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Federal Communications Commission
Washington, D.C. 20554
File No. EB 05-SE-077
In the Matter of )
NAL/Acct. No. 200632100006
San Jose Navigation, Inc. )
FRN # 0010366078
Adopted: January 11, 2007 Released: January 16, 2007
By the Commission:
1. By this Forfeiture Order ("Order"), we find that San Jose Navigation,
Inc. ("San Jose") marketed intentional radiating equipment,
specifically Global Positioning Satellite ("GPS") signal re-radiator
kits, which are not authorized and not eligible for authorization by
the Commission because the devices operate in restricted frequency
bands. We further find that, in marketing these GPS signal re-radiator
kits, San Jose willfully and repeatedly violated Section 302(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 2.803
and 15.205 of the Commission's Rules ("Rules"). For San Jose's
violations, we impose a monetary forfeiture in the amount of
seventy-five thousand dollars ($75,000).
2. 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." Sections
2.803(a) and 15.201(b) of the Commission's promulgated regulations
prohibit the marketing of intentional radiators without prior
Commission certification. "Marketing" includes the sale or lease,
offer for sale or lease (including advertising for sale or lease),
importing, shipping, or distribution for the purpose of selling or
leasing or offering for sale or lease.
3. A GPS signal re-radiator is designed and configured to take radio
frequency signals from an outside source, the global positioning
satellites, and amplify and re-radiate those signals. The Commission
has determined that this type of configuration constitutes an
intentional radiator under Section 15.3(o) of the Rules. As
intentional radiators, GPS signal re-radiators ordinarily would be
subject to the Commission's equipment certification procedures prior
to marketing. These devices cannot be certificated or legally
operated, however, because they operate in the restricted frequency
bands that are allocated for safety-of-life operations and listed in
Section 15.205 of the Rules.
4. In response to complaints from the Department of Transportation, the
National Telecommunications & Information Administration and other
federal agencies, which expressed concern that GPS signal re-radiator
kits could interfere with government GPS operations, the Enforcement
Bureau launched an investigation of San Jose in 2005. That
investigation culminated in the issuance of the Notice of Apparent
Liability for Forfeiture ("NAL") against San Jose for its apparent
willful and repeated violation of the above equipment marketing
restrictions. As discussed herein, we find, as the underlying NAL
found, that San Jose unlawfully marketed GPS signal re-radiator kits
that were not certificated and not eligible for certification.
5. Specifically, the NAL found that San Jose manufactured and marketed in
the United States four models of GPS signal re-radiator kits (the
RA-45, RA-46, RK-104 and RK-304). The NAL also found that these four
models are designed to operate at 1575.42 MHz in the GPS L1 frequency
band, a restricted frequency band under Section 15.205 of the Rules.
As noted in the NAL, intentional radiating devices are prohibited from
operating (other than spurious emissions) in the restricted GPS L1
frequency band. Finally, the NAL found that from March 2002 through
March 2005, San Jose distributed for sale in the United States 5,000
units of GPS signal re-radiator kits.
6. The NAL concluded that San Jose "marketed, imported and distributed
for sale GPS re-radiator kits that intentionally emit signals in
restricted frequency bands, potentially interfering with and
jeopardizing critical authorized safety-of-life operations." The NAL
further concluded that San Jose's apparent violations of the equipment
marketing restrictions involved a significant number of unauthorized
devices and "were continuous in nature, occurring over a three-year
period" and thus warranted a substantially upward adjusted proposed
forfeiture amount. Accordingly, the NAL proposed a $75,000 forfeiture.
7. In its response to the NAL, San Jose does not dispute the violations,
but seeks cancellation or reduction of the proposed $75,000
forfeiture. San Jose claims that its violations were not intentional,
that its corrective measures demonstrate good faith, and that its
payment of the forfeiture would cause economic hardship.
8. The forfeiture amount proposed in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and the
Commission's Forfeiture Policy Statement guidelines. In assessing
forfeitures, the Commission is required to take into account the
nature, circumstances, extent and gravity of the violation(s); the
violator's degree of culpability, history or prior offenses and
ability to pay; and such other matters as justice may require. We have
considered San Jose's claims in light of the above factors and
Commission precedent, and, as explained below, have determined that
there is no basis for cancellation or reduction of the proposed
9. In its response, San Jose claims that it did not knowingly, and did
not intend to, violate the Commission's equipment marketing
restrictions. As the NAL correctly noted, lack of knowledge regarding,
or intent to violate, the Commission's requirements does not
exonerate, excuse or mitigate past violations and is not a defense to
forfeiture penalties. Section 503(b)(1)(B) of the Act subjects persons
found by the Commission to have willfully or repeatedly violated the
Commission's requirements to forfeiture penalties. The term willful is
defined as "conscious and deliberate commission or omission of [any]
act, irrespective of any intent to violate the law." Consistent with
Section 503(b)(1)(B), we find that San Jose consciously and
deliberately marketed unauthorized devices, and thus that its
violations of the Act and Rules were willful and properly subject to
forfeiture penalty. Additionally, we find, as the NAL found, that San
Jose's violations were repeated, having continued over a three-year
10. In addition, San Jose claims that it demonstrated good faith by
promptly instituting corrective measures after the Enforcement Bureau
launched its investigation. Specifically, San Jose asserts that after
receiving the Enforcement Bureau's letter of inquiry, the company
ceased shipping kits to the United States, contacted its distributors,
and authorized the return and refund of approximately 2,500 GPS signal
re-radiator kits. The Commission expects the implementation of
corrective measures to bring past violations into compliance. It is
the Commission's long-standing policy, however, that corrective
measures implemented after Commission inquiry or enforcement action do
not nullify past violations and thus do not warrant reduction or
cancellation of forfeiture liability. We also note that although San
Jose did not indicate it was working with its distributors with
respect to the 2,500 re-radiator kits already sold to retail outlets
and customers, we encourage San Jose to make reasonable efforts with
its distributors to make sure that retail customers are aware of the
potential interference these kits pose to government GPS operations
and that as many of these kits as possible are returned to San Jose.
11. San Jose also claims that it is a small firm, with "capital of less
than USD 600,000," and that it has sustained substantial economic
losses in its efforts to remedy its prior marketing of GPS signal
re-radiator kits. In assessing an inability to pay claim, the
Commission requires the claimant to provide reliable and objective
documentation that reflects its current overall financial status.
(e.g., a balance sheet or a profit and loss statement certified by the
claimant). The fact that a claimant is a small entity or has sustained
economic losses, in itself, does not entitle it to a reduction in or
cancellation of a forfeiture. San Jose did not provide supporting
financial documentation, and thus we have no basis by which to assess
its inability to pay claim.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act
and Section 1.80 of the Rules, San Jose Navigation, Inc. IS LIABLE FOR
A MONETARY FORFEITURE in the amount of seventy-five thousand dollars
($75,000) for willfully and repeatedly violating Section 302(b) of the
Act and Sections 2.803(a) and 15.205 of the Rules.
13. 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 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/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.
14. Requests for payment of the full amount of the NAL under an
installment plan should be sent to: Requests for payment of the full
amount of the NAL under an installment plan should be sent to:
Associate Managing Director - Financial Operations, 445 12^th Street,
S.W., Room 1A625, Washington, D.C. 20554.
15. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by first class mail and certified mail return receipt requested
to Jerry Huang, Sales and Marketing Manager, San Jose Navigation,
Inc., 9F, No. 105, Shi-Cheng Road, Pan-Chiao City, Taipei, Taiwan,
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
47 U.S.C. S 302a(b).
47 C.F.R. SS 2.803 and 15.201(b).
Section 15.3(o) of the Rules, 47 C.F.R. S 15.3(o), defines an intentional
radiator as a "device that intentionally generates and emits radio
frequency energy by radiation or induction."
47 C.F.R. SS 2.803(a) and 15.201(b).
47 C.F.R. S 2.803(e)(4).
47 C.F.R. S 15.3(o). See Rocky Mountain Radar, 12 FCC Rcd 22453 (1997).
See 47 C.F.R. S 2.803(g). Section 2.803(g) provides, in pertinent part,
that the equipment marketing provisions of Section 2.803:
[D]o not apply to radio frequency devices that could not be authorized or
legally operated under the current rules. Such devices shall not be
operated, advertised, displayed, offered for sale or lease, sold or
leased, or otherwise marketed absent a license issued under part 5 of this
chapter or a special temporary authorization issued by the Commission.
San Jose did not market its GPS signal re-radiator kits under a Part 5
license or a special temporary authorization granted by the Commission.
San Jose Navigation, Inc., 21 FCC Rcd 2873 (2006) ("NAL").
NAL at PP 5-6, 15.
Id. at P 9.
Id. at PP 6, 15.
Id. at P 15.
See Response to the NAL (filed April 14, 2006) ("Response").
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
Commission's Forfeiture Policy Statement and Amendment of Section 1.80 of
the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087
(1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy
See 47 U.S.C. S 503(b)(2)(D); see also 47 C.F.R. S 1.80(b)(4).
See Response at 1.
See NAL at P 16.
See Profit Enterprises, Inc., 8 FCC Rcd 2846, 2846 P 5 (1993), cancelled
on other grounds, 12 FCC Rcd 14999 (1997) (dismissing a manufacturer's
claim that it lacked knowledge of the Commission's equipment certification
requirements, finding that forfeiture liability does not rest upon "prior
knowledge or understanding of the law" and is not mitigated by "ignorance
of the law"); see also Emery Telephone, 13 FCC Rcd 23854, 23859 P 12
(1998), recon. dismissed in part and denied in part, 15 FCC Rcd 7181
(1999); Florida Cellular Mobile Communications Corporation, 7 FCC Rcd
78956, 7857 P 7 (1992), aff'd sub nom, Florida Cellular Mobile
Communications Corporation v FCC, 28 F. 3d 191 (D.C. Cir. 1995), cert.
denied, 514 U.S. 1016 (1995); Southern California Broadcasting Co., 6 FCC
Rcd 4387, 4388 PP 3-4 (1991); Lakewood Broadcasting Service, Inc., 37 FCC
2d 437 P 6 (1972); Bureau D'Electronique Appliquee, Inc., DA 05-2928 P 11
(Enf. Bur., Spectrum Enf. Div., November 8, 2005).
47 U.S.C. S 503(b)(1)(B).
The definition of willful is set forth in Section 312(f)(1) of the Act, 47
U.S.C. S 312(f)(1). The legislative history of Section 312(f) establishes
that this definition applies to the forfeiture provisions of Section 503
of the Act. See H.R. Rep. No. 97-765, 97^th Cong. Sess. 51 (1982); see
also Southern California Broadcasting Co., 6 FCC Rcd 4387, 4388 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), defines "repeated" as
the commission or omission of any act that occurs "more than once," and if
continuous, occurs "for more than one day." As with the term willful, the
definition of repeated set forth in Section 312(f) applies to the
forfeiture provisions of Section 503 of the Act. See supra n. 23.
See Response at 1.
See Behringer USA, Inc., 21 FCC Rcd 1820 P 24 (2006); ACR Electronics,
Inc., 19 FCC Rcd 22293, 22304 P 25 (2004), forfeiture ordered, 21 FCC Rcd
3698 (2006); AT&T Wireless Services, Inc., 17 FCC Rcd 7891 (2002),
forfeiture ordered, 17 FCC RCd 21866, 21875-76 PP 26-28 (2002); Seawest
Yacht Brokers, 9 FCC Rcd 6099, 6099 P 7 (1994); see also TCI Cablevision
of Maryland, Inc., 7 FCC Rcd 6013, 6014 P 8 (1992) (rejecting a claim that
subsequent corrective actions mitigate past violations because it "would
tend to encourage remedial rather preventative action").
See Forfeiture Policy Statement, 12 FCC Rcd at 17107 P 44.
Id. at 17158 P 113 (recognizing that a small entity may not have the
resources to submit financial documentation corroborating its inability to
pay and that the Commission has the flexibility to consider profit and
loss statements or balance sheets certified by the entity). See also Alpha
Ambulance, Inc., 19 FCC Rcd 2547, 2548 PP 3, 5 (2004) (rejecting an
economic hardship claim based, inter alia, on small entity status) ("Alpha
Ambulance"); Brown Broadcasting System, Inc., DA 05-1708 P 4 (Enf. Bur.
June 24, 2005) (noting that a company's status as a small entity, alone,
will not suffice; the company must provide objective financial
documentation that demonstrates its inability to pay).
See PBJ Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 P 8 (1992)
(noting that information about net losses may be relevant in assessing an
inability to pay claim, but where "gross revenues are sufficiently great
... the mere fact that a business is operating at a loss does not itself
mean that it cannot afford to pay a forfeiture); see also Alpha Ambulance,
19 FCC Rcd at 2548 P 5; Independent Communications, Inc., 15 FCC Rcd
16060, 16061 P 4 (2000); Forfeiture Policy Statement, 12 FCC Rcd at 17106
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission FCC 07-3
Federal Communications Commission FCC 07-3