Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Power 7 Technology Corporation ) File No. EB-08-SE-597
) NAL/Acct. No. 200932100047
) FRN 0015078983
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 17, 2009 Released: February 19, 2009
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture and Order ("NAL"),
we find Power 7 Technology Corporation ("Power 7") apparently liable
for a forfeiture in the amount of twenty-five thousand dollars
($25,000) 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
Power 7's marketing of unauthorized radio frequency devices.
2. In March 2008, the FCC's Enforcement Bureau ("Bureau") received a
complaint alleging that the emissions of the Macally FM Cup Automobile
Full Channel FM Transmitter and iPOD Charger ("FM Cup Transmitter")
exceed the limit specified in Section 15.239(b) of the Rules for
intentional radiators operating in the 88-108 MHz band. The Bureau's
Spectrum Enforcement Division ("Division") subsequently began an
investigation of the FM Cup Transmitter. As part of the investigation,
the FCC's Office of Engineering and Technology ("OET") Laboratory
tested the FM Cup Transmitter on April 23, 2008. The tests confirmed
that the emissions from the FM Cup Transmitter exceeded the limit
specified in Section 15.239(b) of the Rules. In pursuance of its
investigation, the Division directed a letter of inquiry ("LOI") dated
June 18, 2008, to Macally USA Mace Group, Inc. ("Macally"). In its
July 17, 2008, response to the LOI, Macally identified Power 7 as the
manufacturer of the FM Cup Transmitter from April 2007 to the present.
3. As an intentional radiator, the FM Cup Transmitter was 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. Commission records indicate that Power 7 did not
obtain an equipment certification for the FM Cup Transmitter until
July 11, 2008.
4. By LOI dated July 29, 2008, the Division initiated an investigation
into whether Power 7 marketed an unauthorized radio frequency device
-- specifically, the FM Cup Transmitter -- in the United States. In
its response, Power 7 states that it manufactured 66,750 FM Cup
Transmitters for Macally and shipped them between March 29, 2007, and
April 12, 2008. Power 7 states that the reason it did not obtain a
certification for the FM Cup Transmitter until July 11, 2008, is that
the Project Manger "was under pressure for product delivery, and was
not aware of the FCC requirement status." Additionally, Power 7
asserts that it modified the FM Cup Transmitter to comply with Section
15.239(b) of the Rules and that all units shipped during or after
November 2007 comply with Section 15.239(b).
A. Marketing of Unauthorized and Non-Compliant Equipment
5. 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].
In addition, Section 15.239(b) of the Rules provides that:
The field strength of any emissions within the permitted 200 kHz band
shall not exceed 250 microvolts/meter at 3 meters. The emission limit in
this paragraph is based on measurement instrumentation employing an
average detector. The provisions in S: 15.35 for limiting peak emissions
6. Power 7 admits that it manufactured 66,750 FM Cup Transmitters and
shipped them to Macally between March 29, 2007 and April 12, 2008;
that those devices were uncertified; and that all FM Cup Transmitters
shipped between March and October 2007 were non-compliant with the
emissions limit of 15.239(b) of the Rules.
7. We find, therefore, that Power 7 apparently marketed 66,750 FM Cup
Transmitters that were uncertified. We also find that the devices
marketed prior to November 2007 were non-compliant with the emissions
limit of Section 15.239(b) of the Rules.
8. We, accordingly, find that Power apparently marketed uncertified and
non-compliant 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
9. 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
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 a Notice of Apparent Liability. Section 503(b)(6) does
not, however, bar the Commission from assessing whether Power 7'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 Power 7's conduct has continued over a period that began on March
29, 2007, the forfeiture amount we propose herein relates only to
Power 7's apparent violations that have occurred within the past year.
11. 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 of the Rules, the
base forfeiture amount for the marketing of unauthorized or
non-compliant equipment is $7,000. At the time of Power 7's apparent
violations, we were authorized under Section 503(b)(2)(D) of the Act
to assess an entity that is neither a common carrier, a broadcast
licensee nor a cable operator a forfeiture of up to $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.
12. Based on the record before us, and having considered the statutory
factors enumerated above, we conclude that a significant upward
adjustment of the $7,000 base forfeiture amount is warranted in view
of the substantial number of uncertified and non-compliant FM Cup
Transmitters that Power 7 marketed in the United States and the fact
that the violations continued over a 12-month period. Accordingly,
applying the Forfeiture Policy Statement and statutory factors to the
instant case, we conclude that Power 7 is apparently liable for a
IV. ORDERING CLAUSES
13. 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, Power 7 Technology Corporation., is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
twenty-five thousand dollars ($25,000) for marketing radio frequency
devices that were uncertified and non-compliant in willful and
repeated violation of Section 302(a) of the Act and Section 2.803(a)
of the Rules.
14. 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, Power 7 Technology
Corporation, SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
15. 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. Power 7 will also send electronic
notification on the date said payment is made to
16. 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.
17. 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.
18. 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 S.T. Wang, Vice General Manager, Power
7 Technology Corporation, c/o Part II Research, Inc., 4601 E. Airport
Drive, Ontario, CA 91761 and by Federal Express to S.T. Wang, Vice
General Manager, Power 7 Technology Corporation, 2F, No. 176 Jian-Yi
Rd., Chung Ho City, Taipeh, Taiwan 235.
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).
See 47 C.F.R. S: 15.239(b).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Macally. (June
Letter from Mike Chen, President, Macally USA Mace Group, Inc., to
Spectrum Enforcement Division, Enforcement Bureau, Federal Communications
Commission. (July 17, 2008).
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.
Power 7 was granted an equipment certification for the FM Cup Transmitter
under FCC ID # TQN-FMCUPB0807 on July 11, 2008.
Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, to Power 7 Technology Corporation. (July 29,
Letter from ST Wang, Vice General Manager, Power 7 Technology
Corporation., to Federal Communications Commission, Enforcement Bureau,
Spectrum Enforcement Division (undated; received August 29, 2008) ("LOI
LOI Response at 1. Although Power 7 maintains that it was not aware of the
requirement that it obtain a certification for the FM Cup Transmitter
prior to marketing in the U.S., we note that it holds other FCC
certifications and therefore was apparently familiar with the FCC
equipment authorization requirements.
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."
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 (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). 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. 21 FCC Rcd 1820, 1827, P: 20 (2006), response pending; Globcom,
Inc. d/b/a Globcom Global Communications, 18 FCC Rcd 19893, 19903 P: 23
(2003), forfeiture ordered, 21 FCC Rcd 4710 (2006); Roadrunner
Transportation, Inc., 15 FCC Rcd 9669, 9671-71 P: 8 (2000); Cate
Communications Corp., 60 RR 2d 1386, 1388 P: 7 (1986); Eastern
Broadcasting Corp., 10 FCC 2d 37, 37-38 P: 3 (1967), recon. den.,11 FCC 2d
193 (1967); Bureau D'Electronique Appliquee, Inc., 20 FCC Rcd 3445,
3447-48 P:P: 8-9 (Enf. Bur., Spectrum Enf. Div., 2005), forfeiture
ordered, 20 FCC Rcd 17893 (Enf. Bur., Spectrum Enf. Div., 2005) ("Bureau
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, on three occasions, amended
Section 1.80(b)(3) of the Rules, 47 C.F.R. S: 1.80(b)(3), 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, Order, 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, Order, 19 FCC Rcd 10945 (2004) (adjusting the maximum statutory
amounts from $11,000/$87,500 to $11,000/$97,500); and 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 and applies to
violations that occur after that date. See 73 Fed. Reg. 44663-5. Power 7's
apparent violations occurred before September 2, 2008, and are therefore
subject to the $11,000/$97,500 forfeiture limits.
See, e.g., San Jose Navigation, Inc., Notice of Apparent Liability, 21 FCC
Rcd 2873, 2877-8, P: 15 (2006) (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), forfeiture ordered,
22 FCC Rcd 1040 (2007), recon. pending; Abocom Systems, Inc., Memorandum
Opinion and Order, 22 FCC Rcd 7448, 7450-1 (Enf. Bur. 2007) (upwardly
adjusting a forfeiture based on the large number of non-compliant devices
distributed, the 17 month span during which the devices were marketed, and
ability to pay); and Bureau D'Electronique Appliquee, 20 FCC Rcd at 3448,
P: 9 (upwardly adjusting a proposed forfeiture based on the volume of
unauthorized devices distributed, and the five-year span in which such
devices were marketed).
47 U.S.C. S: 503(b), 47 C.F.R. S: 1.80.
Federal Communications Commission DA 09-253
Federal Communications Commission DA 09-253