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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File No. EB-07-IH-8571
GE MDS LLC )
NAL/Acct. No. 200832080095
Licensee of Various Authorizations in )
the Microwave Radio Services FRN No. 0016050429
)
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and GE MDS LLC, by their authorized
representatives, hereby enter into this Consent Decree for the purpose of
terminating the Enforcement Bureau's investigation of compliance by GE MDS
LLC with Section 310(d) of the Communications Act of 1934, as amended, and
Section 1.948 of the Commission's Rules regarding the assignment of 170
licenses in the Private Operational Fixed Microwave Service.
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. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
c. "Cancellation Licenses" means the licenses that GE MDS will arrange to
have surrendered to the Commission for immediate cancellation, a list
of which is appended hereto as Attachment A. The 100 licenses that
comprise the Cancellation Licenses are a subset of the 170 licenses
that comprise the Station Licenses.
d. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
e. "Compliance Plan" means the program described in this Consent Decree
at paragraph 8.
f. "Effective Date" means the date on which the Commission releases the
Adopting Order.
g. "GE MDS" means GE MDS LLC and any wholly or partially owned
subsidiary, and each of the respective officers, directors, and
partners of the foregoing.
h. "Investigation" means the investigation commenced by the Bureau's
October 30, 2007, Letter of Inquiry into compliance by GE MDS with
Section 310(d) of the Communications Act of 1934, as amended, and
Section 1.948 of the Commission's rules regarding the assignment of
Station Licenses from MDS to GE MDS.
i. "Station Licenses" means the 170 station licenses in the Private
Operational Fixed Microwave Service acquired by GE MDS from MDS.
j. "MDS" means Microwave Data Systems, Inc. and any affiliate, parent
company, wholly or partially owned subsidiary, and all owners,
including but not limited to, officers, directors, and partners of the
foregoing.
k. "Order" or "Adopting Order" means an Order of the Commission adopting
the terms of this Consent Decree without change, addition, deletion,
or modification.
l. "Parties" means GE MDS and the Bureau.
m. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
n. "WTB" means the FCC's Wireless Telecommunications Bureau.
II. BACKGROUND
2. Pursuant to section 310(d) of the Act and section 1.948 of the Rules,
no station license shall be transferred, assigned, or disposed of by a
transfer of control without prior application to and approval by the
Commission.
3. On January 16, 2007, GE MDS acquired the assets of MDS, a manufacturer
of radio equipment, grantee of various equipment authorizations, and
licensee of 170 Station Licenses in the Private Operational Fixed
Microwave Service. The Station Licenses consisted of 168 Multiple
Address Service ("MS") and two Microwave Industrial/Business Pool
("MG") authorizations. In accordance with the notification
requirements of section 2.929 of the Commission's rules, on or about
January 19, 2007, GE MDS duly notified the Commission of the
assignment of the equipment authorizations involved in the asset
acquisition. GE MDS mistakenly interpreted Section 2.929, however, as
permitting the same notification procedure in connection with its
consummation of the assignment of the Station Licenses . GE MDS
subsequently became aware that the transaction may have resulted in an
assignment of licenses for which prior Commission consent was
required, and, on March 2, 2007, it voluntarily notified the
Commission of such and filed remedial applications on FCC Forms 603
seeking Commission consent to the assignment of the Station Licenses
from MDS to GE MDS. Those applications remain before the Commission
pending resolution of the Investigation.
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. GE MDS 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 date on which the FCC releases the
Adopting Order. 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 its
Investigation. In consideration for the termination of said
Investigation, GE MDS 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 of the Consent Decree,
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 GE MDS concerning the matters that were the
subject of the Investigation. The Bureau also agrees that it will not
use the facts developed in this Investigation through the Effective
Date of this Consent Decree, 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 GE MDS with respect to GE
MDS's basic qualifications, including its character qualifications, to
be a Commission licensee or hold Commission authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, GE MDS agrees to develop and implement a Compliance Plan
related to future compliance with the Act, the Commission's Rules, and
the Commission's Orders. The Plan will include, at a minimum, the
following components:
a. Compliance Manual. Within 30 days of the Effective Date, GE MDS will
develop and distribute a Compliance Manual to company lawyers, managers,
and other parties responsible for the establishment, purchase, sale, and
use of GE MDS's wireless assets, which shall be designed to ensure
compliance with Section 310(d) of the Act in connection with transactions
and/or proposed transactions within GE MDS that trigger or may trigger
compliance-related responsibilities. The Compliance Manual will include
an overview of the Commission's requirements for license ownership and
transfers of control, including the Commission's rules and the
requirements of the Act, regarding the need for prior approval of
assignments of Commission authorizations and the transfer of control of
the holders of such authorizations. The Compliance Manual will be updated
from time to time as needed.
b. Compliance Training Program. Within 90 days of the Effective Date, GE
MDS will conduct an initial education program for company lawyers,
managers, and other parties responsible for the establishment, purchase,
sale, and use of GE MDS's wireless assets. This education program will
include an overview of the Commission's requirements for license ownership
and transfers of control, including the Commission's rules and the
requirements of the Act, regarding the need for prior approval of
assignments of Commission authorizations and the transfer of control of
the holders of such authorizations. This education program will be updated
and presented from time to time as needed to ensure that new employees are
informed of regulatory compliance requirements and that existing employees
are reminded of the same.
c. License Database. GE MDS will assemble and maintain a database of all
of GE MDS's wireless license holdings. The database will be updated
regularly and be accessible by all employees who deal with FCC wireless
regulatory compliance or wireless systems.
d. License Assignments and Transfers. The Compliance Manual and related
training program will contain information for GE MDS personnel regarding
the need to conduct thorough due diligence regarding the potential FCC
licenses of any company in a potential merger or acquisition transaction,
the need to monitor any corporate reorganization for potential license
assignment or transfer issues, and the need to obtain prior FCC approval
for all assignments and transfers of control of FCC licenses.
e. Compliance Reports. GE MDS will file compliance reports with the
Commission 90 days after the Effective Date and 12 months after the
Effective Date. Each compliance report shall include a compliance
certificate from an officer, as an agent of GE MDS, stating that the
officer has personal knowledge that GE MDS has established operating
procedures intended to ensure compliance with this Consent Decree,
together with an accompanying statement explaining the basis for the
officer's compliance certification. The compliance reports shall be
submitted to the Chief, Investigations & Hearings Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street, S.W.,
Washington, D.C. 20554.
9. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire one year after the Adopting Order becomes a
Final Order. On that date, GE MDS shall submit an affidavit or
declaration under penalty of perjury, signed and dated by an
authorized officer of GE MDS with personal knowledge of the
representations therein, verifying that GE MDS has complied with the
terms of this Consent Decree. The affidavit or declaration shall be
submitted to the Chief, Investigations & Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445 12th
Street, S.W., Washington, D.C. 20554.
10. Voluntary Contribution. GE MDS agrees that it will make a voluntary
contribution to the United States Treasury in the amount of
thirty-five thousand ($35,000). The payment will be made within 10
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 NAL/Account
Number and FRN Number referenced in the caption to the Adopting Order.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). GE MDS will also send electronic
notification on the date said payment is made to
Hillary.DeNigro@fcc.gov and Jennifer.Lewis@fcc.gov.
11. Cancellation of Licenses. GE MDS agrees that within 10 calendar days
of the Effective Date, it shall modify its assignment application (FCC
File no. 0002909134) by deleting the Cancellation Licenses from the
application GE MDS further agrees that, within 10 calendar days of the
Commission's grant of such modification, it shall seek to effectuate
the surrender and immediate cancellation of the Cancellation Licenses.
GE MDS also agrees to cooperate as is necessary and appropriate to
effectuate the surrender and immediate cancellation of the
Cancellation Licenses.
12. Waivers. GE MDS 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 Order adopting this Consent Decree, provided the Commission
issues an Order adopting the Consent Decree without change, addition,
modification, or deletion. GE MDS 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 GE MDS nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and GE MDS shall
waive any statutory right to a trial de novo. GE MDS hereby agrees to
waive any claims it may otherwise 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.
13. Severability. The Parties agree that if any of the provisions of the
Adopting Order or the Consent Decree shall be invalid or
unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable the entire Adopting Order or
Consent Decree, but rather the entire Adopting Order or Consent Decree
shall be construed as if not containing the particular invalid or
unenforceable provision or provisions, and the rights and obligations
of the Parties shall be construed and enforced accordingly. 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.
14. 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 GE MDS does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
15. Successors and Assigns. GE MDS agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
16. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. This
Consent Decree is not and shall not be construed as an admission by GE
MDS that the above-described conduct would constitute a willful
violation of any provision of the Rules or the Act.
17. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
18. 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.
19. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
20. 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.
________________________________
Susan McNeil
Deputy Bureau Chief
Enforcement Bureau
________________________________
Date
________________________________
Roberto Vengochea
General Manager
GE MDS
175 Science Parkway
Rochester, NY 14620
________________________________
Date
ATTACHMENT A
Cancellation Licenses
1. WPUM 688
2. WPUM 689
3. WPUM 690
4. WPUM 691
5. WPUM 692
6. WPUM 693
7. WPUM 694
8. WPUM 695
9. WPUM 696
10. WPUM 697
11. WPUM 698
12. WPUM 699
13. WPUM 700
14. WPUM 714
15. WPUM 715
16. WPUM 716
17. WPUM 717
18. WPUM 718
19. WPUM 719
20. WPUM 720
21. WPUM 721
22. WPUM 722
23. WPUM 723
24. WPUM 724
25. WPUM 725
26. WPUM 726
27. WPUM 727
28. WPUM 728
29. WPUM 729
30. WPUM 730
31. WPUM 731
32. WPUM 732
33. WPUM 749
34. WPUM 750
35. WPUM 751
36. WPUM 752
37. WPUM 753
38. WPUM 754
39. WPUM 755
40. WPUM 756
41. WPUM 757
42. WPUM 758
43. WPUM 759
44. WPUM 760
45. WPUM 764
46. WPUM 765
47. WPUM 766
48. WPUM 767
49. WPUM 768
50. WPUM 769
51. WPUM 770
52. WPUM 771
53. WPUM 772
54. WPUM 773
55. WPUM 774
56. WPUM 775
57. WPUM 776
58. WPUM 777
59. WPUM 778
60. WPUM 797
61. WPUM 798
62. WPUM 799
63. WPUM 800
64. WPUM 801
65. WPUM 802
66. WPUM 803
67. WPUM 804
68. WPUM 805
69. WPUM 806
70. WPUM 807
71. WPUM 808
72. WPUM 809
73. WPUM 810
74. WPUM 811
75. WPUM 812
76. WPUM 813
77. WPUM 814
78. WPUM 815
79. WPUM 816
80. WPUM 821
81. WPUM 822
82. WPUM 823
83. WPUM 824
84. WPUM 825
85. WPUM 826
86. WPUM 841
87. WPUM 842
88. WPUM 843
89. WPUM 844
90. WPUM 845
91. WPUM 846
92. WPUM 847
93. WPUM 848
94. WPUM 849
95. WPUM 850
96. WPUM 851
97. WPUM 852
98. WPUM 853
99. WPUM 854
100. WPUM 855
See Letter from Jennifer A. Lewis, Assistant Chief, Investigations &
Hearings Division, Federal Communications Commission to Dennis McCarthy,
GE MDS LLC, dated October 30, 2007.
47 U.S.C. S: 310(d); 47 C.F.R. S: 1.948.
47 C.F.R. S: 2.929.
See Letter From Jack Richards, Keller & Heckman LLP to Jennifer A. Lewis,
Assistant Chief, Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission, dated November 21, 2007 at 2.
ULS File Nos. 0002907739 and 0002909134.
Federal Communications Commission DA 08-1922
2
Federal Communications Commission DA 08-1922