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Federal Communications Commission
Washington, D.C. 20554
File No. EB-09-SE-098
In the Matter of )
NAL/Acct. No. 201032100003
Uniden America Corporation )
Notice of apparent Liability for forfeiture
Adopted: November 3, 2009 Released: November 5, 2009
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Uniden America Corporation ("Uniden") apparently liable for a
forfeiture in the amount of twenty-three thousand dollars ($23,000)
for willful and repeated violation of Section 302(b) of the
Communications Act of 1934, as amended ("Act") and Section 2.803(g) of
the Commission's Rules ("Rules"). The noted apparent violations
involve Uniden's marketing of non-compliant General Mobile Radio
Service ("GMRS") transmitters.
2. Section 95.183(a)(4) of the Rules prohibits GMRS operators from
transmitting coded messages and messages with hidden meanings. The
Enforcement Bureau's Spectrum Enforcement Division ("Division")
received information indicating that Uniden was marketing GMRS
transmitters equipped with voice scrambling technology. After its
receipt of this information, the Division began an investigation. In
pursuance of the investigation, the Division conducted internet
research on April 8, May 5 and May 6, 2009, on Uniden's website,
www.uniden.com. During the internet research, Division staff observed
that Uniden was offering for sale the following GMRS transmitter
models described as having a "Voice Scramble Security" feature: the
Uniden GMR1048-2CK, GMR1448-2CK, GMR1558-2CK, GMR1588-2CK,
GMR-1595-2CK, GMR2059-CK, GMR-2089-2CK and GMR2099-2CK. All of those
transmitters operate both on frequencies assigned to the GMRS and on
frequencies assigned to the Family Radio Service ("FRS"). The
Division's examination of the user manuals for these models indicated
that, for four models (GMR1448-2CK, GMR2059-CK, GMR-2089-2CK and
GMR2099-2CK), voice scrambling operates only on FRS frequencies.
However, for the other four models (GMR1048-2CK, GMR1558-2CK,
GMR1588-2CK and GMR-1595-2CK), the user manuals did not indicate that
voice scrambling is limited to FRS frequencies.
3. The Division directed a letter of inquiry ("LOI") to Uniden on June
25, 2009. Uniden responded on August 24, 2009. In its response, Uniden
stated that its voice scrambling feature is commonly called voice
inversion, which is "a process that interchanges high and low speech
frequencies by removing the carrier frequency and [transmitting] only
one sideband in a communications link. This renders the speech
unintelligible unless received by a device capable of replacing the
carrier frequency exactly."
4. Uniden's LOI response indicates that it began marketing the following
transmitter models on or before November 1, 2005: GMR1048-2CK,
GMR1558-2CK, GMR1588-2CK and GMR-1595-2CK (collectively designated by
Uniden as "UAC Products"), which were manufactured at its factory in
China. The GMR1048-2CK appears to be certified under the FCC ID
AMUOT016; the GMR1558-2CK under the FCC ID AMWUT017; and the
GMR1588-2CK and GMR-1595-2CK under the FCC ID AMUOT018. All of
Uniden's UAC Products were equipped with a voice scrambling feature
which was available on GMRS frequencies. Uniden's Personal Telephone
Communications ("PTC") Division, which sells to major retailers and
distributors, sold and distributed large quantities of UAC Products
during 2006 and 2007. Uniden states that initially it believed its UAC
Products were compliant with the Commission's Rules but it revisited
the issue after one of the Telecommunications Certification Bodies
("TCBs") it used for testing its devices expressed concern in mid-2006
about the voice scrambling feature. On August 24, 2006, Uniden
consulted Commission staff and received a "verbal clarification that
voice inversion scrambling on GMRS channels" is not permitted by the
Commission's Rules. Uniden states that Commission staff requested that
it make an official inquiry through the FCC's Knowledge Database
("KDB") system. On October 1, 2006, Uniden states that it received a
newsletter from another of the TCBs that it used for testing which
included a clarification consistent with the staff opinion. On April
16, 2007, the Commission's staff published an interpretation of its
rules advising that voice scrambling constitutes coded messaging and,
therefore, is not allowed for GMRS devices. Uniden states that, by
this date, it had discontinued the manufacture of the UAC Products and
replaced them with models that did not have the voice inversion
feature of the UAC products. Uniden acknowledges, however, that its
PTC Division "continued to sell through [its] inventory of UAC
Products until it was depleted in December 2007." Uniden also
indicates that its Product Service and Support (PSS) Division, which
sells exclusively to online customers, did not receive notice that the
UAC Products were being discontinued and continued to sell small
quantities of those devices during 2008 and 2009.
5. Uniden filed supplementary LOI responses on September 22 and October
7, 2009. Uniden argues in the latter response that that the following
factors mitigate its violations: its efforts to comply with the Rules
"in the face of strong competitive pressures"; its resulting loss of
market share; the small quantities of UAC devices marketed during 2008
and 2009; Uniden's efforts to obtain a rule clarification; and its
history of compliance. Uniden contends that $7,000 would be the
appropriate base forfeiture amount in this case and that this amount
should be reduced to $3,500.
A. Uniden Apparently Marketed Noncompliant Devices
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 regulations promulgated pursuant to this section." Section
2.803(g) provides in pertinent part:
The provisions in paragraphs (b) through (f) of this section do 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.
Additionally, Section 95.183(a)(4) of the Rules provides in pertinent part
that "[a] station operator must not communicate ... coded messages or
messages with hidden meanings."
7. Uniden admits that it marketed three models of transmitters equipped
with voice scrambling technology that functioned on GMRS frequencies
and, therefore, were not compliant with Section 183(a)(4) of the
Rules. We, accordingly, find that Uniden apparently marketed
non-compliant radio frequency devices, in willful and repeated
violation of Section 302(b) of the Act and Section 2.803(g) of the
B. Proposed Forfeiture
8. 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
9. 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 Uniden'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
10. Under the Forfeiture Policy Statement and Section 1.80 of the Rules,
the base forfeiture amount for the marketing of unauthorized equipment
is $7,000. Uniden apparently marketed three distinct models of GMRS
transmitters that were equipped with the voice scrambling feature: the
model certified under FCC ID AMWUT018 (designated by Uniden as models
GMR1588-2CK and GMR1595-2CK); the model certified under FCC ID
AMWUT017 (designated by Uniden as model GMR1558-2CK);and the model
certified under FCC ID AMUOT016 (designated by Uniden as model
GMR1048-2CK). Uniden argues that mitigating circumstances warrant
limiting the base forfeiture amount to $7,000. The Commission has
found, however, that the marketing of each separate unauthorized or
non-compliant model constitutes a separate violation subject to the
$7,000 base forfeiture amount. We find no basis for departing from
this precedent in this case. We accordingly conclude that the base
forfeiture amount of $7,000 is apparently warranted for each of
Uniden's three models for a total proposed forfeiture of $21,000.
11. Based on the record before us, and having considered the statutory
factors enumerated above, we believe that an upward adjustment of the
$21,000 base forfeiture amount is warranted here. First, we believe
that an upward adjustment is warranted in view of the substantial
number of non-compliant devices Uniden imported, sold and distributed
in the United States and the fact that the violations continued over a
significant period. Although Uniden argues that that it marketed only
a small number of UAC Products in 2008 and 2009, as noted above, we
can also consider Uniden's earlier conduct in determining the
appropriate forfeiture amount. Uniden sold a very substantial number
of UAC Products during 2006 and 2007, which warrants an upward
adjustment. Further, we take into account Uniden's ability to pay a
forfeiture in determining the appropriate forfeiture amount. As the
Commission made clear in the Forfeiture Policy Statement, large or
highly profitable entities, such as Uniden could expect forfeitures
higher than those reflected in the base amounts. Finally, we find that
Uniden's continued marketing of significant quantities of UAC Products
through the end of 2007, well after Uniden received guidance from
Commission staff that voice scrambling is prohibited in the GMRS, is
egregious. Accordingly, applying the Forfeiture Policy Statement and
statutory factors to the instant case, we conclude that Uniden's
proposed forfeiture should be upwardly adjusted from the base amount
by $10,000 to $31,000.
12. Based on the record before us, and having considered the statutory
factors enumerated above, we also believe that downward adjustment is
also warranted. First, Uniden argues that it has a record of overall
compliance. We agree and find that a downward adjustment of $5,000 is
warranted on this basis. Uniden also argues that its conduct is
mitigated by its efforts to comply with the Rules "in the face of
strong competitive pressures," its resulting loss of market share, and
its efforts to obtain a rule clarification. We find that this
corrective action before the Commission notified Uniden of its
violations warrants a downward adjustment. However, we must also take
into account Uniden's continued marketing, via its PTC Division, of
significant quantities of UAC Products through the end of 2007, well
after Uniden received guidance from Commission staff that voice
scrambling is prohibited in the GMRS, and the continued marketing by
its PSS Division of smaller quantities during 2008 and 2009. Taking
these facts into account, we find that Uniden's corrective action
warrants a downward adjustment of $3,000. Accordingly, applying the
Forfeiture Policy Statement and statutory factors to the instant case,
we conclude that Uniden's proposed forfeiture should be adjusted
downward by a total of $8,000.
13. On the basis of the foregoing, we find that Uniden is apparently
liable for a proposed forfeiture of $23,000.
iV. ordering clauses
14. 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, Uniden, IS
NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount of
twenty-three thousand dollars ($23,000) for marketing non-compliant
GMRS transmitters in willful and repeated violation of Section 302(a)
of the Act and Section 2.803(g) of the Rules.
15. 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, Uniden SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
16. 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. Uniden will also send electronic
notification on the date said payment is made to
17. 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.
18. 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
19. 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 Uniden America Corporation, 4700 Amon
Carter Boulevard, Fort Worth, TX 76155, and to its attorney, Gregg P.
Skall, Womble, Carlyle, Sandridge & Rice, LLC, Seventh Floor, 1401 I
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(g).
47 C.F.R. S: 95.183(a)(4).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Uniden America
Corporation. (June 25, 2009).
Letter from Gregg P. Skall, Counsel for Uniden America Corporation., to
Thomas D. Fitz-Gibbon, Esq., Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (August 24, 2009) ("LOI
LOI Response at 4.
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."
LOI Response at 1-2, 5.
Id. at 1-2.
Id. at 5, Attachment 2. Uniden requested confidential treatment of the
attachments to its LOI Response, including the exact number of GMRS
devices sold and distributed in the United States. Id. at 1. Accordingly,
this information is discussed in an Appendix, which we are treating as
confidential at this time. The request for confidentiality remains
Id. at 2.
Id. at 1-2.
Id. at 3.
Id. See Office of Engineering and Technology KDB Publication number 791760
LOI Response at 3.
Id. at 3, Attachment 2.
Letter from Gregg P. Skall, Counsel for Uniden America Corporation, to
Thomas D. Fitz-Gibbon, Esq., Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (September 2s, 2009) ("Second
Letter from Gregg P. Skall, Counsel for Uniden America Corporation, to
Marlene H. Dortch Secretary,, Federal Communications Commission (October
7, 2009) ("Third LOI Response"), at 2-3
Id. at 2-3
Id. at 3.
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).
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 for Forfeiture, 21 FCC Rcd 1820,
1825 (2006), forfeiture ordered, Forfeiture Order, 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, 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 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)
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087,
17113 (1997) ("Forfeiture Policy Statement"), recon. denied, 15 FCC Rcd
47 C.F.R. S: 1.80.
Third LOI Response at 3.
See, e.g., San Jose Navigation, Inc., Notice of Apparent Liability for
Forfeiture, 21 FCC Rcd 2873 (2006), forfeiture ordered, Forfeiture Order,
22 FCC Rcd 1040 (2007) ("San Jose"); Behringer, 21 FCC Rcd at 1827; ACR
Electronics, Inc., Notice of Apparent Liability for Forfeiture, 19 FCC Rcd
22293, 22302 (2004), forfeiture ordered, 21 FCC Rcd 3698 (2006); Samson
Technologies, Inc., Notice of Apparent Liability for Forfeiture, 19 FCC
Rcd 4221, 4225 (2004), consent decree ordered, 19 FCC Rcd 24509 (2004).
See, e.g., San Jose, 21 FCC Rcd at 2876 (upwardly adjusting a proposed
forfeiture based on the volume of non-compliant devices distributed, and
the three-year span in which such devices were marketed); B.E.A., 20 FCC
Rcd at 3448 (upwardly adjusting a proposed forfeiture based on the volume
of unauthorized devices distributed, and the five-year span in which such
devices were marketed).
The reported revenues for the year ending March 31, 2008, of Uniden's
parent, Uniden Corporation, a Japanese company, were YEN 6,300,000,000
(approximately $710,000,000). Stock Quote and Company Profile,
Specifically, the Commission stated:
[O]n the other end of the spectrum of potential violations, we recognize
that for large or highly profitable communication entities, the base
forfeiture amounts ... are generally low. In this regard, we are mindful
that, as Congress has stated, for a forfeiture to be an effective
deterrent against these entities, the forfeiture must be issued at a high
level .... For this reason, we caution all entities and individuals that,
independent from the uniform base forfeiture amounts ..., we intend to
take into account the subsequent violator's ability to pay in determining
the amount of a forfeiture to guarantee that forfeitures issued against
large or highly profitable entities are not considered merely an
affordable cost of doing business. Such large or highly profitable
entities should expect in this regard that the forfeiture amount set out
in a Notice of Apparent Liability against them may in many cases be above,
or even well above, the relevant base amount.
Forfeiture Policy Statement, 12 FCC Rcd at 17099-100.
47 C.F.R. S: 0.111, 0.311 and 1.80.
(Continued from previous page)
Federal Communications Commission DA 09-2374
Federal Communications Commission DA 09-2374