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Digital Antenna, Inc

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Released: August 30, 2013

Federal Communications Commission

DA 13-1761

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
File No.: EB-SED-13-000092441
)
Digital Antenna, Inc.
)
NAL/Acct. No.: 200832100045
Sunrise, Florida
)
)
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,2 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,3 the
Consent Decree attached to this Order

IS ADOPTED

.


1 The investigation initiated under File No. EB-07-SE-390 was subsequently assigned File No. EB-SED-13-
00009244.
2 47 U.S.C. 154(i), 154(j), 403.
3 Id. 154(i), 154(j), 503(b); 47 C.F.R. 0.111, 0.311.

Federal Communications Commission

DA 13-1761

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 108th 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
2

Federal Communications Commission

DA 13-1761

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
File No.: EB-SED-13-000092441
)
Digital Antenna, Inc.
)
NAL/Acct. No.: 200832100045
Sunrise, Florida
)
)
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,2 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. 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 Digital Antenna is subject by virtue of its business activities.
(f)
"Compliance Plan" means the compliance obligations, program, and
procedures described in this Consent Decree at paragraph 10.
(g)
"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


1 The investigation initiated under File No. EB-07-SE-390 was subsequently assigned File No. EB-SED-13-
00009244.
2 47 U.S.C. 154(i), 154(j), 403.

Federal Communications Commission

DA 13-1761
Antenna.
(h)
"Digital Antenna" means Digital Antenna, Inc. and its subsidiaries as well
as its predecessors-in-interest and its successors-in-interest.
(i)
"Effective Date" means the date on which the Bureau releases the
Adopting Order.
(j)
"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.
(k)
"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).
(l)
"Parties" means Digital Antenna and the Bureau, each of which is a
"Party."
(m)
"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,"3 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."4 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."5
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.6 Digital Antenna responded to the First LOI on
November 6, 2007, but failed to answer all of the Bureau's questions.7 The Bureau issued a second letter
of inquiry to Digital Antenna on February 4, 2008, directing Digital Antenna to provide the information


3 Id. 154(i).
4 Id. 154(j).
5 Id. 403.
6 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.
7 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).
2

Federal Communications Commission

DA 13-1761
that it failed to supply in its first response.8 Digital Antenna responded to the Second LOI on February
15, 2008, but again failed to fully provide the requested information.9
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. 10 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."11 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.12
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.13

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


8 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).
9 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).
10 Digital Antenna, Inc., Notice of Apparent Liability for Forfeiture and Order, 23 FCC Rcd 7600 (Enf. Bur. 2008).
11 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).
12 See Response of Digital Antenna, Inc. (June 11, 2008) (on file in EB-SED-13-00009244).
13 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).
3

Federal Communications Commission

DA 13-1761
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.14
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


14 47 U.S.C. 154(i), 154(j), 403; 47 C.F.R. 0.459.
4

Federal Communications Commission

DA 13-1761
aware of any instances of noncompliance with the terms and conditions of this
Consent Decree.
(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.15
(c)
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.
(d)
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.16 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


15 47 C.F.R. 1.16.
16 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
5

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DA 13-1761
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 Act17 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


17 Equal Access to Justice Act, Pub L. No. 96-481, 94 Stat. 2325 (1980) (codified at 5 U.S.C. 504); see also
47 C.F.R. 1.1501-1.1530.
6

Federal Communications Commission

DA 13-1761
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
7

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