Click here for Adobe Acrobat version
Click here for Microsoft Word version
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.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Bureau D'Electronique Appliquee, Inc.) File No. EB-04-SE-250
) NAL/Acct. No. 200532100009
) FRN # 0009800848
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 9, 2005 Released: February 15,
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Bureau D'Electronique Appliquee, Inc.
(``B.E.A.'') apparently liable for a forfeiture in the amount of
twenty thousand dollars ($20,000) for importing and marketing in
the United States unauthorized intentional radiating devices,1
specifically, the Wizard and Falcon microwave motion sensors, in
willful and repeated violation of Section 302(b) of the
Communications Act of 1934, as amended (``Act''),2 and Section
2.803(a) of the Commission's Rules (``Rules''). 3
2. On August 3, 2004, the Enforcement Bureau received an
informal complaint alleging that B.E.A. is importing and
marketing a substantial number of unauthorized motion sensors in
the United States, specifically, the Wizard, Falcon and MS-07.
In support of the allegation, the complainant explained that none
of the subject motion sensors are listed on the Commission's
Equipment Authorization System database. The complainant also
alleged that the Wizard has no label and the Falcon label
wrongfully indicates that the device complies with Part 15 of the
Rules and is affixed with a nonexistent FCC Identifier,
3. On October 12, 2004, the Spectrum Enforcement Division
issued a letter of inquiry to B.E.A.5 B.E.A. submitted a
response to the letter of inquiry on October 26, 2004.6 In its
response, B.E.A. states that it manufactures the Wizard and
Falcon motion sensors in Liege, Belgium; that it began marketing
the Wizard and Falcon motion sensors in the United States in
April 1999 and March 2001, respectively; and that it has imported
and distributed in the United States a substantial number7 of
Wizard and Falcon motion sensors from July 1999 to present and
April 2001 to present, respectively.8 B.E.A. alleges that it
believed in good faith that it did not need FCC certification for
the Wizard or Falcon ``because those products had the same
transceiver and antenna as the Eagle,'' another motion sensor
manufactured by B.E.A. which did have an FCC certification.9
B.E.A. avers that it created FCC Identifier ``G9BFALCON'' for the
Falcon because it believed that the Falcon was covered by the
Eagle's FCC Identifier.10 B.E.A. states that in the course of
unrelated FCC certification product testing in early 2004, a
question arose as to whether the Wizard and Falcon required
separate certifications. B.E.A. alleges that on March 31, 2004,
it began the application process to answer that question and
determined that the Eagle's certification did not cover the
Wizard and Falcon. B.E.A. explains that it worked ``as
expeditiously as possible'' and on July 14, 2004, submitted the
purchase order for final testing and certification for these
products. On October 25, 2004 - 13 days after the Enforcement
Bureau issued the letter of inquiry - the Commission granted an
equipment authorization to B.E.A.11 III. DISCUSSION
4. Section 302(b) of the Act provides 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) of the Rules 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 such device has been
authorized by the Commission.
It is undisputed that the Wizard and Falcon are intentional
radiating devices, and as discussed below, are subject to the
Commission's certification procedures and related marketing
5. Pursuant to Sections 2.803(a) and 15.201(b) of the
Rules,12 intentional radiators operating under the provisions of
Part 15 of the Rules must be certificated by the Commission prior
to importation and marketing. B.E.A. concedes that it imported
and marketed the subject devices in the United States for over
five years - from July 1999 to October 24, 2004.13 B.E.A. also
concedes that was not until early 2004, during the course of
unrelated FCC certification product testing, that B.E.A.
determined that the Eagle's certification did not cover the
Wizard and Falcon. As previously noted, on October 25, 2004,
B.E.A. obtained an equipment authorization from the Commission.
6. In the instant case, we find that B.E.A. apparently
willfully14 and repeatedly15 violated Section 302(b) of the Act
and Section 2.803(a) of the Rules by importing and marketing in
the United States intentional radiator devices prior to obtaining
Commission equipment authorization.
7. Section 503(b) of the Act and Section 1.80(a) of the
Rules16 authorize the Commission to assess a forfeiture for each
willful or repeated violation of the Act or of any rule,
regulation, or order issued by the Commission under the Act.17
In exercising such authority, we are 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 such other matters
as justice may require.''18
8. We note that under Section 503(b)(6) of the Act, we may
only propose forfeitures for apparent violations that accrued
within one year of the date of this NAL. Nevertheless, Section
503 does not prohibit us from assessing whether B.E.A.'s conduct
prior to that date apparently violated the Act or Rules, and we
may consider B.E.A.'s violations with regard to the Wizard and
Falcon prior to that date in determining the appropriate
forfeiture amount for those violations within the statute of
limitations.19 B.E.A. imported and marketed the Wizard from July
1999 to present, and the Falcon from April 2001 to present.
Therefore, although we find that some of B.E.A.'s apparent
violations occurred outside the one-year statute of limitations,
we propose forfeitures here only for the violations which
occurred within the last year.
9. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines20 and Section 1.80 of the
Rules,21 the base forfeiture amount for importation or marketing
of unauthorized or non-compliant equipment is $7,000. In this
case, we note that B.E.A. imported and marketed two unauthorized
models of intentional radiation devices.22 Having weighed the
factors, we find that an upward adjustment of this base
forfeiture amount is warranted in light of the substantial number
of devices distributed in the United States by B.E.A., the over
five-year time span of the violations and B.E.A.'s relative
ability to pay a forfeiture.23 Accordingly, we are proposing a
total forfeiture in the amount of $25,000.
10. We note that B.E.A. made a good faith effort to bring
the Wizard and Falcon into compliance with the Rules by
identifying the need to obtain separate certification for the
devices and submitting a purchase order for final testing and
certification prior to the Enforcement Bureau's issuance of the
letter of inquiry. Accordingly, we reduce the forfeiture amount
from $25,000 to $20,000.24 IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act25 and Sections 0.111, 0.311 and 1.80 of the
Rules,26 Bureau D'Electronique Appliquee, Inc. IS hereby NOTIFIED
of its APPARENT LIABILITY FOR A FORFEITURE in the amount of
twenty thousand dollars ($20,000) for willfully and repeatedly
violating Section 302(b) of the Act and Section 2.803(a) of the
12. 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, Bureau D'Electronique
Appliquee, Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
13. 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.
14. 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.
15. 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.
16. 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. 20554.27 17. 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 Thomas P.
Schluep, Vice President, Engineering, B.E.A., Inc., 100
Enterprise Drive - RIDC Park West, Pittsburgh, Pennsylvania
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Spectrum Enforcement Division
1 Section 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.''
2 47 U.S.C. § 302a(b).
3 47 C.F.R. § 2.803(a).
4 The labeling and FCC Identification issues raised by the
complainant are inextricably linked to the Commission's equipment
authorization process. See, e.g., 47 C.F.R. § 2.925(e) (FCC
Identifier must be validated by the Commission's grant of
equipment authorization). Thus, these apparent violations are
subsumed within the discussions of 47 U.S.C. § 302a(b) and 47
C.F.R. § 2.803(a).
5 Letter to Thomas P. Schluep, Vice President, Engineering,
B.E.A., Inc., from Joseph P. Casey, Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission
(October 12, 2004).
6 Letter from Thomas P. Schluep, Vice President, Engineering,
B.E.A., Inc., to Yasin Ozer, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (October
26, 2004) (``Response'').
7 Pursuant to Sections 0.457 and 0.459 of the Rules, 47 C.F.R. §§
0.457 and 0.459, B.E.A. requested confidential treatment of
certain information submitted in its response, including the
specific number of MS-07, Wizard and Falcon models sold in the
United States, asserting that these figures constitute trade
secrets and commercial or financial information customarily
guarded from competitors. B.E.A. argues that disclosure of these
figures would result in substantial competitive harm. We agree
and will accord confidential treatment of B.E.A.'s figures. For
purposes of this NAL, we need not address B.E.A.'s request for
confidential treatment of certain other information included in
8 B.E.A. states that it marketed the MS-07 sensor in the U.S.
from approximately June 1998 to August 1999, when the device was
discontinued. See Response at 2-3. Under Section 503(b)(6) of
the Act, the Commission may only propose forfeitures for apparent
violations that accrued within one year of the date of this NAL.
See 47 U.S.C. § 503(b)(6); see also 47 C.F.R.§ 1.80 (c)(3).
9 FCC Identifier G9BEAGLEONE.
10 Response at 4.
11 FCC Identifier G9B-305015. This authorization is a limited
modular approval for the transmitter and antenna utilized in the
Wizard and Falcon motion sensors. This modular approval requires
B.E.A. to retain control over installation of the device.
12 47 C.F.R. §§ 2.803(a)(1), 15.201(b).
13 Response at 2-3.
14 The term ``willful,'' as used in Section 503(b) of the Act,
means the conscious and deliberate commission or omission of such
act, irrespective of any intent to violate the Commission's
Rules. 47 U.S.C. § 312(f)(1).
15 A violation is ``repeated'' within the meaning of Section
503(b) of the Act if it occurs more than once or continues for
more than one day. 47 U.S.C. § 312(f)(2).
16 47 C.F.R. § 1.80(a).
17 47 U.S.C. § 503(b).
18 47 U.S.C. § 503(b)(2)(D).
19 See Globcom, Inc. d/b/a Globcom Global Communications, 18 FCC
Rcd 19893, 19903 (2003).
20 12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999)
(``Forfeiture Policy Statement'').
21 47 C.F.R. § 1.80.
22 See e.g., Samson Technologies, Inc., 19 FCC Rcd 4221, 4225
(2004), proceeding terminated, 19 FCC Rcd 24509 (2004).
23 B.E.A. is listed as a subsidiary of the global Halma Group.
See http://www.beainc.com. The Halma Group is a major
international corporation with nine locations and for the fiscal
year ended March 2003 reported sales of $292 billion. 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
24 See Forfeiture Policy Statement, 12 FCC Rcd at 17099-101; 47
U.S.C. § 503(b)(2)(D); 47 C.F.R. § 1.80(b)(4), Note to paragraph
(b)(4): Section II. Adjustment Criteria for Section 503
Forfeitures (discussion of downward adjustment factors); see,
e.g., Radio One Licenses, Inc., 18 FCC Rcd 15964, 15965 ¶ 4
(2003), recon. denied, 18 FCC Rcd 25481 (2003) (reducing a
forfeiture from $9,200 to $8,000 for EAS violations because the
licensee had identified the problems and had ordered replacement
equipment prior to the Field Office's on-site inspection).
25 47 U.S.C. § 503(b).
26 47 C.F.R. §§ 0.111, 0.311, 1.80.
27 47 C.F.R. § 1.1914.