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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
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In the Matter of
)
RIO TINTO AMERICA INC. File No. EB-09-IH-1665
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and Acct. No. 201232080009
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ALCAN CORPORATION FRN No. 0019120237
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Parent Companies of Various Subsidiary FRN No. 0019227933
Companies Holding Various Authorizations )
in the Wireless Radio Services
)
)
)
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") of the Federal Communications
Commission, Rio Tinto America Inc. ("Rio Tinto), and Alcan Corporation
("Alcan"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's
Investigation into whether Rio Tinto and Alcan violated Section 310(d)
of the Communications Act of 1934, as amended (the "Act"), and Section
1.948 of the Commission's Rules ("Rules"), relating to the requirement
that Commission approval be obtained prior to assignment or transfer
of control of wireless radio station licenses; and Section 301 of the
Act, and Sections 1.903 and 1.949(a) of the Rules, relating to the
authorized operation of stations and equipment in the wireless radio
services, and the timely filing of renewal applications.
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. "Adopting Order" or "Order" means an order of the Bureau adopting the
terms of this Consent Decree.
c. "Alcan" means Alcan Corporation, and includes its subsidiaries,
affiliates, 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. "Companies" means Rio Tinto and Alcan.
g. "Compliance Officer" means the individual designated in paragraph 11
of this Consent Decree as the person responsible for administration of
the Compliance Plan.
h. "Compliance Plan" means the program described in this Consent Decree
at paragraph 11.
i. "Effective Date" means the date on which the Bureau, by delegated
authority, releases the Adopting Order.
j. "Investigation" means the investigation initiated by the Bureau
regarding whether the Companies: (1) engaged in substantial and pro
forma assignments and transfers of control of certain licenses on
multiple occasions without seeking or obtaining prior Commission
consent, in violation of section 310(d) of the Act and section 1.948
of the Rules; and (2) failed to timely file a renewal application for
operation of a station in the wireless radio services, operated
certain stations without Commission authority, and operated radio
transmitter equipment on unauthorized frequencies, in violation of
section 301 of the Act and sections 1.903(a) and 1.949(a) of the
Rules.
k. "Parties" means Rio Tinto, Alcan, and the Bureau, each of which is a
"Party."
l. "Rio Tinto" means Rio Tinto America Inc., and includes its
subsidiaries, predecessors-in-interest, and successors-in-interest.
m. "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 generally
are prohibited from transferring or assigning FCC licenses without
prior Commission approval. Furthermore, the Rules require Commission
wireless radio services licensees to apply for, and obtain, Commission
approval before transferring or assigning FCC licenses.
4. Section 301 of the Act and Section 1.903(a) of the Rules prohibit the
use or operation of any apparatus for transmission of energy or
communications or signals by radio except under, and in accordance
with, a Commission-granted authorization. Further, section 1.949(a) of
the Rules requires that a licensee file a renewal application for a
wireless radio station "no later than the expiration date of the
authorization for which renewal is sought, and no sooner than 90 days
prior to expiration." Absent a timely filed renewal application, a
wireless radio station license automatically terminates.
5. Rio Tinto Group is a large international business involved in all
stages of metal and mineral production. It produces aluminum, copper,
diamonds, coal, iron ore, uranium, gold and industrial minerals. With
production mainly from North America and Australia, Rio Tinto Group
operates in more than 50 countries and employs more than 100,000
people. It is structured as a dual-listed company, listed on the
London Stock Exchange under the name Rio Tinto plc and on the
Australian Securities Exchange under the name Rio Tinto Limited. Rio
Tinto and Alcan (collectively, "Companies") are subsidiaries of Rio
Tinto plc and are incorporated in the United States. Direct and
indirect subsidiaries of the Companies hold private radio licenses
granted by the FCC for use in mining-related activities in the United
States.
6. In August 2009 letters directed to the Commission's Wireless
Telecommunications Bureau ("WTB"), Rio Tinto Group voluntarily
disclosed that it had recently discovered that direct and indirect
subsidiaries and affiliates of the Companies holding FCC licenses had
participated in corporate mergers, acquisitions, asset transfers, and
other transactions involving assignments and transfers of control of
these licenses for which prior Commission consent had not been
obtained. WTB referred the matter to the Enforcement Bureau
("Bureau"), which immediately commenced an investigation.
Subsequently, the Companies each conducted a comprehensive audit of
their FCC-licensed facilities, which also revealed the failure to
renew a license for a wireless station, the unauthorized operation of
two stations, and the operation of radio transmitter equipment on
three unauthorized frequencies. Between August 2009 and September
2011, the Companies filed with WTB requests for Special Temporary
Authority (STA), as well as curative applications seeking Commission
consent to the assignments and transfers of control of the subject
licenses, and applications for permanent authorizations to operate in
conformance with the Rules. These filings were completed in September
2011 and WTB has since granted all such applications.
III. TERMS OF AGREEMENT
7. 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.
8. Jurisdiction. The Companies agree that the Bureau has jurisdiction
over them and the matters contained in this Consent Decree and has the
authority to enter into and adopt this Consent Decree.
9. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the Effective Date. 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.
10. 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, 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, any
new proceeding, formal or informal, or take any action on its own
motion against the Companies concerning the matters that were the
subject of the Investigation. The Bureau also agrees that in the
absence of new material evidence it 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 any proceeding,
formal or informal, or take any action on its own motion against the
Companies with respect to their basic qualifications, including
character qualifications, to be a Commission licensee or hold
Commission authorizations.
11. Compliance Plan. Within thirty (30) calendar days of the Effective
Date, the Companies each agree to implement a comprehensive
Compliance Plan for purposes of ensuring their compliance with the
Act, the Commission's Rules, and the Commission's orders. The
Compliance Plan shall include, at a minimum, the following components:
a. Compliance Officers. The Companies shall each designate a Compliance
Officer, as defined in paragraph 2 of this Consent Decree, within
thirty (30) calendar days of the Effective Date. The Compliance
Officer shall administer the respective Company's Compliance Plan,
supervise the Company's compliance with the Act and the Commission's
Rules and orders, and serve as the point of contact on behalf of the
Company for all FCC-related compliance matters.
b. Compliance Manuals. Within sixty (60) calendar days of the Effective
Date, the Compliance Officers shall each develop and distribute a
Compliance Manual to the respective Company's employees and others who
perform the Company's federal regulatory reporting and
compliance-related tasks, all of whom shall follow the procedures
detailed in the Compliance Manual. The Compliance Manuals shall
include at a minimum: (i) an overview of the Commission's requirements
applicable to the Companies' operations, including the need for prior
approval for wireless license transfers of control and assignments;
authorized operation of wireless stations and equipment, and timely
filing of wireless station license renewal applications; (ii) a
description of the regulatory requirements applicable to the accurate
and timely reporting of information in FCC applications; and (iii)
instructions regarding due diligence for FCC applications. The
Compliance Manuals shall be updated from time to time, as needed.
c. Compliance Training Programs. Within ninety (90) calendar days of the
Effective Date and annually thereafter, the Companies shall each
implement and conduct a training program for the respective Company's
employees and others who perform duties for the Company that trigger
or may trigger compliance-related responsibilities. The Companies
shall ensure that training and compliance materials are provided to
new and reassigned employees who are responsible for fulfilling those
obligations within the first thirty (30) calendar days of employment
or reassignment.
d. Review and Monitoring. The Companies shall each review their
respective Compliance Manuals and Compliance Training Programs at
least annually to ensure they are maintained in a proper manner and
continue to address the respective Company's compliance with federal
regulatory reporting obligations. The Companies shall update the
Compliance Manual and Compliance Training Program in the event of
changes and/or additions to the relevant Rules and related Commission
orders.
e. Compliance Reports. The Companies shall each file Compliance Reports
with the Commission ninety (90) calendar days after the Effective
Date, twelve (12) months after the Effective Date, twenty-four (24)
months after the Effective Date, and upon expiration of this
Compliance Plan, i.e. three (3) years after the Effective Date. Each
Compliance Report shall include a compliance certificate from the
Compliance Officer, as an agent of and on behalf of Rio Tinto or
Alcan, respectively, stating that he or she has personal knowledge
that the Company: (i) has established operating procedures intended to
ensure compliance with the terms and conditions of this Consent
Decree, sections 301 and 310(d) of the Act, and sections 1.903, 1.948
and 1.949(a) of the Commission's Rules, together with an accompanying
statement explaining the basis for the Compliance Officer's
certification; (ii) has been utilizing those procedures since
commencement of the Compliance Plan or the previous Compliance Report
was submitted, as applicable; and (iii) is not aware of any instances
of non-compliance. The certification must comply with section 1.16 of
the Commission's Rules and be subscribed to as true under penalty of
perjury in substantially the form set forth therein. If the Compliance
Officer cannot provide the requisite certification, he or she, as an
agent of and on behalf of Rio Tinto or Alcan, respectively, shall
provide the Commission with a detailed explanation of: (i) any
instances of non-compliance with this Consent Decree, sections 301 and
310(d) of the Act, and sections 1.903, 1.948 and 1.949(a) of the
Commission's Rules; and (ii) the steps that the Company has taken or
will take to remedy each instance of non-compliance and ensure future
compliance, and the schedule on which proposed remedial actions will
be taken. All Compliance Reports shall be submitted to the Chief,
Investigations & Hearings Division, Enforcement Bureau, Federal
Communications Commission, Room 4-C330, 445 12th Street, S.W.,
Washington, D.C. 20554, with a copy submitted electronically to Gary
Schonman at Gary.Schonman@fcc.gov, and to Margaret Dailey at
Margaret.Dailey@fcc.gov.
f. Reporting Non-Compliance. The Companies shall each report any
non-compliance with this Consent Decree, or section 301 or 310(d) of
the Act, Subpart F of Part 1 of the Rules, or related Commission
orders to the Bureau within 30 calendar days of the discovery of
non-compliance.
g. Termination Date of Compliance Plan. The requirements relating to the
Compliance Plan shall expire three (3) years after the Effective Date,
unless stated otherwise.
12. Voluntary Contribution. Rio Tinto and Alcan jointly agree that they
will make a voluntary contribution to the United States Treasury in
the total amount of $150,000 (one hundred and fifty thousand dollars)
within thirty (30) days of the Effective Date. The payment shall be
made by check or similar instrument, payable to the order of the
Federal Communications Commission. The payment shall 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 Federal Reserve Bank of New York, and
account number 27000001. The Companies will also send electronic mail
notification to Margaret.Dailey@fcc.gov on the date said payment is
made.
13. 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 Adopting Order, provided the Bureau issues an Adopting 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
any 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. The Companies hereby agree to
waive any claims they 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.
14. 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.
15. 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.
16. Successors and Assigns. The Companies agree that the provisions of
this Consent Decree shall be binding on their successors, assigns, and
transferees.
17. Modifications. This Consent Decree cannot be modified without the
written consent of all Parties.
18. 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 and
shall not be construed as (1) an adjudication on the merits, or (2) a
factual or legal finding or determination, or an admission by the
Companies, regarding any compliance, or noncompliance with the
requirements of the Act or the Rules and/or the Commission's orders.
19. 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.
20. Counterparts. This Consent Decree may be signed in 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.
21. Authorized Representative. Each Party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
________________________________
P. Michele Ellison
Chief
Enforcement Bureau
________________________________
Date
________________________________
Craig Johnson
Vice President
Rio Tinto America Inc.
________________________________
Date
________________________________
Eileen Burns Lerum
Vice President
Alcan Corporation
________________________________
Date
47 U.S.C. S: 310(d).
47 C.F.R. S: 1.948.
47 U.S.C. S: 301.
47 C.F.R. S:S: 1.903, 1.949(a).
47 U.S.C. S: 310(d).
47 C.F.R. S:1.948.
47 U.S.C. S: 301; 47 C.F.R. S: 1.903(a).
47 C.F.R. S: 1.949(a).
47 C.F.R. S: 1.955(a)(1).
Letters from John F. Clark, Counsel to Rio Tinto plc to Ruth Milkman,
Chief, Kathy Harris, and Jeff Tobias, Wireless Telecommunications Bureau,
FCC (Aug. 12 and 28, 2009).
See Letter from Catherine C. Butcher, Counsel to Rio Tinto to Gary
Schonman, Margaret Dailey, and Jeff Tobias, FCC (Sept. 13, 2011) (Sept.
13, 2011 Letter); Letter from Catherine C. Butcher, Counsel to Rio Tinto
to Gary Schonman, Margaret Dailey, and Jeff Tobias, FCC (July 14, 2011);
Letters from John F. Clark, Counsel to Rio Tinto Group to Rick Kaplan,
Chief, Kathy Harris, and Jeff Tobias, Wireless Telecommunications Bureau,
FCC (June 21, 2011) (June 21 Letters).
See June 21 Letters.
See Sept. 13, 2011 Letter.
47 U.S.C. S:S: 301, 310(d); 47 C.F.R. S:S: 1.903, 1.948, 1.949(a).
See 47 C.F.R. S: 1.16.
47 U.S.C. S:S: 301, 310(d); 47 C.F.R. S:S: 1.903, 1.948, 1.949(a).
Federal Communications Commission DA 11-2004
7
Federal Communications Commission DA 11-2004