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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-06-SE-354
Monster Cable Products, Inc. and ) Acct. No. 200932100058
Monster LLC ) FRN # 0009660770
)
ORDER
Adopted: May 12, 2009 Released: May 15, 2009
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Monster Cable Products,
Inc. and Monster LLC ("Monster"). The Consent Decree terminates an
investigation by the Bureau into whether certain devices containing FM
modulators manufactured for Monster and marketed in the United States
comply with the requirements of Section 302(b) of the Communications
Act of 1934, as amended, ("Act") and Parts 2 and 15 of the
Commission's Rules ("Rules").
2. The Bureau and Monster have negotiated the terms of the Consent Decree
that resolve this matter. A copy of the Consent Decree is attached
hereto and incorporated 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 Monster 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 all third-party complaints against Monster
before the Bureau related to the above-captioned-investigation as of
the date of this Consent Decree ARE DISMISSED.
8. 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 David Tognotti, General Counsel and Vice President of
Administration, Monster Cable Products, Inc. and Monster LLC, 7251
West Lake Mead Blvd., Suite 342, Las Vegas, NV 89128, and to Colin S.
Stretch, Kellogg Huber Hansen Todd Evans & Figel, 1615 M Street, NW,
Suite 400, Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of File No. EB-06-SE-354
)
Monster Cable Products, Inc. and Acct. No. 200932100058
)
Monster LLC FRN # 0009660770
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Monster Cable Products, Inc. and
Monster LLC ("Monster"), by their authorized representatives, hereby enter
into this Consent Decree for the purpose of terminating the Bureau's
investigation into whether certain devices containing FM modulators
manufactured for Monster and marketed in the United States comply with the
requirements of Section 302(b) of the Communications Act of 1934, as
amended, ("Act") and Parts 2 and 15 of the Commission's Rules ("Rules").
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:S:151 et seq.
b. "Adopting Order" means an order of the Bureau adopting the terms and
conditions 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.
e. "Compliance Plan" means the program described in this Consent Decree
at paragraph 8.
f. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
g. "Monster" means Monster Cable Products, Inc. and Monster LLC and its
predecessors-in-interest and successors-in-interest.
h. "Investigation" means the investigation commenced by the Bureau's
February 9, 2007 Letter of Inquiry to Monster regarding whether
certain devices with wireless FM modulators, manufactured for Monster
and marketed by Monster, comply with Section 302(b) of the Act and
Parts 2 and 15 of the Rules.
i. "Parties" means Monster and the Bureau.
j. "Rules" means the Commission's Rules found in Title 47 of the Code of
Federal Regulations.
II. BACKGROUND
2. Pursuant to Section 302(b) of the Act and Parts 2 and 15 of the Rules,
certain radio frequency devices, including wireless FM modulators,
must be authorized in accordance with the processes set forth in the
Rules and comply with all applicable technical standards and labeling
requirements prior to importation into, or marketing in, the United
States.
3. On February 9, 2007, the Bureau issued a Letter of Inquiry ("LOI") to
Monster. The LOI directed Monster, among other things, to submit a
sworn written response to a series of questions relating to its
manufacture and marketing of the Monster iCarPlay Wireless device.
Monster responded to the February 9, 2007 LOI on March 12, 2007.
II. 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. Jurisidiction. Monster 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 Bureau 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, Monster 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 Monster 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 Monster with respect to
Monster's basic qualifications, including its character
qualifications, to be a Commission licensee or hold or obtain new
Commission authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, Monster agrees to maintain an FCC Compliance Plan ("Compliance
Plan") related to Monster's future compliance with the Act, the
Commission's Rules, and the Commission's Orders. The Compliance Plan
will include the following components:
a. FCC Compliance Procedures. Monster shall develop and update as
necessary appropriate FCC Compliance Procedures. Relevant Monster
personnel shall be made aware of the FCC Compliance Procedures and
shall be required to follow them. The FCC Compliance Procedures will
include appropriate steps to ensure that intentional radiators that
Monster markets and sells in the United States comply with the Act and
the Commission's Rules to the extent applicable.
b. Compliance Officer. Monster shall designate a Compliance Officer
("Compliance Officer") who will be responsible for implementing and
administering the Compliance Plan.
c. Compliance Reports. Monster will file compliance reports with the
Commission ninety days after the Effective Date, twelve months after
the Effective Date, and twenty-four months after the Effective Date.
Each compliance report shall include a compliance certificate from an
officer, as an agent of Monster, stating that the officer has personal
knowledge that Monster 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. All compliance reports shall be submitted to
the Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C.
20554. All reports shall also be submitted electronically to Neal
McNeil at Neal.McNeil@fcc.gov and to Kathy Berthot at
Kathy.Berthot@fcc.gov.
d. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire twenty-four months after the Effective
Date.
9. Voluntary Contribution. Monster agrees that it will make a voluntary
contribution to the United States Treasury in the amount of twelve
thousand, five hundred ollars ($12,500). The payment will be made
within thirty (30) days after the Effective Date of the Adopting
Order. The payment must be made by check or similar instrument,
payable to the Order of the Federal Communications Commission. The
payment must include the 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
Account number in block number 23A (call sign/other ID), and enter the
letters "FORF" in block number 24A (payment type code). Monster will
also send electronic notification on the date said payment is made to
Neal McNeil at Neal.McNeil@fcc.gov and to Kathy Berthot at
Kathy.Berthot@fcc.gov.
10. Waivers. Monster 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 Degree
and the Adopting Order, provided the Bureau issues an Adopting Order
adopting the Consent Decree without change, addition, modification, or
deletion. Monster 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
Monster nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Monster shall waive any statutory
right to a trial de novo. Monster 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.
11. Invalidity. In the event that this Consent Decree is rendered invalid
by any court of competent jurisdiction, this Consent Decree shall
become null and void and may not be used in any manner in any legal
proceeding.
12. Subsequent Rule or Order. The Parties agree that if any provision of
this 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 Monster does not
expressly consent) that provision will be superseded by such
Commission rule or Order.
13. Successors and Assigns. Monster agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
14. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further agree that this Consent Decree does not constitute an
adjudication on the merits or a factual or legal finding or
determination regarding any compliance or noncompliance with the
requirements of the Act or the Commission's Rules and Orders. The
Parties agree that this Consent Decree is for settlement purposes only
and that by agreeing to this Consent Decree, Monster does not admit or
deny noncompliance, violation or liability for violating the Act or
Rules in connection with the matters that are the subject of this
Consent Decree.
15. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
16. 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.
17. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
18. 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.
For the Enforcement Bureau:
________________________________
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
________________________________
Date
For Monster Cable Products, Inc. and Monster LLC:
________________________________
David Tognotti
General Counsel and Vice President of Administration
________________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.1 et seq. and S: 15.1 et seq.
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: 2.1 et seq. and S: 15.1 et seq.
Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, to David Tognotti, General Counsel, Monster,
LLC (February 9, 2007) ("February 9, 2007 LOI").
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.1 et seq. and 15.1 et seq.
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.1 et seq. and 15.1 et seq.
February 9, 2007 LOI.
Letter from Colin S. Stretch to Neal McNeil, Spectrum Enforcement
Division, Enforcement Bureau (March 12, 2007).
Federal Communications Commission DA 09-1050
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Federal Communications Commission DA 09-1050