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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-09-SE-220
In the Matter of
) Acct. No.: 201232100033
The Chamberlain Group, Inc.
) FRN: 0004301545
)
ORDER
Adopted: July 30, 2012 Released: July 31, 2012
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau (Bureau) of the Federal Communications
Commission (Commission) and The Chamberlain Group, Inc. (Chamberlain).
The Consent Decree resolves and terminates the Bureau's investigation
into Chamberlain's compliance with Section 302(b) of the
Communications Act of 1934, as amended (Act), and Sections 2.803,
2.902, 2.1043, and 15.249 of the Commission's rules (Rules) pertaining
to the marketing of unlicensed devices that operate in the 902 to 928
MHz band.
2. The Bureau and Chamberlain have negotiated the Consent Decree that
resolves 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 Chamberlain 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 Eric A. Reeves, Executive Vice President and General
Counsel, The Chamberlain Group, Inc., 845 Larch Avenue, Elmhurst, IL
60126, as well as to J.G. Harrington, Esq., counsel for The
Chamberlain Group, Inc., Dow Lohnes PLLC, 1200 New Hampshire Ave., NW,
Suite 800, Washington, DC 20036-2222.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-09-SE-220
In the Matter of
) Acct. No.: 201232100033
The Chamberlain Group, Inc.
) FRN: 0004301545
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and The
Chamberlain Group, 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, 2.902, 2.1043,
and 15.249 of the Commission's rules regarding the marketing of unlicensed
radio frequency devices that operate in the 902 to 928 MHz band, including
wireless intercoms and driveway alerts.
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. "Chamberlain" means The Chamberlain Group, Inc., its
predecessors-in-interest and successors-interest.
e. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
f. "Communications Laws" means collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to
which Chamberlain is subject by virtue of its business activities,
including but not limited to, the Equipment Marketing Rules.
g. "Compliance Plan" means the compliance obligations and compliance
program described in this Consent Decree at paragraph 10.
h. "Covered Employees" means all employees and agents of Chamberlain who
perform, or supervise, oversee, or manage the performance of, duties
that relate to Chamberlain's responsibilities under the Equipment
Marketing Rules.
i. "CWP" means Chamberlain Wireless Products Group, Inc., formerly a
wholly-owned subsidiary of Chamberlain.
j. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
k. "Equipment Marketing Rules" means Section 302(b) of the Act and
Sections 2.803, 2.902, 2.1043, and 15.249 of the Rules and other
Commission requirements governing the marketing of radio frequency
devices within the United States and its territories.
l. "Investigation" means the investigation commenced by the Bureau's
November 9, 2009 letter of inquiry to Chamberlain regarding possible
violations of the Equipment Marketing Rules.
m. "Operating Procedures" means the standard, internal operating
procedures and compliance policies established by Chamberlain to
implement the Compliance Plan.
n. "Parties" mean Chamberlain and the Bureau, each of which is a
"Party."
o. "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 Sections 2.803, 2.902, and
2.1043 of the Rules, radio frequency devices may not be marketed in
the United States unless such devices comply with the applicable
technical standards and administrative requirements relating to
equipment labeling and consumer disclosure. Pursuant to Section 15.249
of the Rules, unlicensed devices operating in the 902 to 928 MHz band
are required to comply with specified limits on output power. The
radio frequency devices marketed by CWP operated within the 902 to 928
MHz band and included wireless portable intercoms, wireless
indoor/outdoor intercoms, a wireless front doorbell with intercom, and
a wireless driveway alert (the CWP 900 MHz Product Line).
3. On March 31, 2008, Chamberlain voluntarily disclosed to the Commission
that it had discovered potential violations of the Equipment Marketing
Rules with respect to certain of the CWP 900 MHz Product Line devices.
Chamberlain supplemented its disclosure of the potential violations on
August 18, 2009. On November 9, 2009, the Bureau issued the letter of
inquiry (LOI) to Chamberlain, directing the company to submit a sworn
written response to a series of questions relating to the CWP 900 MHz
Product Line devices described in the March 31, 2008 Letter and the
August 18, 2009 Letter. Chamberlain responded to the LOI on December
16, 2009 and updated its LOI Response on October 26, 2011 and April
25, 2012.
4. Chamberlain reported that it has either redesigned the CWP 900 MHz
Product Line devices to comply with the Equipment Marketing Rules or
discontinued the manufacture and marketing of such devices.
Chamberlain also represented that it augmented its Regulatory
Compliance Management (RCM) program, which incorporates as an integral
part the training of Chamberlain employees on compliance with Parts 2
and 15 of the Rules, to include new due diligence protocols relating
to the acquisition of new product lines that are subject to the
Equipment Marketing Rules. The Bureau and Chamberlain entered into
tolling agreements to toll the statute of limitations.
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.
6. Jurisdiction. Chamberlain agrees that the Bureau has jurisdiction
over it and the matters contained in this Consent Decree and that 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 as defined herein.
As of the Effective Date, the Adopting Order and this Consent Decree
shall have the same force and effect as any other order of the
Commission. Any violation of the Adopting Order or of the terms 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.
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 the
Investigation. In consideration for the termination of the
Investigation, Chamberlain 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 Chamberlain 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
Chamberlain with respect to Chamberlain's basic qualifications,
including its character qualifications, to be a Commission licensee or
to hold Commission licenses or authorizations.
9. Compliance Officer. Within thirty (30) calendar days after the
Effective Date, Chamberlain shall designate a senior corporate manager
with the requisite corporate and organizational authority to serve as
Compliance Officer and to discharge the duties set forth below. The
person designated as the Compliance Officer shall be responsible for
developing, implementing, and administering the Compliance Plan and
ensuring that Chamberlain complies with the terms and conditions of
the Compliance Plan and this Consent Decree. In addition to the
general knowledge of the Communications Laws necessary to discharge
his/her duties under this Consent Decree, the Compliance Officer shall
have specific knowledge of the Equipment Marketing Rules prior to
assuming his/her duties.
10. Compliance Plan. For purposes of settling the matters set forth
herein, Chamberlain agrees that it shall within sixty (60) calendar
days after the Effective Date, develop and implement a Compliance Plan
designed to ensure future compliance with the Communications Laws and
with the terms and conditions of this Consent Decree. With respect to
the Equipment Marketing Rules, Chamberlain shall implement the
following procedures:
a. Operating Procedures on Equipment Marketing. Within sixty (60)
calendar days after the Effective Date, Chamberlain shall review and
augment as necessary its recently revised Operating Procedures to
help ensure Chamberlain's compliance with the Equipment Marketing
Rules. Chamberlain's Operating Procedures shall include internal
procedures and policies that all Covered Employees must follow and
which are specifically designed to ensure that all radio frequency
devices marketed by Chamberlain comply with applicable technical
standards, have been properly authorized (via the certification,
verification, or declaration of conformity procedures, as
applicable), and comply with the applicable administrative
requirements relating to equipment labeling and consumer disclosure.
Chamberlain's Operating Procedures also shall incorporate its
augmented RCM program relating to the acquisition of new product
lines that are subject to the Equipment Marketing Rules.
b. Compliance Manual. Within sixty (60) calendar days after the
Effective Date, the Compliance Officer shall develop and distribute a
Compliance Manual to all Covered Employees. The Compliance Manual
shall explain the Equipment Marketing Rules and set forth the
Operating Procedures that Covered Employees shall follow to help
ensure Chamberlain's compliance with the Equipment Marketing Rules.
Chamberlain shall periodically review and revise the Compliance
Manual as necessary to ensure that the information set forth therein
remains current and complete. Chamberlain shall distribute any
revisions to the Compliance Manual promptly to all Covered Employees.
c. Compliance Training Program. Chamberlain shall maintain its RCM
employee training program on compliance with the Equipment Marketing
Rules and incorporate training on Chamberlain's Operating Procedures
(Compliance Training Program). As part of the Compliance Training
Program, Covered Employees shall be advised of Chamberlain's
obligation to report any noncompliance with the Equipment Marketing
Rules under paragraph 11 of this Consent Decree and shall be
instructed on how to disclose noncompliance to the Compliance
Officer. All Covered Employees shall be trained pursuant to the
Compliance Training Program within sixty (60) calendar days after the
Effective Date, except that any person who becomes a Covered
Employee at any time after the Effective Date shall be trained within
thirty (30) calendar days after the date such person becomes a
Covered Employee. Chamberlain shall repeat the compliance training on
an annual basis, and shall periodically review and revise the
Compliance Training Program as necessary to ensure that it remains
current and complete and to enhance its effectiveness.
11. Reporting Noncompliance. Chamberlain shall report any noncompliance
with the Equipment Marketing Rules and with the terms and conditions
of this Consent Decree within fifteen (15) calendar days after
discovery of such noncompliance. Such reports shall include a detailed
explanation of (i) each instance of noncompliance; (ii) the steps that
Chamberlain has taken or will take to remedy such noncompliance; (iii)
the schedule on which such remedial actions will be taken; and (iv)
the steps that Chamberlain has taken or will take to prevent the
recurrence of any such noncompliance. All reports of noncompliance
shall be submitted to the Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, Room 3-C366,
445 12th Street, S.W., Washington, D.C. 20554, with a copy submitted
electronically to Linda Nagel at Linda.Nagel@fcc.gov and to Ricardo
Durham at Ricardo.Durham@fcc.gov.
12. Compliance Reports. Chamberlain 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.
a. Each compliance report shall include a detailed description of
Chamberlain's efforts during the relevant period to comply with the
terms and conditions of this Consent Decree and the Equipment
Marketing Rules. In addition, each Compliance Report shall include a
certification by the Compliance Officer, as an agent of and on behalf
of Chamberlain, stating that the Compliance Officer has personal
knowledge that Chamberlain (i) has established and implemented the
Compliance Plan; (ii) has utilized the Operating Procedures since the
implementation of the Compliance Plan; and (iii) is not aware of any
instances of noncompliance with the terms and conditions of this
Consent Decree, including the reporting obligations set forth in
paragraph 11 hereof.
b. The Compliance Officer's certification shall be accompanied by a
statement explaining the basis for such 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.
c. If the Compliance Officer cannot provide the requisite certification,
the Compliance Officer, as an agent of and on behalf of Chamberlain,
shall provide the Commission with a detailed explanation of the
reason(s) why and describe fully (i) each instance of noncompliance;
(ii) the steps that Chamberlain has taken or will take to remedy such
noncompliance, including the schedule on which proposed remedial
actions will be taken; and (iii) the steps that Chamberlain has taken
or will take to prevent the recurrence of any such noncompliance,
including the schedule on which such preventive action will be taken.
d. All Compliance Reports shall be submitted to the Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission, Room 3-C366, 445 12th Street, S.W., Washington, D.C.
20554, with a copy submitted electronically to Linda Nagel at
Linda.Nagel@fcc.gov and to Ricardo Durham at Ricardo.Durham@fcc.gov.
13. Termination Date. Unless stated otherwise, the obligations set forth
in paragraphs 9 through 12 of this Consent Decree shall expire
twenty-four (24) months after the Effective Date.
14. Voluntary Contribution. Chamberlain agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
thirty five thousand dollars ($35,000) within thirty (30) calendar
days after the Effective Date. Chamberlain shall also send electronic
notification of payment to Linda Nagel at Linda.Nagel@fcc.gov, Ricardo
Durham at Ricardo.Durham@fcc.gov, and Samantha Peoples at
Sam.Peoples@fcc.gov on the date said payment is made. The payment must
be made by check or similar instrument, wire transfer, or credit card,
and must include the NAL/Account number and FRN referenced above.
Regardless of the form of payment, a completed 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). Below are additional instructions you should follow based on
the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
If you have questions regarding payment procedures, please contact the
Financial Operations Group Help Desk by phone, 1-877-480-3201, or by
e-mail, ARINQUIRIES@fcc.gov.
15. Waivers. Chamberlain 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 as defined herein. Chamberlain 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 Chamberlain nor the Commission shall contest
the validity of the Consent Decree or of the Adopting Order, and
Chamberlain shall waive any statutory right to a trial de novo.
Chamberlain hereby agrees to waive any claims it may have under the
Equal Access to Justice Act relating to the matters addressed in this
Consent Decree.
16. 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.
17. 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 Chamberlain does not expressly
consent) that provision will be superseded by such Rule or Commission
order.
18. Successors and Assigns. Chamberlain agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
19. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties with
respect 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 Communications Laws.
20. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
21. 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.
22. Authorized Representative. The individual signing this Consent Decree
on behalf of Chamberlain represents and warrants that he/she is
authorized by Chamberlain to execute this Consent Decree and to bind
Chamberlain to the obligations set forth herein. The FCC signatory
represents that she is signing this Consent Decree in her official
capacity and that she is authorized to execute this Consent Decree.
23. 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
________________________________
Mark Karasek
Executive Vice President
Engineering and Chief Technology Officer
The Chamberlain Group, Inc.
________________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803, 2.902, 2.1043, 15.249.
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, 2.902, 2.1043, 15.249.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
FCC Enforcement Bureau, to Robert Keller, Director, Design Engineering,
The Chamberlain Group, Inc. (Nov. 9, 2009) (on file in EB-09-SE-220).
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803, 2.902, 2.1043.
Id. S: 15.249.
See Letter from Kevin F. Reed, Counsel for Chamberlain, to Karen Onyeije,
Associate Chief, Enforcement Bureau, Federal Communications Commission
(Oct. 26, 2011) (October 26, 2011 Letter) (on file in EB-09-SE-220).
See Letter from Kevin F. Reed and J.G. Harrington, Counsel for The
Chamberlain Group, Inc., to Raymond LaForge, Chief, Auditing and
Compliance Branch, Laboratory Division, FCC Office of Engineering and
Technology (Mar. 31, 2008) (March 31, 2008 Letter) (on file in
EB-09-SE-220). Chamberlain acquired CWP (formerly International
Electronics, Inc.) in 2007 and subsequently renamed the company
"Chamberlain Wireless Products Group, Inc." Id. at 1.
See Letter from Kevin F. Reed and J.G. Harrington, Counsel for The
Chamberlain Group, Inc. to Raymond LaForge, Chief, Auditing and Compliance
Branch, Laboratory Division, FCC Office of Engineering and Technology,
(Aug. 18, 2009) (August 18, 2009 Letter) (on file in EB-09-SE-220).
See supra note 3.
See Letter from Kevin F. Reed and J.G. Harrington, Counsel for
Chamberlain, to Marlene H. Dortch, Secretary, Federal Communications
Commission (Dec. 16, 2009) (on file in EB-09-SE-220).
See October 26, 2011 Letter.
See email from J.G. Harrington, Counsel for Chamberlain, to Linda M.
Nagel, Attorney Advisor, Spectrum Enforcement Division, FCC Enforcement
Bureau (Apr. 25, 2012, 14:32 EDT) (on file in EB-09-SE-220).
See October 26, 2011 Letter at 2.
Id.
See, e.g., Tolling Agreement Extension, EB-09-SE-220, executed by and
between John D. Poutasse, Chief, Spectrum Enforcement Division, FCC
Enforcement Bureau, and Eric A. Reeves, Executive Vice President and
General Counsel, Chamberlain Group, Inc. (Apr. 30, 2012) (on file in
EB-09-SE-220).
47 C.F.R. S: 1.16.
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
Equal Access to Justice Act, Pub L. No 96-481, 94 Stat. 2325 (1980)
(codified at 5 U.S.C. S: 504); see also 47 C.F.R. S:S: 1.1501-1.1530.
Federal Communications Commission DA 12-1121
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Federal Communications Commission DA 12-1121