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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
) File No. EB-09-SE-096
Honeywell International Inc.,
) Acct. No. 200932100064
Acting Through its Sensing and Control
) FRN No. 0018740217
Strategic Business Unit
)
ORDER
Adopted: June 11, 2009 Released: June 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 Honeywell International
Inc., acting through its Sensing and Control strategic business unit
("Honeywell Sensing and Control"). The Consent Decree terminates an
investigation by the Bureau into whether Honeywell Sensing and Control
violated Section 302(b) of the Communications Act of 1934, as amended
("Act"), and Sections 2.803(a) and 15.223 of the Commission's rules
("Rules") regarding the marketing and radio frequency emissions of the
Honeywell Sensing and Control TMS-9000, a torque measurement device.
2. The Bureau and Honeywell Sensing and Control have negotiated the terms
of a Consent Decree that resolves 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 there are no substantial or material questions of fact as to
whether Honeywell Sensing and Control 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 a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Anthony A. Kuznik, Vice President and General Counsel,
Honeywell Sensing and Control, 1985 Douglas Drive North, MN10-192A,
Golden Valley, MN 55422 and to Terry G. Mahn, Esq. and Robert J.
Ungar, Esq., Fish & Richardson P.C., 1425 K Street, N.W., Washington,
D.C. 20005.
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-09-SE-096
Honeywell International Inc.,
) Acct. No. 200932100064
Acting Through its Sensing and Control
) FRN No. 0018740217
Strategic Business Unit
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Honeywell International Inc., acting
through its Sensing and Control strategic business unit ("Honeywell
Sensing and Control"), by their authorized representatives, hereby enter
into this Consent Decree for the purpose of terminating the Bureau's
investigation into whether Honeywell Sensing and Control violated Section
302(b) of the Communications Act of 1934, as amended ("Act"), and Sections
2.803(a) and 15.223 of the Commission's rules ("Rules") regarding the
marketing and RF emissions of the Honeywell Sensing and Control TMS-9000,
a torque measurement device.
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. "Compliance Plan" means the program described in this Consent Decree
at paragraph eight (8).
f. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
g. "Honeywell Sensing and Control" means Honeywell International Inc.,
acting through its Sensing and Control strategic business unit, and
its parents, subsidiaries, affiliates, predecessors-in-interest and
successors-in-interest.
h. "Investigation" means the matter disclosed to the Bureau by Honeywell
Sensing and Control on March 24, 2009, regarding a possible violation
of Section 302(b) of the Act and Sections 2.803(a) and 15.223 of the
Rules.
i. "Parties" means Honeywell Sensing and Control and the Bureau.
j. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
8. Pursuant to Section 302(b) of the Act and Section 2.803(a) of the
Rules, radio frequency devices subject to certification may not be
marketed unless authorized by the Commission in accordance with the
applicable technical and administrative provisions of the Rules.
Further, devices operating in the band between 1.705-10 MHz must
comply with the field strength provisions of Section 15.223 of the
Rules.
9. On March 24, 2009, Honeywell Sensing and Control voluntarily disclosed
to the Bureau that a number of its TMS-9000 industrial torque sensing
transmitters had been marketed without the required Commission
authorization and did not meet the Commission's field strength
requirements.
III. TERMS OF AGREEMENT
10. Adopting Order. The Parties agree that the provisions of the 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.
11. Jurisdiction. Honeywell Sensing and Control 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.
12. 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.
13. 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, Honeywell Sensing and Control 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 Honeywell Sensing and
Control 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 Honeywell Sensing and Control with
respect to Honeywell Sensing and Control's basic qualifications,
including its character qualifications, to be a Commission licensee or
to hold Commission licenses or authorizations.
14. Compliance Plan. For purposes of settling the matters set forth
herein, Honeywell Sensing and Control agrees to maintain a Compliance
Plan related to future compliance with the Act, the Commission's
Rules, and the Commission's Orders. The Compliance Plan will include,
at a minimum, the following components:
a. Replacement of Old Devices. In the event a TMS-9000 device is found to
cause harmful interference to a licensed radio service, Honeywell
Sensing and Control will work with the affected customer(s) to either
reduce RF emissions of the device to within the FCC's limits or remove
it from service.
b. Distribution of Information. Honeywell Sensing and Control will
distribute to the Bureau a list of customers and purchasing locations
for the presently installed TMS torque sensing transmitters as of the
date of this Consent Decree within 30 days of the Effective Date.
c. Compliance Officer. Honeywell Sensing and Control will designate
Steven Borthwick as its Agency Approvals Engineer who will serve as
the Compliance Officer responsible for administering the compliance
plan.
d. Training. Honeywell Sensing and Control will provide training and
materials concerning Parts 2, 15 and 18 of the Rules and the
requirements of the Consent Decree to all of its employees who are
involved directly or indirectly in the design, engineering or sale of
its torque sensing transmitter products.
e. Compliance Report. Honeywell Sensing and Control will file reports
with the Commission 90 days after the Effective Date, 12 months after
the Effective Date, and 24 months after the Effective Date. Each
compliance report shall include a compliance certificate from an
officer, as an agent of Honeywell Sensing and Control, stating that
the officer has personal knowledge that Honeywell Sensing and Control
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
compliance reports shall also be submitted electronically to
Neil.McNeil@fcc.gov and Kathryn Berthot at Kathy.Berthot@fcc.gov.
f. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire twenty-four (24) months after the Effective
Date.
15. Voluntary Contribution. Honeywell Sensing and Control agrees that it
will make a voluntary contribution to the United States Treasury in
the amount of ten thousand dollars ($10,000). The payment will be made
within 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). Honeywell Sensing and Control
will also send electronic notification on the date said payment is
made to Neil.McNeil@fcc.gov and Kathy.Berthot@fcc.gov.
16. Waivers. Honeywell Sensing and Control 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 adopting the Consent Decree without change,
addition, modification or deletion. Honeywell Sensing and Control
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 Honeywell Sensing and
Control nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Honeywell Sensing and Control shall
waive any statutory right to a trial de novo. Honeywell Sensing and
Control 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.
17. Invalidity. In the event that this Consent Decree in its entirely 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 Honeywell Sensing and Control
does not expressly consent) that provision will be superseded by such
Commission rule or Order.
19. Successors and Assigns. Honeywell Sensing and Control agrees that the
provisions of this Consent Decree shall be binding on its successors,
assigns, and transferees.
20. Final Settlement. The Parties agree that this Consent Decree is for
settlement purposes only and that by agreeing to this Consent Decree,
Honeywell Sensing and Control does not admit or deny noncompliance,
violation or liability for violating the Act, Commission's Rules or
Orders in connection with the matters that are the subject of this
Consent Decree. 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
either 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.
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 the Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
23. Authorized Representative. Each Party represents and warrants to the
other that it has full power and authority to enter into 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.
__________________________
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
__________________________
Date
__________________________
Anup Jain
Vice-President/General Manager
Test and Measurement, Honeywell Sensing and Control
__________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R.. S:S: 2.803(a) and 15.223.
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:S: 2.803(a) and 15.223.
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a).
47.C.F.R. S: 15.223.
Federal Communications Commission DA 09-1304
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Federal Communications Commission DA 09-1304
Federal Communications Commission DA 09-1304
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Federal Communications Commission DA 09-1304