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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Gallien Technology, Inc., d/b/a Gallien-Krueger ) ) ) ) )
) File No.: EB-SED-13-00008732 Acct. No.: 201432100004 FRN: 0021754080
ORDER
Adopted: November 14, 2013 Released: November 14, 2013
By the Deputy 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 Gallien Technology, Inc., d/b/a
Gallien-Krueger (Gallien). The Consent Decree resolves and terminates
the Bureau's investigation into Gallien's compliance with Section
302(b) of the Communications Act of 1934, as amended (Act),^ and
Sections 2.803, 15.19, and 15.105 of the Commission's rules^ (Rules)
pertaining to the marketing of digital audio radio frequency devices,
including digital bass amplifiers.
2. The Bureau and Gallien 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 Gallien 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 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 Robert A. Gallien, President and CEO, Gallien
Technology, Inc., d/b/a Gallien-Krueger, 2234 Industrial Drive,
Stockton, CA 95206.
FEDERAL COMMUNICATIONS COMMISSION
Robert H. Ratcliffe
Deputy Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Gallien Technology, Inc., d/b/a Gallien-Krueger ) ) ) ) )
) File No.: EB-SED-13-00008732 Acct. No.: 201332100004 FRN: 0021754080
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and
Gallien Technology, Inc., d/b/a Gallien-Krueger, 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, 15.19, and 15.105 of the Commission's rules^
pertaining to the marketing of digital audio radio frequency devices,
including digital bass amplifiers.
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 collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to
which Gallien is subject by virtue of its business activities,
including but not limited to, the Equipment Marketing Rules.
f. "Compliance Plan" means the compliance obligations and compliance
program described in this Consent Decree at paragraph 9.
g. "Covered Employees" means all employees and agents of Gallien who
perform, or supervise, oversee, or manage the performance of duties
that relate to Gallien's responsibilities under the Equipment
Marketing Rules.
h. "Digital Device" means an unintentional radiator device or system as
defined in Section 15.3(k) of the Rules.^
i. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
j. "Equipment Marketing Rules" means Section 302(b) of the Act^ and
Sections 2.803, 15.19, and 15.105 of the Rules^ and other
Communications Laws governing the marketing of radio frequency devices
within the United States and its territories.
k. "Gallien" means Gallien Technology, Inc., d/b/a Gallien-Krueger, and
its predecessors-in-interest and its successors-in-interest.
l. "Investigation" means the investigation commenced by the Bureau's
April 26, 2012 letter of inquiry regarding whether the marketing of
certain Digital Devices by Gallien complies with the Equipment
Marketing Rules. ^ ^
m. "Operating Procedures" means the standard, internal operating
procedures and compliance policies established by Gallien to implement
the Compliance Plan.
n. "Parties" means Gallien 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, 15.19, and
15.105 of the Rules,^ certain Digital Devices may not be marketed in
the United States unless the devices comply with the applicable
technical standards as well as the administrative requirements
relating to equipment labeling and consumer disclosure. Section
2.803(a) 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."^ Gallien designs,
manufactures, and distributes Digital Devices, such as bass
amplifiers, that are marketed under the brand names Gallien-Krueger or
GK. These Digital Devices are unintentional radiators that require
prior Commission authorization via the Commission's equipment
verification procedures, as well as proper labeling and consumer
disclosures.^
3. On April 26, 2012, the Bureau's Spectrum Enforcement Division
(Division) issued a letter of inquiry (LOI)^ to Gallien, directing
Gallien to submit a sworn written response to a series of questions
relating to Gallien's manufacture, importation, and marketing of
certain Digital Devices to determine its compliance with the
Communications Laws applicable to the marketing of such devices.
Gallien responded to the LOI on May 22, 2012.^ In its LOI Response,
Gallien submitted information and documentation relating to the
Digital Devices at issue.^ The Bureau and Gallien entered into a
tolling agreement to toll the statute of limitations.^
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.
5. Jurisdiction. Gallien 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.
6. 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.
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, Gallien 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 the
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
Gallien 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 the
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 Gallien with
respect to Gallien's basic qualifications, including its character
qualifications, to be a Commission licensee or to hold Commission
licenses or authorizations.
8. Compliance Officer. Within thirty (30) calendar days after the
Effective Date, Gallien 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 Gallien 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.
9. Compliance Plan. For purposes of settling the matters set forth
herein, Gallien agrees that it shall within sixty (60) calendar days
after the Effective Date, develop and implement a Compliance Plan
designated 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, Gallien shall implement the
following procedures:
a. Operating Procedures on Equipment Marketing. Within sixty (60)
calendar days after the Effective Date, Gallien shall establish
Operating Procedures that all Covered Employees must follow to help
ensure Gallien's compliance with the Equipment Marketing Rules.
Gallien's Operating Procedures shall include internal procedures and
policies specifically designed to ensure that prior to the initiation
of marketing (as such term is defined in Section 2.803 of the
Rules^), all Digital Devices and other radio frequency devices to be
marketed by Gallien 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.
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, including the
obligations to secure an equipment authorization from the FCC prior
to marketing a Digital Device and to comply with the applicable
administrative requirements relating to equipment labeling and
consumer disclosure, and set forth the Operating Procedures that
Covered Employees shall follow to help ensure Gallien's compliance
with the Equipment Marketing Rules. Gallien shall periodically review
and revise the Compliance Manual as necessary to ensure that the
information set forth therein remains current and complete. Gallien
shall distribute any revisions to the Compliance Manual promptly to
all Covered Employees.
c. Compliance Training Program. Gallien shall establish and implement a
Compliance Training Program on compliance with the Equipment
Marketing Rules and the Operating Procedures. As part of the
Compliance Training Program, Covered Employees shall be advised of
Gallien's obligation to report any noncompliance with the Equipment
Marketing Rules under paragraph 10 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. Gallien 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.
10. Reporting Noncompliance. Gallien 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
Gallien 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 Gallien 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, DC 20554, with a copy submitted
electronically to Kevin Pittman at Kevin.Pittman@fcc.gov and to
Ricardo Durham at Ricardo.Durham@fcc.gov.
11. Compliance Reports. Gallien 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
Gallien'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 Gallien, stating that the Compliance Officer has personal knowledge
that Gallien (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 10 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 Gallien, 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 Gallien 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 Gallien 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, DC 20554,
with a copy submitted electronically to Kevin Pittman at
Kevin.Pittman@fcc.gov and to Ricardo Durham at Ricardo.Durham@fcc.gov.
12. Termination Date. Unless stated otherwise, the requirements set forth
in paragraphs 8 through 11 of this Consent Decree shall expire
thirty-six (36) months after the Effective Date.
13. Voluntary Contribution. Gallien agrees that it will make a voluntary
contribution to the United States Treasury in the amount of eighteen
thousand five hundred dollars ($18,500) (Voluntary Contribution); such
Voluntary Contribution to be made in six installments (each, an
Installment Payment). The first Installment Payment in the amount of
three thousand eighty-four dollars ($3,084) is due within thirty (30)
calendar days after the Effective Date. The second Installment
Payment in the amount of three thousand eighty-four dollars ($3,084)
is due on or before January 14, 2014. The third Installment Payment in
the amount of three thousand eighty-four dollars ($3,084) is due on or
before February 14, 2014. The fourth Installment Payment in the amount
of three thousand eighty-four dollars ($3,084) is due on or before
March 14, 2014. The fifth Installment Payment in the amount of three
thousand eighty-four dollars ($3,084) is due on or before April 14,
2014. The sixth and final Installment Payment in the amount of three
thousand eighty dollars ($3,080) is due on or before May 14, 2014.
Gallien shall make the first and all subsequent Installment Payments
in United States Dollars without further demand or notice by the dates
specified above. Gallien acknowledges and agrees that upon execution
of this Consent Decree the Voluntary Contribution and each Installment
Payment shall become a "Claim" or "Debt" as defined in 31 U.S.C. S
3701(b)(1). Upon an Event of Default (as defined below), all
procedures for collection as permitted by law may, at the Commission's
discretion, be initiated. Gallien shall also send electronic
notification of each Installment Payment on the date said payment is
made to Kevin Pittman at Kevin.Pittman@fcc.gov, Ricardo Durham at
Ricardo.Durham@fcc.gov, and Samantha Peoples at Sam.Peoples@fcc.gov.
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 that Gallien
should follow based on the form of payment it selects:
* 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 Gallien has questions regarding payment procedures, it should contact
the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by
e-mail, ARINQUIRIES@fcc.gov.
14. Event of Default. Gallien agrees that an Event of Default shall occur
upon the failure by Gallien to pay the full amount of any Installment
Payment on or before the due dates specified in this Consent Decree.
15. Interest, Charges for Collection, and Acceleration of Maturity Date.
After an Event of Default has occurred under this Consent Decree, the
then unpaid amount of the Voluntary Contribution shall accrue
interest, computed using the rate of the U.S. Prime Rate in effect on
the date of the Event of Default plus 4.75 percent, from the date of
the Event of Default until payment in full. Upon an Event of Default,
the then unpaid amount of the Voluntary Contribution, together with
interest, as aforesaid, any penalties permitted and/or required by the
law, including but not limited to interest and penalties permitted
under 31 U.S.C. S 3717 and administrative charge(s), plus the costs of
collection, litigation, and attorneys' fees, shall become immediately
due and payable, without notice, presentment, demand, protest, or
notice of protest of any kind, all of which are waived by Gallien.
16. Waivers. Gallien 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. Gallien 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 Gallien nor the Commission shall contest the
validity of the Consent Decree or of the Adopting Order, and Gallien
shall waive any statutory right to a trial de novo. Gallien 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.
17. 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.
18. 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 Gallien does not expressly
consent) that provision will be superseded by such Rule or Commission
order.
19. Successors and Assigns. Gallien agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
20. 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.
21. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
22. 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.
23. Authorized Representative. The individual signing this Consent Decree
on behalf of Gallien represents and warrants that he is authorized by
Gallien to execute this Consent Decree and to bind Gallien 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.
24. 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
_____________________________
Robert A. Gallien
President & Chief Executive Officer
Gallien Technology, Inc., d/b/a Gallien-Krueger
_____________________________
Date
^ The investigation initiated under File No. EB-10-SE-033 was subsequently
assigned File No. EB-SED-13-00008732. Any future correspondence with the
FCC concerning this matter should reflect the new case number.
^ 47 U.S.C. S 302a(b).
^ 47 C.F.R. SS 2.803, 15.19, 15.105.
^ 47 U.S.C. SS 154(i), 154(j), 503(b).
^ 47 C.F.R. SS 0.111, 0.311.
^ The investigation initiated under File No. EB-10-SE-033 was subsequently
assigned File No. EB-SED-13-00008732. Any future correspondence with the
FCC concerning this matter should reflect the new case number.
^ 47 U.S.C. S 302a(b).
^ 47 C.F.R. SS 2.803, 15.19, 15.105.
^ 47 C.F.R. S 15.3(k).
^ 47 U.S.C. S 302a(b).
^ 47 C.F.R. SS 2.803, 15.19, 15.105.
^ See Letter from John D. Poutasse, Chief, Spectrum Enforcement Division,
FCC Enforcement Bureau, to Robert Gallien, Chief Executive Officer,
Gallien-Krueger (Apr. 26, 2012) (on file in EB-SED-13-00008732).
^ 47 U.S.C. S 302a(b).
^ 47 C.F.R. SS 2.803, 15.19, 15.105.
^ Id. S 2.803(a) (formerly codified at 47 C.F.R. S 2.803(e)(4) (2012));
see 78 Fed. Reg. 21561 (Apr. 29, 2013).
^ 47 C.F.R. S 15.101.
^ See supra note 7.
^ See Letter from Robert A. Gallien, President & CEO, Gallien Technology,
Inc., to Susan German, Attorney Advisor, Spectrum Enforcement Division,
FCC Enforcement Bureau (May 22, 2012) (on file in EB-SED-13-00008732) (LOI
Response).
^ See id.
^ Tolling Agreement, executed by and between John D. Poutasse, Chief,
Spectrum Enforcement Division, FCC Enforcement Bureau, Robert A. Gallien,
President & CEO, Gallien Technology, Inc. (May 17, 2013) (on file in
EB-SED-13-00008732).
^ See supra note 10 and accompanying text.
^ 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 13-2167
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Federal Communications Commission DA 13-2167
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