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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Samson Technologies, Inc. ) File No. EB-02-TS-607
) NAL/Acct. No. 200432100008
) FRN 0009-9962-73
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 25, 2004 Released: March 3, 2004
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Samson Technologies, Inc. (``Samson'')
apparently liable for a forfeiture in the amount of thirty-
five thousand dollars ($35,000) for willful and repeated
apparent 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 apparent
violations involve Samson's importing and marketing of five
models of multi-track music recording devices that do not
comply with the radiated emission limits set forth in Part 15
of the Rules.
II. BACKGROUND
2. Zoom Corporation (``Zoom''), a Japanese company,
manufactured the recording equipment involved in this case and
Samson imported that equipment and marketed it in the United
States. The recording devices involved in this case are
classified as digital devices.3 Digital devices such as those
involved in this case are classified as either Class A or
Class B digital devices. A Class A digital device is defined
as ``[a] digital device that is marketed for use in a
commercial, industrial or business environment, exclusive of a
device which is marketed for use by the general public or is
intended to be used in the home.''4 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.''5 Class A digital
devices must comply with the radiated emission limits
specified by Section 15.109(b) of the Rules.6 Class B digital
devices are required to comply with the more stringent
radiated emission limits specified by Section 15.109(a) of the
Rules. 7
3. During February 2002, the Commission's Office of
Engineering and Technology (``OET'') received a complaint
about recording equipment manufactured by Zoom and designated
as the Model MRS-1044 Zoom MultiTrak Recording Studio (``MRS-
1044'').8 The complaint alleges that the MRS-1044 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. In October 2002, OET
referred the complaint against Zoom to the Enforcement Bureau
(``EB''). On January 15, 2003, EB sent Samson a letter of
inquiry (``LOI'').9 In its response, submitted February 13,
2003, Samson states that Zoom had replaced the MRS-1044 and
MRS-1044CD (a version of the MRS-1044 which includes a built-
in compact disc recorder) with new models designated as MRS-
1266 and MRS-1266CD and that Samson was importing and
marketing those models.10
4. On July 7, 2003, EB sent Samson an additional LOI.11
In its responses, submitted July 28 and August 6, 2003, Samson
states that, in addition to the MRS-1266 and the MRS-1266CD,
it was importing and marketing similar recording devices
designated as the MRS-802, MRS-802CD and MRS-4.12 Samson also
states that it is the sole importer of the MRS-1266, MRS-
1266CD, MRS-802, MRS-802CD and MRS-4. Additionally, Samson
reports that, as of July 28, 2003, it had acquired 3,180 MRS-
1266 and MRS-1266CD units for sale and sold 2,596 and had
acquired 1,250 MRS-802 and MRS-802CD units for sale and sold
1,092; and that, as of August 6, 2003, it had acquired for
sale 10,030 MRS-4 units and sold 8,330. With respect to each
of the five models of Zoom recording devices, Samson states
that the devices ``are not Class B digital devices and
therefore do not comply with radiated limits of Section
15.109(a).'' According to Samson, these devices are Class A
digital devices and, as such, comply with the less stringent
radiated emission limits of Section 15.109(b) of the Rules.
Samson further indicates that the Zoom recording devices were
authorized for marketing13 in the United States through the
``verification'' procedure.14 Samson provides copies of the
verification test reports for the MRS-1266 and MRS-4, which
indicate that these devices comply with the radiated emission
limits prescribed for Class A digital devices but not with the
limits prescribed for Class B digital devices.15
5. On September 4, 2003, EB sent Samson a third LOI.16 In
its response, received September 24, 2003, Samson concedes
that the MRS-1266, MRS-1266CD, MRS-802, MRS-802CD and MRS-4
were being marketed to the general public for residential use
and were, therefore, Class B digital devices.17 Samson states
that it has taken the following steps to address the marketing
issue: notifying retailers that they should not sell the MRS-
1266, MRS-1266CD, MRS-802, MRS-802CD and MRS-4 for residential
use; discontinuing importation of these devices; repacking its
inventory of these devices for shipment back to the
manufacturer; and replacing the Zoom recording devices with
new models that comply with the Class B radiated emission
limits.18 Samson also states that it will no longer import or
market any Class A digital devices. Rather, it will only
import and market devices that comply with the Class B
technical standards.
III. DISCUSSION
6. 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, labelling
and identification requirements specified in this
chapter.
7. Samson admits that it imported and marketed the MRS-4,
MRS-802, MRS-802CD, MRS-1266 and MRS-1266CD. These devices
are subject to self-verification pursuant to our Rules.19
Thus, as the importer and seller, Samson is the party
responsible under Section 2.909(b) of the Rules20 for the
compliance of these devices with the applicable technical
standards. Samson now admits that the MRS-4, MRS-802, MRS-
802CD, MRS-1266 and MRS-1266CD were marketed for use in
residential environments and are, therefore, Class B digital
devices, which must comply with the radiated emission limits
set forth in Section 15.109(a) of the Rules. This is
consistent with the record evidence. Language in Samson's
marketing materials clearly indicates that these devices were
marketed for home use. For example, Samson advertised the
MRS-802 as ``the most affordable complete home recording
studio ever'' and the MRS-802CD as ``everything you need to
make incredible sound recordings at home'' and bringing
``professional grade recording tools to your living room,
bedroom, garage or where ever inspiration might strike.''
Samson also admits that the MRS-1266, MRS-1266CD, MRS-802,
MRS-802CD and MRS-4 do not comply with the Class B radiated
emission limits. We conclude that, by importing and
marketing noncompliant devices, Samson apparently violated
Section 302(b) of the Act and Section 2.803(a)(2) of the Rules
willfully21 and repeatedly. 22
8. 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.23 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.''24
9. 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'')25 and Section 1.80 of the Rules,26 the base
forfeiture amount for the importation or marketing of
noncompliant equipment is $7,000. In this case, Samson
imported and sold five distinct models. We find that a
forfeiture amount of $7,000 is apparently warranted for each
model. Accordingly, applying the Forfeiture Policy Statement
and statutory factors to the instant case, we conclude that
Samson is apparently liable for a $35,000 forfeiture.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to pursuant
to Section 503(b) of the Act and Section 1.80 of the Rules,
Samson Products, Inc. d/b/a Samson Manufacturing, Ltd., IS
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in
the amount of thirty-five thousand dollars ($35,000) for
willfully and repeatedly violating Section 302(b) of the Act
and Section 2.803(a) of the Rules.
11. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80
of the Rules, within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Samson
Technologies, Inc., SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction
or cancellation of the proposed forfeiture.
12. 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.
13. 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.
14. 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.
15. 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. 20554.27
16. 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.
17. 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 counsel
for Samson Technologies, Inc., Robert J. Ungar, Esq., Fish &
Richardson, PC, 1445 K Street, N.W., 11th Floor, Washington,
D.C. 20005.
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 ``[a]n 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 47 C.F.R. § 15.3(h).
5 47 C.F.R. § 15.3(i).
6 47 C.F.R. § 15.109(b).
7 47 C.F.R. § 15.109(a).
8 Letter from Sharon A. Hoffman, Timco Engineering, Inc., to
Raymond LaForge, Chief Measurements and Calibration Branch,
Office of Engineering and Technology (February 28, 2002).
9 Letter from Dan S. Emrick, Spectrum Enforcement Division,
Enforcement Bureau, to Samson Technologies, Inc. (January 15,
2003).
10 Letter from Robert J. Ungar, Esq., to Dan S. Emrick,
Spectrum Enforcement Division, Enforcement Bureau (February 13,
2003).
11 Letter from Joseph P. Casey, Chief, Spectrum Enforcement
Division, Enforcement Bureau, to Robert J. Ungar, Esq. (July 7,
2003).
12 Letters from Robert J. Ungar, Esq., to Thomas Fitz-Gibbon,
Spectrum Enforcement Division, Enforcement Bureau (July 28 and
August 6, 2003).
13 Section 15.101(a) of the Rules, 47 C.F.R. § 15.101(a),
requires that unintentional radiators, such as the Zoom recording
devices, be authorized by the Commission prior to the initiation
of marketing in the United States.
14 Verification is a self-authorization procedure where the
manufacturer or the importer, in the case of imported equipment,
makes measurements or takes the necessary steps to insure that
the equipment complies with the appropriate technical standards.
See 47 C.F.R. §§ 2.902 and 2.909(b).
15 The verification test reports provided by Samson for the
MRS-802CD only included tests of the conducted emission limits
(prescribed by 47 C.F.R. § 15.107), not the radiated emission
limits.
16 Letter from Joseph P. Casey, Chief, Spectrum Enforcement
Division, Enforcement Bureau, to Robert J. Ungar, Esq. (September
4, 2003).
17 Letter from Robert J. Ungar, Esq., to Thomas D. Fitz-
Gibbon, Spectrum Enforcement Division, Enforcement Bureau
(September 24, 2003).
18 On December 4, 2003, EB received a report from Samson
indicating that it has begun marketing replacement models for the
MRS-802 and MRS-802CD and that the replacement models comply with
the Class B radiated emission limits. Letter from Terry G. Mann,
Esq., and Robert J. Ungar, Esq., to Joseph P. Casey, Kathryn
Berthot and Thomas D. Fitz-Gibbon, Spectrum Enforcement Division,
Enforcement Bureau, and Bruce Romano, Office of Engineering and
Technology ( December 4, 2003).
19 47 C.F.R. § 15.101(a).
20 47 C.F.R. § 2.909(b).
21 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,'
... 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., 6
FCC Rcd 4387 (1991).
22 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).
23 47 U.S.C. § 503(b).
24 47 U.S.C. § 503(b)(2)(D).
25 12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303
(1999).
26 47 C.F.R. § 1.80.
27 See 47 C.F.R. § 1.1914.