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 Federal  Communications  Commission  DA  04-  2437 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 

 In  the  Matter  of 
 Blackstone~  NEY  Ultrasonics,  Inc. 

 )  ) 
 )  ) 
 ) 

 File  No.  EB-  03-  TS-  144 
 NAL/  Acct.  No.  200432100013  FRN  #  0011217999 

 ORDER 
 Adopted:  August  5,  2004  Released:  August  10,  2004 
 By  the  Chief,  Enforcement  Bureau: 
 1.  In  this  Order,  we  adopt  the  attached  Consent  Decree  entered  into  between  the  Enforcement  Bureau  and  Blackstone~  NEY  Ultrasonics,  Inc.  (  Blackstone~  NEY).  The  Consent  Decree 
 terminates  an  investigation  into  Blackstone~  NEYs  compliance  with  the  equipment  requirements  set  forth  in  Parts  2  and  18  of  the  Commissions  Rules  (  Rules)  with  respect  to  certain  ultrasonic  cleaning  devices 
 manufactured  and  marketed  by  Blackstone~  NEY. 
 2.  The  Enforcement  Bureau  and  Blackstone~  NEY  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  Blackstone~  Ney  possesses  the  basic  qualifications, 

 including  those  related  to  character,  to  hold  or  obtain  any  FCC  license  or  authorization. 
 4.  After  reviewing  the  record  and  the  terms  of  the  Consent  Decree,  we  believe  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  Communications  Act,  as  amended,  1  and  Sections  0.111  and  0.311  of  the  Rules,  2  the  Consent  Decree  attached  to  this  Order 
 IS  ADOPTED. 
 6.  IT  IS  FURTHER  ORDERED  that  the  Enforcement  Bureaus  investigation  of  Blackstone~  NEY  IS  TERMINATED. 

 7.  IT  IS  FURTHER  ORDERED  that  Blackstone~  NEY  Ultrasonics,  Inc.  shall  make  its  voluntary  contribution  to  the  United  States  Treasury,  as  specified  in  the  Consent  Decree,  by  mailing  a 
 check  or  similar  instrument,  payable  to  the  order  of  the  Federal  Communications  Commission,  to  the  Forfeiture  Collection  Section,  Finance  Branch,  Federal  Communications  Commission,  P.  O.  Box  73482, 
 Chicago,  Illinois  60673-  7482.  The  payment  should  note  the  referenced  NAL/  Acct.  No.  and  FRN. 

 1  47  U.  S.  C.    4(  i). 
 2  47  C.  F.  R.    0.111,  0.  311. 
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 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  Eugene  Phaneuf,  President, 
 Blackstone~  NEY  Ultrasonics,  Inc.,  9  North  Main  Street,  Jamestown,  N.  Y.,  14701,  and  to  Shirley  S.  Fujimoto,  Esq.,  McDermott,  Will  &  Emery,  LLP,  600  Thirteenth  Street,  N.  W.,  Washington,  D.  C.,  20005. 

 FEDERAL  COMMUNICATIONS  COMMISSION 
 David  H.  Solomon  Chief,  Enforcement  Bureau 
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 Federal  Communications  Commission  DA  04-  2437 
 1 
 CONSENT  DECREE 
 The  Enforcement  Bureau  (  Bureau)  of  the  Federal  Communications  Commission  (  Commission)  and  Blackstone~  NEY  Ultrasonics,  Inc.  (  Blackstone~  NEY)  hereby  enter  into  this 
 Consent  Decree  resolving  possible  violations  of  Parts  2  and  18  of  the  Commissions  Rules  concerning  certain  ultrasonic  cleaning  devices  manufactured  and  marketed  by  Blackstone~  NEY. 

 Background 
 1.  In  June  2003,  Blackstone~  NEY,  a  manufacturer  of  ultrasonic  cleaning  devices  for  use  in  industrial  environments,  reported  to  the  Bureau  efforts  to  evaluate  the  compliance  of  its  product  line  with 
 the  requirements  of  Part  18  of  the  Commissions  Rules.  In  response  to  this  disclosure,  the  Bureau  initiated  an  investigation  into  Blackstone~  NEYs  compliance  with  Parts  2  and  18  of  the  Commissions 
 Rules  with  respect  to  the  following  models  of  ultrasonic  cleaning  devices  manufactured  and  sold  between  March  1,  2002  and  December  31,  2003: 

 25  kHz  Neptune  Family  40  kHz  Neptune  Family 
 25  kHz  Neptune  B  Family  40  kHz  Neptune  B  Family 
 25  kHz  Dual  Neptune,  Y  chassis  40  kHz  Dual  Neptune,  Y  chassis 
 25  kHz  Neptune  on  a  plate,  G  chassis  40  kHz  Neptune  on  a  plate,  G  chassis 
 25  kHz  Neptune  High  Power  40  kHz  Neptune  High  Power 
 TP-  3  TP-  3D-  2 
 TP-  6  TP-  20 
 40  kHz  sweepSONIK  2D  Family  72  kHz  sweepSONIK  2D  Family 
 104  kHz  sweepSONIK  2D  Family  132  kHz  microSONIK 
 40  kHz  proSONIK  2  multiSONIK,  3  frequency 
 multiSONIK,  4  frequency  multiSONIK  2,  6  frequency 
 multiSONIK  2,  7  frequency  HT-  1206 

 Definitions 
 2.  For  the  purposes  of  this  Consent  Decree  the  following  definitions  shall  apply: 
 (a)  Commission  or  FCC  means  the  Federal  Communications  Commission; 
 (b)  Bureau  means  the  Enforcement  Bureau  of  the  Commission; 
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 (c)  Blackstone~  NEY  means  Blackstone~  NEY  Ultrasonics,  Inc.,  its  subsidiaries,  affiliates  and  any  successors  or  assigns; 
 (d)  Parties  means  Blackstone~  NEY  and  the  Bureau; 
 (e)  Subject  Devices  means  those  ultrasonic  cleaning  devices  identified  in  paragraph  1  above. 

 (f)  Adopting  Order  means  an  order  of  the  Bureau  adopting  the  terms  and  conditions  of  this  Consent  Decree; 
 (g)  Effective  Date  means  the  date  the  Adopting  Order  is  released  by  the  Bureau; 
 (h)  Rules  means  the  Commissions  Rules  found  in  Title  47  of  the  Code  of  Federal  Regulations;  and 

 (i)  Act  means  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    151  et  seq. 
 Terms  of  Settlement 
 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  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. 

 5.  Blackstone~  NEY  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. 
 6.  The  Parties  waive  any  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 
 Decree  and  the  Adopting  Order,  provided  that  the  Adopting  Order  adopts  this  Consent  Decree  without  change,  addition  or  modification. 

 7.  Blackstone~  NEY  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  discussed  in  this 
 Consent  Decree. 
 8.  The  Parties  agree  that  this  Consent  Decree  does  not  constitute  either  an  adjudication  on  the  merits  or  a  factual  or  legal  finding  or  determination  of  any  compliance  or  noncompliance  with  the  Act 
 or  the  Rules.  The  Parties  further  agree  that  this  Consent  Decree  is  for  settlement  purposes  only  and  that  by  agreeing  to  this  Consent  Decree,  Blackstone~  NEY  does  not  admit  or  deny  any  liability  for  violating 
 the  Act  or  the  Rules  in  connection  with  the  matters  that  are  the  subject  of  this  Consent  Decree. 
 9.  In  express  reliance  on  the  covenants  and  representations  in  this  Consent  Decree,  the  Bureau  agrees  to  terminate  its  investigation  into  whether  Blackstone~  NEY  may  have  violated  the  Act  or 
 the  Rules  with  respect  to  any  ultrasonic  cleaning  devices  manufactured  or  distributed  before  the  effective  date  of  this  Consent  Decree. 
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 10.  Blackstone~  NEY  represents  that  every  model  of  ultrasonic  cleaning  device  manufactured  after  December  31,  2003,  is  in  full  compliance  with  the  technical  requirements  set  forth  in  the 
 Commissions  Rules  and  agrees  that  all  future  models  will  be  in  full  compliance  with  the  Commissions  Rules. 

 11.  Blackstone~  NEY  will  implement  a  Federal  Communications  Commission  Regulatory  Compliance  Plan  (  RCP).  The  RCP,  which  is  attached  hereto  and  incorporated  herein,  will  include 
 Blackstone~  NEYs  appointment  of  a  regulatory  compliance  officer  charged  with  oversight  of  personnel  responsible  for  ensuring  that  ultrasonic  cleaning  devices  comply  with  all  applicable  Commission  Rules 
 prior  to  distribution.  Blackstone-  NEY  will  maintain  its  RCP  for  twenty-  four  (24)  months  from  the  Effective  Date  of  this  Consent  Decree. 

 12.  Blackstone~  NEY  agrees  to  resolve  all  complaints  of  harmful  interference,  as  defined  in  Part  18  of  the  Commissions  Rules,  from  the  Subject  Devices.  To  the  extent  that  Blackstone  receives  any 
 complaints  or  reports  of  harmful  interference  from  the  Subject  Devices,  Blackstone  will  submit  reports  to  the  Bureau  on  a  quarterly  basis,  beginning  three  (3)  months  from  the  Effective  Date  of  this  Consent 
 Decree  and  continuing  for  twenty-  four  (24)  months  from  the  Effective  Date  of  this  Consent  Decree,  detailing  the  complaints  and  the  steps  taken  to  resolve  the  complaints. 

 13.  The  Parties  acknowledge  and  agree  that  this  Consent  Decree  shall  constitute  a  final  and  binding  settlement  between  Blackstone~  NEY  and  the  Bureau  regarding  possible  violations  of  the  Act  and 
 the  Rules  with  respect  to  any  ultrasonic  cleaning  devices  manufactured  or  sold  by  Blackstone~  NEY  prior  to  the  Effective  Date  of  this  Consent  Decree.  In  consideration  for  termination  by  the  Bureau  of  its 
 investigation  into  whether  Blackstone~  NEY  may  have  violated  the  Act  or  the  Rules  with  respect  to  any  ultrasonic  cleaning  devices  manufactured  or  sold  by  Blackstone~  NEY  prior  to  the  Effective  Date  of  this 
 Consent  Decree  and  in  accordance  with  the  terms  of  this  Consent  Decree,  Blackstone~  NEY  agrees  to  the  terms  set  forth  herein. 

 14.  The  Bureau  agrees  that  it  will  not  entertain,  or  institute  on  its  own  motion,  any  new  proceeding,  formal  or  informal,  take  any  action  on  its  own  motion,  or  recommend  to  the  full  Commission 
 any  forfeiture  or  other  sanction,  against  Blackstone~  NEY  for  any  alleged  violation  of  the  Act  or  the  Rules  with  respect  to  any  ultrasonic  cleaning  device  manufactured  or  sold  by  Blackstone~  NEY  prior  to  the 
 Effective  Date  of  this  Consent  Decree.  Nothing  in  this  Consent  Decree  shall  prevent  the  Bureau  from  instituting  new  investigations  or  enforcement  proceedings  against  Blackstone~  NEY  in  the  event  of  any 
 alleged  future  misconduct  for  violation  of  this  Consent  Decree  or  for  violation  of  the  Act  and  the  Rules  consistent  with  the  provisions  of  this  Consent  Decree. 

 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  Blackstone~  NEY  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  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. 
 17.  Blackstone~  NEY  agrees  to  make  a  voluntary  contribution  to  the  United  States  Treasury  in  the  amount  of  seventy-  five  thousand  dollars  ($  75,  000)  within  thirty  (30)  days  of  the  Effective  Date. 
 Such  contribution  shall  be  made,  without  further  protest  or  recourse,  by  credit  card  through  the  Commissions  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, 
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 Illinois,  60673-  7482.  The  payment  should  reference  NAL/  Acct.  No.  200432100013  and  FRN  0011217999. 
 18.  If  any  Party  (or  the  United  States  on  behalf  of  the  Commission)  brings  a  judicial  action  to  enforce  the  terms  of  the  Adopting  Order,  neither  Blackstone~  NEY  nor  the  Commission  shall  contest  the 
 continuing  validity  of  the  Consent  Decree  or  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. 
 19.  The  Parties  agree  that  in  the  event  that  any  court  of  competent  jurisdiction  renders  this  Consent  Decree  invalid,  this  Consent  Decree  shall  become  null  and  void  and  may  not  be  used  in  any 
 manner  in  any  legal  proceeding. 
 20.  This  Consent  Decree  cannot  be  modified  without  the  advance  written  consent  of  all  of  the  Parties. 

 21.  This  Consent  Decree  may  be  signed  in  counterparts. 

 For  the  Enforcement  Bureau: 
 By:  David  H.  Solomon 
 Chief,  Enforcement  Bureau 

 For  Blackstone~  NEY  Ultrasonics,  Inc.: 
 By:  Eugene  Phaneuf 
 President  Blackstone~  NEY  Ultrasonics,  Inc. 
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 Federal  Communications  Commission  DA  04-  2437 
 COMPLIANCE  PLAN 
 I.  PERSONNEL  AND  TRAINING 
 1.  Compliance  Officer 
 Blackstone~  NEY  will  appoint  a  Regulatory  Compliance  Officer  (  Compliance  Officer),  who  will  administer  the  compliance  program  described  below.  The  Compliance  Officer  will  also  supervise 
 Blackstone~  NEYs  compliance  with  Parts  2  and  18  and  Section  1.17  of  the  FCCs  Rules  and  the  requirements  of  the  Consent  Decree. 

 2.  Written  Advisory 
 Within  45  days  of  the  Effective  Date  of  the  Consent  Decree,  the  Compliance  Officer  will  send  a  written  advisory  on  Parts  2  and  18  of  the  FCCs  Rules,  Section  1.17  of  the  FCCs  Rules,  and  the 
 requirements  of  the  Consent  Decree  to  each  officer  and  employee  of  Blackstone~  NEY,  who  have  or  will  have  responsibilities  related  to  the  design,  development,  testing,  marketing,  and  distribution  of  ultrasonic 
 devices  on  behalf  of  Blackstone~  NEY. 
 3.  Training 
 Blackstone~  NEY  will  train  and  provide  materials  concerning  Parts  1,  2  and  18  of  the  FCCs  Rules  and  the  requirements  of  the  Consent  Decree  to  all  of  its  employees  who  are  involved  directly  or 
 indirectly  in  the  design,  development,  testing,  marketing,  and  distribution  of  ultrasonic  devices.  Specifically,  Blackstone~  NEY  will,  within  60  days  of  the  Effective  Date  of  the  Consent  Decree: 

 (a)  train  its  employees  regarding  compliance  with  the  technical  requirements  of  Part  18  of  the  FCCs  Rules  in  the  design  and  manufacture  of  ultrasonic  devices; 
 (b)  train  its  employees  regarding  compliance  with  Part  2  of  the  FCCs  Rules  regarding  the  sale,  marketing,  and  distribution  of  ultrasonic  devices; 
 (c)  train  its  employees  regarding  compliance  with  the  obligation  pursuant  to  Sections  1.17  and  1.65  of  the  FCCs  Rules  to  ensure  and  maintain  the  accuracy  and  completeness  of 
 any  materials  or  information  provided  to  the  FCC;  and 
 (d)  train  its  employees  regarding  the  requirements  of  the  Consent  Decree. 
 4.  Disciplinary  Action 
 If,  after  an  internal  investigation  and  based  upon  a  preponderance  of  the  evidence,  Blackstone~  NEY  concludes  that  one  of  its  employees  has  intentionally  made  any  misrepresentation,  or 
 engaged  in  any  lack  of  candor  in  any  submission  to  the  FCC,  either  orally  or  in  writing,  Blackstone~  NEY  will  take  appropriate  disciplinary  action. 
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 II.  RESOLUTION  OF  COMPLAINTS 
 1.  Responsibilities 
 The  Compliance  Officer  will  be  responsible  for  (1)  receiving  and  reviewing  any  complaints  of  harmful  interference,  (2)  initiating  and  maintaining  an  ongoing  log  of  the  status  and  actions  taken 
 regarding  each  complaint,  (3)  supervising  those  employees  assigned  to  resolve  each  complaint,  and  (4)  coordinating  the  preparation  and  submission  to  the  FCC  of  reports  regarding  any  complaints  of  harmful 
 interference  received  by  Blackstone~  NEY. 
 2.  Process 
 Blackstone~  NEY  will  use  its  best  efforts  to  resolve  any  complaints  of  harmful  interference  it  receives  with  respect  to  the  ultrasonic  devices  identified  in  the  Consent  Decree.  Upon  receipt  of  a 
 complaint,  Blackstone~  NEY  will: 
 (a)  Investigate  the  circumstances  related  to  the  complaint  in  order  to  determine:  (1)  whether  the  Blackstone~  NEY  device  complained  of  is  in  fact  the  source  of  the  harmful 
 interference,  and  (2)  if  so,  what  steps  must  be  taken  in  order  to  resolve  the  harmful  interference. 

 (b)  Inform  the  complainant  if  Blackstone~  NEY  should  conclude  that  its  device  is  not  the  source  of  the  alleged  harmful  interference  and  provide  the  complainant  with  the  relevant 
 facts  and  information  used  by  Blackstone~  NEY  in  reaching  this  conclusion. 
 (c)  To  the  extent  that  Blackstone~  NEYs  device  is  the  source  of  the  complained-  of  harmful  interference,  work  with  the  operator  to  implement  solutions  to  mitigate  the  harmful 
 interference. 
 The  disposition  of  each  complaint  shall  be  tracked  and  monitored  by  the  Compliance  Officer.  The  Compliance  Officer  will  ensure  that  current  and  accurate  information  regarding  each  complaint  is 
 provided  to  the  FCC  in  connection  with  any  report  or  other  required  filing. 
 3.  Definitions 
 Harmful  interference  shall  be  interpreted  in  accordance  with  the  definition  of  that  term  contained  in  Section  18.107(  b)  of  the  FCCs  Rules. 
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