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Federal Communications Commission
Washington, D.C. 20554
In the Matter of File No. EB-07-SE-061
Microwave Radio Communications LLC NAL/Acct. No. 200832100003
N. Billerica, MA FRN # 0004267712
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 24, 2007 Released: October 26, 2007
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Microwave Radio Communications LLC ("MRC") apparently liable for a
forfeiture in the amount of seven thousand dollars ($7,000) for
willful and repeated violation of Section 302(b) of the Communications
Act of 1934, as amended ("Act"), and Sections 2.803(a)(1) and 90.203
of the Commission's Rules ("Rules"). The noted apparent violations
involve the marketing of uncertified 4.9 GHz aeronautical transmitting
equipment ("4.9 GHz equipment").
2. On January 10, 2007, the Commission's Office of Engineering and
Technology ("OET") sent a letter to MRC in response to allegations
that it may be manufacturing and marketing uncertified 4.9 GHz
equipment. In its response to OET's letter, MRC acknowledged that it
failed to obtain a grant of certification prior to marketing the 4.9
GHz equipment. MRC stated that after receiving OET's letter, it
immediately removed the marketing information from its website and
ceased marketing until the equipment was certified. OET referred this
matter to the Spectrum Enforcement Division ("Division") of the
Enforcement Bureau for investigation.
3. On July 25, 2007, the Division issued a Letter of Inquiry ("LOI") to
MRC. In its LOI response, MRC indicated that it began manufacturing
and marketing the 4.9 GHz equipment in early 2004. MRC also
acknowledged that it marketed the equipment prior to receiving a grant
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)(1) of the Commission's implementing regulations provides in
pertinent part 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 radiofrequency 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 S: 2.925 and
other relevant sections in this chapter.
In addition, Section 90.203 of the Rules provides in pertinent part that
"... each transmitter utilized for operation under this part and each
transmitter marketed as set forth in S: 2.803 of this chapter must be of a
type which has been certificated for use under this part."
5. MRC acknowledges that it manufactured and marketed aeronautical
transmitting equipment that operates in the 4.9 GHz band between early
2004 and early 2007, when it received OET's letter. MRC also admits
that it did not receive a grant of certification for this equipment
until to April 3, 2007. Therefore, we find that MRC apparently
willfully and repeatedly violated Section 302(b) of the Act and
Sections 2.803(a)(1) and 90.203 of the Rules by marketing 4.9 GHz
aeronautical transmitting equipment prior to obtaining certification.
6. Section 503(b)(1) of the Act and Section 1.80(a)(1) of the Rules
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. In determining the appropriate
forfeiture amount, Section 503(b)(2)(E) of the Act directs us 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."
7. Under Section 1.80 of the Rules, the Commission has established a base
forfeiture amount of $7,000 for the marketing of unauthorized
equipment. In this case, we note that MRC marketed one model of
uncertified 4.9 GHz aeronautical transmitting equipment. We,
therefore, find it appropriate and consistent with precedent to
propose a forfeiture of $7,000 for MRC's marketing of uncertified
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to pursuant to Section
503(b) of the Act and Sections 0.111, 0.311 and 1.80 of the Rules,
Microwave Radio Communications LLC IS hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of seven thousand dollars
($7,000) for willfully and repeatedly violating Section 302(b) of the
Act and Sections 2.803(a)(1) and 90.203 of the Rules.
9. 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, Microwave Radio Communications LLC SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
10. 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 Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon Bank/LB358340, 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.
11. 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.
12. 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 practices; 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
13. Requests for payment of the full amount of this NAL under an
installment plan should be sent to: Associate Managing
Director-Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554.
14. 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 Mr. Anthony Finizio, President, Microwave
Radio Communications LLC, 101 Billerica Avenue, Bldg. 6, N. Billerica,
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a)(1).
47 C.F.R. S: 90.203. Section 90.203 provides that transmitters utilized
for operation in the private land mobile radio services must be
Letter from Ray LaForge, Chief, Auditing and Compliance Branch, Office of
Engineering and Technology, to Microwave Radio Communications LLC (January
Letter from Rollin W. Hughes, Product Line Manager, Public Sector,
Microwave Radio Communications LLC, to Ray LaForge, Chief, Auditing and
Compliance Branch, Office of Engineering and Technology (April 11, 2007).
A grant of equipment certification was issued on April 3, 2007 under FCC
Letter from Kathy Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, to Mr. Anthony Finizio, President, Microwave Radio
Communications LLC (July 25, 2007).
Letter from Mr. Anthony Finizio, President, Microwave Radio Communications
LLC, to Celia Lewis, Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission (August 27, 2007). Pursuant to Section
0.459 of the Rules, 47 C.F.R. S: 0.459, MRC requested confidentiality of
certain information in its response concerning the number of units of the
device that were distributed and the entities to whom the devices were
distributed, asserting that this information constitutes commercial
information and trade secrets and that release of this information could
cause substantial competitive harm. We grant MRC's request and accord this
information confidential treatment.
47 C.F.R. S: 2.801 defines a radiofrequency device as "any device which in
it its operation is capable of emitting radiofrequency energy by
radiation, conduction, or other means."
Although Section 90.1205(c) of the Rules, 47 C.F.R. S: 90.1205(c),
prohibits aeronautical operation in the 4.9 GHz band, the Wireless
Telecommunications Bureau has granted waivers to licensees to use this
band for aeronautical use subject to certain conditions. See e.g., File
No. 0003100761 (granted November 4, 2003).
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. S: 312(f)(1).
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.
47 U.S.C. S: 503(b)(1); 47 C.F.R. S: 1.80(a)(1).
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.80.
See e.g., Behringer USA, Inc., Notice of Apparent Liability for Forfeiture
and Order, 21 FCC Rcd 1820, 1827-28 P: 21 (2006), forfeiture ordered, 22
FCC Rcd 10451 (2007) (imposing a base forfeiture of $7,000 for each model
of equipment marketed without authorization).
47 U.S.C. S: 503(b).
47 C.F.R. S:S: 0.111, 0.311 and 1.80.
See 47 C.F.R. S: 1.1914.
(Continued from previous page)
Federal Communications Commission DA 07-4374
Federal Communications Commission DA 07-4374