Federal Communications Commission DA 09-2103 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Imation Corp. ) ) ) ) ) File No. EB-09-SE-030 Acct. No. 201032100001 FRN No. 0017631821 ORDER Adopted: October 14, 2009 Released: October 16, 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 Imation Corp. (“Imation”). The Consent Decree terminates an investigation by the Bureau against Imation for possible violations of Section 302(b) of the Communications Act of 1934, as amended (“Act”), 47 U.S.C. § 302a(b), and Sections 2.803(a), 2.948(d), and 15.19(b) of the Commission’s Rules (“Rules”), 47 C.F.R. §§ 2.803(a), 2.948(d), and 15.19(b), regarding the marketing and labeling of digital television (“DTV”) converter boxes. 2. The Bureau and Imation 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 Imation 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 Communications Act of 1934, as amended,1 and sections 0.111 and 0.311 of the Commission’s Rules,2 the Consent Decree attached to this Order IS ADOPTED. 6. IT IS FURTHER ORDERED that the above-captioned investigation IS TERMINATED. 1 47 U.S.C. § 154(i). 2 47 C.F.R. §§ 0.111, 0.311. Federal Communications Commission DA 09-2103 2 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 Greg J. Bosler, Vice President, Consumer Division, Americas Region, Imation Corp., 1 Imation Way, Oakdale, MN 55128, and counsel for Imation, Stefan M. Lopatkiewicz, Esq., Dorsey & Whitney LLP, 1050 Connecticut Avenue NW, Suite 1250, Washington, DC 20036. FEDERAL COMMUNICATIONS COMMISSION Kathryn S. Berthot Chief, Spectrum Enforcement Division Enforcement Bureau Federal Communications Commission DA 09-2103 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Imation Corp. ) ) ) ) ) ) ) File No. EB-09-SE-030 Acct. No. 201032100001 FRN No. 0017631821 CONSENT DECREE The Enforcement Bureau (“Bureau”) and Imation Corp. (“Imation”), by their authorized representatives, hereby enter into this Consent Decree for the purpose of terminating the Bureau’s investigation of Imation for possible violations of Section 302(b) of the Communications Act of 1934, as amended (“Act”),1 and Sections 2.803(a), 2.948(d) and 15.19 of the Commission’s Rules (“Rules”)2 regarding the marketing of an unintentional radiator, specifically, a digital television (“DTV”) converter box. 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) “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) “Imation” means Imation Corp. and its subsidiaries and its predecessors-in-interest and successors-in-interest. (h) Investigation” means the investigation commenced by the Bureau’s March 17, 2009 letter of inquiry (“LOI”)3 to Imation regarding possible violations of Section 302(b) of the Act and Sections 2.803(a), 2.948 and 15.19 of the Rules. 1 47 U.S.C. § 302a(b). 2 47 C.F.R. §§ 2.803(a), 2.948(d), and 15.19. 3 See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal Communications Commission to Frank P. Russomanno, Chief Executive Officer, Imation Corp. (March 17, 2009) (“March 17, 2009 LOI”). Federal Communications Commission DA 09-2103 2 (i) “Parties” means Imation and the Bureau. (j) “Rules” means the Commission’s regulations found in Title 47 of the Code of Federal Regulations. II. BACKGROUND 2. Pursuant to Section 302(b) of the Act4 and Section 2.803(a) of the Rules,5 radio frequency devices may not be marketed in the United States unless such devices comply with the applicable technical and administrative provisions of the Rules. DTV converter boxes, which are classified as television interface devices under the Rules,6 can be authorized under a Declaration of Conformity pursuant to Section 15.101(a) of the Rules. In accordance with Section 2.948(d), only accredited laboratories may test equipment subject to a Declaration of Conformity. Further, under Section 2.948(e), the accreditation of a laboratory located outside the United States will be acceptable to the Commission only under the conditions specified therein. Further, under Section 15.19(b) of the Rules,7 a device subject to authorization under a Declaration of Conformity must be labeled in accordance with the provisions specified therein. 3. On March 17, 2009, the Bureau issued an LOI to Imation.8 The LOI directed Imation to submit a sworn written response to a series of questions relating to the marketing and selling of the model MVCB1000 DTV converter box and other television interface devices. Imation responded to the LOI on April 20, 2009, and supplemented that response on April 24 and May 27, 2009.9 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. Imation 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 4 47 U.S.C. § 302a(b). 5 47 C.F.R. § 2.803(a)(2). 6 47 C.F.R. § 15.3(y). 7 47 C.F.R. § 15.19(b). 8 See March 17, 2009 LOI. 9 See Letters from Greg J. Bosler, Vice President, Consumer Division, Americas Region, Imation Corp. to Marlene H. Dortch, Secretary, Federal Communications Commission dated April 20, April 24 and May 27, 2009 (“LOI Responses”). Federal Communications Commission DA 09-2103 3 terminate its investigation. In consideration for the termination of said investigation, Imation 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 Imation 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 Imation with respect to Imation’s basic qualifications, including its character qualifications, to be a Commission licensee or to hold Commission licenses or authorizations. 8. Compliance Plan. For purposes of settling the matters set forth herein, Imation agrees to create within 60 days 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) Compliance Officer. Imation will designate a senior corporate manager (“Compliance Officer”) who is responsible for administering the Compliance Plan. (b) Training. Imation will train and provide materials concerning Section 302(b) of the Act and Parts 2 and 15 of the Rules and the requirements of the Consent Decree to all of its employees who are involved directly or indirectly in the marketing and sourcing of the television interface devices imported, marketed and sold by Imation in the United States. (c) Compliance Reports. Imation will file compliance reports with the Commission 90 days after the Effective Date, 12 months after the Effective Date, and 24 months after the Effective Date. Each report shall include a compliance certificate from the Compliance Officer stating that the Compliance Officer has personal knowledge that Imation has established operating procedures intended to ensure compliance with this Consent Decree, together with an accompanying statement explaining the basis for the Compliance Officer’s compliance certification. All compliance reports shall be submitted to Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal Communications Commission, 445 12th Street, S.W. Washington, D.C. 20554, with a copy submitted electronically to Linda Nagel at Linda.Nagel@fcc.gov and Kathryn Berthot at Kathy.Berthot@fcc.gov. (d) Termination Date. Unless stated otherwise, the requirements of this Consent Decree will expire 24 months after the Effective Date. 9. Voluntary Contribution. Imation agrees that it will make a voluntary contribution to the United States Treasury in the amount of $7,000. 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 Federal Communications Commission DA 09-2103 4 “FORF” in block number 24A (payment type code). Imation will also send electronic notification on the date said payment is made to Linda.Nagel@fcc.gov and Kathy.Berthot@fcc.gov. 10. Waivers. Imation 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. Imation 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 Imation nor the Commission shall contest the validity of the Consent Decree or the Adopting Order, and Imation shall waive any statutory right to a trial de novo. Imation 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. 11. 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. 12. 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 Imation does not expressly consent) that provision will be superseded by such Commission rule or Order. 13. Successors and Assigns. Imation 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 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. 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. Federal Communications Commission DA 09-2103 5 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. _______________________________ Kathryn S. Berthot Chief Spectrum Enforcement Division Enforcement Bureau ________________________________ Date ________________________________ Greg J. Bosler Vice President, Consumer Division Americas Region Imation Corp. ________________________________ Date