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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No.: EB-10-SE-053
In the Matter of )
NAL/Acct. No.: 201132100028
PreSonus Audio Electronics, Inc. )
FRN No.: 0020540134
)
)
ORDER
Adopted: April 28, 2011 Released: April 28, 2011
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and PreSonus Audio
Electronics, Inc. ("PreSonus"). The Consent Decree terminates an
investigation initiated by the Bureau regarding PreSonus's compliance
with section 302(b) of the Communications Act of 1934, as amended
("Act"), and sections 2.803, 2.1203, 15.19, and 15.105 of the
Commission's rules ("Rules") pertaining to the marketing of
unauthorized Class B digital audio radio frequency devices.
2. The Bureau and PreSonus have negotiated the terms of the Consent
Decree that would resolve this matter. A copy of the Consent Decree is
attached hereto and incorporated herein 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 PreSonus 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 PreSonus Audio Electronics, Inc., Tony Lin,
Esq., Pillsbury Winthrop Shaw Pittman LLP, 2300 N Street, N.W.,
Washington, D.C. 20037-1122, and to Stephen Fraser, Chief Operations
Officer, PreSonus Audio Electronics, Inc., 7257 Florida Blvd., Baton
Rouge, LA 70806.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
Washington, D.C. 20554
)
)
File No. EB-10-SE-053
In the Matter of )
NAL/Acct. No. 201132100028
PreSonus Audio Electronics, Inc. )
FRN No. 0020540134
)
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and
PreSonus Audio Electronics, Inc., by their authorized representatives,
hereby enter into this Consent Decree for the purpose of terminating the
Enforcement Bureau's investigation into possible violations of section
302(b) of the Communications Act of 1934, as amended, and sections 2.803,
2.1203, 15.19, and 15.105 of the Commission's rules pertaining to the
marketing of unauthorized Class B digital audio radio frequency ("RF")
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. "Communications Laws" means the Act, the Rules and the published and
promulgated orders and decisions of the Commission.
f. "Compliance Plan" means the compliance obligations and compliance
program described in this Consent Decree at paragraph 8 hereof.
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
12, 2010 letter of inquiry pertaining to possible violations by
PreSonus of section 302(b) of the Act and sections 2.803, 2.1203,
15.19, and 15.105 of the Rules by marketing unauthorized Class B
digital audio RF devices within the United States.
i. "Parties" means PreSonus and the Bureau, each of which is a "Party".
j. "PreSonus" means PreSonus Audio Electronics, Inc., its
predecessors-in-interest and successors-in-interest.
k. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. Background
2. Under section 302(b) of the Act and section 2.803(a) of the Rules, the
Commission prohibits the marketing of RF devices in the United States
unless the devices comply with the applicable administrative,
technical, labeling and identification requirements of the Rules.
Under section 15.101(a) of the Rules, parties responsible for
unintentional radiators, such as the Class B digital audio RF devices
marketed by PreSonus, must, in general, authorize the devices through
the verification or declaration of conformity procedures. To be
authorized, these devices must comply with the radiated emission
limits specified in section 15.107 of the Rules, and - because these
devices are designed to be connected to the public utility (AC) power
line - the conducted limits specified in section 15.109 of the Rules.
In addition, these devices must comply with certain labeling
requirements under section 15.19 of the Rules. Under section 15.105 of
the Rules, the manual for these devices must include a specified
statement regarding interference. Under section 2.1203 of the Rules,
an importer of these devices must declare the conditions under which
they are admissible into the United States.
3. On July 12, 2010, the Bureau issued the LOI to PreSonus. The LOI
directed PreSonus to respond to a series of questions regarding its
apparent marketing of certain digital audio devices. PreSonus
responded to the LOI on September 10, 2010. PreSonus and the Bureau
entered into a Tolling Agreement on October 19, 2010.
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. PreSonus 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 Effective Date as defined herein. 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 the
Investigation. In consideration for the termination of said
Investigation, PreSonus 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, 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 PreSonus 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 PreSonus
with respect to PreSonus's basic qualifications, including its
character qualifications, to be a Commission licensee or to hold
Commission licenses or authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, PreSonus agrees that within sixty (60) calendar days after the
Effective Date it shall (i) implement a Compliance Plan relating to
future compliance with the Communications Laws, including section
302(b) of the Act, sections 2.803, 2.1203, 15.19, and 15.105 of the
Rules, and other Rules, Commission orders or statutory requirements
governing the authorization and marketing of RF devices; (ii)
establish and maintain standard, internal operating procedures and
policies that PreSonus shall follow to ensure compliance with such
requirements ("Operating Procedures"); and (iii) incorporate such
Operating Procedures in its Compliance Manual pursuant to paragraph
8(b) below. The Compliance Plan shall include, at a minimum, the
following components:
a. Compliance Officer. Within thirty (30) calendar days after the
Effective Date, PreSonus shall designate a senior corporate manager
to serve as a Compliance Officer. The Compliance Officer shall be
responsible for administering the Compliance Plan and shall be
familiar with the FCC's Rules relating to the authorization and
marketing of RF devices, including all applicable technical and
administrative requirements.
b. Compliance Manual. The Compliance Officer shall develop and
distribute a Compliance Manual to all employees of PreSonus and
others who perform duties on its behalf that trigger or may trigger
compliance-related responsibilities under section 302(b) of the Act,
sections 2.803, 2.1203, 15.19, or 15.105 of the Rules, and any other
Rules, Commission orders or statutory requirements governing the
authorization and marketing of RF devices (each a "Covered
Employee"). The Compliance Manual shall describe (i) the Commission's
equipment authorization and marketing requirements; and (ii) the
Operating Procedures that PreSonus will follow to ensure compliance
with such requirements. PreSonus shall periodically review and, to
the extent necessary, revise the Compliance Manual to ensure that it
remains current and complete. PreSonus shall distribute any revisions
to the Compliance Manual promptly to all Covered Employees.
c. Compliance Training. Within sixty (60) calendar days after the
Effective Date, PreSonus shall establish and implement a training
program on compliance with section 302(b) of the Act, sections 2.803,
2.1203, 15.19, and 15.105 of the Rules, and other Rules, Commission
orders or statutory requirements governing the authorization and
marketing of RF devices ("Training Program"). The Training Program
will be provided to all Covered Employees. Any person who becomes a
Covered Employee at any time after the initial Training Program
session shall be provided such training within thirty (30) calendar
days after the date such person becomes a Covered Employee. PreSonus
shall conduct the Training Program on an annual basis, and shall
periodically review and, to the extent necessary, revise the Training
Program to ensure that it remains current and complete, and to
enhance its effectiveness.
d. Reporting Non-Compliance. PreSonus shall report any non-compliance
with section 302(b) of the Act, or sections 2.803, 2.1203, 15.19, or
15.105 of the Rules, to the Bureau within fifteen (15) calendar days
after the discovery of such non-compliance. Such reports shall
include a detailed explanation of (i) each instance of
non-compliance; (ii) the steps that PreSonus has taken or will take
to remedy such non-compliance; (iii) the schedule on which such
remedial actions will be taken; and (iv) the steps that PreSonus has
taken or will take to prevent the recurrence of any such
non-compliance. All such reports of non-compliance shall be submitted
to Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C.
20554, with a copy submitted electronically to Nissa.Laughner@fcc.gov
and to Neal.McNeil@fcc.gov.
e. Compliance Reports. PreSonus shall file Compliance Reports with the
Commission ninety (90) calendar days after the Effective Date, twelve
(12) months after the Effective Date and twenty-four (24) months
after the Effective Date.
(i) Each compliance report shall provide a detailed description of
PreSonus' efforts during the relevant period to comply with the terms and
conditions of this Consent Decree and the Commission's requirements
relating to the authorization and marketing of RF devices. In addition,
each Compliance Report shall include a certification by the Compliance
Officer, as an agent of and on behalf of PreSonus, stating that the
Compliance Officer has personal knowledge that PreSonus (A) has
established and implemented the Compliance Plan; (B) has utilized the
Operating Procedures since the implementation of the Compliance Plan; and
(C) is not aware of any instances of non-compliance with the terms and
conditions of this Consent Decree, including the reporting obligations set
forth in paragraph 8(d) hereof.
(ii) The certification shall be accompanied by a statement explaining the
basis for the Compliance Officer's certification and must comply with
section 1.16 of the Rules and be subscribed to as true under penalty of
perjury in substantially the form set forth therein.
i. If the Compliance Officer cannot provide the requisite certification,
the Compliance Officer, as an agent of and on behalf of PreSonus,
shall provide the Commission with a detailed explanation of (A) each
instance of non-compliance; (B) the steps that PreSonus has taken or
will take to remedy such non-compliance, including the schedule on
which proposed remedial actions will be taken; and (C) the steps that
PreSonus has taken or will take to prevent the recurrence of any such
non-compliance, including the schedule on which such preventive action
will be taken.
ii. 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, with a
copy submitted electronically to Nissa.Laughner@fcc.gov and to
Neal.McNeil@fcc.gov.
f. Termination Date. Unless stated otherwise, the requirements of this
paragraph 8 of the Consent Decree shall expire twenty-four (24)
months after the Effective Date.
9. Voluntary Contribution. PreSonus agrees that it will make a voluntary
contribution to the United States Treasury in the amount of one
hundred twenty five thousand dollars ($125,000). The payment must 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 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). PreSonus must also send
electronic notification to Nissa.Laughner@fcc.gov and to
Neal.McNeil@fcc.gov on the date said payment is made.
10. Waivers. PreSonus 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. PreSonus 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 PreSonus nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and PreSonus
shall waive any statutory right to a trial de novo. PreSonus hereby
agrees to waive any claims it may 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 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.
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 PreSonus does not expressly
consent) that provision will be superseded by such Rule or order.
13. Successors and Assigns. PreSonus 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 with
respect to the matters set forth herein. 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, the
Rules or the Commission's orders.
15. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
16. 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.
17. Authorized Representative. The individual signing this Consent Decree
on behalf of PreSonus represents and warrants that he is authorized by
PreSonus to execute this Consent Decree and to bind this company to
the obligations set forth herein. The FCC signatory represents that
she is signing this agreement in her official capacity and that she is
authorized to execute this Consent Decree.
18. 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
____________________________
Stephen Fraser
Chief Operations Officer
PreSonus Audio Electronics, Inc.
____________________________
Date
+-+
+-+
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803, 2.1203, 15.19, 15.105.
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, 2.1203, 15.19, and 15.105.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Rick Naqvi, Vice
President, Sales and Marketing, PreSonus Audio Electronics, Inc. (July 12,
2010) ("LOI").
47 C.F.R. S: 2.803(a).
Section 2.803(e)(4) of the Rules defines "marketing" as including 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).
Section 2.801 of the Rules defines "radio frequency device" as "any device
which in its operation is capable of emitting radio-frequency energy by
radiation, conduction, or other means." 47 C.F.R. S: 2.801.
47 C.F.R. S: 15.101(a).
See 47 C.F.R. S: 2.909(b), (c).
Section 15.3(z) of the Rules defines "unintentional radiator" as "a device
that intentionally generates radio frequency energy for use within the
device, or that sends radio frequency signals by conduction to associated
equipment via connecting wiring, but which is not intended to emit RF
energy by radiation or induction." 47 C.F.R. S: 15.3(z).
Section 15.3(i) of the Rules defines "Class B digital device" as "a
digital device that is marketed for use in a residential environment
notwithstanding use in commercial, business and industrial environments."
47 C.F.R. S: 15.3(i).
See 47 C.F.R. S: 2.902.
See 47 C.F.R. S: 2.906.
47 C.F.R. S: 15.107.
47 C.F.R. S: 15.109.
47 C.F.R. S: 15.19.
47 C.F.R. S: 15.105.
47 C.F.R. S: 2.1203; see also 47 C.F.R. S:S: 2.1204, 2.1205.
See LOI, supra note 3.
See Letter from Clifford M. Harrington and Tony Lin, Counsel for PreSonus
Audio Electronics, Inc. to Nissa Laughner, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (September 10,
2010).
Tolling Agreement, File No. EB-10-SE-053, executed by and between Kathryn
S. Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission, and Jim Mack, Chief Executive Officer,
PreSonus Audio Electronics, Inc. (October 19, 2010). The Parties entered
into a Tolling Agreement Extension on March 8, 2011. Tolling Agreement
Extension, File No. EB-10-SE-053, executed by and between Ricardo M.
Durham, Acting Chief, Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission, and Stephen Fraser, Chief Operations
Officer, PreSonus Audio Electronics, Inc. (March 8, 2011). The Parties
entered into a second Tolling Agreement Extension on April 11, 2011.
Tolling Agreement Extension, File No. EB-10-SE-053, executed by and
between John D. Poutasse, Acting Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, and Stephen Fraser,
Chief Operations Officer, PreSonus Audio Electronics, Inc. (April 11,
2011).
Federal Communications Commission DA 11-754
2
Federal Communications Commission DA 11-754