# 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).