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Federal Communications Commission
Washington, D.C. 20554
In the Matter of File No. EB-05-SE-334
AboCom Systems, Inc. NAL/Acct. No. 200632100017
Hsinchu City, Taiwan FRN # 0007031842
MEMORANDUM OPINION AND ORDER
Adopted: April 20, 2007 Released: April 24, 2007
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order ("Order"), we deny the petition
for reconsideration filed by AboCom Systems, Inc. ("AboCom"). Abocom
seeks reconsideration of a Forfeiture Order issued by the Spectrum
Enforcement Division ("Division") of the Enforcement Bureau on
November 7, 2006, in the amount of twenty-five thousand dollars
($25,000). In the Forfeiture Order, the Division found willful and
repeated violations of Section 302(b) of the Communications Act of
1934, as amended ("Act"), and Section 2.803(a) of the Commission's
Rules ("Rules"), involving AboCom's marketing of wireless access
points that do not comply with the terms of its equipment
authorization and the requirements of Section 15.247(d) of the Rules.
2. In 2005, the Division received a report from Industry Canada
indicating that a wireless access point marketed under an equipment
certification granted to AboCom, FCC ID MQ4ARM94, did not comply with
Canada's equipment certification standards. Specifically, the report
from Industry Canada indicated that the device produced a spurious
emission at frequency 2.6 GHz. The Division purchased a sample of the
AboCom wireless access point and sent it to the Commission's Office of
Engineering and Technology ("OET") Laboratory for testing. The OET
Laboratory tested the device and determined that it produced a
spurious emission on frequency 2.6 GHz that substantially exceeded the
limit specified by Section 15.247(d) of the Rules.
3. On March 2, 2006, the Division issued a letter of inquiry ("LOI") to
AboCom. In its April 17, 2006 response to the LOI, AboCom stated that,
beginning May 31, 2004, it manufactured the wireless access point
authorized under FCC ID MQ4ARM94 for both Hawking Technologies, Inc.
("Hawking") and Phoebe Micro, Inc. ("Phoebe"). AboCom's response
indicated that it shipped large quantities of the device to Hawking
between May 31, 2004, and October 5, 2005, and to Phoebe between May
12, 2004, and June 14, 2005. AboCom also provided a copy of a test
report dated November 4, 2005, which purportedly showed that the
device did not produce a spurious emission exceeding the limit
specified by Section 15.247(d) of the Rules. Notably, however, the
report was incomplete because it did not identify or describe the
measurement procedures used.
4. The OET Laboratory subsequently tested a second sample of the AboCom
wireless access point and again found that it produced a spurious
emission at 2.6 GHz that substantially exceeded the limit specified by
Section 15.247(d). OET also determined that the device is capable of
operating on frequencies beyond the 2.412 - 2.482 GHz range authorized
by its equipment authorization.
5. On July 13, 2006, the Division issued a Notice of Apparent Liability
for Forfeiture ("NAL") proposing a $25,000 forfeiture to AboCom for
marketing wireless access points that do not comply with the terms of
its equipment authorization and the requirements of Section 15.247(d)
of the Rules in apparent willful and repeated violation of Section
302(b) of the Act and Section 2.803(a) of the Rules. Following
AboCom's failure to file a response to the NAL, the Division issued
the Forfeiture Order affirming the violations and assessing a $25,000
6. In its petition for reconsideration of the Forfeiture Order, AboComm
does not dispute the violations but seeks reduction of the forfeiture
amount. AboCom argues that, except in the case of very large entities,
the Commission rarely imposes a $25,000 forfeiture, particularly in a
case involving equipment manufacturing and marketing. AboCom asserts
that a $25,000 forfeiture is harsh in this instance because the
variances of the wireless access point from Section 15.247(d) of the
Rules and the equipment authorization granted by the Commission were
inadvertent and only "theoretically harmful." As such, AboCom further
asserts that the marketing of the wireless access points has not been
shown to be part of a deliberate plan to evade or disregard the rules.
7. The forfeiture amount in this case was assessed in accordance with
Section 503(b) of the Communications Act of 1934, as amended ("Act"),
Section 1.80 of the Rules, and the Commission's Forfeiture Policy
Statement. In examining AboCom's petition, Section 503(b) of the Act
requires that 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 such other matters as justice may
require. As discussed below, we conclude that the original $25,000
forfeiture was fully consistent with these statutory provisions and
the Commission's precedent; accordingly, we deny Abocom's petition for
8. First, we reject AboCom's argument that the $25,000 forfeiture amount
should be reduced because, except in the case of very large entities,
the Commission rarely imposes a $25,000 forfeiture, particularly in a
case involving equipment manufacturing and marketing. In fact,
forfeiture amounts of $25,000 or more are not uncommon in equipment
cases. As discussed in the NAL, an upward adjustment from the $7,000
base forfeiture amount to $25,000 was warranted in this case because
of the substantial number of non-compliant devices that AboCom
marketed, the fact that the violations continued over a 17-month
period, and AboCom's ability to pay a forfeiture. Regarding ability to
pay, the Commission made clear in the Forfeiture Policy Statement that
large or highly profitable entities, such as AboCom, can expect
forfeitures higher than those reflected in the base amounts.
9. We similarly reject AboCom's assertion that the $25,000 forfeiture is
harsh because it was no more than "inadvertently noncompliant" and its
actions were not deliberate or intended to violate the rules.
Inadvertence or the lack of intent to violate the Commission's
requirements is not a mitigating factor warranting reduction of a
forfeiture. Moreover, we disagree with AboCom's contention that the
variances of the device were only "theoretically harmful." Industry
Canada initially reported the compliance issue with AboCom's wireless
access points to the Enforcement Bureau after determining that the
devices were causing harmful interference to a local wireless service
provider of a subscription high speed internet and television service.
In any event, it is well-established that the absence of harm is not a
mitigating factor and does not warrant a downward adjustment of an
10. In sum, we have examined AboCom's petition for reconsideration
pursuant to the statutory factors prescribed by Section 503(b)(2)(E)
of the Act, Section 1.80 of the Rules, and the Commission's Forfeiture
Policy Statement. As a result of our review, we find that reduction of
the forfeiture is not warranted and that the Forfeiture Order should
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the Act
and Section 1.106 of the Rules, AboCom's petition for reconsideration
of the Forfeiture Order IS DENIED and the Forfeiture Order IS
12. 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. Payment of the forfeiture must be made
by check, money order 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 the Federal Communications Commission, P.O. Box
358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may be
sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account number
911-6106. Requests for full payment under an installment plan should
be sent to: Associate Managing Director - Financial Operations, 445
12th Street, S.W., Room 1A625, Washington, D.C. 20554.
13. IT IS FURTHER ORDERED that copies of this Memorandum Opinion and Order
shall be sent by facsimile and international registered mail to AboCom
Systems, Inc., 1F No. 21 Yanfa, 2^nd Road, SBIP, Hsinchu City, Taiwan
and by facsimile and certified mail, return receipt requested, to its
counsel, Lewis H. Goldman, Esq., 45 Dudley Court, Bethesda, MD 20814.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
AboCom Systems, Inc., Forfeiture Order, 21 FCC Rcd 13140 (Enf. Bur.,
Spectrum Enf. Div. 2006).
47 U.S.C. S 302a(b).
47 C.F.R. S 2.803(a).
A wireless access point is a transmitter/receiver used to provide wireless
47 C.F.R. S 15.247(d).
Industry Canada is a regulatory agency of the Canadian government.
AboCom received a grant of equipment authorization for the wireless access
point under FCC ID MQ4ARM94 on April 22, 2004.
Section 2.1(c) of the Rules, 47 C.F.R. S 2.1(c), defines a spurious
emission as an "[e]mission on a frequency or frequencies which are outside
the necessary bandwidth and the level of which may be reduced without
affecting the corresponding transmission of information."
See Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission to AboCom
Systems, Inc. (March 2, 2006).
See Letter from Eric Oh-Yang, Chairman & Chief Executive Officer, AboCom
Systems, Inc., to Brett Greenwalt, Engineer, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission (April 10,
2006) ("LOI Response").
The devices manufactured for Hawking were designated as Hawking model
HWR54G and the devices manufactured for Phoebe were designated as Phoebe
LOI Response, Exhibit B.
47 C.F.R. S 2.947(b) and (c).
AboCom Systems, Inc., Notice of Apparent Liability, 21 FCC Rcd 7875 (Enf.
Bur., Spectrum Enf. Div. 2006).
AboCom asserts that if "AboCom is able to resolve favorably to it [the
question of whether AboCom's wireless access points are compliant] the
Bureau will be immediately advised." Petition for Reconsideration at 1-2.
Id. at 2.
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
47 U.S.C. S 503(b)(2)(D).
Petition for Reconsideration, at 2.
See, e.g., San Jose Navigation, Inc., Forfeiture Order, 22 FCC Rcd 1040
(2007) (assessing a $75,000 forfeiture for equipment marketing
violations); Behringer USA, Inc., Notice of Apparent Liability for
Forfeiture, 21 FCC Rcd 1820, 1825 (2006) (proposing a $1,000,000
forfeiture for equipment marketing violations), response pending; ACR
Electronics, Inc., Forfeiture Order, 21 FCC Rcd. 3698, 3707 (2006)
(assessing a $65,000 forfeiture for equipment marketing violations); Pilot
Travel Centers, L.L.C., Notice of Apparent Liability for Forfeiture, 19
FCC Rcd 23113 (2004) (proposing a $125,000 forfeiture for equipment
marketing violations), consent decree ordered, 21 FCC Rcd 5308 (2006);
Samson Technologies, Inc., Notice of Apparent Liability for Forfeiture, 19
FCC Rcd 4221 (2004) (proposing a $35,000 forfeiture for equipment
marketing violations), consent decree ordered, 19 FCC Rcd 24542 (2004);
Rocky Mountain Radar, Notice of Apparent Liability for Forfeiture, 22 FCC
Rcd 1334 (Enf. Bur., Spectrum Enf. Div. 2007) (proposing a $25,000
forfeiture for equipment marketing violations); and Ramsey Electronics,
Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd. 458 (Enf.
Bur., Spectrum Enf. Div. 2006) (proposing a $25,000 forfeiture for
equipment marketing violations).
See, e.g., San Jose Navigation, Inc., Notice of Apparent Liability for
Forfeiture, 21 FCC Rcd 2873, 2877-8 (2006) (upwardly adjusting a proposed
forfeiture on the basis of factors which included the volume of
non-compliant devices distributed, and the three-year span in which such
devices were marketed), forfeiture ordered, 22 FCC Rcd 1040 (2007); and
Bureau D'Electronique Appliquee, Notice of Apparent Liability for
Forfeiture, 20 FCC Rcd 3445, 3448 (Enf. Bur., Spectrum Enf. Div. 2005)
(upwardly adjusting a proposed forfeiture on the basis of the volume of
unauthorized devices distributed, the five-year span in which such devices
were marketed and ability to pay), forfeiture ordered, 20 FCC Rcd 17893
(Enf. Bur., Spectrum Enf. Div. 2005) ("B.E.A.").
AboCom had revenues of approximately 4 billion Taiwan dollars in 2005
(approximately $133 million in US dollars). Worldscope-International
Company Profiles, April 21, 2006.
Specifically, the Commission stated:
[O]n the other end of the spectrum of potential violations, we recognize
that for large or highly profitable communication entities, the base
forfeiture amounts ... are generally low. In this regard, we are mindful
that, as Congress has stated, for a forfeiture to be an effective
deterrent against these entities, the forfeiture must be issued at a high
level .... For this reason, we caution all entities and individuals that,
independent from the uniform base forfeiture amounts ..., we intend to
take into account the subsequent violator's ability to pay in determining
the amount of a forfeiture to guarantee that forfeitures issued against
large or highly profitable entities are not considered merely an
affordable cost of doing business. Such large or highly profitable
entities should expect in this regard that the forfeiture amount set out
in a Notice of Apparent Liability against them may in many cases be above,
or even well above, the relevant base amount.
Forfeiture Policy Statement, 12 FCC Rcd at 17099-100. See also SBC
Communications v. FCC, 373 F.3d 140, 152 ("[A] company's ability to pay is
a statutory factor the FCC may consider, and it is reasonable to expect
that a large fine might be necessary to deter a large company like SBC.")
Petition for Reconsideration at 2-3.
See Emery Telephone, Notice of Apparent Liability for Forfeiture, 13 FCC
Rcd 23854, 23859 (1998) (inadvertence found not to be a mitigating
circumstance), recon. dismissed in part and denied in part, Memorandum
Opinion and Order, 15 FCC Rcd 7181 (1999); and B.E.A., 20 FCC Rcd at 17897
("inadvertent mistakes" found not to mitigate violations).
Petition for Reconsideration at 2.
See LOI Reponse at 131.
See, e.g., Liberty Cable Co., Memorandum Opinion and Order, 16 FCC Rcd
16105, 16113 (2001) (rejecting claim that the forfeiture should be reduced
because cable system took care to avoid interference before commencing
unauthorized operation); Pacific Western Broadcasters, Inc., Memorandum
Opinion and Order, 50 FCC 2d 819 (1975) (finding that "[t]he Commission
not only is concerned with actual interference, but is concerned with the
potential for interference"); and Bureau D'Electronique Appliquee, Inc.,
Forfeiture Order, 20 FCC Rcd 17893, 17898 (Enf. Bur., Spectrum Enf. Div.
2005) (concluding that lack of interference from unauthorized devices does
not warrant a reduction of the forfeiture).
47 U.S.C. S 405.
47 C.F.R. S 1.106.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
(Continued from previous page)
Federal Communications Commission DA 07-1784
Federal Communications Commission DA 07-1784