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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In the Matter of                   )    File No.  EB-01-MA-035
                              ) 
Lightning Electronics, Inc.             )    NAL/Acct.        No. 
200232700009
                              ) 
Miami, Florida                     )    FRN 0006-2915-95


                         FORFEITURE ORDER

  Adopted:  September 30, 2002          Released:    October   2, 
2002

By the Chief, Enforcement Bureau:

                        I.   Introduction

     1.   In  this  Forfeiture  Order  (``Order''),  we  issue  a 
monetary forfeiture  in  the  amount of  seven  thousand  dollars 
($7,000) against Lightning Electronics, Inc. (``Lightning''), for 
willful  and  repeated  violations  of  Section  302(b)  of   the 
Communications Act  of 1934,  as amended  (``Act'')1 and  Section 
2.803(a)(1) of the  Commission's Rules  (``Rules'').2  The  noted 
violations involve Lightning's marketing of unapproved long-range 
cordless telephones.

     2.   On  May  21,  2002,   the  District  Director  of   the 
Enforcement Bureau's (``Bureau'') Tampa, Florida, Office (``Tampa 
Office'') released a Notice of Apparent Liability for  Forfeiture 
(``NAL'') against Lightning in the amount of $7,000.3   Lightning 
filed a response to the NAL dated June 11, 2002.

                         II.  Background

     3.  In February of 2001, the Federal Aviation Administration 
(``FAA'') reported to the Bureau  that it was receiving  sporadic 
interference to  an aviation  frequency  in the  Miami,  Florida, 
area.  In March  of 2001, the  Bureau's Miami, Florida,  Resident 
Agent Office  (``Miami Office'')  identified  the source  of  the 
interference as a  long-range cordless  telephone being  operated 
from an electronics  store in Miami.   As a result  of the  FAA's 
concerns, the Bureau launched a nationwide investigation into the 
unlawful4 marketing and  use of  long-range cordless  telephones.  
During the investigation, the Bureau discovered that  electronics 
dealers are marketing long-range  cordless telephones in  several 
states.   Certain of the long-range cordless telephones  marketed 
by  electronics  dealers   cause  interference  by   transmitting 
spurious emissions  on  aviation frequencies,  while  others  are 
specifically designed  to  operate  in the  aviation  band.   The 
investigation has resulted in the issuance of several  citations, 
NALs and Forfeiture Orders by the Enforcement Bureau.5 

     4.  On July 27, 2001,  agents from the Miami Office  visited 
Lightning's retail store located at  231 E. Flagler Street,  Unit 
#1, Miami, Florida.  The agents saw several long-range,  cordless 
telephones on display at the  store, including a Super Phone  CT-
9000, a Prolink CT-6000CID, and an Optima OP8810.  A  salesperson 
offered to sell one of the  units to the agents.  The  long-range 
cordless telephones  displayed  at  the  store  were  capable  of 
causing serious interference to aviation communications and  were 
not approved6 by  the Commission  for use in  the United  States.   
On August  24,  2001,  the  Miami Office  issued  a  citation  to 
Lightning for violation of Section 302(b) of the Act and  Section 
2.803(a)(1)  of  the  Rules,  which  prohibit  the  marketing  of 
unapproved  radio frequency devices. 

     5.  On September 26, 2001, agents from the Miami Office  and 
from the  Tampa  Office  visited  Lightning's  retail  store  and 
purchased a  Prolink  BAO-6110CID long-range  cordless  telephone 
(with antenna) for $669.80.   The telephone the agents  purchased 
was  capable  of   causing  serious   interference  to   aviation 
communications and was not approved by the Commission.

     6.   On October 5, 2001, Lightning responded to the citation 
issued on August  24, 2001.   In its  response, Lightning  stated 
that the long-range cordless telephones had been returned to  the 
distributor.  

     7.  On October 29, 2001, the  Tampa Office issued a NAL7  to 
Lightning for violation of Section 302(b) of the Act and  Section 
2.803(a)(1) of the Rules.  Lightning  did not file a response  to 
that NAL.  On February 21,  2002, the Bureau issued a  Forfeiture 
Order8 affirming the forfeiture proposed  by that NAL.  On  March 
8, 2002, Lightning filed a  petition for reconsideration of  that 
Forfeiture   Order.    As   indicated   in   the   petition   for 
reconsideration, certain information set forth in the NAL  issued 
on October  29,  2001,  did  not  pertain  to  Lightning.   In  a 
Memorandum Opinion and Order9 released May 14, 2002, the  Bureau, 
after reviewing the entire record, cancelled that NAL pursuant to 
Section 503(b)(4)(ii) and (iii) of the Act.10 

     8.  On May 21,  2002, the Tampa Office  issued a new NAL  to 
Lightning for violation of Section 302(b) of the Act and  Section 
2.803(a)(1)  of  the  Rules,   this  time  including  the   facts 
pertaining to  Lightning.   In  its  response  to  the  new  NAL, 
Lightning does not  deny the  violations alleged in  the NAL  but 
contends  that,  in  view  of  the  cancellation  of  Lightning's 
forfeiture in the earlier proceeding, this forfeiture  proceeding 
is barred  by the  doctrines of  res judicata  and ``law  of  the 
case.''

                        III.  Discussion

     9.  The Bureau  assessed the proposed  forfeiture amount  in 
this case in accordance  with Section 503  of the Act,11  Section 
1.80 of  the  Rules,12  and The  Commission's  Forfeiture  Policy 
Statement  and  Amendment  of  Section  1.80  of  the  Rules   to 
Incorporate the Forfeiture Guidelines,  12 FCC Rcd 17087  (1997), 
recon. denied,  15 FCC  Rcd  303 (1999)  (``Policy  Statement'').  
Section  503(b)  of  the   Act13  requires  that,  in   examining 
Lightning's  response,  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 other such matters 
as justice may require.14

     10.   Section  302(b) of  the Act  provides that  no  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:

          (a)  Except as provided elsewhere in this section, 
            no  person shall  sell or  lease, or  offer  for 
            sale or  lease (including  advertising for  sale 
            or lease),  or import, ship,  or distribute  for 
            the purpose  of selling or  leasing or  offering 
            for sale  or lease, any  radio frequency  device 
            unless: (1)  [i]n the 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 as required  by   2.925 
            and other relevant sections in this chapter[.]

We find that, by marketing long-range cordless telephones  (first 
on July 27,  2001, and  again on  September 26,  2001, after  the 
issuance of a citation on  August 24, 2001), Lightning  willfully 
and repeatedly violated Section 302(b) of the Act and 2.803(a)(1) 
of the Rules.  

     11.  Lightning contends, without citing any legal  authority 
or presenting any legal or factual analysis, that the doctrine of 
res judicata bars  this proceeding.   Under the  doctrine of  res 
judicata, also  known as  claim preclusion,  "a judgment  on  the 
merits in a  prior suit  bars a  second suit  involving the  same 
parties or their privies based on  the same cause of action."  15  
A second suit is  barred by claim preclusion  if: ``(1) there  is 
identity of parties  (or their  privies); (2) there  has been  an 
earlier final judgment  on the  merits of  a claim;  and (3)  the 
second claim is based on the  same set of transactional facts  as 
the first."  16   The claim  involved in  the earlier  forfeiture 
proceeding against Lightning  was based, in  part, on facts  that 
did not  pertain  to  Lightning.   The  claim  involved  in  this 
proceeding is based  on a different  set of transactional  facts.  
We find,  therefore,  that claim  preclusion  does not  bar  this 
proceeding.17

     12.  Similarly, Lightning contends, again without citing any 
legal authority or presenting any legal or factual analysis, that 
the ``law of the case'' bars this proceeding.  Under the doctrine 
of law of the case, ``a court should not reopen issues decided in 
earlier stages of the same litigation.''18  This doctrine  cannot 
apply  here  because  the  earlier  proceeding  was  a   separate 
proceeding and  not  an  ``earlier stage''  of  this  proceeding.  
Furthermore, none of the issues involved in this proceeding  were 
decided in the earlier proceeding.

     13.  We have  examined Lightning's  response to  the NAL  in 
light of the above statutory factors and the factors set forth in 
the Policy Statement.  Taking all of these factors into  account, 
we conclude  that  neither  cancellation  nor  reduction  of  the 
proposed forfeiture is warranted  and that the proper  forfeiture 
amount is $7,000.

                      IV.  Ordering Clauses

     14.  ACCORDINGLY,  IT IS ORDERED  THAT, pursuant to  Section 
503(b) of the Act,  and Sections 0.111,  0.311 and 1.80(f)(4)  of 
the Rules,19 Lightning IS LIABLE FOR A MONETARY FORFEITURE in the 
amount of  $ 7,000  for  repeated and  willful violation  of  the 
Section 302(b) the Act and Section 2.803(a)(1) of the Rules.

     15.  Payment of the forfeiture  shall be made in the  manner 
provided for in Section 1.80 of the  Rules within 30 days of  the 
release of this Order.  If the forfeiture is not paid within  the 
period specified, the case may  be referred to the Department  of 
Justice for collection pursuant to  Section 504(a) of the  Act.20  
Payment may be  made by  mailing a check  or similar  instrument, 
payable  to   the   order   of   the   ``Federal   Communications 
Commission,'' to the Federal Communications Commission, P.O.  Box 
73482, Chicago, Illinois 60673-7482.  The payment should note the 
NAL/Acct. No. 200232700009  and FRN  0006-2915-95.  Requests  for 
full payment under an installment plan should be sent to:  Chief, 
Revenue and Receivables Operations Group, 445 12th Street,  S.W., 
Washington, D.C. 20554.21

     16.   IT IS FURTHER ORDERED that a copy of this Order  shall 
 be sent  by First  Class and  Certified Mail  -- Return  Receipt 
 Requested -- to Lightning  Electronics, Inc., at 231 E.  Flagler 
 Street,  Unit #1,  Miami,  Florida  33131,  and  to  Lightning's 
 attorney, Ira S. Silver, Esquire, Silver & Silver, 108 S.  Miami 
 Avenue, 2nd Floor, Miami, Florida 33130.


                         FEDERAL COMMUNICATIONS COMMISSION



                         David H. Solomon
                         Chief, Enforcement Bureau

_________________________

     1  47 U.S.C.  302a (b).

2     47 C.F.R.  2.803(a)(1).

     3 Notice of Apparent Liability for Forfeiture, NAL Acct. No. 
200232700009 (Enf. Bur., Tampa Office, released May 21, 2002).

     4   Section 302(b) of the Act and Section 2.803(a)(1) of the 
Rules prohibit  marketing unapproved devices, such as long-range 
cordless telephones, in the United States.  Section 301 of the 
Act prohibits their use.

 5    To date, we have issued 26 citations and five NALs totaling 
 $45,000, resulting in three Forfeiture Orders.  See CTI of 
 Miami, Inc., 17 FCC Rcd. 8724  (Enf. Bur. 2002); New Image 
 Electronics, 17 FCC Rcd. 3594 (Enf. Bur. 2002); and Electronics 
 Unlimited, 17 FCC Rcd. 3109 (Enf. Bur. 2002).   

     6 See 47 C.F.R.  15.201.

     7 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200232700002 (Enf. Bur., Tampa Office, released October 29, 
2001).

     8 Lightning Electronics, Inc., 17 FCC Rcd 3131 (Enf. Bur. 
2002).

     9 Lightning Electronics, Inc., 17 FCC Rcd 8694  (Enf. Bur. 
2002).

     10 47 U.S.C.  503(b)(4)(ii) and (iii).

     11  47 U.S.C.  503.

     12 47 C.F.R.  1.80.

     1313 47 U.S.C.  503(b).

     1414 47 U.S.C.  503(b)(2)(D).

     15Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5 
 (1979).

     16 Jet, Inc. v. Sewage Aeration Sys., 223 F.3d 1360, 1362, 
 (Fed.Cir.2000).

     17 We  question whether  the earlier  forfeiture  proceeding 
 contained any judgment  or law of the  case that could  preclude 
 us  from  bringing  this  proceeding.   In  this  instance,  the 
 Bureau's Memorandum  Opinion and  Order vacated  the  Forfeiture 
 Order which  found Lightning  liable for  violations of  Section 
 302(b) of the Act and  Section 2.803(a)(1) of the Rules  because 
 the factual  basis for the  NAL   and Forfeiture  Order did  not 
 pertain to  Lightning.  However, in  view of  the arguments  set 
 forth  in  paragraphs   11  and  12,  we  need  not  reach  this 
 question.

     18  Agostini   v.  Felton,   521   U.S.  203,   236   (1997) 
 (``Agostini''); Kimberlin v.  Quinlan, 199 F.3d  496, 500  (D.C. 
 Cir. 1999), cert. denied, 531 U.S. 871 (2002).

     19 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

     20 47 U.S.C.  504(a).

     21 See 47 C.F.R.  1.1914.