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Federal Communications Commission
Washington, D.C. 20554
In the Matter of File No. EB-07-SE-167
Microboards Technology, LLC NAL/Acct. No. 200832100071
Chanhassen, Minnesota FRN # 0018045856
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: August 21, 2008 Released: August 25, 2008
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Microboards Technology, LLC ("Microboards") is apparently liable for a
forfeiture in the amount of fourteen thousand dollars ($14,000) for
willful and repeated violation of Section 302(b) of the Communications
Act of 1934, as amended ("Act"), and Section 2.803(a) of the
Commission's Rules ("Rules"). The apparent violations involve
marketing unauthorized and non-compliant digital devices in the United
2. The Spectrum Enforcement Division ("Division") of the Enforcement
Bureau received a complaint alleging that Microboards was marketing
the Orbit 3 Disc Duplicator, and the MicroOrbit Disc Duplicator
digital video disc ("DVD") and/or compact disc ("CD") duplicators in
the United States without the appropriate labels as required in
Section 15.19 of the Rules. The complaint alleged that the equipment
may not have been tested, or otherwise determined to comply with the
conducted and emission limits in Sections 15.107 and 15.109 of the
Rules, prior to marketing. The Division subsequently began an
investigation. The investigation established that Microboards was
either marketing, or had marketed through its website, the devices
mentioned in the complaint.
3. On February 29, 2008, the Division issued a letter of inquiry ("LOI")
to Microboards. On April 21, 2008, Microboards responded to the LOI.
In its response, Microboards acknowledged that the Orbit 3 Disc
Duplicator and the MicroOrbit Disc Duplicator are subject to the
verification equipment authorization procedures specified in Parts 2
and 15 of the Rules. Microboards indicated that these two devices are
manufactured by its subsidiary, Microboards Manufacturing, LLC, in
Salida, California. Microboards stated that it marketed the Orbit 3
Disc Duplicator for approximately six months before it was verified in
September 2007 and again in March 2008 with a different power supply.
Microboards also stated that it marketed the MicroOrbit Disc
Duplicator from March 2007, when the device's controller (CPU) was
changed to a different, larger board, until it was retested for
verification in March 2008. Microboards indicated that when the
MicroOrbit Disc Duplicator was tested in March 2008, it was found to
comply with the Class A limits for conducted and radiated emissions
but did not comply with the Class B radiated emission limits.
Microboards further stated that it has taken steps to ensure that the
MicroOrbit Disc Duplicator will be marketed only for commercial use
until it can be brought into acceptable margins for Class B radiated
emission limits. Finally, Microboards admitted that it sold units of
the Orbit 3 Disc Duplicator and the MicroOrbit Disc Duplicator in the
United States prior to verification of those devices.
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)(2) of the Commission's implementing regulations provides
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
... [i]n the case of a device that is not required to have a grant of
equipment authorization issued by the Commission, but which must comply
with all applicable administrative (including verification of the
equipment or authorization under a Declaration of Conformity, where
required), technical, labeling and identification requirements specified
in this chapter.
Pursuant to Section 15.101(a) of the Rules, unintentional radiators, such
as Microboards' Orbit 3 Disc Duplicator and MicroOrbit Disc Duplicator,
are required to be approved prior to marketing through the verification
procedures described in Sections 2.951-2.962 of the Rules. In addition,
unintentional radiators are required to comply with the conducted and
radiated emissions specified in Sections 15.107 and 15.109 of the Rules.
As the manufacturer of the Orbit 3 Disc Duplicator and MicroOrbit Disc
Duplicator, Microboards is the party responsible for verifying that these
devices are compliant with all applicable technical and administrative
5. Microboards admitted that it marketed and sold units of the Orbit 3
Disc Duplicator for approximately six months before it was verified in
September 2007. Microboards also admitted that it marketed and sold
units of the MicroOrbit Disc Duplicator from March 2007, after it had
received a CPU upgrade, until it was retested for verification in
March 2008. We, accordingly, find that the Orbit 3 Disc Duplicator and
MicroOrbit Disc Duplicator were marketed in the United States prior to
authorization. Additionally, Microboards acknowledged that the
MicroOrbit Disc Duplicator is not compliant with the Class B radiated
emission limits. Based on our review of Microboards' website, it
appears that Microboards was marketing the MicroOrbit Disc Duplicator
for general Class B use prior to March 2008. Thus, we find that
Microboards apparently willfully and repeatedly violated Section
302(b) of the Act and Section 2.803(a)(2) of the Rules by marketing
unauthorized digital devices in the United States and, in the case of
the MicroOrbit Disc Duplicator, by marketing a non-compliant digital
device in the United States.
6. Section 503(b) of the Act authorizes 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
exercising such authority, we are required 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
7. Section 503(b)(6) of the Act bars the Commission from proposing a
forfeiture for violations that occurred more than a year prior to the
issuance of an NAL. Section 503(b)(6) does not, however, bar the
Commission from assessing whether Microboards' conduct prior to that
time period apparently violated the provisions of the Act and Rules
and from considering such conduct in determining the appropriate
forfeiture amount for violations that occurred within the one-year
statutory period. Thus, while we may consider the fact that
Microboards' conduct has continued over a period that began on March
2007, the forfeiture amount we propose herein relates only to
Microboards' apparent violations that have occurred within the past
8. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines
("Forfeiture Policy Statement") and Section 1.80(b)(4) of the Rules,
the base forfeiture amount for the marketing of unauthorized or
non-compliant equipment is $7,000. Section 503(b)(2)(D) of the Act
authorizes the Commission to assess a maximum forfeiture of $11,000
for each violation, or each day of a continuing violation, up to a
statutory maximum forfeiture of $97,500 for any single continuing
violation. Based on the record before us, we find that Microboards is
apparently liable for a base forfeiture of $7,000 for each of the two
models of unauthorized or non-compliant devices it marketed, for a
total proposed forfeiture of $14,000. Consistent with precedent, we
have considered the statutory factors set forth above and conclude
that no adjustment of the proposed forfeiture from the aggregate base
amount is warranted.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act
and Sections 0.111, 0.311 and 1.80 of the Rules, Microboards
Technologies IS hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of fourteen thousand dollars ($14,000) for
willfully and repeatedly violating Section 302(b) of the Act and
Section 2.803(a) of the Rules.
10. 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 and Order, Microboards Technologies, SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
11. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer -
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. Microboards will also send electronic
notification on the date said payment is made to Gabriel Collazo at
Gabriel.Collazo@fcc.gov and Neal McNeil at Neal.McNeal@fcc.gov.
12. 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.
13. 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
14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent first class and certified mail to John
Westrum, Vice President of Operations, Microboards Technologies, LLC,
8150 Mallony Court, PO Box 846, Chanhassen, MN 55317, and by facsimile
and first class mail to its counsel, Robert J. Ungar, Esq., Fish &
Richardson, P.C., 1425 K Street, NW, Washington, DC 20005.
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).
47 C.F.R. S: 15.19. The complaint also included the GX-1 Disc Publisher,
DX-1 Disc Publisher, and the PF-2 Disc Printer, which have been
discontinued and replaced with newer devices.
47 C.F.R. S:S: 15.107 and 15.109.
See Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission to
Microboards. (February 29, 2008).
See Letter from Microboards Technology, LLC, to Gabriel Collazo, Spectrum
Enforcement Division, Enforcement Bureau (April 21, 2008) ("LOI
Id. at 3.
Id. at 5.
Id. at 3.
Id. Microboards stated that the MicroOrbit Disc Duplicator had been tested
in March 2003, before the device's controller was changed, and found to
comply with Class B limits. Id.
Id. A Class A digital device is "[a] digital device that is marketed for
use in a commercial, industrial or business environment, exclusive of a
device which is marketed for use by the general public or is intended to
be used in the home." 47 C.F.R. S: 15.3(h). A Class B digital device is
"[a] digital device that is marketed for use in a residential environment
notwithstanding use in commercial, business and industrial environments."
47 C.F.R. S: 15.3(i). Class B devices are subject to stricter conducted
and radiated emission limits than Class A devices. See 47 C.F.R. S:S:
15.107 and 15.109.
LOI Response at 3.
Id. at 4. Pursuant to Sections 0.457 and 0.459 of the Rules, 47 C.F.R.
S:S: 0.457 and 0.459, Microboards requested confidential treatment of
certain information submitted in its LOI Response, including the specific
number of units of the Orbit 3 Disc Duplicator and the MicroOrbit Disc
Duplicator sold in the United States, asserting that this information is
commercially sensitive and has not been previously disclosed. Microboards
asserted that disclosure of this information would result in substantial
competitive harm. We agree and will accord confidential treatment of
Microboards' sales figures. For purposes of this NAL, we need not address
Microboards' request for confidential treatment of certain other
information included in its response.
47 C.F.R. S: 15.101(a).
An unintentional radiator is "[a] device that intentionally generates
radio frequency energy for use within the device, or that sends radio
frequency signal by conduction to associated equipment via connecting
wiring, but which is not intended to emit RF energy by radiation or
induction." 47 C.F.R. S: 15.3(z)
47 C.F.R. S:S: 2.951 - 2.962.
See 47 C.F.R. S:S: 15.107 and 15.109.
See 47 C.F.R. S: 2.909(b).
See note 11, supra.
Section 312(f)(1) of the Act defines "willful" as "the conscious and
deliberate commission or omission of [any] act, irrespective of any intent
to violate" the law. 47 U.S.C. S: 312(f)(1). The legislative history of
Section 312(f)(1) of the Act clarifies that this definition of willful
applies to both Sections 312 and 503(b) of the Act, H.R. Rep. No. 97-765,
97th Cong. 2d Sess. 51 (1982), and the Commission has so interpreted the
term in the Section 503(b) context. See Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recon.
denied, 7 FCC Rcd 3454 (1992) ("Southern California").
Section 312(f)(2) of the Act, which also applies to forfeitures assessed
pursuant to Section 503(b) of the Act, provides that "[t]he term
`repeated,'... means the commission or omission of such act more than once
or, if such commission or omission is continuous, for more than one day."
47 U.S.C. S: 312(f)(2). See Callais Cablevision, Inc., Notice of Apparent
Liability for Forfeiture, 16 FCC Rcd 1359, 1362 (2001); Southern
California, 6 FCC Rcd at 4388.
47 U.S.C. S: 503(b).
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b)(6).
See 47 U.S.C. S: 503(b)(2)(E), 47 C.F.R. S: 1.80(b)(4); see also Behringer
USA, Inc., Notice of Apparent Liability, 21 FCC Rcd 1820, 1825
(2006),forfeiture ordered, 22 FCC Rcd 10451 (2007) (forfeiture paid);
Globcom, Inc. d/b/a Globcom Global Communications, Notice of Apparent
Liability, 18 FCC Rcd 19893, 19903 (2003), forfeiture ordered, Forfeiture
Order, 21 FCC Rcd 4710 (2006); Roadrunner Transportation, Inc.,
Forfeiture Order, 15 FCC Rcd 9669, 9671-71 (2000); Cate Communications
Corp., Memorandum Opinion and Order, 60 RR 2d 1386, 1388 P: 7 (1986);
Eastern Broadcasting Corp., Memorandum Opinion and Order, 10 FCC 2d 37,
37-38 (1967), recon. den.,11 FCC 2d 193 (1967); Bureau D'Electronique
Appliquee, Inc., Notice of Apparent Liability, 20 FCC Rcd 3445, 3447-48
(Enf. Bur., Spectrum Enf. Div. 2005), forfeiture ordered, Forfeiture
Order, 20 FCC Rcd 17893 (Enf. Bur., Spectrum Enf. Div. 2005).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 C.F.R. S: 1.80(b)(4).
47 U.S.C. S: 503(b)(2)(D). The Commission has amended Section 1.80(b)(3)
of the Rules, 47 C.F.R. S: 1.80(b)(3), three times to increase the maximum
forfeiture amounts, in accordance with the inflation adjustment
requirements contained in the Debt Collection Improvement Act of 1996, 28
U.S.C. S: 2461. See Amendment of Section 1.80 of the Commission's Rules
and Adjustment of Forfeiture Maxima to Reflect Inflation, 15 FCC Rcd 18221
(2000) (adjusting the maximum statutory amounts from $10,000/$75,000 to
$11,000/$87,500); Amendment of Section 1.80 of the Commission's Rules and
Adjustment of Forfeiture Maxima to Reflect Inflation, 19 FCC Rcd 10945
(2004) (adjusting the maximum statutory amounts from $11,000/$87,500 to
$11,000/$97,500); Amendment of Section 1.80 of the Commission's Rules and
Adjustment of Forfeiture Maxima to Reflect Inflation, 23 FCC Rcd 9845
(2008) (adjusting the maximum statutory amounts from $11,000/$97,500 to
$16,000/$112,500). The most recent inflation adjustment is effective
September 2, 2008. See 73 Fed. Reg. 44663-5.
See, e.g., San Jose Navigation, Inc., Notice of Apparent Liability for
Forfeiture, 21 FCC Rcd 2873 (2006), forfeiture ordered, 22 FCC Rcd 1040
(2007), response pending; Samson Technologies, Inc., Notice of Apparent
Liability for Forfeiture, 19 FCC Rcd 4221, 4225 (2004), consent decree
ordered, 19 FCC Rcd 24509 (2004) (both finding that the marketing of each
separate model of unauthorized equipment constitutes a separate
47 U.S.C. S: 503(b).
47 C.F.R. S: 0.111, 0.311 and 1.80.
(Continued from previous page)
Federal Communications Commission DA 08-1937
Federal Communications Commission DA 08-1937