Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-09-SE-210
In the Matter of
) Acct. No.: 201132100029
Luxul Wireless, Inc.
) FRN: 0018526590
)
ORDER
Adopted: May 19, 2011 Released: May 20, 2011
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Luxul Wireless, Inc.
("Luxul"). The Consent Decree terminates an investigation initiated by
the Bureau regarding Luxul's compliance with section 302(b) of the
Communications Act of 1934, as amended ("Act"), and sections 2.803(a),
2.925, and 15.204(d)(1), (2) of the Commission's rules ("Rules")
pertaining to the marketing of external radio frequency power
amplifiers.
2. The Bureau and Luxul 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 Luxul 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 Jeffrey Curtis, President & Chief Executive Officer,
Luxul Wireless, Inc., 357 South 670 West, Suite 160, Lindon, UT 84042.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-09-SE-210
In the Matter of
) Acct. No.: 201132100029
Luxul Wireless, Inc.
) FRN: 0018526590
)
CONSENT DECREE
The Enforcement Bureau and Luxul Wireless, Inc., by their authorized
representatives, hereby enter into this Consent Decree for the purpose of
terminating the Enforcement Bureau's investigation into whether Luxul
Wireless, Inc. violated section 302(b) of the Communications Act of 1934,
as amended, and sections 2.803(a), 2.925, and 15.204(d)(1), (2) of the
Commission's rules, regarding the marketing of external radio frequency
power amplifiers for individual sale.
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.
(g) "Effective Date" means the date on which the Bureau releases the
Adopting Order.
(h) "Investigation" means the investigation commenced by the Bureau's
January 27, 2010 letter of inquiry regarding Luxul's marketing of external
radio frequency power amplifiers.
(i) "Luxul" means Luxul Wireless, Inc., its predecessors-in-interest and
successors-in-interest.
(j) "Parties" means Luxul and the Bureau, each of which is a "Party".
(k) "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. Background
2. Pursuant to section 302(b) of the Act and section 2.803(a) of the
Rules, radio frequency devices may not be marketed in the United
States unless the devices comply with the applicable technical and
administrative provisions of the Rules. As a general rule, an
amplifier can only be marketed with the system with which it has been
approved, and not as a separate product. An exception to this rule
provides that an amplifier may be marketed for individual sale if the
amplifier is intended for use with certain Part 15 intentional
radiators. Under the exception, an amplifier marketed for individual
sale must be designed so that it can only be connected to a system
with which it has been previously authorized. Moreover, when an
amplifier is marketed for individual sale (for connection with a
previously authorized system), the Rules require that the outside
packaging and user manual include a notice that (i) states that the
amplifier can be used only with a previously authorized system, and
(ii) identifies the previously authorized system by FCC Identifier.
3. On January 27, 2010, the Bureau's Spectrum Enforcement Division issued
a letter of inquiry ("LOI") to Luxul. The LOI directed Luxul to submit
a sworn written response to a series of questions relating to whether
Luxul was marketing unauthorized and non-compliant external radio
frequency power amplifiers - including for individual sale - in
contravention of the Rules. Luxul responded to the LOI on March 10, 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. Luxul 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 the
Investigation, Luxul 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 Luxul
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 Luxul with respect to Luxul's basic
qualifications, including its character qualifications, to be a
Commission licensee or to hold Commission licenses or authorizations.
8. Compliance Plan. In response to the Bureau's Investigation, Luxul has
taken affirmative steps to facilitate the withdrawal of its
non-compliant external radio frequency power amplifiers from both
distributors and end-users in the market and, for purposes of settling
the matters herein, agrees to continue those efforts at least through
the term of this Consent Decree. Luxul further agrees that it shall
within sixty (60) calendar days after the Effective Date (i) develop
and implement a Compliance Plan related to future compliance with the
Communications Laws, including section 302(b) of the Act, sections
2.803(a), 2.925 and 15.204(d)(1), (2) of the Rules and other Rules,
Commission orders or statutory requirements governing the marketing of
external radio frequency power amplifiers for individual sale; and
(ii) establish and maintain standard, internal operating procedures
and policies that Luxul shall follow to ensure compliance with section
302(b) of the Act, sections 2.803(a), 2.925 and 15.204(d)(1), (2) of
the Rules and other Commission requirements related to equipment
marketing ("Operating Procedures"). The Compliance Plan shall include,
at a minimum, the following components:
a. Compliance Officer. Within thirty (30) calendar days after the
Effective Date, Luxul 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 equipment marketing, authorization, and
labeling requirements and other relevant Rules.
b. Compliance Training. Within sixty (60) calendar days after the
Effective Date, Luxul shall establish and implement a training
program on compliance with the Rules and requirements relating to
equipment authorization, marketing and labeling ("Training Program").
The Training Program shall be provided to all employees of Luxul who
are involved directly or indirectly in, or responsible for, the
design, development, sourcing, procurement and marketing of radio
frequency devices in the United States (each a "Covered Employee").
Luxul also shall prepare and distribute to all Covered Employees a
compliance checklist that Covered Employees will use to facilitate
compliance with the Commission's equipment marketing, authorization,
and labeling requirements. Any person who becomes a Covered Employee
at any time after the initial Training Program session shall be
provided such training, including instruction on the use of the
compliance checklist, within thirty (30) calendar days after the date
such person becomes a Covered Employee. Luxul shall repeat the
Training Program annually, 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.
c. Trade-in Program. Luxul shall continue to offer a web-based program
that allows any end user to trade in their non-compliant external
radio frequency power amplifier for a compliant amplifier product
kit. Luxul shall offer the end user a trade-in credit towards a
certified system sufficient to provide the end user a meaningful
incentive to surrender any unauthorized device(s).
d. Reporting Non-Compliance. Luxul shall report any non-compliance with
section 302(b) of the Act, or sections 2.803(a), 2.925 or
15.204(d)(1), (2) of the Rules 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 Luxul 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 Luxul has taken or
will take to prevent the recurrence of any such non-compliance. All
reports of non-compliance 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 Jennifer Burton at
Jennifer.Burton@fcc.gov and to JoAnn Lucanik at
JoAnn.Lucanik@fcc.gov.
e. Compliance Reports. Luxul shall file Compliance Reports with the
Commission ninety (90) 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 describe the status of Luxul's
trade-in program and identify the number of unauthorized devices
that then remain outstanding, and provide a detailed description of
Luxul's efforts during the relevant period to comply with the terms
and conditions of this Consent Decree and the Commission's
requirements relating to equipment authorization, marketing, and
labeling. In addition, each Compliance Report shall include a
certification by the Compliance Officer, as an agent of and on
behalf of Luxul, stating that the Compliance Officer has personal
knowledge that Luxul (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.
iii. If the Compliance Officer cannot provide the requisite
certification, the Compliance Officer, as an agent of and on
behalf of Luxul, shall provide the Commission with a detailed
explanation of (A) each instance of non-compliance; (B) the steps
that Luxul 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 Luxul 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.
iv. 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 Jennifer Burton at
Jennifer.Burton@fcc.gov and to JoAnn Lucanik at
JoAnn.Lucanik@fcc.gov.
f. Termination Date. Unless stated otherwise, the requirements of
paragraph 8 of this Consent Decree will expire twenty-four (24)
months after the Effective Date.
9. Voluntary Contribution. Luxul agrees that it will make a voluntary
contribution to the United States Treasury in the amount of eighteen
thousand two hundred dollars ($18,200). 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 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). Luxul must also send electronic
notification to Jennifer Burton, at Jennifer.Burton@fcc.gov and JoAnn
Lucanik at JoAnn.Lucanik@fcc.gov on the date said payment is made.
10. Waivers. Luxul 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. Luxul 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
Luxul nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Luxul shall waive any statutory
right to a trial de novo. Luxul 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 Luxul does not expressly
consent) that provision will be superseded by such Commission Rule or
order.
13. Successors and Assigns. Luxul 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
regard to the Investigation. 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. Each Party represents and warrants to the
other that it has full power and authority to enter into 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
_____________________________________
Jeffrey T. Curtis, President and CEO
Luxul Wireless, Inc.
_____________________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803(a), 2.925, 15.204(d)(1), (2).
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, 15.204(d)(1), (2).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Jeffrey Curtis,
President, Luxul Wireless (January 27, 2010).
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: 15.204(d).
47 C.F.R. S: 15.204(d)(1).
Id.
47 C.F.R. S: 15.204(d)(2). Of course, amplifiers must also comply with all
applicable identification and labeling requirements prior to marketing. 47
C.F.R. S: 2.925.
See supra n. 3.
See Letter from Mr. Jeffrey Curtis, President and CEO, Luxul Wireless,
Inc. to Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau (March 10, 2010).
(...continued from previous page)
(continued....)
Federal Communications Commission _ DA 11-885
7
Federal Communications Commission DA 11-885_