "Companies."
47 U.S.C. S: 310(d); 47 C.F.R. S: 25.119; 47 C.F.R. Pt. 90.
47 U.S.C. S:S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S: 310(d); 47 C.F.R. S: 25.119; 47 C.F.R. Pt. 90.
See EDS Spectrum Corp., EB-09-IH-1049, Letter from Trent B. Harkrader,
Deputy Chief, Investigations & Hearings Division, Enforcement Bureau,
Federal Communications Commission, to Ms. Sylvia Hodges, EDS FCC Licensing
Coordinator, EDS Spectrum Corporation (Aug. 5, 2009) ("LOI") (concerning
EDS licensing issues). See also Electronic Mail from David Janas, Special
Counsel, Investigations & Hearings Division, Enforcement Bureau, Federal
Communications Commission, to Timothy Cooney, Esq. and David Solomon,
Esq., Wilkinson Barker Knauer, LLP, Counsel for EDS Spectrum Corporation
(Dec. 9, 2009) (concerning HP licensing issues).
47 U.S.C. S: 310(d); 47 C.F.R. S: 25.119; 47 C.F.R. Pt. 90.
47 U.S.C. S: 310(d).
See 47 C.F.R. S: 25.119 (governing transfer or assignment of satellite
communications licenses); 47 C.F.R. Pt. 90 (governing transfer or
assignment of private land mobile radio services licenses).
See supra note 2.
EDS Spectrum Corp., EB-09-IH-1049, EDS Spectrum Corporation Responses to
LOI dated August 5, 2009 (Sept. 4, 2009) ("LOI Response").
See Electronic Mail from David Solomon, Esq., Wilkinson Barker Knauer,
LLP, Counsel for EDS Spectrum Corporation, to David Janas, Special
Counsel, Investigations & Hearings Division, Enforcement Bureau, Federal
Communications Commission (Nov. 24, 2009); Letter from Timothy Cooney,
Esq. and David Solomon, Esq., Wilkinson Barker Knauer, LLP, Counsel for
EDS Spectrum Corporation to David Janas, Special Counsel, Investigations &
Hearings Division, Enforcement Bureau, Federal Communications Commission
(Dec. 16, 2009).
5 U.S.C. S: 504; 47 C.F.R. Part 1, Subpart K.
(Continued from previous page)
(continued...)
Federal Communications Commission DA 11-1326
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Federal Communications Commission DA 11-1326