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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Digital Antenna, Inc. Sunrise, Florida ) ) ) ) ) File
No.: EB-SED-13-00009244 NAL/Acct. No.: 200832100045 FRN: 0005061015
ORDER
Adopted: August 30, 2013 Released: August 30, 2013
By the Acting 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 Digital Antenna, Inc. (Digital Antenna).
The Consent Decree resolves and terminates the Bureau's investigation
into Digital Antenna's compliance with Sections 4(i), 4(j), and 403 of
the Communications Act of 1934, as amended,^ in connection with its
failure to respond fully to directives of the Bureau to provide
certain information and documents.
2. The Bureau and Digital Antenna 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 Digital Antenna 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 Sections 4(i), 4(j), and
503(b) of the Communications Act of 1934, as amended, 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-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 Joanne Johnson, President, Digital Antenna, Inc., 5325
NW 108^th Avenue, Sunrise, FL 33351, and to Steven A. Augustino, Esq.,
Kelley Drye & Warren, LLP, Counsel for Digital Antenna, Inc., 3050 K
Street NW, Suite 400, Washington DC 20007.
FEDERAL COMMUNICATIONS COMMISSION
Robert H. Ratcliffe
Acting Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Digital Antenna, Inc. Sunrise, Florida ) ) ) ) ) File
No.: EB-SED-13-00009244 NAL/Acct. No.: 200832100045 FRN: 0005061015
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and
Digital Antenna, Inc., by their authorized representatives, hereby enter
into this Consent Decree for the purpose of settling an enforcement
proceeding against Digital Antenna regarding Digital Antenna's compliance
with Sections 4(i), 4(j), and 403 of the Communications Act of 1934, as
amended,^ in connection with its failure to respond fully to directives of
the Bureau to provide certain information and documents.
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.
a. "Adopting Order" means an order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
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. "Communications Laws" means collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to
which Digital Antenna is subject by virtue of its business activities.
e. "Compliance Plan" means the compliance obligations, program, and
procedures described in this Consent Decree at paragraph 10.
f. "Covered Employees" means all employees and agents of Digital Antenna
who prepare responses, are responsible for responding, or otherwise
possess the corporate or organizational authority to respond or direct
a response, to Commission inquiries or directives on behalf of Digital
Antenna.
g. "Digital Antenna" means Digital Antenna, Inc. and its subsidiaries as
well as its predecessors-in-interest and its successors-in-interest.
h. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
i. "Investigation" means the investigation commenced by the Bureau's
November 5, 2007 letter of inquiry to Digital Antenna, concluding with
Digital Antenna's response to the Bureau's directive in the NAL&O to
fully respond to the Bureau's inquiries.
j. "Notice of Apparent Liability for Forfeiture and Order" or "NAL&O"
means Digital Antenna, Inc., Notice of Apparent Liability for
Forfeiture and Order, 23 FCC Rcd 7600 (Enf. Bur. 2008).
k. "Parties" means Digital Antenna 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
2. Sections 4(i), 4(j), and 403 of the Act afford the Commission broad
authority to investigate the entities it regulates. Section 4(i)
authorizes the Commission to "issue such orders, not inconsistent with
[the] Act, as may be necessary in the execution of its functions,"^
and Section 4(j) states that the "Commission may conduct its
proceedings in such manner as will best conduce to the proper dispatch
of business and to the ends of justice."^ Section 403 likewise grants
the Commission "full authority and power at any time to institute an
inquiry, on its own motion . . . relating to the enforcement of any of
the provisions of [the] Act."^
3. On November 5, 2007, the Bureau issued a letter of inquiry to Digital
Antenna, directing Digital Antenna to submit a sworn written response
to a series of questions relating to Digital Antenna's marketing of
certain cellular boosters/repeaters.^ Digital Antenna responded to the
First LOI on November 6, 2007, but failed to answer all of the
Bureau's questions.^ The Bureau issued a second letter of inquiry to
Digital Antenna on February 4, 2008, directing Digital Antenna to
provide the information that it failed to supply in its first
response.^ Digital Antenna responded to the Second LOI on February 15,
2008, but again failed to fully provide the requested information.^
4. On May 12, 2008, the Bureau issued a Notice of Apparent Liability for
Forfeiture and Order to Digital Antenna, proposing a monetary
forfeiture in the amount of $11,000 for its apparent willful and
repeated failure to respond fully to the directives of the Bureau. ^ ^
In the NAL&O, the Bureau noted that "[p]rompt and full responses to
Bureau inquiry letters are essential to the Commission's enforcement
function."^ The NAL&O also ordered Digital Antenna to respond fully to
the Second LOI within thirty days of the NAL&O. Digital Antenna
submitted a complete response to the NAL&O on June 11, 2008,
contending, inter alia, that it in good faith attempted to respond to
the Bureau inquiry letters.^ The Parties agreed subsequently to
negotiate a settlement. The Bureau and Digital Antenna entered into a
tolling agreement to toll the applicable 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. Digital Antenna 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, Digital Antenna 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 Digital Antenna 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
Digital Antenna with respect to Digital Antenna'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, Digital Antenna 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 Digital Antenna 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 obligations
under Sections 4(i), 4(j), and 403 of the Act to respond to Commission
inquiries and directives, including, without limitation, the process
for both seeking and obtaining extensions of time to respond to
Commission inquiries and directives, and the procedures set forth in
Section 0.459 of the Rules for requesting that materials or
information submitted to the Commission be withheld from public
inspection.^
10. Compliance Plan. For purposes of settling the matters set forth
herein, Digital Antenna 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. As part of the Compliance Plan, Digital Antenna shall
establish detailed internal procedures and policies specifically
designed to ensure that Digital Antenna fully and completely responds
to all future Commission inquiries and directives in a timely manner.
11. Compliance Reports. Digital Antenna shall 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 thirty-six (36) months after the
Effective Date.
a. Each compliance report shall include a detailed description of Digital
Antenna's efforts during the relevant period to comply with the terms
and conditions of this Consent Decree. In addition, each Compliance
Report shall include a certification by the Compliance Officer, as an
agent of and on behalf of Digital Antenna, stating that the Compliance
Officer has personal knowledge that Digital Antenna (i) has
established and implemented the Compliance Plan; and (ii) is not aware
of any instances of noncompliance with the terms and conditions of
this Consent Decree.
m. 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.^
n. If the Compliance Officer cannot provide the requisite certification,
the Compliance Officer, as an agent of and on behalf of Digital
Antenna, 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 Digital Antenna 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
Digital Antenna has taken or will take to prevent the recurrence of
any such noncompliance, including the schedule on which such
preventive action will be taken.
o. The Compliance Reports shall be submitted to the Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street SW, Room 3-C366, Washington, D.C. 20554,
with a copy submitted electronically to Celia Lewis at
Celia.Lewis@fcc.gov and to Daudeline Meme at Daudeline.Meme@fcc.gov.
12. Termination Date. Unless stated otherwise, the requirements of
paragraphs 9 through 11 of this Consent Decree shall expire thirty-six
(36) months after the Effective Date.
13. Voluntary Contribution. Digital Antenna agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
five thousand dollars ($5,000) within thirty (30) calendar days after
the Effective Date. Digital Antenna shall also send electronic
notification of payment to Celia Lewis at Celia.Lewis@fcc.gov,
Daudeline Meme at Daudeline.Meme@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.
14. Waivers. Digital Antenna 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. Digital Antenna 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 Digital Antenna nor the Commission shall
contest the validity of the Consent Decree or of the Adopting Order,
and Digital Antenna shall waive any statutory right to a trial de
novo. Digital Antenna 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.
15. 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.
16. 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 Digital Antenna does not
expressly consent) that provision will be superseded by such Rule or
Commission order.
17. Successors and Assigns. Digital Antenna agrees that the provisions of
this Consent Decree shall be binding on its successors, assigns, and
transferees.
18. 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.
19. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
20. 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.
21. Authorized Representative. The individual signing this Consent Decree
on behalf of Digital Antenna represents and warrants that she is
authorized by Digital Antenna to execute this Consent Decree and to
bind Digital Antenna to the obligations set forth herein. The FCC
signatory represents that he is signing this Consent Decree in his
official capacity and that he is authorized to execute this Consent
Decree.
22. 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.
________________________________
John D. Poutasse
Chief, Spectrum Enforcement Division
Enforcement Bureau
________________________________
Date
________________________________
Joanne Johnson
President
Digital Antenna, Inc.
______________________________
Date
^ The investigation initiated under File No. EB-07-SE-390 was subsequently
assigned File No. EB-SED-13-00009244.
^ 47 U.S.C. SS 154(i), 154(j), 403.
^ Id. SS 154(i), 154(j), 503(b); 47 C.F.R. SS 0.111, 0.311.
^ The investigation initiated under File No. EB-07-SE-390 was subsequently
assigned File No. EB-SED-13-00009244.
^ 47 U.S.C. SS 154(i), 154(j), 403.
^ Id. S 154(i).
^ Id. S 154(j).
^ Id. S 403.
^ See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement
Division, FCC Enforcement Bureau, to Anthony Gallagher, President, Digital
Antenna, Inc. (Nov. 5, 2007) (on file in EB-SED-13-00009244) (First LOI).
In this regard, we note that Digital Antenna currently holds 14 equipment
authorizations for various cellular boosters/repeaters.
^ See Letter from Anthony Gallagher, President, Digital Antenna, Inc., to
Kathryn S. Berthot, Chief, Spectrum Enforcement Division, FCC Enforcement
Bureau (Nov. 6, 2007) (on file in EB-SED-13-00009244).
^ See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement
Division, FCC Enforcement Bureau, to Anthony Gallagher, President, Digital
Antenna, Inc. (Feb. 4, 2008) (on file in EB-SED-13-00009244) (Second LOI).
^ See Letter from Anthony Gallagher, President, Digital Antenna, Inc., to
Kathryn S. Berthot, Chief, Spectrum Enforcement Division, FCC Enforcement
Bureau (Feb. 15, 2008) (on file in EB-SED-13-00009244).
^ Digital Antenna, Inc., Notice of Apparent Liability for Forfeiture and
Order, 23 FCC Rcd 7600 (Enf. Bur. 2008).
^ Id. at 7603, para. 10. It is well established that failure to respond to
an LOI from the Bureau violates a Commission order. See, e.g., Carrera
Commc'ns, LP, Notice of Apparent Liability for Forfeiture and Order, 20
FCC Rcd 13307, 13316, para. 22 (2005) (Carrera) (holding that company's
apparent willful and repeated failures to respond to the Bureau's LOIs
constitute violations of Commission orders); LDC Telecomm., Inc., Notice
of Apparent Liability for Forfeiture and Order, 27 FCC Rcd 300, 301, para.
5 (Enf. Bur. 2012) (LDC) (holding that "[t]he Bureau's LOI directed to LDC
was a legal order of the Commission requiring LDC to produce the requested
documents and information," and that "LDC's failure to provide the
documents and information sought within the time and manner specified
constitute[d] a violation of a Commission order"). In fact, such
violations do not always entail a total failure to respond; the Commission
has recognized that parties may violate a Commission order by providing
incomplete or untimely responses to Bureau LOIs or by failing to properly
certify the accuracy of their responses. See, e.g., Carrera, 20 FCC Rcd at
13319, para. 31 (proposing an $8,000 forfeiture penalty against a company
not represented by counsel that filed an untimely and incomplete response
to a Bureau LOI).
^ See Response of Digital Antenna, Inc. (June 11, 2008) (on file in
EB-SED-13-00009244).
^ See Tolling Agreement, executed by and between John D. Poutasse, Chief,
Spectrum Enforcement Division, FCC Enforcement Bureau, and Steve
Augustino, Esq., Counsel for Digital Antenna, Inc. (Jan. 18, 2013) (on
file in EB-SED-13-00009244).
^ 47 U.S.C. SS 154(i), 154(j), 403; 47 C.F.R. S 0.459.
^ 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. SS 1.1501-1.1530.
Federal Communications Commission DA 13-1761[]
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Federal Communications Commission DA 13-1761
Federal Communications Commission DA 13-1761[]
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Federal Communications Commission DA 13-1761[]