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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-01-MA-035
Lightning Electronics, Inc. )
Miami, Florida ) NAL/Acct. No.
) FRN 0006-2915-95
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 21, 2002
By the Enforcement Bureau, Tampa Office:
1. In this Notice of Apparent Liability for
Forfeiture, we find that Lightning Electronics, Inc.
(``Lightning'') apparently violated Section 302(b) of the
Communications Act of 1934, as amended (``Act''),1 and
Section 2.803(a)(1) of the Commission's Rules,2 by marketing
a non-compliant high-power cordless telephone (``Prolink
model BAO-6110CID''). We conclude that Lightning is
apparently liable for a forfeiture in the amount of seven
thousand dollars ($7,000).
2. On July 27, 2001, agents from the FCC Enforcement
Bureau's Miami Resident Agent Office (``Miami Office'') and
Tampa Field Office visited Lightning, a retail store located
at 231 E. Flagler Street, Unit # 1, Miami, Florida 33131.
The agents saw several high-power cordless telephones on
display at the store, including a Super Phone CT-9000, a
Prolink CT-600CID and an Optima OP-8810. The salesperson
offered one of the units for sale to the agents. The units
offered for sale possessed neither the labeling nor FCC
authorization required to market such devices in the United
3. On August 24, 2001, the Miami Office issued via
regular and certified mail a Citation letter to Lightning
for violation of Section 302(b) of the Act, and Section
2.803(a)(1) of the Commission's Rules. According to the
Postal Service, Lightning refused the certified letter on
August 27, 2001. The Citation letter sent via regular mail
was never returned.
4. On September 26, 2001, two FCC agents visited
Lightning for the second time and inquired about long-range,
cordless telephones. The salesperson sold the agents a
``Prolink BAO-6110CID'' long-range cordless telephone with
antenna for $669.80. No documentation was requested by the
salesperson to complete the transaction. The units offered
for sale possessed neither the labeling nor FCC
authorization required to market such devices in the United
5. On October 5, 2001, the Miami Office received a
letter signed by Mr. Patrick Arty, Bookkeeper, in reply to
the Citation issued to Lightning on August 24, 2001. In the
letter, Mr. Arty stated that, as a result of the Citation,
Lightning pulled ``...the merchandise off the shelves... and
have returned them to the distributor...''
6. Section 302(a) of the Act authorizes the
Commission to regulate equipment capable of emitting radio
frequency energy that may cause interference to radio
communications.3 Section 302(b) of the Act states that
``[n]o person shall manufacture, import, sell, offer for
sale, or ship devices or home electronic equipment and
systems, or use devices, which fail to comply with
regulations promulgated pursuant to this section.'' Section
2.803(a)(1) of the Rules provides that ``[n]o person shall
sell or lease, or offer for sale or lease, any radio
frequency device unless: (1) In case of a device subject to
certification, such device has been authorized by the
Commission in accordance with the rules in this chapter and
is properly identified and labeled....'' Lightning, as a
marketer of the Prolink BAO-6110CID telephone, is
responsible for ensuring such device complies with the
Commission's Rules. The FCC notified Lightning in writing
of its violation, warned Lightning about the penalties for
marketing non-compliant devices, yet Lightning continued to
market the non-compliant device in violation of both the Act
and the Rules.
7. Based on the evidence before us, we find that
Lightning willfully4 and repeatedly5 violated Section 302(b)
of the Act and Section 2.803(a)(1) of the Commission's
Rules. Pursuant to Section 1.80(b)(4) of the Commission's
Rules, the base forfeiture amount for the violation cited in
this notice is $7,000.6 Section 503(b)(2)(D) of the Act
requires us to 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 other such
matters as justice may require.''7 Considering the entire
record and applying the statutory factors listed above, this
case warrants a $7,000 forfeiture.
IV ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,8 and Sections 0.111, 0.311 and
1.80 of the Commission's Rules,9 Lightning, is hereby
NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of seven thousand dollars ($7,000) for willfully and
repeatedly violating Section 302(b) of the Act and Section
2.803(a)(1) of the Rules.
9. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Commission's Rules,10 within thirty days of the
release date of this NOTICE OF APPARENT LIABILITY,
Lightning, SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
10. Payment of the forfeiture may be made 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 NAL/Acct. No. and FRN referenced
in the letterhead above.
11. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street, S.W., Washington, D.C. 20554, ATTN: Enforcement
Bureau - Technical & Public Safety Division, and MUST
INCLUDE the NAL/Acct. No. and FRN referenced in the
12. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability
to pay unless the petitioner submits: (1) federal tax
returns for the most recent three-year period; (2) financial
statements prepared according to generally accepted
accounting practices (``GAAP''); or (3) some other reliable
and objective documentation that accurately reflects the
petitioner's current financial status. Any claim of
inability to pay must specifically identify the basis for
the claim by reference to the financial documentation
13. Requests for payment of the full amount of this
Notice of Apparent Liability under an installment plan
should be sent to: Federal Communications Commission, Chief,
Revenue and Receivables Operation Group, 445 12th Street,
S.W., Washington, D.C. 20554.11
14. IT IS FURTHER ORDERED THAT a copy of this NOTICE
OF APPARENT LIABILITY shall be sent by Certified Mail Return
Receipt Requested to Lightning Electronics, Inc., at 231 E.
Flagler Street, Unit # 1, Miami, Florida 33131.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
1 47 U.S.C. § 302a(b)
2 47 C.F.R. § 2.803(a)(1)
3 47 U.S.C. 302a(a)
4 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to Section 503(b) of the Act, provides that ``(t)he
term `willful', when used with reference to the commission
or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any
intent to violate any provision of this Act...'' See
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).
5 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2) which
applies equally to Section 503(b) of the Act, provides that
``[t]he term `repeated,' when used with reference to the
commission or omission of any act, means the commission or
omission of such act more than once or, if such commission
or omission is continuous, for more than one day.''
6 47 C.F.R. § 1.80(b)(4)
7 47 U.S.C. § 503(b)(2)(D)
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80.
10 47 C.F.R. § 1.80.
11 See 47 C.F.R. § 1.1914.