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Federal Communications Commission
Washington, D.C. 20554
File No. EB-06-SE-418
In the Matter of )
NAL/Acct. No. 200832100018
DBK Concepts, Inc. )
FRN No. 0017488107
Notice of apparent Liability for forfeiture
Adopted: February 27, 2008 Released: February 29, 2008
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
DBK Concepts, Inc. ("DBK") apparently liable for a forfeiture in the
amount of fifteen thousand dollars ($15,000) 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 noted apparent violations involve DBK's marketing of
noncompliant portable data terminals ("PDTs").
2. The Enforcement Bureau's Spectrum Enforcement Division ("Division")
received a complaint alleging that DBK had modified PDTs manufactured
by Symbol Technologies, Inc. ("Symbol") by replacing their two
megabytes per second ("mbps") radio assemblies with 11 mbps radio
assemblies without authorization from Symbol. The complaint also
asserted that the PDTs' original labels were affixed to the modified
PDTs and that those labels included information relating to the radio
assemblies originally installed in the PDTs rather than to the
replacement radio assemblies.
3. The PDTs involved in this matter are equipped with internal radio
assemblies which transmit the data collected by the PDTs. Symbol holds
the grants of equipment certification covering the radio assemblies
originally installed in the PDTs involved in this matter. Symbol also
holds grants of equipment certification for the replacement radio
assemblies. The radio assemblies at issue are designated by Symbol as
the LA3021-500, which has a data transmission rate of two mbps, and
the LA4121, which has a data transmission rate of 11 mbps.
4. After its receipt of the complaint, the Division began an
investigation. In pursuance of the investigation, the Division
directed letters of inquiry ("LOIs") to DBK on March 27, August 15,
and December 18, 2007, and February 1, 2008. DBK filed responses on
May 8, September 17, and December 20, 2007, and February 11, 2008,
respectively. DBK is a privately owned company located in Miami,
Florida, and is in the business of repairing and refurbishing PDTs
manufactured by Symbol.
5. DBK's responses indicate that between July 2004 and April 2007, it
replaced the internal radio assemblies of the following Symbol PDTs
with radio assemblies having different FCC ID numbers: LRT3840, PDT
3110, PDT3140, PDT6810, PDT6840, PDT6842, PDT6846, PPT2842, VRC6940,
VRC6946, WWC1040 and WSS1060. DBK replaced the internal radio
assemblies of the PDT6810, PDT6842, PPT2842, VRC6940, and WCC1040 with
the LA4121 radio assembly and replaced the internal radio assembly of
the VRC6946 with the LA3021-500 radio assembly. Replacements of the
internal radio assemblies for the PDT6840, PDT6842, and WSS1060 were
carried out during the period between March and April 2007. For the
remaining nine devices, the replacements were carried out between July
2004 and February 2007.
6. DBK contends that original equipment certifications granted to Symbol
cover the PDTs that DBK has refurbished by replacing their radio
assemblies but does not point to any specific information in the
Commission's equipment authorization data base to support this claim.
The Division's review of the equipment authorization data base finds
no authorization for the installation of the LA4121 radio assembly in
the Symbol PDT6810, PDT6842, PPT2842, VRC6940, or WCC1040. Review of
the equipment authorization data base also finds no authorization for
the installation of the LA3021-500 radio assembly in the Symbol
VRC6946. With regard to the other devices modified by DBK - the
LRT3840, PDT 3110, PDT3140, PDT6840, PDT6846, and WSS1060 - the
Division's review of the equipment authorization data base finds
either that the installation of the replacement radio assembly was
authorized or that there is insufficient information in the equipment
authorization data base to determine whether the installation of the
replacement radio assembly was authorized.
7. DBK admits that Symbol did not authorize it to modify Symbol PDTs. DBK
also admits that "all PDTs included in [the data submitted by DBK]
were sold the same month as the repairs and refurbishments [including
radio assembly replacements] were made."
8. DBK asserts that it did not affix labels "to any devices following
repair or refurbishment" with the exception of labels that "only
indicate the current model number and DBK serial number for tracking
purposes of the refurbished model." Photos provided by the complainant
indicate that DBK pasted new labels showing the model and serial
number on top of the original Symbol labels (obscuring the original
model and serial numbers). DBK states that these photos accurately
represent the labels of devices refurbished by DBK. Question (4) of
the First LOI directed DBK to provide, for each modified PDT, a
reproduction or facsimile of both the original label and any new label
affixed after modification. In response, DBK provides five photocopies
of Symbol labels, all of which appear to be original Symbol labels.
A. Marketing of Unauthorized and Improperly Labeled Devices
9. 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 [that is] 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....
10. DBK installed the LA4121 radio assembly as a replacement radio
assembly in the Symbol PDT6810, PDT6842, VRC6940, WWC1040 and PPT2842
and installed the LA3021-500 radio assembly in the VRC6946. Although
the LA3021-500 and LA4121 radio assemblies are certified, the
Division's review of the equipment authorization data base indicates
that there is apparently no authorization for the installation of the
LA3021-500 radio assembly in the VRC6946 or for the installation of
the LA4121 radio assembly in the other five devices. We conclude,
therefore, that the modified Symbol PDT6810, PDT6842, VRC6940,
VRC6946, WWC1040 and PPT2842 are apparently unauthorized devices and,
11. Section 2.909(a) of the Rules provides in pertinent part:
If the radio frequency equipment is modified by any party other than the
grantee and that party is not working under the authorization of the
grantee pursuant to Sec. 2.929(b), the party performing the modification
is responsible for compliance of the product with the applicable
administrative and technical provisions in this chapter.
12. DBK modified twelve Symbol PDT models by replacing their radio
assemblies. Because DBK is not the grantee of the equipment
certifications for the devices at issue and was not working under the
authorization of the grantee, we find that, under Section 2.909(a) of
the Rules, when DBK modified the Symbol PDTs, it became the party
responsible for the compliance of those PDTs with the applicable
technical and administrative provisions, including the labeling
requirements of Sections 2.909(d) and 2.925(a)(1) of the Rules as well
as Section 302(b) of the Act and Section 2.803(a)(1) of the Rules. .
13. Section 2.909(d) of the Rules provides:
If, because of modifications performed subsequent to authorization, a new
party becomes responsible for ensuring that a product complies with the
technical standards and the new party does not obtain a new equipment
authorization, the equipment shall be labeled, following the
specifications in S:2.925(d), with the following: `This product has been
modified by [insert name, address and telephone number of the party
performing the modifications].'
Since DBK did not obtain its own certifications to cover the modified
PDTs, it was required to label the devices as specified in Section
2.909(d). DBK admits that it did not affix any labels to refurbished PDTs
except for labels indicating new model and serial numbers. We find,
accordingly, that DBK did not label the twelve modified PDT models as
specified by Section 2.909(d) and that the devices are, therefore,
14. Section 2.925(a)(1) of the Rules provides:
Each equipment covered in an application for equipment authorization shall
bear a nameplate or label listing the following: (1) FCC Identifier
consisting of the two elements in the exact order specified in S:2.926.
The FCC Identifier shall be preceded by the term FCC ID in capital letters
on a single line, and shall be of a type size large enough to be legible
without the aid of magnification.
DBK admits that, except for labels indicating new model and serial
numbers, it did not affix any labels to the refurbished PDTs. It is,
therefore, clear that the labels on the modified PDTs do not contain the
correct FCC ID number. We find, accordingly, that DBK did not label the
twelve modified PDT models as specified by Section 2.925(a)(1) and that
the devices are, therefore, noncompliant.
15. In sum, twelve PDT models that DBK modified were noncompliant because
they were not labeled as specified by Sections 2.909(d) and
2.925(a)(1) of the Rules and six of these models were also
noncompliant because they were unauthorized.
16. DBK admits that it sold the PDTs that it modified by replacing their
radio assemblies. We find, on the basis of the foregoing, that DBK
apparently marketed twelve models of noncompliant radio frequency
devices, in willful and repeated violation of Section 302(b) of the
Act and Section 2.803(a) of the Rules.
B. Proposed Forfeiture
17. 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
18. 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 DBK'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 DBK's
conduct has continued over a period that began during 2004, the
forfeiture amount we propose herein relates only to DBK's apparent
violations that have occurred within the past year.
19. 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. In this case, within the past year, DBK marketed two PDT
models that were improperly labeled, the modified Symbol PDT6840 and
Symbol WSS1060, and one PDT model that was both unauthorized and
improperly labeled, the modified Symbol PDT6842.. DBK's marketing of
each of these models is a separate violation. We find that the base
forfeiture amount of $7,000 is apparently warranted for each of the
three models for a total of $21,000. The base forfeiture amount is
typically imposed for marketing devices that are not in compliance
with applicable technical requirements or are not authorized by an
equipment authorization. In this case, however, two models were not
properly labeled as required by Sections 2.909(d) and 2.925(a)(1) of
the Rules. Because marketing an improperly labeled device is not as
significant a violation as marketing an unauthorized or technically
non-compliant device, we find that a downward adjustment of the base
forfeiture amount from $7,000 to $4,000 is warranted for each of the
two violations that involve only the marketing of improperly labeled
devices. The full $7,000 base forfeiture amount is warranted for the
violation involving the marketing of the Symbol PDT6842, which was
both unauthorized and improperly labeled. Thus, we propose a total
forfeiture amount of $15,000.
20. DBK also marketed four other improperly labeled PDT models -- the
modified Symbol LRT3840, PDT3110, PDT3140, and PDT6846 -- and five
other PDT models that were both unauthorized and improperly labeled --
the modified Symbol PDT6810, PPT2842, VRC6940, VRC6946 and WWC1040.
Although we believe that a forfeiture would be warranted for these
violations, we note that the statute of limitations for proposing a
forfeiture for these violations is one year from the date of
violations and has expired. Accordingly, we will not propose a
forfeiture for marketing these models. We find, however, that an
admonishment is warranted for these violations.
iV. ordering clauses
21. 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, DBK Concepts,
Inc., IS NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of fifteen thousand dollars ($15,000) for marketing two PDT
models that were improperly labeled and one PDT model that was both
unauthorized and improperly labeled, in willful and repeated violation
of Section 302(a) of the Act and Section 2.803(a) of the of the Rules.
22. IT IS FURTHER ORDERED that DBK IS ADMONISHED for marketing four PDT
models that were improperly labeled and five PDT models that were both
improperly labeled and unauthorized, in violation of Section 302(a) of
the Act and Section 2.803(a) of the of the Rules.
23. 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, DBK SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
24. 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.
25. 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.
26. 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
27. 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 DBK Concepts, Inc., 12905 S.W. 129th
Avenue, Miami, FL 33186, and to its attorney, Mitchell F. Brecher,
Greenberg Traurig LLP, 2101 L Street Avenue, NW, Suite 1000,
Washington, DC 20037.
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).
PDTs are hand held devices that collect data. They are primarily used to
FCC IDs H9P3840, H9P3110, H9P3140, H9P6810, H9P24005AZL, H9PLA3021-500,
H9PLA4121, and H9PWWC1049.
FCC ID H9PLA3021-500 and FCC ID H9PLA4121.
See Letters from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to DBK, Inc. (March
27, 2007) ("First LOI") and Mitchell F. Brecher, Counsel for DBK (August
15, and December 18, 2007, and February 1, 2008) ("Second, Third and
Fourth LOIs," respectively).
Letters from Mitchell F. Brecher., Counsel for DBK, Inc., to Thomas D.
Fitz-Gibbon, Esq., Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission (May 8, 2007) ("First LOI Response") and
Marlene H. Dortch, Secretary, Federal Communications Commission,
(September 17, and December 20, 2007, and February 11, 2008) ("Second,
Third and Fourth LOI Responses," respectively).
First LOI Response at 1.
See First LOI at 4-5, Second LOI Response at 4-5 and Fourth LOI Response
at 2-3. After modification DBK designated the LRT3840 as the "LRT3800";
the PDT3140 as the "PDT3110"; the PDT6810 as the "PDT6840" or "PDT6846";
the PDT6840 as the "PDT6842" or "PDT6846"; the PDT6842 as the "PDT6840" or
"PDT6846"; the PDT6846 as the "PDT6840" or "PDT6842"; the PPT2842 as the
"PPT2846"; the VRC6940 as the "VRC6946"; the VRC6946 as the "VRC6940"; the
WWC1040 as the "WSS1060"; and the WSS1060 as the "WWS1040". The
post-modification designation of the PDT3110 is unclear because of an
apparent typographical error. Fourth LOI Response at 2-3.
Id. at 2-3.
Id. at 3.
Id. at 2-3.
First LOI Response at 5, Second LOI Response at 3.
Third LOI Response at 2.
Id. at 3-4.
First LOI Response at 3.
Second LOI Response at 5.
Third LOI Response at 3.
First LOI at 5.
See Second LOI Response, Attachment 2.
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."
47 C.F.R. S: 2.909(a).
These models are set forth in note 10, above.
47 C.F.R. S:S: 2.909(d) and 2.25(a)(1).
The correct FCC ID number is the FCC ID number of the replacement internal
radio assembly See Unlicensed Modular Transmitter Approval, Public Notice,
15 FCC Rcd 25415 (OET 2000).
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:
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)(D), 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, Forfeiture Order, 22 FCC Rcd. 1051 (2007); 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 (1986); Eastern Broadcasting
Corp., Memorandum Opinion and Order, 10 FCC 2d 37 (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) ("Bureau D'Electronique Appliquee").
12 FCC Rcd 17087, 17113 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 C.F.R. S: 1.80.
DBK designated these devices after modification, respectively, as the
PDT6842 or PDT6846; and the WWS1040.
DBK designated this device after modification as the PDT6846.
See Samson Technologies, Inc., Notice of Apparent Liability, 19 FCC Rcd
4221, 4225 (2004).
See Ryzex, Inc., Notice of Apparent Liability, DA 08-167 (Enf. Bur.,
Spectrum Enf. Div., rel. January 29, 2008).
See 47 U.S.C. S: 503(b)(6); 47 C.F.R. S: 1.80(c)(3).
47 C.F.R. S: 0.111, 0.311 and 1.80.
(Continued from previous page)
Federal Communications Commission DA 08-472
Federal Communications Commission DA 08-472