Federal Communications Commission DA 08-1922 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of GE MDS LLC Licensee of Various Authorizations in the Microwave Radio Services ) ) ) ) ) ) File No. EB-07-IH-8571 NAL/Acct. No. 200832080095 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. § 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. Federal Communications Commission DA 08-1922 2 (h) “Investigation” means the investigation commenced by the Bureau’s October 30, 2007, Letter of Inquiry1 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 rules2 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,3 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 .4 GE MDS 1See Letter from Jennifer A. Lewis, Assistant Chief, Investigations & Hearings Division, Federal Communications Commission to Dennis McCarthy, GE MDS LLC, dated October 30, 2007. 2 47 U.S.C. § 310(d); 47 C.F.R. § 1.948. 3 47 C.F.R. § 2.929. 4 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. Federal Communications Commission DA 08-1922 3 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.5 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: 5 ULS File Nos. 0002907739 and 0002909134. Federal Communications Commission DA 08-1922 4 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. Federal Communications Commission DA 08-1922 5 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. § 504 and 47 C.F.R. § 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 Federal Communications Commission DA 08-1922 6 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. Federal Communications Commission DA 08-1922 7 ________________________________ Susan McNeil Deputy Bureau Chief Enforcement Bureau ________________________________ Date ________________________________ Roberto Vengochea General Manager GE MDS 175 Science Parkway Rochester, NY 14620 ________________________________ Date Federal Communications Commission DA 08-1922 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