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Federal Communications Commission
Washington, D.C. 20554
) File No.: EB-06-SE-199
In the Matter of
) Acct. No.: 200732100022
Hawking Technologies, Inc.
) FRN: 0012065009
Adopted: January 12, 2012 Released: January 13, 2012
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") of the Federal
Communications Commission ("Commission") and Hawking Technologies,
Inc. ("Hawking"). The Consent Decree settles an enforcement proceeding
against Hawking regarding Hawking's compliance with section 302(b) of
the Communications Act of 1934, as amended (the "Act"), and sections
2.803(a) and 15.204(d) of the Commission's rules in connection with
its marketing of certain external radio frequency power amplifiers.
2. The Bureau and Hawking have negotiated the Consent Decree that
resolves this matter. A copy of the Consent Decree is attached hereto
and incorporated herein by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and settling the enforcement proceeding.
4. In the absence of material new evidence relating to this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether Hawking possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to sections 4(i) and 503(b)
of the Act, and sections 0.111 and 0.311 of the rules, the Consent
Decree attached to this Order IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned enforcement proceeding
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Frank Lin, President, Hawking Technologies, Inc., 36
Hammond, Suite 150, Irvine, CA 92618, and Lewis H. Goldman, Esq.,
Counsel for Hawking Technologies, Inc., Lewis H. Goldman, P.C., 45
Dudley Court, Bethesda, MD 20814.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-06-SE-199
Hawking Technologies, Inc. ) Acct. No. 200732100022
Irvine, California ) FRN No. 0012065009
The Enforcement Bureau of the Federal Communications Commission and
Hawking Technologies, Inc., by their authorized representatives, hereby
enter into this Consent Decree for the purpose of settling the
Commission's enforcement proceeding regarding Hawking's compliance with
section 302(b) of the Communications Act of 1934, as amended, and sections
2.803(a) and 15.204(d) of the Commission's rules, in connection with its
marketing of the Hawking Model HSB2 amplifier.
1. For the purposes of this Consent Decree, the following definitions
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C.
S: 151 et seq.
b. "Adopting Order" means an order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
c. "Bureau" means the Enforcement Bureau of the Federal Communications
d. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
e. "Communications Laws" means collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to
which Hawking is subject by virtue of its business activities,
including but not limited to, the Equipment Marketing Rules.
f. "Compliance Plan" means the compliance obligations and compliance
program described in this Consent Decree at paragraph 8.
g. "Covered Employee" means all employees and agents of Hawking who
perform duties, or supervise, oversee, or manage the performance of
duties, that relate to Hawking's responsibilities under the Equipment
h. "Effective Date" means the date on which the Bureau releases the
i. "Enforcement Proceeding" means the Bureau's Investigation, culminating
in the issuance of the Notice of Apparent Liability for Forfeiture and
the Forfeiture Order.
j. "Equipment Marketing Rules" means section 302(b) of the Act and
sections 2.803, 2.925, and 15.204(d) of the Rules and other
Communications Laws governing the marketing of radio frequency devices
within the United States and its territories.
k. "Forfeiture Order" means Hawking Technologies, Inc., 24 FCC Rcd 4252
l. "Hawking" means Hawking Technologies, Inc. and its
predecessors-in-interest and successors-in-interest.
m. "Investigation" means the investigation commenced by the Bureau's June
26, 2006 letter of inquiry regarding whether Hawking violated the
Equipment Marketing Rules in connection with its marketing of the
Hawking Model HSB2 amplifier.
n. "Notice of Apparent Liability for Forfeiture" or "NAL" means Hawking
Technologies, Inc., 22 FCC Rcd 7140 (2007).
o. "Parties" means Hawking and the Bureau, each of which is a "Party."
p. "Petition for Reconsideration" means the Petition for Reconsideration
of the Forfeiture Order filed by Hawking on April 30, 2009 seeking
cancellation or reduction of the forfeiture.
q. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
2. In 2006, Hawking marketed the Hawking Model HSB2 external radio
frequency power amplifier for individual sale. External radio
frequency power amplifiers are often used to boost the power of radio
transmitters such as wireless access points. Pursuant to section
302(b) of the Act and section 2.803(a) of the Rules, radio frequency
devices may not be marketed in the United States unless the devices
comply with the applicable technical standards as well as the
administrative requirements relating to equipment labeling and
consumer disclosure. In general, an amplifier can be marketed only
with the system with which it has been approved, and not as a separate
product. An exception to this requirement provides that an amplifier
may be marketed for individual sale if the amplifier is intended for
use with certain Part 15 intentional radiators. Under the exception,
an amplifier marketed for individual sale must be designed so that it
can only be connected to a system with which it has been previously
authorized. Moreover, when an amplifier is marketed for individual
sale (for connection with a previously authorized system), the Rules
require that the outside packaging and user manual include a notice
(i) stating that the amplifier can be used only with a previously
authorized system, and (ii) identifying the previously authorized
system by FCC Identifier.
3. On June 26, 2006, the Bureau issued the letter of inquiry ("LOI") to
Hawking, directing the company to submit a sworn written response to a
series of questions relating to whether Hawking was marketing
unauthorized and non-compliant external radio frequency power
amplifiers, including for individual sale, in contravention of the
Rules. Hawking responded to the LOI on July 11, 2006 ("LOI Response").
In the LOI Response, Hawking stated that it discontinued importing and
marketing the amplifier products upon receipt of the LOI. However, the
Commission found that the marketing of the unauthorized devices
continued after that date, and on April 2, 2007 issued the NAL in the
amount of $50,000 to Hawking. Hawking did not file a response to the
NAL. As a result, the Commission issued the Forfeiture Order on March
31, 2009. On April 30, 2009, Hawking filed the Petition for
Reconsideration of the Forfeiture Order seeking cancellation or
reduction of the forfeiture and arguing that the employee who received
the NAL did not share it with senior management.
III. TERMS OF AGREEMENT
4. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order.
5. Jurisdiction. Hawking agrees that the Bureau has jurisdiction over it
and the matters contained in this Consent Decree, and that the Bureau
has the authority to enter into and adopt this Consent Decree.
6. Effective Date; Violations. The parties agree that this Consent Decree
shall become effective on the Effective Date as defined herein. As of
the Effective Date, the Adopting Order and this Consent Decree shall
have the same force and effect as any other order of the Bureau. Any
violation of the Adopting Order or of the terms of this Consent Decree
shall constitute a separate violation of a Bureau order, entitling the
Bureau to exercise any rights and remedies attendant to the
enforcement of a Commission order.
7. Settlement of Enforcement Proceeding. In express reliance on the
covenants and representations in this Consent Decree, including the
payment of the voluntary contribution, and to avoid further
expenditure of public resources, the Bureau agrees to settle the
Enforcement Proceeding. In consideration for the settlement of the
Enforcement Proceeding, Hawking agrees to the terms, conditions, and
procedures contained herein. The Bureau further agrees that, in the
absence of new material evidence, the Bureau will not use the facts
developed in this Enforcement Proceeding through the Effective Date,
or the existence of this Consent Decree, to institute on its own
motion any new proceeding, formal or informal, or take any action on
its own motion against Hawking concerning the matters that were the
subject of the Enforcement Proceeding. The Bureau also agrees that it
will not use the facts developed in the Enforcement Proceeding through
the Effective Date, or the existence of this Consent Decree, to
institute on its own motion any new proceeding, formal or informal, or
take any action on its own motion against Hawking with respect to
Hawking's basic qualifications, including its character
qualifications, to be a Commission licensee or hold Commission
licenses or authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, Hawking shall within sixty (60) calendar days after the
Effective Date develop and implement a Compliance Plan related to
future compliance with the Communications Laws, including the
Equipment Marketing Rules, and with the terms and conditions of this
Consent Decree. The Compliance Plan shall include, without limitation,
the following components:
a. Compliance Officer. Within thirty (30) calendar days after the
Effective Date, Hawking shall designate a senior corporate manager
with the requisite corporate and organizational authority to serve as
Compliance Officer and to discharge the duties set forth below. The
person designated as the Compliance Officer shall be responsible for
developing, implementing, and administering the Compliance Plan and
ensuring that Hawking complies with the terms and conditions of the
Compliance Plan and this Consent Decree. In addition to the general
knowledge of the Communications Laws necessary to discharge his/her
duties under this Consent Decree, the Compliance Officer shall have
specific knowledge of the Equipment Marketing Rules prior to assuming
b. Operating Procedures on Equipment Marketing. Within sixty (60)
calendar days after the Effective Date, Hawking shall establish
Operating Procedures that all Covered Employees must follow to help
ensure Hawking's compliance with the Equipment Marketing Rules.
Hawking's Operating Procedures shall include internal procedures and
policies specifically designed to ensure that all radio frequency
devices marketed by Hawking comply with applicable technical
standards, have been properly authorized (via the certification,
verification, or declaration of conformity procedures, as applicable),
and comply with the applicable administrative requirements relating to
equipment labeling and consumer disclosure.
c. Compliance Manual. Within sixty (60) calendar days after the Effective
Date, the Compliance Officer shall develop and distribute a Compliance
Manual to all Covered Employees. The Compliance Manual shall explain
the Equipment Marketing Rules and set forth the Operating Procedures
that Covered Employees shall follow to help ensure Hawking's
compliance with the Equipment Marketing Rules. Hawking shall
periodically review and revise the Compliance Manual as necessary to
ensure that the information set forth therein remains current and
complete. Hawking shall distribute any revisions to the Compliance
Manual promptly to all Covered Employees.
d. Compliance Training. Within sixty (60) calendar days after the
Effective Date, Hawking shall establish and implement a Compliance
Training Program on compliance with the Equipment Marketing Rules and
the Operating Procedures. As part of the Compliance Training Program,
Covered Employees shall be advised of Hawking's obligation to report
any non-compliance with the Equipment Marketing Rules under paragraph
9 of this Consent Decree and shall be instructed on how to disclose
non-compliance to the Compliance Officer. All Covered Employees shall
be trained pursuant to the Compliance Training Program within sixty
(60) calendar days after the Effective Date, except that any person
who becomes a Covered Employee at any time after the Effective Date
shall be trained within thirty (30) calendar days after the date such
person becomes a Covered Employee. Hawking shall repeat the compliance
training on an annual basis, and shall periodically review and revise
the Compliance Training Program as necessary to ensure that it remains
current and complete and to enhance its effectiveness.
e. Termination Date. Unless otherwise stated, the requirements of this
paragraph 8 of the Consent Decree shall expire thirty-six (36) months
after the Effective Date.
9. Reporting Non-Compliance. Hawking shall report any non-compliance with
the Equipment Marketing Rules and with the terms and conditions of
this Consent Decree within fifteen (15) calendar days after discovery
of such non-compliance. Such reports shall include a detailed
explanation of (i) each instance of non-compliance; (ii) the steps
that Hawking has taken or will take to remedy such non-compliance;
(iii) the schedule on which such remedial actions will be taken; and
(iv) the steps that Hawking has taken or will take to prevent the
recurrence of any such non-compliance. All reports of non-compliance
shall be submitted to the Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, 445 12th
Street, S.W. Washington, D.C. 20554, with a copy submitted
electronically to Katherine Power at Katherine.Power@fcc.gov and to
Ricardo Durham at Ricardo.Durham@fcc.gov. The reporting obligations
set forth in this paragraph 9 shall expire thirty-six (36) months
after the Effective Date.
10. Compliance Reports. Hawking shall file compliance reports with the
Commission ninety (90) days after the Effective Date, twelve (12)
months after the Effective Date, twenty-four (24) months after the
Effective Date, and thirty-six (36) months after the Effective Date.
a. Each compliance report shall include a detailed description of
Hawking's efforts during the relevant period to comply with the terms
and conditions of this Consent Decree and the Equipment Marketing
Rules. In addition, each Compliance Report shall include a
certification by the Compliance Officer, as an agent of and on behalf
of Hawking, stating that the Compliance Officer has personal
knowledge that Hawking (i) has established and implemented the
Compliance Plan; (ii) has utilized the Operating Procedures since the
implementation of the Compliance Plan; and (iii) is not aware of any
instances of non-compliance with the terms and conditions of this
Consent Decree, including the reporting obligations set forth in
paragraph 9 hereof.
b. The certification shall be accompanied by a statement explaining the
basis for the Compliance Officer's certification, and must comply
with section 1.16 of the Rules and be subscribed to as true under
penalty of perjury in substantially the form set forth therein.
c. If the Compliance Officer cannot provide the requisite certification,
the Compliance Officer, as an agent of and on behalf of Hawking,
shall provide the Commission with a detailed explanation of (i) each
instance of non-compliance; (ii) the steps that Hawking has taken or
will take to remedy such non-compliance, including the schedule on
which proposed remedial actions will be taken; and (iii) the steps
that Hawking has taken or will take to prevent the recurrence of any
such non-compliance, including the schedule on which such preventive
action will be taken.
d. All Compliance Reports shall be submitted to the Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street, S.W. Washington, D.C. 20554, with a copy
submitted electronically to Katherine Power at
Katherine.Power@fcc.gov and to Ricardo Durham at
11. Voluntary Contribution. Hawking agrees that it will make a voluntary
contribution to the United States Treasury in the amount of Fifty
Thousand Dollars ($50,000) ("Voluntary Contribution"), such Voluntary
Contribution to be made in twenty (20) consecutive monthly payments
(each an "Installment Payment") of Two Thousand Five Hundred Dollars
($2,500) payable on the first day of each month beginning with the
first month following the Effective Date. The final payment is due on
the first day of the twentieth month following the Effective Date
("Maturity Date"). Hawking acknowledges and agrees that upon execution
of this Consent Decree the Voluntary Contribution and each Installment
Payment shall become a "Claim" or "Debt" as defined in 31 U.S.C.
S:3701(b)(1). Upon an Event of Default, all procedures for collection
as permitted by law may, at the Bureau's discretion, be initiated. In
addition, Hawking agrees that it will make the first and all
subsequent Installment Payments in United States Dollars without
further demand or notice by the dates specified above. Installment
Payments must be made by check or similar instrument, payable in
United States Dollars to the order of the Federal Communications
Commission. The payments must include the Account Number and FRN
referenced in the caption to the Adopting Order. Payments by check or
money order may be mailed to Federal Communications Commission, P.O.
Box 979088, St. Louis, MO 63197-9000. Payments by overnight mail may
be sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payments by wire transfer may
be made to ABA Number 021030004, receiving bank TREAS/NYC, and Account
Number 27000001. For payments by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the Account Number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Hawking shall also send electronic notification to Katherine
Power at Katherine.Power@fcc.gov and Ricardo Durham at
Ricardo.Durham@fcc.gov on the date each payment is made.
12. Event of Default. Hawking agrees that an Event of Default shall occur
upon the failure by Hawking to pay the full amount of any Installment
Payment on or before the due date specified in this Consent Decree.
13. Interest, Charges for Collection, and Acceleration of Maturity Date.
After an Event of Default has occurred under this Consent Decree, the
then unpaid amount of the Voluntary Contribution shall accrue
interest, computed using the rate of the U.S. Prime Rate in effect on
the date of the Event of Default plus 4.75 percent, from the date of
the Event of Default until payment in full. Upon an Event of Default,
the then unpaid amount of the Voluntary Contribution, together with
interest, as aforesaid, any penalties permitted and/or required by the
law, including but not limited to 31 U.S.C. S: 3717 and administrative
charge(s), plus the costs of collection, litigation, and attorneys'
fees, shall become immediately due and payable, without notice,
presentment, demand, protest, or notice of protest of any kind, all of
which are waived by Hawking.
14. Waivers. Hawking also waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or stay, or
to otherwise challenge or contest the validity of this Consent Decree
and the Adopting Order, provided the Bureau issues an Adopting Order
as defined herein. Hawking shall retain the right to challenge
Commission interpretation of the Consent Decree or any terms contained
herein. If either Party (or the United States on behalf of the
Commission) brings a judicial action to enforce the terms of the
Adopting Order, neither Hawking nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and Hawking
shall waive any statutory right to a trial de novo. Hawking hereby
agrees to waive any claims it may have under the Equal Access to
Justice Act, 5.U.S.C. S: 504 and 47 C.F.R. S: 1.1501 et seq., relating
to the matters addressed in this Consent Decree.
15. Withdrawal of Pending Petition for Reconsideration. Hawking shall
withdraw its Petition for Reconsideration of the Forfeiture Order
within five (5) business days after the Effective Date.
16. Invalidity. In the event that this Consent Decree in its entirety is
rendered invalid by any court of competent jurisdiction, it shall
become null and void and may not be used in any manner in any legal
17. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent Rule or order adopted
by the Commission (except an order specifically intended to revise the
terms of this Consent Decree to which Hawking does not expressly
consent) that provision will be superseded by such Rule or Commission
18. Successors and Assigns. Hawking agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
19. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties with
respect to the Enforcement Proceeding. The Parties further agree that
this Consent Decree does not constitute either an adjudication on the
merits or a factual or legal finding or determination regarding any
compliance or noncompliance with the Communications Laws.
20. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
21. Paragraph Headings. The headings of the paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
22. Authorized Representative. The individual signing this Consent Decree
on behalf of Hawking represents and warrants that he is authorized by
Hawking to execute this Consent Decree and to bind Hawking to the
obligations set forth herein. The FCC signatory represents that she is
signing this Consent Decree in her official capacity and that she is
authorized to execute this Consent Decree.
23. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
P. Michele Ellison
Federal Communications Commission
Hawking Technologies, Inc.
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803(a), 15.204(d).
47 U.S.C. S:S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803(a) and 15.204(d).
Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission, to
Hawking Technologies, Inc. (June 26, 2006).
See Hawking Technologies, Inc., Notice of Apparent Liability for
Forfeiture, 22 FCC Rcd 7140, 7143-44, paras. 7-10 (April 2, 2007).
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a).
Section 2.803(e)(4) of the Rules defines "marketing" as the "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." 47 C.F.R. S:
47 C.F.R. S: 15.204(d).
47 C.F.R. S: 15.204(d)(1).
47 C.F.R. S: 15.204(d)(2). Of course, amplifiers must also comply with all
applicable identification and labeling requirements prior to marketing. 47
C.F.R. S: 2.925.
See supra n. 3.
Letter from Frank Lin, Chief Executive Officer, Hawking Technologies,
Inc., to Thomas Fitz-Gibbon, Attorney, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (July 11, 2006).
Id. at 3.
NAL, supra note 4.
Hawking Technologies, Inc., Forfeiture Order, 24 FCC Rcd 4252 (2009).
Petition for Reconsideration of Forfeiture Order from Hawking
Technologies, Inc. (April 30, 2009).
Debt Collection Improvement Act of 1996, Pub. L. 104-134, 110 Stat. 1321,
1358 (Apr. 26, 1996).
Federal Communications Commission DA 12-42
Federal Communications Commission DA 12-42