Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

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
Microsoft Word or Adobe Acrobat version.

*****************************************************************



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


In the Matter of                  )
                                 )   File No. EB-01-TS-040
ACR Electronics, Inc.             )   NAL/Acct. No. 200532100004
Fort Lauderdale, Florida          )   FRN No. 0008044232



         NOTICE OF APPARENT LIABILITY FOR FORFEITURE 

Adopted:  October 27, 2004              Released:   November 
1, 2004

By the Commission:

 I.  INTRODUCTION

                   1.     In this Notice of Apparent 
              Liability for Forfeiture (``NAL''), we find 
              ACR Electronics, Inc. (``ACR'') apparently 
              liable for a forfeiture in the amount of 
              seventy five thousand dollars ($75,000) for 
              marketing unauthorized equipment in willful 
              and repeated violation of Section 302(b) of 
              the Communications Act of 1934 as amended 
              (``Act''),1 and Section 2.803(a) of the 
              Commission's Rules (``Rules'').2  

 II.  BACKGROUND

                   2.    In February 2004, the Enforcement 
              Bureau (``Bureau'') received a complaint 
              alleging that ACR was marketing through 
              outdoor and sporting publications and 
              websites a new personal location beacon 
              (``PLB''), 406 GPS PLB-200 (``PLB-200''), 
              under the names ``TerraFix'' for land use, 
              ``AquaFix'' for marine use, and ``AeroFix'' 
              for aviation use, which had not been 
              authorized by the Commission. In support, the 
              complainant provided evidence that the PLB-
              200 was explicitly being described as ``FCC 
              approved,'' and marketed to consumers.  
              Specifically, the complainant submitted a 
              TerraFix brochure, which stated that the PLB-
              200 was ``APPROVED for sale in the U.S,'' and 
              further provided evidence that at least one 
              retailer was accepting orders for the PLB-
              200.  In the latter regard, the complainant 
              submitted an e-mail order confirmation, dated 
              February 25, 2004, from Boat U.S. for the 
              purchase of one ``AquaFix 406 GPS I/O Plb,'' 
              ``Item 5321153,'' priced at ``$749.99.''3   

                   3.    In response to the complaint, the 
              Bureau issued a letter of inquiry (``LOI'') 
              to ACR on March 29, 2004.4   ACR filed a 
              response to the LOI on April 28, 2004,5 and 
              supplemented its response on May 4, 2004.6  

                   4.    In its response, ACR described the 
              PLB-200 TerraFix, AquaFix, and AeroFix as 
              ``essentially the same'' model marketed to 
              different outdoor segments that is the ``next 
              generation'' of PLB and is based on the 
              technological design of its current certified 
              PLB-100 model with ``the single important 
              difference that the PLB-200 has a built-in 
              global positioning technology (GPS) 
              incorporated into each unit.''7 ACR did not 
              dispute that the PLB-200 model has not been 
              certified under the Commission's equipment 
              authorization procedures, but maintained that 
              the units ``have never been activated and 
              exist only as photographic or mock-up 
              prototypes intended to educate ACR 
              representatives and customers (equipment 
              retailers) of products that are under 
              development and for which authorization will 
              be sought in the future.''8 In this 
              connection, ACR explained that it does not 
              sell its products, including PLBs, directly 
              to end users, but rather sells ``through 
              distribution to retailers,'' who are 
              ``approved by the ACR sales representative 
              for the particular territory'' and ``are 
              professional buyers, and unlike many end 
              users, familiar with the process of launching 
              a new telecommunications product and fully 
              cognizant that FCC approval is required of 
              many products.''9  ACR claimed that its 
              ``PLB-200 was not promoted to the general 
              public, but rather to industry-specific 
              representatives and retailers who clearly 
              aware that the equipment was not for 
              sale.''10   

                   5.    As detailed below, ACR 
              acknowledged, and provided documentation to 
              show, that it displayed PLB-200 mock-ups at 
              trade shows, made industry presentations, and 
              provided related brochures, price lists and 
              other information to the press and to 
              retailers, and that such displays, 
              presentations and distributed materials were 
              not accompanied by the requisite disclaimer 
              notice set forth in Section 2.803(c).11  And, 
              contrary to ACR's representations, its 
              documentation showed that it, in fact, 
              promoted the PLB-200 to the general public by 
              advertising in outdoor and sporting 
              publications, and that such advertisements 
              also were not accompanied by the requisite 
              Section 2.803(c) disclaimer notice, 
              indicating that the device has not been 
              approved by the Commission and that it may 
              not be offered for sale or lease, or sold or 
              leased, until such approval is obtained.  

                                      II.A.  Industry 
                                           marketing.

                                           II.A.1.     
                                                Distributed 
                                                promotional 
                                                materials. 

                   6.    With respect to its distributed 
              promotional materials, ACR submitted a 
              TerraFix ``press kit'' or ``packet,'' which 
              consisted of a folder containing two inserted 
              brochures (``brochures'') and two press 
              releases.12  ACR acknowledged that 25 
              complete press kits and approximately 700 
              brochures13 were distributed to the media and 
              to retailers at the Shooting Hunting Outdoor 
              Trade Show (``SHOT'') in Las Vegas, Nevada.14 
              ACR further acknowledged that that an 
              unspecified number of the press kits15 were 
              mailed to the media prior to, and distributed 
              to media and retailers at, the Outdoor 
              Retailer Winter Market Show (``OR'') in Salt 
              Lake City, Utah.16  On the front cover of the 
              TerraFix folder, it captioned ACR's logo, 
              depicted the TerraFix model, and stated in 
              bold print ``Personal Locator Beacons, New 
              and Improved, For Sale in the U.S.;'' in 
              contrast, on the bottom of back cover of the 
              folder, in small print, it stated ``New 
              Integral GPS PLB Available April -- pending 
              FCC approval.''17  

                   7.    One of the brochures included in 
              the press kit was an outdoor product brochure 
              that included, among descriptions of its line 
              of outdoor products, the TerraFix PLB-200.  
              The outdoor brochure described the TerraFix 
              PLB-200 as ``the next generation PLB,'' 
              because it uses ``GEOSAR satellites that are 
              in geostationary high-earth orbit and can 
              instantly relay emergency transmissions'' in 
              a ``matter of seconds.''18  This brochure did 
              not include any disclaimer; to the contrary, 
              on the ``PLB Specifications'' page of the 
              brochure, under ``Certification,'' it stated 
              that the PLB-200 was ``FCC approved.''19  The 
              second brochure included in the TerraFix 
              press kit, which featured the TerraFix PLB-
              200 exclusively, stated prominently on the 
              front cover ``Personal Locator Beacon 
              APPROVED for sale in the U.S.''  Like the 
              outdoor product brochure, this brochure did 
              not include any notice that the PLB-200 had 
              not been approved by the Commission.  The 
              TerraFix press releases, captioned ``ACR 
              Introduces Next Generation of Personal 
              Locator Beacons,'' included in the press kit, 
              stated that ACR is unveiling the TerraFix 
              406, which utilizes GPS components and is 
              ``targeted to provide outdoor enthusiasts 
              with the smallest and most functional PLB 
              available in the world ... (pending FCC 
              approval),'' enabling such enthusiasts ``to 
              broadcast critical GPS coordinates, providing 
              Search and Rescue crews with exact latitude 
              and longitude thereby increasing emergency 
              response speed by pinpointing positioning 
              within 100 yards.''20  

                   8.    ACR also submitted a copy of an 
              AquaFix brochure.21  The front cover of the 
              front jacket of the AquaFix brochure stated 
              prominently ``Personal EPIRB APPROVED for 
              sale in the U.S.'' ACR claimed that the 
              AquaFix brochure ``had only the most minimal 
              exposure,''22 but did not specify how many 
              and to whom the brochures were issued.23  

                   9.    In addition, ACR submitted an 
              ``Internal Use ONLY -- Not for Distribution'' 
              2004 price list (printed January 7, 2004),24 
              and a distributed ``Outdoor Dealer Price List 
              and Order Form, Effective through 31 December 
              2004'' price list (printed January 26, 
              2004).25  The internal price list set the 
              TerraFix's net price at $515.00 and stated 
              ``FCC Approval [is] Pending April 1, 2004.'' 
              In contrast, the distributed price list set 
              the price for and identified the TerraFix as 
              ``FCC PLB-200'' and contained no disclaimer 
              whatsoever regarding FCC approval.26  ACR 
              indicated that 200 price lists were prepared 
              for distribution, but claimed that a 
              ``significantly less,'' unspecified number of 
              lists were actually distributed at the SHOT 
              and OR trade shows. 

                                           II.A.2.     Trade 
                                                show and 
                                                other 
                                                presenta-
                                                tions.

                   10.   With respect to presentations, ACR 
              acknowledged that it displayed a TerraFix 
              mock-up, and distributed related TerraFix 
              press kits, price lists and press releases 
              prior to, and at, the SHOT and OR trade 
              shows.  ACR further acknowledged that the 
              requisite Section 2.803(c) trade show 
              disclaimer was not displayed in its booth, or 
              as previously stated, in its distributed 
              promotional materials.  According to ACR, the 
              display of a ``mock-up dummy . . . with a 
              plastic shell'' and the distribution of 
              informational materials did not manifest an 
              intent or attempt to sell TerraFix PLB-200 
              units.27 

                   11.   ACR also acknowledged that it made 
              PowerPoint presentations to select accounts, 
              such as Yamaha on October 2, 2003, Dick's 
              Sporting Goods on April 6, 2004, and Parts 
              Unlimited on April 13, 2004.28 The 
              representative PowerPoint material29 featured 
              the ```NEW' PLB models early 2004,'' 
              explained and contrasted the ``state of the 
              art'' and more precise GPS technology 
              incorporated in the 2004 PLB-200 models with 
              the Doppler Shift technology incorporated in 
              the preceding PLB-100 models, and finally, 
              under the caption ``Regulations, Federal 
              Communications Commission'' indicated that 
              PLBs must pass a variety of tests.30  
              According to ACR, a ``Not for Sale Pending 
              FCC approval'' sticker was placed on some, 
              but not all, of the presented material;31 
              however, the PowerPoint material submitted 
              with its LOI response did not include any 
              such stickers. 

                                      II.B.  Public 
                                           marketing. 

                   12.   Finally, although ACR represented 
              ``that the PLB-200 units were never directed 
              at the general public,''32 its documentation 
              establishes otherwise. Specifically, ACR's 
              documentation establishes that it, in fact, 
              launched a substantial media campaign by 
              advertising the PLB-200 in multiple outdoor 
              and sporting magazines and catalogues that 
              were clearly directed at and targeted to the 
              consuming general public.33  According to 
              ACR's media schedule,34 it advertised the 
              PLB-200 in:  

    Outside Magazine's 2004 April Buying Guide 
     (circulation: 650,000);

    Backpacker Magazine's 2004 March Buyer's Guide, April 
     and Summer issues and Camper            Magazine 
     (circulation: 295,000); 

    Alaska Magazine's 2004 May issue (circulation: 
     185,000);

    Rock `N Ice Magazine's 2004 June issue (circulation: 
     34,000); 

    Safari Club Magazine's 2004 May/June issue 
     (circulation: 39,500); 

    Safari Times' 2004 June issue (circulation: 39,500); 

    Rocky Mountain Sports Magazine's 2004 April and May 
     issues (circulation: 60,000);

    Paddler Magazine's 2004 May/June issue (circulation: 
     59,000);

    Kayak Magazine's 2004 Spring issue (circulation: 
     59,000); 

    Couloir Magazine's 2004 Winter issue (circulation: 
     41,000); 

    Backcountry Magazine's 2004 January and February issues 
     (circulation: 14,000);

    Adventure Sports Magazine's 2004 April and May issues 
     (circulation: 25,000); and

    Outdoor Retailer/Outdoor Business' 2004 Winter and 
     Summer Market guides (circulation:                
     n/a).35 

In this connection, ACR submitted a representative full-page 
ad that appeared in one of the publications, which described 
the ``NEW  TerraFix 406 Personal Locator Beacon, the best 
way to be found fast,'' depicted the model in terms of 
actual size, and stated at the bottom of the page in black 
border ``New Integral GPS PLB Available April -- Pending FCC 
Approval.''36  

 III.     DISCUSSION 

                   13.   Section 302(b) of the Act provides 
              that ``[n]o person shall manufacture, import, 
              sell, offer for sale, or ship devices of home 
              electronic equipment and systems, or use 
              devices, which fail to comply with 
              regulations promulgated pursuant to this 
              section.''  Section 2.803(a)(2) of the 
              Commission's implementing regulations 
              provides that: 

     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 ... [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  
     [emphasis added].

It is undisputed that the PLB-200 model is an intentional 
radiating device,37 and as discussed below, is subject to 
the Commission's certification procedures and related 
marketing restrictions.  

                   14.   Under Section 15.201(b) of the 
              Rules,38 manufacturers are required to submit 
              documentation test results to, and be 
              ``certificated'' by, the Commission ``prior 
              to marketing'' intentional radiating 
              devices.39 However, in limited circumstances, 
              manufacturers are allowed to market devices 
              prior to certification.  Specifically, 
              Section 2.803(c) of the Rules allows 
              manufacturers to advertise or display: 

     [A]t a trade show or exhibition, prior to 
     equipment authorization ... provided that the 
     advertising contains, and the display is 
     accompanied by, a conspicuous [disclaimer] notice 
     worded as follows:  This device has not been 
     authorized as required by the rules of the Federal 
     Communications Commission. This device is not, and 
     may not be, offered for sale or lease, or sold or 
     leased, until authorization is obtained.

In 1976, the Commission expanded the ``trade show'' 
exception of Section 2.803(c) and allowed manufacturers to 
advertise devices to the general public, prior to 
certification, provided such advertisements include the 
above disclaimer.40  Thus, ACR was allowed to display and 
distribute promotional materials about the PLB-200 at the 
OR, SHOT trade shows and like industry forums, and advertise 
the PLB-200 in sporting and outdoor publications and related 
websites, prior to certification, provided that its display, 
promotional materials and advertisements conspicuously 
displayed the requisite disclaimer notice.  

                                      III.A.      Industry 
                                           marketing.

                   15.   ACR conceded, and its documentation 
              demonstrated, that the specific disclaimer 
              notice required by Section 2.803(c) was not 
              displayed in any of the promotional materials 
              distributed to the media and the retailers.  
              Significantly, the two TerraFix brochures, 
              which were included in the TerraFix press kit 
              and also widely distributed separately at the 
              two trade shows, not only failed to include 
              the requisite disclaimer notice, they also 
              falsely represented that the device was 
              approved by the Commission. In this regard, 
              one of the brochures prominently stated on 
              the front cover that the device was 
              ``APPROVED for sale in the U.S,'' while the 
              other brochure stated on the ``PLB 
              Specifications'' page that the device was 
              ``FCC approved.''  Similarly, the AquaFix 
              brochure prominently stated on the front 
              cover that the device was ``APPROVED for sale 
              in the U.S.''  While the TerraFix press kit 
              folder stated ``pending FCC approval,'' this 
              is not the disclaimer language explicitly 
              required by Section 2.803(c) and, in any 
              event, this statement was placed in small 
              print in a non-conspicuous location on the 
              back cover of the folder.  As such, this 
              statement clearly did not comport with the 
              requirements of Section 2.803(c).  The press 
              releases included in the TerraFix folder 
              likewise failed to include the disclaimer 
              language explicitly required by Section 
              2.803(c); and, the ``pending FCC approval'' 
              statement that was included was placed in a 
              non-conspicuous place within the text of the 
              press releases.   The 2004 TerraFix price 
              lists distributed at the trade shows also 
              failed to include a disclaimer notice. 
              Additionally, ACR admitted that no disclaimer 
              notice was included within some of the 
              PowerPoint presentations with select industry 
              accounts, and the ``Not for Sale Pending FCC 
              Approval'' sticker that was allegedly placed 
              on other PowerPoint presentations did not 
              comport with the requirements of Section 
              2.803(c).  

                   16.   The requisite disclaimer notice 
              also was not displayed in ACR's OR and SHOT 
              trade show booths.  In this regard, ACR 
              claimed that it only displayed a ``mock-up 
              dummy'' of the TerraFix model.41 ACR's claims 
              notwithstanding, exhibited non-working mock-
              ups of non-authorized devices are not exempt 
              from the disclaimer notice requirement of 
              Section 2.803(c).  The disclaimer requirement 
              applies to all radio frequency devices that 
              are in the ``development, design or 
              preproduction stages'' and that are subject 
              to the Commission's equipment authorization 
              procedures.42  ACR claimed that because the 
              PLB-200 model is based on ``technology 
              incorporated into the PLB-100, it could be 
              considered a prototype of a product properly 
              authorized,''43 subject to Section 
              2.803(c)(1)'s ``Prototype  Not for Sale'' 
              disclaimer.44  ACR's claim is disingenuous at 
              best, given that it did not display the 
              prototype disclaimer, and that its 
              promotional materials referenced the new and 
              improved next generation PLB that 
              incorporates the more precise GPS  (over the 
              prior Doppler Shift) technology.45   

                   17.   Also, contrary to ACR's claim that 
              its retailers are professional buyers who are 
              familiar with, and would not offer new 
              telecommunications products without, the 
              Commission's equipment authorization, the 
              complaint submitted evidence that at least 
              one retailer was accepting purchase orders 
              for the PLB-200.46  Moreover, the Bureau 
              staff found several retail websites that were 
              offering the TerraFix and AquaFix PLB-200s 
              for sale.  Specifically, the Bureau staff 
              observed that the PLB-200s were advertised on 
              the Boat U.S., West Marine, Mountain Gear and 
              The Sportsman's Guide retail websites, and 
              that such advertisements listed prices, 
              specified delivery dates,47 and enabled 
              consumers to place orders.  Notably, the 
              Mountain Gear and The Sportsman's Guide 
              retail websites, respectively, stated that 
              the PLB was ``FCC approved'' and represented 
              that the PLB ``[e]xceeds rigorous testing 
              standards of ... [the] FCC.''  Indeed, the 
              TerraFix PLB-200 was offered for sale, 
              without the requisite disclaimer notice,  in 
              the Recreational Equipment, Inc. (``REI'') 
              mail order catalogue sent to consumers during 
              the week of September 7, 2004.48 The fact 
              that PLB-200s were being and continued to be 
              offered for sale on retail websites and in 
              retail catalogues is hardly surprising, given 
              that ACR's displays, presentations and 
              distributed materials did not contain the 
              requisite disclaimer notice, and indeed some 
              contained misleading information, regarding 
              Commission authorization.  

                   18.   In the instant case, we thus find 
              that ACR displayed a PLB-200 model, made 
              industry presentations, and distributed 
              related promotional materials, prior to 
              certification of the device without the 
              disclaimer notice set forth in Section 
              2.803(c), in apparent willful and repeated 
              violation of Section 302(b) of the Act and 
              Section 2.803(a) of the Rules.  

                                      III.B.      Public 
                                           marketing. 

                   19.   As stated previously, in 1976, the 
              Commission authorized manufacturers to 
              advertise to the general public radio 
              frequency devices that have not been 
              certified or otherwise approved, provided 
              such advertisements display the requisite 
              disclaimer notice in a conspicuous manner. 
              The Commission explained that the ``prime or 
              essential purpose'' of Section 2.803 is ``to 
              keep unapproved and offending devices out of 
              the stream of commerce,'' and that the 
              disclaimer notice serves to alert the public 
              ``to the fact that many if not most of the 
              multitude of RF devices proliferating in the 
              marketplace require scrutiny by this 
              Commission before marketing ....''49 Absent 
              the conspicuously placed disclaimer notice 
              requirement, it would be ``unrealistic to 
              permit consumer devices to be offered for 
              sale to potentially millions of people and 
              expect the delivery of the devices to be 
              delayed while awaiting the Commission 
              authorizations.''50  

                   20.   ACR's claim that the PLB-200 was 
              only marketed to industry representatives and 
              retailers to ``educate ... [them] of products 
              under development and for which authorization 
              will be sought in the future''51 -- and was 
              never promoted to or directed at the general 
              public52 -- is simply belied by the record. 
              Indeed, the record establishes that ACR 
              knowingly and intentionally advertised in, 
              and thus promoted and directed the 
              unauthorized PLB-200 to the general public 
              through, multiple outdoor and sporting 
              magazines and catalogues.  Such 
              advertisements did not include the disclaimer 
              notice required by Section 2.803(c).  ACR's 
              claim that ``virtually all the ... 
              promotional information shows that the 
              equipment is `pending FCC approval''' is 
              unavailing.53  The record establishes that 
              the wording and placement of ACR's ``pending 
              FCC approval'' statement did not comport with 
              the requirements of Section 2.803(c), and 
              thus did not alert the general public that 
              FCC approval must be obtained prior to any 
              sales, leases, or offers to sell and/or lease 
              of such equipment.54  

                   21.    In the instant case, we find that 
              ACR apparently willfully and repeatedly 
              violated Section 302(b) of the Act and 
              Section 2.803(a) of the Rules, by advertising 
              the PLB-200 to the general public, prior to 
              certification without the disclaimer notice 
              required by Section 2.803(c).   

                                      III.C.      Proposed 
                                           Forfeiture.      

                   22.   Section 503(b) of the Act,55 and 
              Section 1.80(a) of the Rules,56 provide that 
              any person who willfully or repeatedly fails 
              to comply with the provisions of the Act or 
              the Rules shall be liable for a forfeiture 
              penalty.  For purposes of Section 503(b) of 
              the Act, the term ``willful'' means that the 
              violator knew that it was taking the action 
              in question, irrespective of any intent to 
              violate the Commission's rules, and 
              ``repeatedly'' means more than once.57  Based 
              upon the record before us, it appears that 
              ACR willfully and repeatedly violated Section 
              302(b) of the Act and Section 2.803(a) of the 
              Rules by exhibiting and marketing the PLB-
              200s, which had not been certified in 
              accordance with the Commission's equipment 
              authorization procedures.  

                   23.   Section 503(b) of the Act 
              authorizes the Commission to assess a maximum 
              forfeiture of $11,000 for each violation, or 
              each day of a continuing violation, by a non-
              common carrier or other entity not 
              specifically designated in Section 503(b), up 
              to a statutory maximum forfeiture of $87,500 
              for any single continuing violation;58 and 
              Section 1.80(b)(4) specifically establishes a  
              base forfeiture amount of $7,000 for each 
              violation involving the marketing of 
              unauthorized equipment.59  In the present 
              case, we find that each of ACR's displays and 
              advertisements of, and presentations, 
              distributions of informational and 
              promotional materials regarding, the 
              uncertified PLB-200 constitutes a separate 
              violation. 

                   24.   In determining the appropriate 
              forfeiture amount, Section 503(b)(2)(D) of 
              the Act60 requires the Commission to consider 
              factors, such as ``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.''61  Having weighed the 
              factors, we find that a $75,000 forfeiture is 
              appropriate in light of ACR's relative 
              ability to pay a forfeiture,62 and the fact 
              that ACR knowingly launched a substantial 
              media campaign promoting its unauthorized 
              equipment to the general public.  Given the 
              substantial degree of apparently unlawful 
              equipment marketing, we recognize that 
              straightforward application of the base 
              forfeiture amount for each separate apparent 
              violation would result in a significantly 
              higher proposed forfeiture.   Nevertheless, 
              we believe that, in the instant case, the 
              $75,000 proposed forfeiture is sufficient to 
              deter future violations of the Act and Rules 
              and to ensure that uncertified equipment is 
              not marketed in industry or public forums 
              without the requisite disclaimer notices. 

                   25.   We note that the company has 
              committed ``to make certain that ACR is in 
              complete compliance with the rules'' and 
              ``intends to add to its promotional materials 
              involving the referenced PLB[-200s] the exact 
              wording of the disclaimers set forth in the 
              Rules.''63  We further note that ACR recently 
              received Commission equipment authorization 
              for the PLB-200.64  The Commission expects 
              that corrective action will be implemented to 
              bring past violations into compliance.65 
              However, such corrective action does not 
              nullify or mitigate ACR's past marketing 
              violations, and thus does not warrant any 
              reduction in the proposed forfeiture.66  

 IV.   ORDERING CLAUSES

                   26.   Accordingly, IT IS ORDERED that, 
              pursuant to pursuant to Section 503(b) of the 
              Act67 and Sections 0.111, 0.311 and 1.80 of 
              the Rules,68 ACR Electronics, Inc. IS hereby 
              NOTIFIED of its APPARENT LIABILITY FOR A 
              FORFEITURE in the amount of seventy five 
              thousand dollars ($75,000) for willfully and 
              repeatedly violating Section 302(b) of the 
              Act and Section 2.803(a) of the Rules.

                   27.   IT IS FURTHER ORDERED that, 
              pursuant to Section 1.80 of the Rules, within 
              thirty days of the release date of this 
              Notice of Apparent Liability for Forfeiture, 
              ACR Electronics, Inc. SHALL PAY the full 
              amount of the proposed forfeiture or SHALL 
              FILE a written statement seeking reduction or 
              cancellation of the proposed forfeiture.

                   28.   Payment of the forfeiture must be 
              made by check or similar instrument, payable 
              to the order of the Federal Communications 
              Commission.  The payment must include the 
              NAL/Acct. No. and FRN No. referenced above.  
              Payment by check or money order may be mailed 
              to Forfeiture Collection Section, Finance 
              Branch, Federal Communications Commission, 
              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.  

                   29.   The response, if any, must be 
              mailed to the Office of the Secretary, 
              Federal Communications Commission, 445 12th 
              Street, S.W., Washington, D.C. 20554, ATTN: 
              Enforcement Bureau - Spectrum Enforcement 
              Division, and must include the NAL/Acct. No. 
              referenced in the caption.

                   30.   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; 
              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 submitted.

                   31.   Requests for payment of the full 
              amount of this NAL under an installment plan 
              should be sent to: Chief, Revenue and 
              Receivable Operations Group, 445 12th Street, 
              S.W., Washington, D.C. 20554.69

                   32.   IT IS FURTHER ORDERED that a copy 
              of this Notice of Apparent Liability for 
              Forfeiture shall be sent by first class mail 
              and certified mail return receipt requested 
              to Paul Frank, President, ACR Electronics, 
              Inc., 5757 Ravenswood Road, Ft. Lauderdale, 
              Florida 33312, and Bruce A. Eisen, Esq., Kaye 
              Scholer LLP, 901 15th Street, N.W., Suite 
              1100, Washington, D.C. 20005.  

                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         Marlene H. Dortch
                         Secretary
                              
_________________________

147 U.S.C.  302a(b).

247 C.F.R.  2.803(a).

3Under ``Status,''  the submitted confirmation  order noted 
``051504,'' which appears to represent the delivery date. 

4See  Letter   from  Joseph   P.  Casey,   Chief,  Spectrum 
Enforcement    Division,   Enforcement    Bureau,   Federal 
Communications  Commission to  Paul  Frank, President,  ACR 
Electronics, Inc. (March 29, 2004).

5See Letter  from Bruce Eisen,  Esq., Kaye Scholer  LLP, to 
Brian  Butler, Spectrum  Enforcement Division,  Enforcement 
Bureau, Federal Communications  Commission (April 28, 2004) 
(``LOI Response'').

6See Letter  from Bruce Eisen,  Esq., Kaye Scholer  LLP, to 
Brian  Butler, Spectrum  Enforcement Division,  Enforcement 
Bureau,  Federal Communications  Commission  (May 4,  2004) 
(``LOI Supplement'').

7LOI Response at 1-2.   

8Id. at 1.  

9Id. at 2.

10Id. at 6.     

1147 C.F.R.  2.803(c). 

12Id. at  Exhibit 2.  See  also LOI Supplement,  Exhibit 2. 
ACR's  LOI Response  included a  photocopy of  the TerraFix 
press  kit, and  its  LOI Supplement  included an  original 
TerraFix press kit.  

13LOI Response at 3. 

14SHOT was held from February 12 through 15, 2004.

15LOI Response at 3. 

16OR was held from January 30 through February 2, 2004.

17LOI Supplement at Exhibit 2.

18Id. 

19Id. 

20LOI Response at Exhibit 2; LOI Supplement at Exhibit 2. 

21LOI Response at Exhibit 10.

22Id. at 4. 

23In contrast to the TerraFix and AquaFix models, it should 
be noted  that ACR  stated that it  had ``not  marketed the 
`AeroFix'  in  any  way  other  than  to  allow  its  sales 
representatives  to  use  its  name  in  conversation  with 
retailers.''  LOI Response at 4.

24Id. at Exhibit 4. 

25Id. at Exhibit 3.  

26Id. 

27Id. at 3. 

28Id. at 4. 

29Id. at Exhibits 11-12. 

30Id.

31LOI Response at 4.

32Id. at 6.

33Id.  at 4,  Exhibits  8-9.  ACR  spent approximately  one 
third ($100,00)  of its advertising budget  ($300,000) from 
January through March 2004, promoting the unauthorized PLB-
200 in outdoor and  sporting magazines and catalogues.  Id. 
at Exhibit 9. 

34Id. 

35Id.  With  the   exception  of  Outdoor  Retailer/Outdoor 
Business   Market  Guides,   it   appears   that  all   the 
publications  that ran  ACR's  PLB-200 advertisements  were 
clearly  directed  toward  the  ultimate  end-users,  i.e., 
consumers.  For instance, Outside Magazine ``[b]ack in 1978 
... stated that [it] was 'dedicated to covering the people, 
sports  and  activities,  politics,  art,  literature,  and 
hardware if the outdoors,' an  editorial goal that that has 
stuck  ever since  ...  [it]  has done  an  amazing job  of 
bringing  people  in  contact  with  the  outside  world.''  
Http://www.outside.away.com.  (emphasis   added).   Outside 
Magazine has a  circulation of 650,000 and  its Buyer Guide 
is distributed to ``news racks'' throughout the country and 
``gets passed around beyond subscribers.  It gets read by a 
lot             of             other             readers.''  
Http://www.redoxx.com/articles/news-outside-gazette.html.  

Similarly, Backpacker's Magazine (circulation: 295,000) and 
Couloir Magazine (circulation:  41,000), both geared toward 
consumers, respectively describe their ``mission'' in terms 
of  ``encourage[ing] and  enable[ing] people  to experience 
wilderness,'' and ``inform[ing]  and inspir[ing[ skiers and 
snowboarders  who `earn  their turn  in the  backcounty.''' 
Http://www.backpacker.com/masthead/0,3131,,00.html;  
Http://www.couloirmag.com/about_us. 

36Id. at Exhibit 8.  

37Section  15.3(o)  of  the  Rules, 47  C.F.R.    15.3(o), 
defines  an   intentional  radiator  as  a   ``device  that 
intentionally generates and emits radio frequency energy by 
radiation or induction.'' 

3847 C.F.R.  15.201(b). 

39Sections 2.907(a) and (b), 47 C.F.R.  2.907(a) and (b), 
provides, in pertinent part, that certification ``is an 
equipment authorization issued by the Commission, based on 
representations and test data submitted by the applicant'' 
and that it ``attaches to all units subsequently marketed by 
the grantee which are identical ... to the sample tested 
....''  

40See Interpretation and Amendment of Part 2, Section 2.803 
of  the  Commission's  Rules   Relating  to  the  Marketing 
(Advertising) of RadioFrequency Devices, 62 FCC 2d 728, 729 
 8  (1976) (interpreting  the ``trade show''  exception of 
Section 2.803  to allow  manufacturers to  advertise ``non-
approved equipments  - providing such  advertising contains 
notice that the equipments have not been authorized and may 
not  be offered  for sale  or  lease or  sold or  leased'') 
(``1976 Order''); see also  Interpretation and Amendment of 
Part 2, Section 2.803 of the Commission's Rules Relating to 
the Marketing  of RadioFrequency  Devices, RM  Dockets 2573 
and 2601,  58 FCC  2d 784 (1976)  (adopting the  trade show 
exception of Section 2.803).  

41LOI Response at 3. 

42Matter of  Revision of Part  2 of the  Commission's Rules 
Relating  to  the  Marketing  and  Authorization  of  Radio 
Frequency Devices, 12 FCC Rcd 4533, 4533  1 (1996) (``1996 
Order''),  recon.   granted,  13  FCC  Rcd   12928  (1998).  
Manufacturers who exhibited  and/or distributed promotional 
materials regarding  non-working mock-ups or  prototypes of 
radio  frequency  devices  at   trade  shows,  without  the 
conspicuous disclaimer notice, have been found in violation 
of Section 2.803(a).  See Palmcom International Ltd., 8 FCC 
Rcd 332 (FOB 1993); see  also GVC Technologies, Inc., 8 FCC 
Rcd  6667  (FOB  1993).   Regarding  the  display  of  non-
authorized equipment, the Palmcom decision stated: 

     Although the  device itself  may have been  a non-
     functioning prototype, the  displaying of a device 
     that represents a radio  frequency device that had 
     not been  authorized by  the FCC  violates Section 
     2.803 of  the FCC's rules.  The  displaying of the 
     device, moreover, was a  form of advertising which 
     is also prohibited by Section 2.803.  The apparent 
     purpose in displaying the device was to market it, 
     namely,  to generate  either  immediate or  future 
     orders to buy  the device.  Often at  a trade show 
     or even  in a  store, there is  no intent  to sell 
     actual device  on display, but the  device is used 
     to generate  orders.   The  actual device  that is 
     sold may not have been constructed or assembled at 
     the time a purchase order is placed.  

8 FCC Rcd at 332.   

43LOI Response at 5. 

44Section 2.803(c)(1) of the Rules, 47 C.F.R.  2.803(c)(1) 
provides: 

     If  the product  being displayed  [at an  industry 
     trade show] is  a prototype of a  product that has 
     been  properly   authorized  and   the  prototype, 
     itself,  is  not  authorized  due  to  differences 
     between the prototype  and the authorized product, 
     the  following disclaimer  notice may  be used  in 
     lieu of the notice stated  in paragraph (c) ... of 
     this section: 

     Prototype.  Not for Sale.

45See, e.g., LOI Response at Exhibits 11-12.

46See note 3 and accompanying text, supra. 

47For example, the Mountain Gear website indicated that the 
 PLB-200 would be ``available to ship May 15, 2004.''

48REI's website indicates that it has over 70 retail stores 
in  the  U.S.  and  also serves  the  needs  of  ``outdoors 
people'' through  direct sales via the  internet, telephone 
and mail.   REI further indicates  that it is  the nation's 
largest consumer  cooperative with over 2  million members.  
See http://www.rei.com.  Thus, it appears likely that REI's 
marketing   of  the   unauthorized   PLB-200  is   reaching 
substantial numbers of consumers.   

491976 Order, 62 FCC 2d at 729  5.

501997 Order, 12 FCC Rcd at 4537  7.  

51LOI Response at 1.  

52See notes 10 and 32 and accompanying text, supra. 

53See, e.g., ASLAN Computer Corp., 9 FCC Rcd 2030, 2030  5 
(FOB  1994) (finding  a  disclaimer notice  ``DEMO NOT  FOR 
SALE'' for an uncertified computer model insufficient and a 
violation  of  Section  2.803,   which  sets  forth  ``very 
specific''  disclaimer  language  which  is  ``intended  to 
convey to the general  public or prospective purchasers the 
fact that a particular device needs FCC authorization, does 
not have it,  and cannot be sold or offered  for sale until 
such authorization has been granted''); California Komputer 
Test, Inc., 9  FCC Rcd 1046, 1046  6   (FOB 1994) (finding 
that an  advertisement in a  newspaper, and a display  in a 
retail outlet, of an uncertified computer ``[un]accompanied 
by  a conspicuous  notice as  specified in  Section 2.803'' 
violated     the    Commission's     equipment    marketing 
requirements).   

54See notes 3 and 47 and accompanying text, supra.

5547 U.S.C.  503(b).

5647 C.F.R.  1.80(a).

57See Southern California Broadcasting  Co., 6 FCC Rcd 4387 
(1991).

5847 U.S.C.   503(b).   Section 503(b)(2)(C)  provides for 
forfeitures up to  $10,000 for each violation  in cases not 
covered  by    subparagraph  (A)  or  (B),   which  address 
forfeitures  for  violations  by  broadcast  licensees  and 
common  carriers,  among  others. In  accordance  with  the 
inflation  adjustment requirements  contained  in the  Debt 
Collection Improvement  Act of 1996, Pub.  L. 104-134, Sec. 
31001,  110 Stat.  1321, the  Commission has  increased the 
maximum statutory forfeiture under Section 503(b)(2)(C) for 
each  violation to  $11,000.  See  47 C.F.R.   1.80(b)(3); 
Amendment  of Section  1.80 of  the Commission's  Rules and 
Adjustment of  Forfeiture Maxima  to Reflect  Inflation, 15 
FCC Rcd 18221 (2000).   Subsequent increases of the maximum 
statutory  forfeiture amount  had not  taken effect  at the 
time of  the behavior in  issue.  See Amendment  of Section 
1.80 of the Commission's Rules and Adjustment of Forfeiture 
Maxima to Reflect Inflation, 19 FCC Rcd 10945 (2004). 

5947 C.F.R.  1.80(b)(4). 

6047 U.S.C.  503(b)(2)(D). 

61The   Commission's   Forfeiture  Policy   Statement   and 
Amendment of Section  1.80 of the Rules  to Incorporate the 
Forfeiture  Guidelines, 12  FCC  Rcd  17087, 17110  (1997), 
recon. denied 15 FCC Rcd 303 (1999).  

62In  this connection,  we note  that  ACR is  listed as  a 
subsidiary of  the global  Cobham PLC.  See   LOI Response, 
Exhibits 11-12; Http://www.chelton.com/ltd/ltd.  Cobham PLC 
operates ``in  three sectors - aerospace  systems, avionics 
and flight  operations &  services'' and had  reported 2002 
annual       revenues       of       $1,178       billion). 
Http://www.biz.yahoo.com/ic/57/57756.html.   See Forfeiture 
Policy Statement, 12 FCC Rcd at 17098  20 (noting that the 
identity of  a violator  may be  relevant in  assessing and 
adjusting  forfeitures,  because, for example,  a ``$10,000 
forfeiture  for a  particular offense  will [not]  have the 
same  deterrent  effect  on  a  small  computer  vendor,  a 
moderately-sized radio  common carrier,  and a  $10 billion 
per   year  local   telephone   company  or   interexchange 
carrier''); see  also KASA  Radio Hogar,  Inc., 17  FCC Rcd 
6256, 6258-59  4-5 (2002) (stating that it is appropriate 
to  consider  the  income  derived  from  its  consolidated 
operations to determine whether  a violator ``can sustain a 
forfeiture'').  

63LOI Response at 6. 

64On   October  5,   2004,  the   Commission's  Office   of 
Engineering and Technology  granted ACR's PLB-200 equipment 
authorization (FCC Identifier B66ACR-PLB-200).

65See AT&T Wireless Services, Inc., 17 FCC Rcd 7891 (2002), 
forfeiture  ordered, 17  FCC RCd  21866, 21875-76   26-28 
(2002); Seawest  Yacht Brokers,  9 FCC Rcd  6099, 6099   7 
(1994); see also  TCI Cablevision of Maryland,  Inc., 7 FCC 
Rcd  6013,   6014     8  (1992)   (considering  subsequent 
corrective  actions  as  a mitigation  of  past  violations 
``would  tend  to  encourage remedial  rather  preventative 
action'').   

66Id. 

6747 U.S.C.  503(b).

687 C.F.R.  0.111, 0.311 and 1.80.

69See 47 C.F.R.  1.1914.