Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
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.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Datel Design and Development, Inc. ) File No. EB-03-SE-193
Clearwater, Florida ) NAL/Acct. No. 200432100007
) FRN 0010120269
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: December 31, 2003 Released: January 2,
2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Datel Design and Development, Inc.
(``Datel'') apparently liable for a forfeiture in the amount
of ten thousand dollars ($10,000) for willful and repeated
violation of Section 302(b) of the Communications Act of 1934,
as amended (``Act''),1 and Section 2.803(a) of the
Commission's Rules (``Rules'').2 The noted violations involve
Datel's importing and marketing of approximately 15,000
thousand units of the Datel Talknet USB Headset, Model Number
DUS0049, that do not comply with the radiated emission limits
set forth in Part 15 of the Rules.
II. BACKGROUND
2. The Talknet USB Headsets involved in this case were
manufactured outside the United States. Datel imported and
marketed the headsets in the United States. The Talknet USB
Headsets involved in this case are classified as digital
devices.3 Digital devices such as those involved in this
case are Class B digital devices. A Class B digital device is
defined as ``[a] digital device that is marketed for use in a
residential environment notwithstanding use in commercial,
business and industrial environments.''4 Class B digital
devices are required to comply with the radiated emission
limits specified by Section 15.109(a) of the Rules. 5
3. On August 6, 2003, the Enforcement Bureau's Spectrum
Enforcement Division received a complaint about the Datel
Talknet USB Headset. The complaint alleged that Datel's
Talknet USB Headset was being marketed in the United States
but did not comply with the radiated emission limits
prescribed by Section 15.109(a) of the Rules for Class B
digital devices. The complaint further alleged that because
of the excessive radiated emissions, the Talknet USB Headset
could not have been verified as complying with the
Commission's technical standards, and therefore, importation
into the United States was in violation of the Commission's
rules. Moreover, the complaint alleged that the Talknet USB
Headset does not bear a FCC certification or verification
label in violation of Section 15.19 of the Rules.6 Finally,
the complaint alleged that the Talknet manual does not contain
an FCC Part 15 statement as is required by Section 15.105(b)
of the Rules.7 On August 27, 2003, the Enforcement Bureau
sent Datel a letter of inquiry (``LOI'').
4. In its initial response dated September 10, 2003, Datel
stated that it was solely a distributor of the Talknet USB
Headset, and that it did not manufacture or design the device,
although it did import and market the device in the United
States. Datel also stated that upon assurances from the
manufacturer and its observations of competitive products, it
believed that the Talknet USB Headset met or exceeded relevant
FCC requirements. Datel further stated that it had imported
approximately 15,000 units for sale in the United States and
since July, 2003, had shipped 12,000 units to customer
distribution warehouses. Datel also stated that it had halted
further shipments of the Talknet USB Headset until this matter
was resolved. Finally, Datel stated that it would send a
supplemental response to answer other questions posed by the
LOI once it received information from its manufacturer.
5. On September 18, 2003, Datel supplemented its response.
In the supplement, Datel stated that inquiries were made in
Europe regarding whether FCC compliance was necessary for the
Talknet USB Headset and it concluded that because the device
was a USB device, it was not necessary to have the device
independently tested. Nevertheless, Datel stated that it had
decided to have the Talknet USB Headset independently tested
in the United States for FCC compliance as a Class B device.
6. Subsequently, Datel submitted a test report completed
for the Talknet USB Headset from an independent test lab. The
test report indicated that the Talknet USB Headset initially
did not comply with the radiated emission limits set forth in
Section 15.109(a) of the Rules, but complied with these limits
after certain modifications were made to the device.
7. On December 12, 2003, the FCC's Office of Engineering
and Technology Laboratory (``OET Lab'') conducted emissions
tests on a Talknet USB Headset, Model DUS0049, purchased by
the Enforcement Bureau. The OET Lab's test results indicated
that the Talknet USB Headset significantly exceeded the
radiated emission limits in Section 15.109(a) of the Rules.
III. DISCUSSION
8. 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)(2) 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 not required to have a
grant of equipment authorization issued by the
Commission, but which must comply with the
specified technical standards prior to use, such
device also complies with all applicable
administrative (including verification of the
equipment or authorization under a Declaration of
Conformity, where required), technical, labeling
and identification requirements specified in this
chapter.
9. Datel admits that it imported and marketed the
Talknet USB Headset. As the importer and seller, Datel is the
party responsible under Section 2.909(b) of the Rules8 for the
compliance of these devices with the applicable technical
standards. Datel had independent emissions tests conducted
during which it was determined that modifications were required
to achieve positive test results. Moreover, the OET Lab tested
the Talknet USB Headset and determined that it significantly
exceeded the radiated emissions limits in Section 15.109(a) of
the Rules. We conclude that, by importing and marketing
noncompliant devices, Datel apparently violated Section 302(b) of
the Act and Section 2.803(a)(2) of the Rules willfully9 and
repeatedly. 10
10. 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.11 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
require.''12
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'')13 and Section 1.80 of the Rules,14 the base
forfeiture amount for the importation or marketing of
noncompliant equipment is $7,000. This would be the appropriate
base forfeiture amount for a single importation or sale. In this
case, Datel imported 15,000 units and sold 12,000 units. Given
the number of units involved, we find that an increase in the
base forfeiture amount is apparently warranted. Accordingly,
applying the Forfeiture Policy Statement and statutory factors to
the instant case, we conclude that Datel is apparently liable for
a $10,000 forfeiture.
12. Further, pursuant to Section 403 of the Act,15 we
direct Datel to submit a report to the Enforcement Bureau within
30 days of the release of this NAL which identifies all retailers
and other entities to which it distributed the non-compliant
Talknet USB Headsets, provides a contact person and address for
each such retailer or entity, states the total number of Talknet
USB Headsets sold to each such retailer or entity, and describes
what steps, if any, Datel intends to take to remove the non-
compliant devices from the marketplace and to ensure that similar
violations do not occur in the future. In addition, the report
must specify whether Datel has begun shipping modified Talknet
USB Headsets and, if so, indicate how the modified devices are
uniquely identified pursuant to Section 2.1074 of the Rules16 so
that they are readily distinguishable from the non-compliant
devices. The report must also specify whether instruction
manuals which include the requisite Section 15.105(b) language is
currently being included inside the packaging of the Talknet USB
Headsets and whether the modified devices bear the required FCC
labeling of Section 15.19 of the Rules.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to pursuant
to Section 503(b) of the Act and Sections 0.111, 0.311 and 1.80
of the Rules,17 Datel Design and Development, Inc. IS hereby
NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount
of ten thousand dollars ($10,000) for willfully and repeatedly
violating Section 302(b) of the Act and Section 2.803(a) of the
Rules.
14. IT IS FURTHER ORDERED that, pursuant to Section 403 of
the Act, Datel must submit the report described in Paragraph 13
within thirty (30) days of the release date of this Notice of
Apparent Liability for Forfeiture to Federal Communications
Commission, Enforcement Bureau, Spectrum Enforcement Division,
445 12th Street, S.W., Room 7-A728, Washington, D.C. 20554,
Attention: Jacqueline Ellington, Esq.
15. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80
of the Rules, within thirty (30) days of the release date of this
Notice of Apparent Liability for Forfeiture, Datel Design and
Development, Inc. 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 may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment must include
the FCC Registration Number (FRN) and the NAL/Acct. No.
referenced in the caption.
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; 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.
19. Requests for payment of the full amount of this Notice
of Apparent Liability for Forfeiture under an installment plan
should be sent to: Chief, Revenue and Receivable Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.18
20. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Enforcement Bureau - Spectrum
Enforcement Division. Your certification should indicate whether
you, including your parent entity and its subsidiaries, meet one
of the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (``OCBO'') set
forth in Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Act. If you have questions regarding any of the
information contained in Attachment A, please contact OCBO at
(202) 418-0990.
21. 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 Ken Tarolla,
Senior Vice President and General Manager, Datel Design and
Development, Inc., 15500 Lightwave Drive, Suite 101, Clearwater,
Florida 33760
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
Attachment A
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 CFR 121.104 and 13 CFR 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
_________________________
1 47 U.S.C. § 302a(b).
2 47 C.F.R. § 2.803(a).
3 Section 15.3(k) of the Rules, 47 C.F.R. § 15.3(k), defines
a digital device as ``An unintentional radiator (device or
system) that generates and uses timing signals or pulses at a
rate in excess of 9,000 pulses (cycles) per second and uses
digital techniques; inclusive of telephone equipment that uses
digital techniques or any device or system that generates and
uses radio frequency energy for the purpose of performing data
processing functions, such as electronic computations,
operations, transformations, recording, filing, sorting, storage,
retrieval, or transfer.''
4 Section 15.3(i) of the Rules, 47 C.F.R. § 15.3(i).
5 47 C.F.R. § 15.109(a).
6 See 47 C.F.R. § 15.19 (requires labeling of devices subject
to FCC certification or verification).
7 See 47 C.F.R. § 15.105(b) (requires that the instructions
furnished to the user of a Class B device include certain
language placed in a prominent location in the text of the user's
manual).
8 47 C.F.R. § 2.909(b).
9 Section 312(f)(1) of the Act, 47 U.S.C. § 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',
when used with reference to the commission or omission of any
act, means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act . . . .'' See Southern California Broadcasting Co., 6
FCC Rcd 4387-88 (1991).
10 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. § 312(f)(2).
11 47 U.S.C. § 503(b).
12 47 U.S.C. § 503(b)(2)(D).
13 12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303
(1999).
14 47 C.F.R. § 1.80.
15 47 U.S.C. § 403.
16 47 C.F.R. § 2.1074.
17 47 C.F.R. § 0.111, 0.311 and 1.80.
18 See 47 C.F.R. § 1.1914.