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Federal Communications Commission
Washington, D.C. 20554
) File No. EB-07-SE-299
In the Matter of
) NAL/Acct. No. 200832100080
) FRN # 0018087262
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 4, 2008 Released: September 8, 2008
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
CoachComm, LLC ("CoachComm") apparently liable for a forfeiture in the
amount of seven thousand dollars ($7,000) for willful and repeated
violations of Section 302(b) of the Communications Act of 1934, as
amended ("Act"), and Section 2.803(a)(1) of the Commission's Rules
("Rules"). The noted apparent violations involve the marketing of an
unauthorized radio frequency device.
2. On August 15, 2007, the Spectrum Enforcement Division of the
Enforcement Bureau ("Division") received a complaint regarding
CoachComm's manufacture and marketing of a wireless intercom system
under the trade name Connex that uses a belt pack and base station
configuration. The Connex system incorporates a radio frequency ("RF")
transmitter module (FCC Identification Number HSW-2410M) ("HSW-2410M
module") manufactured by Cirronet Corporation ("Cirronet") that
operates using spread spectrum emissions at 2.4 GHz (2401.69 to
2469.89 MHz). Cirronet's authorization for this module allows use as a
mobile or fixed device for RF radiation exposure compliance purposes.
The complainant, however, asserts that the Connex system makes use of
the module in a portable device and thus, operates outside the scope
of Cirronet's authorization. The complainant also asserts that the
system violates technical rules governing antenna use, output power
limits, and RF emission levels.
3. On January 8, 2008, the Division issued a Letter of Inquiry ("LOI") to
CoachComm. In its February 6, 2008 response to the LOI ("LOI
Response"), CoachComm admits that from the time it introduced the
Connex system in May 2004, until approximately April 2007, it employed
the HSW-2410M module in both the base stations ("command centers") and
wireless belt packs of the Connex system. In May 2007, CoachComm began
substituting the HSW-2410M module with a different Cirronet RF module
(FCC Identification Number HSW-2492) that was authorized for portable
device use, but continued to employ the HSW-2410M module to a limited
degree. Accordingly, CoachComm states that of the Connex systems
shipped between May and December of 2007, some employed the HSW-2410M
module but the vast majority employed the HSW-2492 module.
4. CoachComm explains that until it received the Division's LOI, it
believed that the existing equipment authorization for the HSW-2410M
module was sufficient for the lawful use of the module in the Connex
system. When CoachComm discovered that this authorization was
insufficient, Cirronet obtained, at the request of CoachComm, a
modified equipment authorization (FCC Identification Number HSW-2410P)
allowing for portable device use of the module on January 29, 2008.
CoachComm emphasizes that no physical or electrical changes to the
module were required in order to obtain this authorization. CoachComm
further states that the Connex system is well within the effective
output power limit of one watt for digitally modulated spread spectrum
devices in the 2.4 GHz band, as set forth in Section 15.247(b)(4) of
the Rules, and that the four antennas offered with the Connex system
(two external antennas, one corner-reflector antenna, and one internal
patch antenna) have been authorized for use with the HSW-2410M module
since CoachComm introduced the Connex system in May 2004.
5. CoachComm admits, however, that it failed to comply with the terms of
the initial certification regarding RF exposure levels when it failed
to give instructions relating to a 20 cm separation between the
radiating aperture of the command stations' antennas and all persons.
CoachComm states that it instructed users to keep the command stations
between four and nine feet apart and to attach the corner-reflector
antenna to an appropriate fixture within the press box containing the
command station. According to CoachComm, the distance between the
command centers, the low power levels, and the narrow bandwidths of
the corner-reflector antennas work in concert to limit excess RF
6. 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 the regulations promulgated pursuant to this section." Section
2.803(a)(1) of the Commission's implementing regulations provides in
[e]xcept 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
... in 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.
Under Section 15.201(b) of the Rules, an intentional radiator must be
authorized in accordance with the FCC's certification procedures prior to
marketing in the United States.
7. Under Section 2.932 of the Rules, a change in the design, circuitry or
construction of a previously authorized device requires the filing of
a new equipment authorization, unless such a change constitutes a
permissive change. As set forth above, CoachComm integrated the
HSW-2410M module into its Connex system, a system designed for
portable device use. The certification for the HSW-2410M module does
not, however, permit portable device use. Thus, under Section 2.932(a)
of the rules, the Connex system could not be marketed in the United
Stations prior to grant of a new equipment certification authorizing
portable device use of the module.
8. Moreover, while the grantee of an equipment certification is generally
responsible for demonstrating compliance of its device with applicable
technical and administrative requirements, a system integrator may
become the responsible party under Section 2.909(a) of the Rules
where, as here, the incorporation of a certified module into a host
product results in operation or use that is inconsistent with the
initial authorization. CoachComm, as the system integrator, became the
party responsible for ensuring that its use of the HSW-2410M module
complied with our technical and administrative rules. Accordingly,
because CoachComm failed to obtain an equipment certification
authorizing use of the module for portable device use prior to
marketing the Connex system, it apparently willfully and repeatedly
marketed an unauthorized radio frequency device in violation of
Section 302(b) of the Act and Section 2.803(a)(1) of the Rules.
9. 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." Having considered the statutory factors, as explained below,
we propose a base forfeiture of $7,000 for marketing non-compliant
10. 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) of the Act does not, however,
bar the Commission from assessing whether CoachComm's 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
CoachComm's conduct has continued over a period that began in May
2004, the forfeiture amount we propose herein relates only to
CoachComm's apparent violations that have occurred within the past
11. Under 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 of the Rules, the
base forfeiture amount for the marketing of unauthorized equipment is
$7,000. CoachComm marketed unauthorized radio frequency equipment.
Specifically, CoachComm marketed one system that included the same RF
transmitter in both the wireless headsets and command stations. For
the apparent marketing of this unauthorized device, CoachComm is
apparently liable in the amount of $7,000.
IV. ORDERING CLAUSES
1. 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, CoachComm, LLC IS
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of seven thousand dollars ($7,000) for the willful and repeated
violation of Section 302(b) of the Act and Section 2.803(a)(1) of the
2. 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, CoachComm LLC SHALL PAY the full amount of
the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
3. 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. CoachComm will also send electronic
notification on the date said payment is made to Ricardo.
Durham@fcc.gov and Nissa. Laughner@fcc.gov.
4. 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
5. 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 CoachComm LLC, 205 Technology Pkwy,
Auburn, Alabama 36830-0500 and to John Joseph McVeigh, Esquire,
Counsel for CoachComm, 16230 Falls Road, P.O. Box 128, Butler,
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
47 U.S.C. S: 302a(b).
47 C.F.R. S: S: 2.803(a)(1), 2.932(a) and 15.201(b).
In 2007, the Commission defined the term "modular transmitter" as "a
completely self-contained radio-frequency transmitter device that is
typically incorporated into another product, host or device." See
Modifications of Parts 2 and 15 of the Commission's Rules for Unlicensed
Devices and Equipment Approval, Second Report and Order, 22 FCC Rcd 8028,
8032 P:11 (2007) ("Modifications of Parts 2 and 15 Second Report and
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Peter Amos,
President, CoachComm, LLC (January 8, 2008).
See Letter from John Joseph McVeigh, Esq., Counsel for CoachComm, LLC to
Nissa Laughner, Attorney Advisor, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (February 6, 2008)
Id. at 2.
Id. at 3.
Id. We note that CoachComm's failure to obtain a certification for
portable device use in this case does not raise safety concerns because
the source-based time-averaged RF output power is below the threshold
level required for SAR testing per OET equipment authorization policies,
and as a general matter, part 15 spread spectrum devices are categorically
excluded from routine environmental evaluation for RF exposure prior to
equipment authorization or use. See 47 C.F.R. S: S: 1.1307(b)(1),
2.1093(c), and 15.247(i).
47 C.F.R. S: 15.247(b)(4). As explained by CoachComm, the peak output
powers of the initial and substitute RF modules are 69 mW and 60 mW,
respectively. Because the directional corner reflector antenna has a gain
of 9 dBi, however, the one watt power limit must be derated to reflect the
coverage of a 6 dBi antenna. Both modules are below the derated limit of
500 mW (-3 dB =10 log (X mW/1000 mW), where X equals a maximum power of
500 mW). See LOI Response at 5.
See LOI Response at 5.
Id. at 4.
47 U.S.C. S: 302a(b).
A "radiofrequency device" is "any device which in its operation is capable
of emitting radio frequency energy by radiation, conduction, or other
means." 47 C.F.R. S: 2.801.
47 C.F.R. S: 2.803(a)(1).
An "intentional radiator" is "any device that intentionally generates
radio frequency energy by radiation or induction." 47 C.F.R. S: 15.3(o).
47 C.F.R. S: 15.201(b). Section 2.803(e)(4) of the Rules, 47 C.F.R. S:
2.803(e)(4), defines "marketing" as the "sale or lease, or offering to
sale or lease, including advertising for sale or lease, or importation,
shipment or distribution for the purpose of selling or leasing or offering
for sale or lease." A certification is an equipment authorization issued
by the Commission or one of its designated Telecommunications
Certification Bodies, based on representations and test data submitted by
the applicant. See 47 C.F.R. S:S: 2.907(a) and 2.960.
47 C.F.R. S:S: 2.932 and 2.1043. While arguably a Class II permissive
change may have been acceptable in this circumstance, this fact does not
affect the outcome of this case, as Commission approval of the Class II
permissive change or a new authorization is required prior to marketing.
47 C.F.R. S: 2.909(a). See also Modifications of Parts 2 and 15 Second
Report and Order, 22 FCC Rcd at 8034; Ryzex, Inc., Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 878, 881 P: 11 (Enf. Bur., Spectrum
Enf. Div. 2008), response pending (holding that under Section 2.909(a) of
the Rules, a non-grantee that modifies equipment is responsible for
ensuring that the modified equipment complies with applicable technical
and administrative rules).
Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term `willful', ... means the conscious and
deliberate commission or omission of such act, irrespective of any intent
to violate any provision of this Act or any rule or regulation of the
Commission authorized by this Act ...." See Southern California
Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991).
Section 312(f)(2) 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, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana,
Notice of Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359,
1362 P:10 (2001) ("Callais Cablevision") (issuing a Notice of Apparent
Liability for, inter alia, a cable television operator's repeated signal
47 U.S.C. S: 503(b)(2)(E). See also 47 C.F.R. S: 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
Forfeitures; 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, 17110 (1997), recon. denied, 15 FCC Rcd 303
See, e.g., Gibson Tech. Ed, Inc., Notice of Apparent Liability for
Forfeiture, 20 FCC Rcd 14438, 14441 (Enf. Bur., Spectrum Enf. Div. 2005)
(proposing a $7,000 base forfeiture for the marketing of each unauthorized
model), forfeiture ordered, 21 FCC Rcd 2914 (Enf. Bur., Spectrum Enf. Div.
2006), recon. denied, 21 FCC Rcd 9642 (Enf. Bur. 2006); Bureau
D'Electronique Appliquee, Inc., Notice of Apparent Liability for
Forfeiture, 20 FCC Rcd 3448 (Enf. Bur., Spectrum Enf. Div. 2005) (same),
forfeiture ordered, 20 FCC Rcd 17893 (Enf. Bur., Spectrum Enf. Div. 2005);
Via Technologies, Notice of Apparent Liability for Forfeiture, 19 FCC Rcd
19556 (2004) (Enf. Bur., Spectrum Enf. Div. 2004) (same), forfeiture
ordered, 19 FCC Rcd 24341 (2004).
47 U.S.C. S: 503(b).
47 C.F.R. S:S: 0.111, 0.311 and 1.80.
47 C.F.R. S: 1.80.
Federal Communications Commission DA 08-2042
Federal Communications Commission DA 08-2042