******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 ) In the Matter of ) ) Ares Microdevelopment, Inc. )NAL Acct. No. 315HF0011 Farmington Hills, Michigan ) ) Liability for Monetary Forfeiture) ) NOTICE OF FORFEITURE Adopted: August 13, 1997 Released: August 15, 1997 By the Compliance and Information Bureau: I. INTRODUCTION 1. This is a Notice of Forfeiture issued pursuant to Section 503(b) of the Communications Act of 1934, as amended, (the Act), 47 U.S.C.  503(b), to Ares Microdevelopment, Inc. (Ares), for the willful violation of Sections 2.803 and 15.101 of the Commission's Rules, 47 C.F.R.  2.803, 15.101. In November 1992, Ares advertised various 486 personal computers in a trade publication. Commission records at the time indicated that no grant of authorization had ever been issued to Ares for two of the 486 systems which were being advertised. Ares was sent a notice of violation concerning the advertisement. Ares continued to advertise the computers after being notified of the violation. 2. The appropriate amount for this forfeiture is $10,000. II. BACKGROUND 3. On November 30, 1992, the Equipment Authorization Branch of the Authorization and Evaluation Division, Office of Engineering and Technology (OET), notified Ares of its apparent violation of Commission Rules prohibiting the marketing, including advertising without disclaimers, of equipment which had not been certified or properly authorized by the Commission. OET also requested that Ares provide written statements, documentation, or information regarding any possible grants of authorization for the disputed equipment or, in the alternative, regarding any steps being taken to prevent further marketing of the equipment. 4. By a letter dated December 22, 1992, Ares responded to the November 30, 1992, letter. Ares admitted that their 486-50DX2 and 486-66DX2 models were not approved for marketing at the time they were advertised. In another advertisement appearing in the February 1993 issue of the same trade publication, however, Ares continued to advertise the unauthorized computers. 5. On August 25, 1993, the Commission's Field Operations Bureau issued a Notice of Apparent Liability for Monetary Forfeiture (NAL) to Ares proposing a forfeiture penalty of $14,000. In its October 5, 1993, response, Ares requested cancellation of the proposed penalty but provided no facts that would justify such action. III. DISCUSSION 6. Section 302(b) of the Act and Section 2.803 of the Commission's Rules prohibit the marketing of equipment capable of causing radio interference prior to grant of an equipment authorization by the Commission. Marketing includes display at a trade show or retail store, advertising in printed publications, literature about the equipment, or promotion through telephone calls or personal presentations. Models 486-50DX2 and 486-66DX2 were advertised in the November 1992, and February 1993, issues of a trade publication with no disclaimer stating that they had not been granted an equipment authorization. Inclusion of the uncertified computers in the published advertisements was an offer for sale of unauthorized equipment and contravened Section 2.803 of the Commission's rules. The advertisement appeared at least one time after Ares had been notified by the Commission on November 30, 1992, that the marketing of uncertified equipment was prohibited by the Commission's Rules. Although an equipment authorization for those models was granted on April 2, 1993, it is clear that Ares advertised unauthorized equipment even after being notified that this action was prohibited by the Commission's Rules. 7. In the NAL, the appropriate amount of the penalty was determined pursuant to the Commission's Policy Statement, Standards for Assessing Forfeitures, (Policy Statement), 8 FCC Rcd 6215 (1993). On July 12, 1994, the Court of Appeals for the D.C. Circuit vacated the forfeiture guidelines contained in the Policy Statement. United States Telephone Assn. v. FCC, 28 F.3d 1232 (D.C. Cir. 1994). In setting the appropriate penalty for this order we have reevaluated the forfeiture amount pursuant to the statutory guidelines set forth in Section 503 of the Act, 47 U.S.C.  503(b)(2)(D). In particular, Section 503(b) of the Act requires that the Commission "take into account the nature, circumstances, extent, and gravity of the violation, and with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require." 47 U.S.C.  503(b)(2)(D). 8. In its October 5, 1993, response to the NAL, Ares presented no facts that would warrant reduction or cancellation of the proposed forfeiture. It admitted that the above two models lacked equipment authorizations at the time of publication of the advertisements. It claims the violation was due to an oversight in that it thought the equipment had been granted an equipment authorization. Ares' oversight, however, is no excuse for its actions. After receiving an initial notification in November 1992 about the lack of equipment authorization, Ares should have ensured that its equipment was authorized by the Commission before publishing the advertisements. IV. CONCLUSION 9. For the reasons cited above, we conclude that Ares is liable for a monetary forfeiture in the amount of $10,000. In determining the amount of the forfeiture, the factors specified in Section 503(b) of the Act were considered. No other adjustments appear warranted. V. ORDERING CLAUSES 10. Accordingly, pursuant to Section 503(b) of the Communications Act, 47 U.S.C.  503(b), and Section 1.80(f) of the Commission's Rules, 47 C.F.R.  1.80(f), IT IS ORDERED, that Ares Microdevelopment, Inc., FORFEIT to the United States the sum of ten thousand dollars ($10,000) for the willful violation of Section 302(b) of the Communications Act and Section 2.803 of the Commission's Rules. 11. IT IS FURTHER ORDERED, pursuant to Section 503(b) of the Act, 47 U.S.C.  503(b), and Section 1.80(h) of the Commission's Rules, 47 C.F.R.  1.80(h), that the forfeiture payment is due and payable immediately upon receipt of this ORDER and must be paid within thirty (30) days of the release date of this Order. Payment should be made by check or money order payable to the Federal Communications Commission, attention NAL Acct. 315HF0011, and must be mailed to: Federal Communications Commission P.O. Box 73482 Chicago, Illinois 60673-7482 Forfeiture penalties not paid within 30 days may be referred to the U. S. Attorney for recovery in a civil suit. 47 U.S.C.  504(a). Petitions for reconsideration or higher level review should be submitted in accordance with Sections 1.106 or 1.115 of the Commission's Rules respectively. 47 C.F.R.  1.106, 1.115. 12. IT IS FURTHER ORDERED that the Compliance and Information Bureau send by Certified Mail, Return Receipt Requested, one copy of this Order to Ares Microdevelopment, Inc., 23660 A Research Dr., Farmington Hills, Michigan 48335. FEDERAL COMMUNICATIONS COMMISSION Magalie R. Salas Acting Chief, Compliance Division Compliance and Information Bureau BCC: DD, Detroit Chief, Billings and Collections Branch, FOD OET, Authorization and Evaluation, Div. Retyped 5/23/94 LRL Retyped 9/17/96 LRL Edits 10/18/96 LRL Edits 7/21/97 LRL