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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-04-SE-045
Perfect Fit Industries, Inc. ) NAL/Acct. No. 200532100008
) FRN # 0012658035
ORDER
Adopted: February 8, 2005 Released: February 10,
2005
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent
Decree entered into between the Enforcement Bureau and Perfect
Fit Industries, Inc. (``PFI''). The Consent Decree terminates an
investigation initiated by the Enforcement Bureau into whether
heated mattress pads and blankets and associated external
switching power supplies imported and marketed in the United
States by PFI comply with the requirements of Section 302(b) of
the Communications Act of 1934, as amended, (``Act'')1 and Parts
2 and 15 of the Commission's Rules (``Rules'').2
2. The Enforcement Bureau and PFI have negotiated the
terms of a Consent Decree that would resolve this matter and
terminate the investigation. A copy of the Consent Decree is
attached hereto and incorporated by reference.
3. Based on the record before us, we conclude that no
substantial or material questions of fact exist with respect to
this matter as to whether PFI possesses the basic qualifications,
including those related to character, to hold or obtain any FCC
license or authorization.
4. After reviewing the terms of the Consent Decree,
we find that the public interest will be served by adopting the
Consent Decree and terminating the investigation.
5. Accordingly, IT IS ORDERED that, pursuant to
Section 4(i) of the Act,3 and Sections 0.111 and 0.311 of the
Rules,4 the Consent Decree attached to this Order IS ADOPTED.
6. IT IS FURTHER ORDERED that the Enforcement
Bureau's investigation IS TERMINATED.
7. IT IS FURTHER ORDERED that Perfect Fit Industries,
Inc. shall make its voluntary contribution to the United States
Treasury, as specified in the Consent Decree, by credit card
through the Commission's Debt and Credit Management Center at
(202) 418-1995, or by mailing a check or similar instrument,
payable to the order of the Federal Communications Commission, to
the Federal Communications Commission, Forfeiture Collection
Section, Finance Branch, P.O. Box 73482, Chicago, Illinois 60673-
7482. Payment by overnight mail may be sent to Bank One/LB
73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.
Payment by wire transfer may be made to ABA Number 071000013,
receiving bank Bank One, and account number 1165259. The payment
should reference the NAL/Acct. No. and FRN number referenced
above.
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 Louis R. Morris,
President, Perfect Fit Industries, Inc., 8501 Tower Point Drive,
Charlotte, North Carolina 28227, and to Jack Richards, Esq.,
Keller and Heckman LLP, 1001 G Street, N.W., Suite 500 West,
Washington, D.C. 20001.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
CONSENT DECREE
The Enforcement Bureau (``Bureau'') of the Federal
Communications Commission (``Commission'') and Perfect Fit
Industries, Inc. (``PFI'') hereby enter into this Consent Decree
for the purpose of terminating the Bureau's investigation into
whether heated mattress pads and blankets and associated external
switching power supplies imported and marketed in the United
States by PFI comply with the requirements of Section 302(b) of
the Communications Act of 1934, as amended, (``Act'')5 and Parts
2 and 15 of the Commission's Rules (``Rules'').6
Background
1. Under Parts 2 and 15 of the Rules, Class B digital
devices and Class B external switching power supplies must be
authorized in accordance with the Commission's equipment
verification procedure and comply with all applicable technical
standards and labeling requirements prior to importation or
marketing in the United States. On March 5, 2004, in response to
complaints alleging interference related to heated mattress pads
marketed by PFI, the Bureau initiated an investigation by issuing
a Letter of Inquiry (``LOI'') directing PFI to provide certain
information concerning the compliance of its heated mattress pads
with Parts 2 and 15 of the Rules. On April 15, 2004, PFI
responded to the Bureau's LOI concerning its heated mattress pads
and associated external switching power supplies and also
voluntarily disclosed information concerning its heated blankets
and associated external switching power supplies. On October 18,
2004, the Spectrum Enforcement Division of the Bureau issued an
Order denying PFI's request for confidential treatment of
material submitted in response to the LOI.7 On October 25, 2004,
PFI filed an application for review of the Order denying its
request for confidential treatment, and on November 15, 2004, PFI
filed a supplement to its application for review.
Definitions
2. For the purposes of this Consent Decree, the
following definitions shall apply:
(a) ``Commission'' and ``FCC'' mean the Federal
Communications Commission.
(b) ``Bureau'' means the Enforcement Bureau of the Federal
Communications Commission.
(c) ``PFI'' means Perfect Fit Industries, Inc., its
subsidiaries, affiliates and any successors or assigns.
(d) ``Parties'' means PFI and the Bureau.
(e) ``Adopting Order'' means an order of the Bureau
adopting the terms and conditions of this Consent Decree.
(f) ``Effective Date'' means the date on which the Bureau
releases the Adopting Order.
(g) ``Investigation'' means the investigation commenced by
the Bureau's March 5, 2004 Letter of Inquiry to PFI.
(h) ``Confidentiality Ruling'' means the Order issued by
the Spectrum Enforcement Division of the Bureau on October
18, 2004 denying PFI's request for confidential treatment of
material submitted in response to the Bureau's March 4, 2004
Letter of Inquiry.
(i) ``Application for Review'' means the Application for
Review of the Confidentiality Ruling filed by PFI on October
25, 2004, and the supplement to the Application for Review
filed by PFI on November 15, 2004.
(j) ``Rules'' means the Commission's Rules found in Title
47 of the Code of Federal Regulations.
(k) ``Act'' means the Communications Act of 1934, as
amended, 47 U.S.C. §§151 et seq.
Terms of Agreement
3. 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.
4. The Parties 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. The Parties further agree that
this Consent Decree is for settlement purposes only and that by
agreeing to this Consent Decree, PFI does not admit or deny
liability for violating any statute, regulation, or
administrative rule in connection with matters that are the
subject of this Consent Decree.
5. The Parties agree that this Consent Decree shall
become binding on the Parties on the Effective Date. Upon
release, the Adopting Order and this Consent Decree shall have
the same force and effect as any other final order of the
Commission and any violation of the terms or conditions of this
Consent Decree shall constitute a violation of a Commission
order.
6. The Parties acknowledge and agree that this
Consent Decree shall constitute a final and binding settlement
between PFI and the Bureau regarding possible violations of the
Act and the Rules with respect to any heated mattress pads and
heated blankets and associated external switching power supplies
marketed by PFI prior to the Effective Date of this Consent
Decree.
7. In express reliance on the covenants and
representations in this Consent Decree and to avoid further
expenditure of scarce public resources, the Bureau agrees to
terminate its Investigation into whether PFI may have violated
the Act or the Rules with respect to any heated mattress pads and
heated blankets and associated external switching power supplies
marketed by PFI prior to the Effective Date of this Consent
Decree.
8. In consideration for termination by the Bureau of
the Investigation and in accordance with the terms of this
Consent Decree, PFI agrees to the terms set forth herein.
9. PFI acknowledges that the Bureau has jurisdiction
over the matters contained in this Consent Decree and the
authority to enter into and adopt this Consent Decree.
10. PFI will implement a Federal Communications
Commission Regulatory Compliance Plan (``RCP'') related to PFI's
future compliance with the Act, the Commission's Rules, and the
Commission's orders. The RCP will include, at a minimum, the
following components:
(a) FCC Compliance Procedures. PFI shall develop and
update as necessary appropriate FCC Compliance Procedures.
Relevant PFI personnel shall be made aware of the FCC
Compliance Procedures and are to follow them. The FCC
Compliance Procedures will, among other things, address the
equipment authorization requirements of the Act and the
Commission's Rules applicable to all Class B digital devices
and Class B external switching power supplies manufactured,
imported, marketed and sold by PFI in the United States, as
well as the Commission's Rules regarding labeling and user
manual statements for such devices.
(b) Compliance Officer. PFI shall designate a
Regulatory Compliance Officer (``Compliance Officer'') who
will administer the RCP, supervise PFI's compliance with the
Act, the Commission's Rules and the Consent Decree, and
serve as the PFI point of contact for all Commission-related
compliance matters. The Compliance Officer will be assigned
responsibility within PFI for determining whether the
manufacture, importation, marketing, sale, labeling and user
manual requirements for such devices are in compliance with
FCC Compliance Procedures.
(c) Review and Monitoring. PFI will review the RCP
annually to ensure that it is maintained in a proper manner
and continues to address the objectives set forth therein.
11. PFI agrees that every heated mattress pad and
heated blanket and associated external switching power supply
which is imported or marketed by PFI in the United States on or
after the Effective Date of this Consent Decree shall be
compliant with Parts 2 and 15 of the Rules before importation and
marketing by PFI.
12. PFI agrees that it will continue to include an 800
number on its literature and on its heated mattress pads and
heated blankets and to replace free of charge any non-compliant
heated mattress pad or heated blanket with a compliant product
upon receipt of a complaint of interference.
13. The Bureau agrees that it will not entertain or
institute, or use the facts developed in this Investigation or
the existence of this Consent Decree to institute, on its own
motion, any new proceeding, formal or informal, nor take any
action on its own motion, or recommend to the full Commission any
forfeiture or other sanction, against PFI for any alleged
violation of the Act or the Rules with respect to any heated
mattress pads and heated blankets and associated external
switching power supplies marketed by PFI prior to the Effective
Date of this Consent Decree.
14. PFI agrees that it will file a motion to withdraw
its Application for Review of the Confidentiality Ruling within
five (5) days after the Effective Date of this Consent Decree.
The Bureau agrees that within fifteen days (15) after the
Effective Date of this Consent Decree, it will issue an Order
vacating the Confidentiality Ruling and granting PFI's motion to
withdraw the Application for Review.
15. The Parties agree that each is required to comply
with each individual condition of this Consent Decree. Each
specific condition is a separate condition of the Consent Decree
as approved. To the extent that PFI fails to satisfy any
condition, in the absence of Commission alteration of the
condition, it will be deemed noncompliant and may be subject to
possible future enforcement action with respect to such failure
to satisfy the condition.
16. The Parties agree that PFI's obligations set forth
in paragraphs 10 through 12 of this Consent Decree shall remain
in effect for thirty-six (36) months from the Effective Date.
17. PFI agrees that it will make a voluntary
contribution to the United States Treasury in the amount of Seven
Thousand Dollars ($7,000) within 30 calendar days after the
Effective Date. Such contribution shall be made, without further
protest or recourse, by credit card through the Commission's Debt
and Credit Management Center at (202) 418-1995, or by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, Forfeiture Collection Section, Finance Branch, P.O.
Box 73482, Chicago, Illinois 60673-7482. Payment by overnight
mail may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259. The payment should reference NAL/Acct.
No. 200532100008 and FRN # 0012658035.
18. PFI's decision to enter into this Consent Decree
is expressly contingent upon the Bureau's issuance of an Adopting
Order that is consistent with this Consent Decree, and which
adopts the Consent Decree without change, addition, modification,
or deletion.
19. The Parties waive any and all rights they 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 that the
Adopting Order adopts the Consent Decree without change,
addition, modification, or deletion.
20. 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.
21. 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 PFI nor the Commission shall contest
the continuing validity of this Consent Decree or the Adopting
Order. The Parties agree to comply with, defend and support the
validity of this Consent Decree and the Adopting Order in any
proceeding seeking to nullify, void, or otherwise modify the
Consent Decree or the Adopting Order.
22. The Parties agree that any provision of this
Consent Decree which conflicts with any subsequent rule, order of
general applicability or other decision of general applicability
adopted by the Commission will be superseded by such Commission
rule, order or other decision.
23. PFI waives any rights it may have under any
provision of 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.
24. This Consent Decree cannot be modified without the
advance written consent of both Parties.
25. This Consent Decree may be signed in counterparts.
For the Enforcement Bureau:
________________________________
David H. Solomon
Chief, Enforcement Bureau
________________________________
Date
For Perfect Fit Industries, Inc.:
________________________________
Louis R. Morris
President and Chief Executive Officer
________________________________
Date
_________________________
1 47 U.S.C. § 302a(b).
2 47 C.F.R. § 2.1 et seq. and § 15.1 et seq.
3 47 U.S.C. § 154(i).
4 47 C.F.R. §§ 0.111, 0.311.
5 47 U.S.C. § 302a(b).
6 47 C.F.R. § 2.1 et seq. and § 15.1 et seq.
7 Perfect Fit Industries, Inc., 19 FCC Rcd 19889 (Enf. Bur.,
Spectrum Enf. Div., 2004).