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                           Before the
                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, 
2005

By the Chief, Spectrum Enforcement Division, Enforcement Bureau:

I.  INTRODUCTION

     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
II.  BACKGROUND

     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, 
G9BFALCON.4
     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 
restrictions.  

     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 
Rules.
     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 
15275.                        
     
                         FEDERAL COMMUNICATIONS COMMISSION



                         Joseph P. Casey
                         Chief, Spectrum Enforcement Division
                         Enforcement Bureau
_________________________

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 
its response.

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 
forfeiture'').  

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.