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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No.: EB-01-MA-035
)
Lightning Electronics, Inc. ) NAL/Acct. No.
200232700009
)
Miami, Florida ) FRN 0006-2915-95
MEMORANDUM OPINION AND ORDER
Adopted: October 7, 2003 Released: October 10,
2003
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''), we
deny the request filed by Lightning Electronics, Inc.
(``Lightning''), for reconsideration of the Forfeiture Order
issued to Lightning on October 2, 2002, for willful and repeated
violations of Section 302(b) of the Communications Act of 1934,
as amended (``Act'')1 and Section 2.803(a)(1) of the Commission's
Rules (``Rules'').2 The noted violations involve Lightning's
marketing of unapproved long-range cordless telephones.
2. On May 21, 2002, the District Director of the
Enforcement Bureau's (``Bureau'') Tampa, Florida, Office (``Tampa
Office'') released a Notice of Apparent Liability for Forfeiture
(``NAL'') against Lightning in the amount of $7,000.3 Lightning
filed its response to the NAL dated June 11, 2002. On October 2,
2002, the Chief, Enforcement Bureau, issued a Forfeiture Order4
affirming the forfeiture proposed by the NAL. On October 30,
2002, Lightning filed a ``Notice of Appeal of Forfeiture Order
and Request for Production of Documentation.'' We construed this
filing, pursuant to Section 1.106 of the Rules,5 as a petition
for reconsideration of the Forfeiture Order and, because of the
request for documents, held action upon its petition for
reconsideration in abeyance to give Lightning the opportunity to
obtain information through a Freedom of Information Act
(``FOIA'') request.
3. Lightning filed a FOIA request dated May 30, 2003.6
The Enforcement Bureau granted that FOIA request in part and
denied it in part on July 3, 2003.7 On August 4, 2003, we
informed Lightning by letter that, if it did not file a
supplement to the petition for reconsideration by August 19,
2003, we would review the petition for reconsideration on the
basis of the record currently before us.
4. On September 12, 2003, Lightning, through its attorney,
filed a supplement to its petition for reconsideration. In the
supplement, Lightning asserts, in pertinent part, that ``due to
poor economic circumstances in the retail business, Lightning
Electronics, Inc., has ceased doing business. Although I believe
that the forfeiture order was improperly entered, this appears to
be a moot issue.''
5. Lightning's petition for reconsideration is essentially
a request for documents and does not contain any information or
arguments which could form the basis for any change in the action
taken in the Forfeiture Order. The only argument contained in
Lightning's supplementary filing is that this proceeding is moot
because Lightning has ceased doing business. We do not agree.
The Commission does not routinely dismiss forfeiture cases when
the subject has gone out of business.8 In PC Fixx, Inc., the
Commission did dismiss a monetary forfeiture proceeding as moot
after determining that the subject was ``no longer a business
entity.'' 9 However, that precedent is not applicable here
because a check of the Florida Department of State internet site
indicates that Lightning still exists as a legal entity.
Therefore, we find that there is no basis for changing our action
and that the petition for reconsideration must be denied.
6. IT IS ORDERED that, pursuant to Section 405 of the
Act10 and Section 1.106 of the Rules, Lightning's petition for
reconsideration IS DENIED.
7. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by Certified Mail -- Return Receipt Requested -- to
Lightning Electronics, Inc., at 231 E. Flagler Street, Unit #1,
Miami, Florida 33131, and to Lightning's attorney, Ira S. Silver,
Esquire, Silver & Silver, 108 S. Miami Avenue, 2nd Floor, Miami,
Florida 33130.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 U.S.C. § 302a (b).
2 47 C.F.R. § 2.803(a)(1).
3 Notice of Apparent Liability for Forfeiture, NAL Acct. No.
200232700009 (Enf. Bur., Tampa Office, released May 21, 2002).
4 Lightning Electronics, Inc., 17 FCC Rcd 3131 (Enf. Bur.
2002)
5 47 C.F.R. § 1.106.
6 FOIA Control No. 2003-379.
7 Letter from Joseph Casey, Chief Technical and Public
Safety Division, Enforcement Bureau, to Ira S. Silver, Esquire,
(July 3, 2003).
8 See, eg., Certified Computers, 9 FCC Rcd 1850 (Field
Operations Bureau 1994) and Hayward Squadron, 9 FCC Rcd 1761
(Field Operations Bureau 1994).
9 12 FCC Rcd 16575, 16575 (1997).
10 47 U.S.C. § 405.