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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) NAL/Acct. No. 915TP0007
Leslie D. Brewer ) Case No. 98TP412
Tampa, Florida 33617 )
Adopted: March 2, 2000 Released: March 3, 2000
By the Chief, Enforcement Bureau:
1. This order imposes a forfeiture against Leslie D. Brewer, d/b/a/
L.D. Brewer's 2-way Radio (collectively, ``Mr. Brewer''), in the amount
of $10,000, pursuant to Section 503(b) of the Communications Act of
1934, as amended (``the Act''), 47 U.S.C. § 503(b), and Section 1.80 of
the Commission's Rules (``the Rules''), 47 C.F.R. § 1.80, for willful
violation of Sections 2.803(a)(1), and 15.201(b) of the Rules, 47
C.F.R. §§ 2.803(a)(1), and 15.201(b). These violations are based on the
marketing of a transmitter not authorized by the Commission. The
transmitter at issue was sold to an undercover agent of the
Commission's Tampa, Florida Field Office.
2. In early 1997, an agent from the Tampa Field Office visited L.D.
Brewer's 2-Way Radio to ask about transmitters that would operate in
the FM broadcast band., and was offered a 40-watt FM transmitter by Mr.
Brewer. During that visit, Mr. Brewer indicated that he assembles such
transmitters daily, and showed the agent a unit he was building at the
time. There was no indication that the transmitters assembled by Mr.
Brewer were authorized by the Commission, as no FCC identifier number
was visible on the transmitter displayed to the agent. In July, 1997,
the Tampa Field Office subsequently mailed an official notice to Mr.
Brewer, informing him of the requirement to obtain authorization from
the Commission before marketing radio frequency devices, and warning
him of the possible penalties for marketing transmitters without such
authorization. Mr. Brewer's response to the notice denied
manufacturing or marketing any products that require FCC type
acceptance, certification, or notification.
3. On August, 9, 1998, an agent from the Tampa Field Office, posing
as a member of the general public, sent an electronic mail (``e-mail'')
message to L.D. Brewer's 2-Way Radio requesting information on
purchasing a 20-watt transmitter that would operate in the FM broadcast
band. That same day, Mr. Brewer responded to the agent's request via
e-mail. Mr. Brewer listed a price and provided an address to which
payment should be sent. On August 25, 1998, the Tampa Field Office
submitted a money order payment for the transmitter to L.D. Brewer's
4. On September 28, 1998, the Tampa Field Office received the fully
assembled 20-watt FM broadcast transmitter from L.D. Brewer's 2-Way
Radio. The transmitter operated on a frequency of 91.8975 MHz with an
output power of 20 watts. There was no indication that the transmitter
was authorized by the Commission, and no FCC identifier number was
affixed to the transmitter. On August 5, 1999, the Tampa Field Office
issued a Notice of Apparent Liability for monetary forfeiture (``NAL'')
in the amount of $10,000 to Mr. Brewer.
5. In response to the NAL, Mr. Brewer denies e-mailing anyone
from the Commission or delivering to any Commission employee a radio
transmitter, and claims that the Commission fails to present evidence
that a device was delivered, shipped, or otherwise made available to
the Commission's agents. The response also reiterates his response to
the warning letter, contending that he sells radio ``kits for
educational purposes'' and contends that ``[k]its not manufactured by
L.D. Brewer's 2-Way Radio cannot be construed as items manufactured or
marketed by LD Brewer's 2-Way Radio.'' Mr. Brewer claims that ``radio
kits,'' even if assembled, do not require notification, type acceptance
or certification. Finally, he argues that the NAL ``fails'' because:
(a) the NAL Account Number listed on the document does not reflect
``the original case number TP-0700188''; (b) he requested a meeting in
response to the warning letter, but claims the Commission failed to
respond to that request; (c) the time period of the investigation is
6. Both the Act and the Rules prohibit the sale or offer for sale of
radio frequency devices, as well as the shipment or distribution for
the purpose of selling such devices, unless the device has first been
properly authorized, identified and labeled in accordance with the
Commission's Rules. See 47 U.S.C. § 302(b), and 47 C.F.R. §
2.803(a)(1). Section 2.801 of the Rules defines a radio frequency
device as ``any device which in its operation is capable of emitting
radio frequency energy...'' (Emphasis added.) Radio frequency devices
subject to the Rules include, among other items, radio communication
transmitting devices, and ``any part or component thereof which in use
emits radiofrequency energy.'' See 47 C.F.R. § 2.801(a) and (d).
Although Mr. Brewer claims that the device at issue is ``a radio kit,
and not a complete transmitter,'' the device which Mr. Brewer sold and
shipped to the Commission's undercover address was a fully constructed
FM radio transmitter, capable of transmitting a radio frequency signal
once power is supplied and the transmitter is turned on. Such a device
unquestionably falls within the scope of this definition. Moreover,
section 15.3(p) of the Rules defines a ``kit'' as ``[a]ny number of
electronic parts, usually provided with a schematic diagram or printed
circuit board, which, when assembled in accordance with instructions,
results in the a device subject to the regulations in this part, even
if additional parts of any type are required to complete assembly.''
See 47 C.F.R. § 15.3(p) (emphasis added). Section 15.201(b) of the
Rules requires intentional radiators, such as the FM transmitter sold
to the Tampa Field Office, to be certified by the Commission prior to
marketing. See 47 C.F.R. § 15.201(b). Thus, who manufactured the
device is of no consequence here, because the violation at issue is Mr.
Brewer's sale and shipment of an FM transmitter that was neither
certified by the Commission nor properly identified or labeled. As
noted in the NAL, these violations were willful under the Act because
they were not caused by accident or mistake.
7. While Mr. Brewer likely did not realize that he e-mailed anyone
at the Commission, the case file in this matter includes e-mail
messages sent to the Commission's undercover e-mail address from
``firstname.lastname@example.org (doug)'' on May 7, 1998, and by
``email@example.com (Doug)'' on August 9, 1998, discussing the
price for the transmitter and the address to which payment was to be
sent. The May 7, 1998 message explicitly states that the price for the
20-watt unit ``is not negotiable, and the order will have to be prepaid
in US funds, before we build it for you.... Freight on this item is
$10.00US [sic] to the CONUS and $30.00 outside the US.'' (Emphasis
added.) This evidence belies Mr. Brewer's claim that he did not e-mail
the Commission employee (albeit he likely was not aware it was a
Commission employee), and also undermines his claim, in his response to
the warning letter, that completed units are sold ``for export only.''
Furthermore, the device obtained by the Tampa agents was shipped to an
address within the U.S., and is currently being held by the Commission
in a secure evidence locker. Thus, the sale of this device to the
FCC's agent was a clear violation of the rules, regardless of whether
Mr. Brewer knew an FCC agent was involved.
8. Mr. Brewer's remaining contentions are equally unavailing. The
numbering of the case is of no consequence to the validity of the NAL,
as the number is for internal Commission identifying and tracking
purposes only. Similarly, the length of the investigation in this
matter does not invalidate the NAL. As required by the Act and the
Rules, the NAL was issued within one year of the sale and delivery of
the uncertified transmitter. See 47 U.S.C. § 503(b)(6)(B); 47 C.F.R. §
1.80(c)(3). With regard to Mr. Brewer's initial request for an
interview, the Tampa Field Office reports that counsel for Mr. Brewer
did not return calls attempting to set up such a meeting. On July 25,
1997, the Tampa Field Office received Mr. Brewer's written request for
an interview with the FCC, in addition to his written response to the
warning letter. The request for an interview asked that Mr. Brewer's
attorney be informed of the time for the interview. The Tampa Field
Office called Mr. Brewer's attorney on at least four occasions, July
29, July 31, August 5, and August 12, 1997, to attempt to arrange a
mutually convenient time for the interview. However, neither Mr.
Brewer's counsel nor Mr. Brewer responded to the Tampa Field Office
regarding the requested meeting. Subsequently, two years elapsed
without further contact from Mr. Brewer or his counsel regarding the
request for an interview before the NAL was issued. Mr. Brewer was
thus given a reasonable opportunity for an interview, but elected not
to take advantage of it. He cannot use his own failure to act on the
resolution procedures established in the Act and the Rules to nullify
the subsequent issuance of the NAL. His belated attempt to renew his
request for an interview, more than two years after failing to follow
through on his initial request and after an NAL has issued, is moot
with respect to the issue of whether a forfeiture should be assessed.
9. 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, Leslie D.
Brewer, d/b/a L.D. Brewer's 2-Way Radio, IS LIABLE FOR A MONETARY
FORFEITURE in the amount of $10,000 for willful violations of Sections
2.803(a)(1) and 15.201(b) of the Rules, requiring authorization from
the Commission prior to the marketing of radio frequency devices.
10. Payment of the forfeiture shall be made in the manner
provided for in section 1.80 of the Commission's Rules within 30 days
of the release of this Order. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of Justice
for collection pursuant to section 504(a) of the Act. Payment may be
made by credit card through the Commission's Credit and Debt Management
Center at (202) 418-1995 or by mailing a check or similar instrument,
payable to the order of the Federal Communications Commission, to the
Federal Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment should note the NAL/Acct. No. referenced
above. Requests for full payment under an installment plan should be
sent to: Chief, Credit and Debt Management Center, 445 12th Street,
S.W., Washington, D.C. 20554.
11. IT IS FURTHER ORDERED that a copy of this Order shall be
sent certified mail, return receipt requested, to Leslie D. Brewer,
d/b/a L.D. Brewer's 2-Way Radio, 10740 N. 56th Street, Suite 186,
Tampa, Florida 33617.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau