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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Sennheiser Electronic Corporation ) File No. EB-08-SE-659
) NAL/Acct. No. 200932100056
) FRN 0007220122
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 7, 2009 Released: May 11, 2009
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture and Order ("NAL"),
we find Sennheiser Electronic Corporation ("Sennheiser") 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 Section 2.803(a)
of the Commission's Rules ("Rules"). The apparent violation involves
Sennheiser's marketing of unauthorized radio frequency devices.
2. In July 2008, the Enforcement Bureau ("Bureau") Spectrum Enforcement
Division ("Division") began an investigation into Sennheiser's
marketing of wireless microphones. In a letter of inquiry ("LOI")
dated August 15, 2008, the Division instructed Sennheiser to provide
specific information regarding the manufacture, marketing, and the
certification status of the wireless microphone systems it sells. In
its September 15, 2008, response to the LOI, Sennheiser indicates
that, while preparing its response, it discovered that one of its
wireless microphones did not have a valid certification.
3. By LOI dated February 9, 2009, the Division sought further information
regarding the uncertified wireless microphone that Sennheiser
referenced in its first LOI response. In its response, Sennheiser
indicates that, within the past year, it manufactured and sold units
of an uncertified wireless microphone in the United States.
Sennheiser's response also indicates that it has discontinued
marketing the device in the United States. Sennheiser notes that the
device was assigned several model numbers according to the frequencies
on which it operates. Sennheiser asserts that the company
inadvertently allowed a pending application for certification to
lapse, while its marketing department assumed the application had been
granted. It states that the violation was "related wholly to the
paperwork, not to the underlying properties of the device." Sennheiser
notes that it has changed its procedures to ensure that a similar
error does not happen in the future.
A. Marketing of Unauthorized Equipment
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 Rules provides 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 radio frequency 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 [emphasis added].
As intentional radiators, wireless microphones are required by Section
15.201 of the Rules to be approved prior to marketing through the
equipment certification procedures described in Sections 2.1031 - 2.1060
of the Rules.
5. Sennheiser admits that it manufactured and sold units of a wireless
microphone in the United States within the past year. Sennheiser
further admits that the device was not certified prior to marketing in
the United States. Accordingly, we find that Sennheiser apparently
marketed uncertified radio frequency devices in willful and repeated
violation of Section 302(b) of the Act and Section 2.803(a) of the
B. Proposed Forfeiture
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 a Notice of Apparent Liability. Section 503(b)(6) does
not, however, bar the Commission from assessing whether Sennheiser'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 Sennheiser's conduct commenced more than one year ago, the
forfeiture amount we propose herein relates only to Sennheiser's
apparent violations that have occurred within the past year.
8. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for the marketing of
unauthorized equipment is $7,000. At the time of Sennheiser's apparent
violation, Section 503(b)(2)(D) of the Act authorized 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.
9. Based on the record before us, and having considered the statutory
factors set forth above, we conclude that no upward or downward
adjustment of the forfeiture from the base amount of $7,000 is
warranted. Concerning Sennheiser's claim that it inadvertently
marketed the device prior to grant of certification, the Commission
has long held that a downward adjustment of a forfeiture is not
justified where violators claim their actions or omissions were due to
inadvertent errors. Accordingly, we conclude that Sennheiser is
apparently liable for a $7,000 forfeiture for marketing an uncertified
radio frequency device in willful and repeated violation of Section
302(b) of the Act and Section 2.803(a) of the Rules.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Section 1.80 of the
Commission's Rules, Sennheiser Electronic Corporation., is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
seven thousand dollars ($7,000) for marketing an uncertified radio
frequency device in willful and repeated violation of Section 302(a)
of the Act and Section 2.803(a) of the Rules.
11. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Sennheiser Electronic
Corporation, SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
12. 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. Sennheiser will also send electronic
notification on the date said payment is made to Neal.McNeil@fcc.gov.
13. 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.
14. 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 ("GAAP"); 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 documentation submitted.
15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to John Falcone, President and CEO,
Sennheiser Electronic Corporation, 1 Enterprise Drive, Old Lyme,
Connecticut 06371 and to Mitchell Lazarus, Fletcher Heald & Hildreth
P.L.C., 11th Floor, 1300 North 17th Street, Arlington, Virginia 22209.
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).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to John Falcone,
President and CEO, Sennheiser Electronic Corporation. (August 15, 2008).
Letter from Mitchell Lazarus, Counsel for Sennheiser Electronic
Corporation, to Marlene H. Dortch, Esq., Secretary, Federal Communications
Commission (September 15, 2008) ("LOI Response"), at 3.
Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, to John Falcone, President and CEO,
Sennheiser Electronic Corporation. (February 9, 2009).
Letter from Mitchell Lazarus, Counsel for Sennheiser Electronic
Corporation, to Marlene H. Dortch, Secretary, Federal Communications
Commission. (February 24, 2009) ("Second LOI Response"). Pursuant to
Section 0.459 of the Rules, 47 C.F.R. S: 0.459, Sennheiser requests
confidentiality of certain information in its Second LOI Response,
including the number of units of the uncertified wireless microphone
manufactured and distributed in the U.S. and the dates on which the device
was manufactured and distributed, asserting that disclosure of this
information would cause substantial competitive harm. Id. at 3. Although
we do not rule on Sennheiser's confidentiality request at this time, we
will not disclose this information herein.
Specifically, Sennheiser states that this device was marketed under the
following three model numbers: SKM3072-U 470/600, SKM3072-U 574/702, and
SKM3072-U 678/814. Id. at Attachment A.
Id. at 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."
An intentional radiator is "[a] device that intentionally generates and
emits radio frequency energy by radiation or induction." 47 C.F.R. S: 15.3
47 C.F.R. S: 15.201.
A certification is an equipment authorization issued by the Commission,
based on representations and test data submitted by the applicant. See 47
C.F.R. S: 2.907(a).
47 C.F.R. S:S: 2.1031 - 2.1060.
Marketing, as defined in 47 C.F.R. S: 2.803(e)(4), "includes sale or
lease, or offering for 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."
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, 4388
(1991) ("Southern California").
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 (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).
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
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 for Forfeiture, 21 FCC Rcd 1820,
1825 (2006), forfeiture ordered, 22 FCC Rcd. 1051 (2007) (forfeiture
paid); Globcom, Inc. d/b/a Globcom Global Communications, Notice of
Apparent Liability for Forfeiture, 18 FCC Rcd 19893, 19903 (2003),
forfeiture ordered, 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 for Forfeiture, 20 FCC Rcd
3445, 3447-48 (Enf. Bur., Spectrum Enf. Div. 2005), forfeiture ordered, 20
FCC Rcd 17893 (Enf. Bur., Spectrum Enf. Div. 2005) (forfeiture paid).
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 (1997), recon. denied 15 FCC Rcd 303 (1999).
47 C.F.R. S: 1.80.
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 took effect
September 2, 2008. See 73 Fed. Reg. 44663-5. Sennheiser's apparent
violations occurred prior to this date and therefore are subject to the
old statutory forfeiture limits.
See e.g., PJB Communications of Virginia, Inc., Memorandum Opinion and
Order, 7 FCC Rcd 2088 (1992); Southern California, 6 FCC Rcd at 4387.
47 U.S.C. S: 503(b), 47 C.F.R. S: 1.80.
Federal Communications Commission DA 09-1031
Federal Communications Commission DA 09-1031