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 )
) File No. EB-04-SE-367
Hawking Technologies, Inc. ) NAL/Acct. No. 200532100010
Irvine, California ) FRN # 0012065009
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 20, 2005 Released: June 22,
2005
By the Chief, Spectrum Enforcement Division, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Hawking Technologies, Inc.
(``Hawking''), apparently liable for a forfeiture in the
amount of twenty-two thousand dollars ($22,000) for willful
and repeated violation of Section 302(b) of the
Communications Act of 1934, as amended (``Act''),1 and
Sections 2.803(a) and 15.204(a) of the Commission's Rules
(``Rules'').2 The alleged violations involve marketing
external radiofrequency power amplifiers in a manner that
was inconsistent with the terms of its equipment
authorization and the requirements of Section 15.204(a) of
the Rules.
II. BACKGROUND
2. On December 9 and 14, 2004, the Enforcement
Bureau (``Bureau'') received complaints alleging that
Hawking was illegally marketing the Hawking Model HSB1
(``HSB1'') external radio frequency power amplifier for
individual sale.
3. External radio frequency power amplifiers,
such as the HSB1, are used to boost the power of radio
transmitters. Section 15.204(d)(1) of the Rules3 provides
that, if an external radio frequency power amplifier is
marketed for individual sale, it ``must be of a design such
that it can only be connected as part of a system in which
it has been previously authorized.'' Hawking's equipment
authorization, FCC ID # SOYHSB1, provides that the HSB1 may
be used only with wireless access points4 authorized under
the equipment authorization FCC ID# NDD9572030410.5
4. The Bureau investigated the complaints about
Hawking's marketing of the HSB1. As part of the
investigation, Bureau staff purchased a sample of the HSB1
from an internet retailer on December 13, 2004, for $78.68.
The HSB1 was packaged with an antenna and a connector but
the package did not include a wireless access point. The
packaging states that ``The HSB1 is certified by the FCC to
work with the Hawking HWBA54G Wireless-G Access Point as a
single system (FCC ID: SOYHSB1). More systems will be
certified at a later time.'' Similarly, the user manual
(``Quick Installation Guide'') included with sample states
``RF Cable and HSB1 are designed to operate only with
Hawking HWBA54G as a single system'' and that ``[a]s of
December 1, 2004, the HSB1 has been certified by the FCC to
operate as a single system with Hawking's HSBA54G Wireless-G
Access Point.'' However, the Product Information Brochure
packaged with the sample states that ``... the HSB1 ...
attaches to any wireless device (Access Points, Routers,
Bridges, Network Adaptors, etc.) with a removable antenna.
The HSB1 comes with connector adaptors compatible with all
major wireless brands.''6 The Bureau subsequently observed
that retailers which had acquired HSB1 units from Hawking
were similarly advertising the device on their websites for
use with all major wireless brands.7
5. On December 21, 2004, the Bureau conducted
internet research concerning the HSB1. As of that date,
Hawking's internet site indicated that the HSB1 ``works with
all major 80211b and g wireless brands'' and ``is the ONLY
range-boosting product on the market with support for all
major wireless brands and networks''; and that ``connector
adaptors are available for multiple brand support.'' Only
one of the pages observed on Hawking's internet site
advertising the HSB1 had a reference to the HSBA54G wireless
access point and that page also listed another wireless
access point (Hawking Model HWR54G) without indicating which
wireless access point was authorized to be used with HSB1.
6. On December 30, 2004, the Bureau issued a
letter of inquiry (``LOI'') to Hawking.8 On January 17,
2005, Hawking responded to the LOI.9 In its response,
Hawking identifies the Hawking Model HWBA54G as the only
wireless access point authorized under equipment
authorization FCC ID # NDD9572030410 and states that the
HSB1 is capable of operating with other wireless access
points ``if such other access points use the same `non-
standard' connector.''10 Hawking also states that it
imported and distributed in the United States 7,520 units of
the HSB1.11 Additionally, Hawking asserts, that after
receiving the LOI, it halted the marketing of the HSB1 as an
individual unit and began preparation to bundle the HSB1
unit with the HWBA54G wireless access point. 12 Hawking
claims it was unaware of the requirements of Section
15.204(d)(2) of the Rules13 that the outside packaging and
user manual for external radio frequency power amplifiers
must include notification that the amplifier can only be
used in an authorized system and that such notice must
identify the authorized system by FCC identifier, but has
now updated the outside packaging and user manual to comply
with the Rules.14 Finally, Hawking asserts that the HSB1 is
in compliance with the labeling requirements of Section
15.19 of the Rules15 but admits that the HSB1 was not
compliant with Section 2.925 of the Rules,16 which requires
a label listing the FCC Identifier.17 Hawking claims it was
unaware of the requirements of Section 2.925 but will take
measures to comply before it resumes production and shipment
of the HSB1.18
III. DISCUSSION
7. 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)(1) of the Commission's implementing regulations
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 device19 unless ... [i]n the
case of a device that is subject to certification,
such device has been authorized by the Commission
in accordance with the rules in this chapter and
is properly identified and labeled as required by
§ 2.925 and other relevant sections in this
chapter [emphasis added].
Section 15.204(a) of the Commission's implementing
regulations provides that:
Except as otherwise described in paragraphs (b)
and (d) of this section, no person shall use,
manufacture, sell or lease, offer for sale or
lease (including advertising for sale or lease),
or import, ship or distribute for purpose of
selling or leasing, any external radio frequency
power amplifier or amplifier kit intended for use
with a part 15 intentional radiator.20
Section 15.204(d)(1) of the Rules provides that:
Except as described in this paragraph, an external
radio frequency power amplifier or amplifier kit shall
be marketed only with the system configuration with
which it was approved and not as a separate product.
An external radio frequency power amplifier may be
marketed for individual sale provided it is intended
for use in conjunction with a transmitter that operates
in the 902-928 MHz, 2400-2483.5 MHz, and 5725-5850 MHz
bands pursuant to §15.247 of this part or a transmitter
that operates in the 5.725-5.825 GHz band pursuant to
§15.407 of this part. The amplifier must be of a design
such that it can only be connected as part of a system
in which it has been previously authorized. (The use of
a non-standard connector or a form of electronic system
identification is acceptable.) The output power of such
an amplifier must not exceed the maximum permitted
output power of its associated transmitter.
8. Hawking admits that it marketed the HSB1
external radio frequency power amplifier for individual
sale. Although the HSB1's equipment authorization allows it
to be used only with the Hawking Model HWBA54G wireless
access point, Hawking advertised the HSB1 as a device that
can be used with ``all major wireless brands and networks''
and offered to supply connector adaptors to accomplish such
use. We find, therefore, that Hawking apparently marketed
HSB1 in a manner that was inconsistent with the terms of its
equipment authorization and the requirements of Section
15.204(a) of the Rules.
9. Hawking also admits that the HSB1 was not
compliant with the notification requirements of Section
15.204(d)(2) of the Rules21 or with the labeling
requirements of Section 2.925 of the Rules. We find,
therefore, that Hawking apparently marketed external radio
frequency power amplifiers that were not compliant with
Sections 2.925 and 15.204(d)(2).
10. Accordingly, we find that Hawking apparently
willfully22 and repeatedly 23 violated Section 302(b) of the
Act and Sections 2.803(a)(2) and 15.204(a) of the Rules.
11. 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.24 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.''25
12. 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'')26 and Section 1.80 of the Rules,27 the
base forfeiture amount for the importation or marketing of
unauthorized equipment is $7,000. In this case, Hawking
imported and sold 7,520 units. We estimate that Hawking's
economic gain from marketing 7,520 devices that retailed for
about $75.00 each was, conservatively, at least two dollars
per device for a total of approximately $15,000. Moreover,
we believe that Hawking's promotion of the HSB1 as a device
which ``attaches to any wireless device'' directly
contributed to Hawking's economic gain. Under the
Forfeiture Policy Statement and Section 1.80(b)(4) of the
Rules, 28 substantial economic gain is an upward adjustment
factor for Section 503 forfeitures. We find that an
increase of $15,000 from the base forfeiture amount is
warranted on the basis of Hawking's substantial economic
gain. Accordingly, applying the Forfeiture Policy Statement
and statutory factors to the instant case, we conclude that
Hawking is apparently liable for a $22,000 forfeiture. We
further find Hawking's promise to correct the violations is
commendable, but such remedial measures do not lessen,
mitigate, or excuse its past violations of the equipment
marketing requirements.29
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to
pursuant to Section 503(b) of the Act30 and Sections 0.111,
0.311 and 1.80 of the Rules,31 Hawking Technologies, Inc.,
IS hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of twenty-two thousand dollars
($22,000) for willfully and repeatedly violating Section
302(b) of the Act and Sections 2.803(a) and 15.204(a) of the
Rules.
14. 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 and
Order, Hawking Electric Corporation SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
15. Payment of the forfeiture must be made by
check or similar instrument, payable to the order of the
Federal Communications Commission. The payment must include
the NAL/Acct. No. and FRN No. referenced above. Payment
by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh,
PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106.
16. 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.
17. 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.
18. Requests for payment of the full amount of
this NAL under an installment plan should be sent to: Chief,
Revenue and Receivable Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.32
19. IT IS FURTHER ORDERED that a copy of this
Notice of Apparent Liability for Forfeiture and Order shall
be sent by first class mail and certified mail return
receipt requested to Hawking Technologies, Inc., 15281 A
Barranca Pkwy., Irvine, CA 92618.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Spectrum Enforcement
Division
Enforcement Bureau
_________________________
1 47 U.S.C. § 302a(b).
2 47 C.F.R. §§ 2.803(a) and 15.204(a).
3 47 C.F.R. § 15.204(d)(1).
4 The term ``wireless access point'' is not defined in the
Rules. However, the Bureau takes official notice that a
wireless access point is a transmitter/receiver whose most
common use is to connect wireless devices to the internet.
5 Granted to Edimax Technology Co., Ltd., for wireless
802.11g access points.
6 No connector adaptor was actually packaged with the HSB1.
However, the Product Information Brochure includes
information about the connector adaptors sold by Hawking and
how to use them.
7 On March 15, 2005, the Bureau observed that Comp USA and
PCM both were advertising the HSB1 on their websites as
``the ONLY range boosting product on the market with
support for all major wireless brands and networks'' and
stated on their websites that ``connector adaptors are
available for multiple brand support.'' Comp USA's website
indicated that its description of the device was ``[b]ased
on manufacturer's information.''
8 See Letter from Joseph P. Casey, Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal
Communications Commission to Hawking Technologies, Inc.
(December 30, 2004).
9 See Letter from Frank Lin, Chief Executive Officer,
Hawking Technologies, Inc. to Thomas Fitz-Gibbon, Attorney,
Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission (January 17, 2005) (``LOI
Response'').
10 LOI Response at 2.
11 Id at 3.
12 Id at 2.
13 47 C.F.R. § 15.204(d)(2).
14 LOI Response at 3.
15 47 C.F.R. § 15.19.
16 47 C.F.R. § 2.925.
17 LOI Response at 3.
18 Id..
19 47 C.F.R. § 2.801 defines a radiofrequency device as
``any device which in it its operation is capable of
emitting radiofrequency energy by radiation, conduction, or
other means.''
20 47 C.F.R. § 15.3(o) defines an intentional radiator as
``A device that intentionally generates radio frequency
energy by radiation or induction.''
21 The packaging and user manual of the HSB1 include a
notification that the amplifier can be used only in a system
for which there is an authorization but do not identify the
authorized system by FCC Identifier.
22 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).
23 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).
24 47 U.S.C. § 503(b).
25 47 U.S.C. § 503(b)(2)(D).
26 12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303
(1999).
27 47 C.F.R. § 1.80.
28 See Forfeiture Policy Statement, 12 FCC Rcd at 17100; 47
C.F.R. § 1.80(b)(4), Note to paragraph (b)(4): Section II.
Adjustment Criteria for Section 503 Forfeitures.
29 See AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871
¶ 14 (2002); KGVL, Inc., 42 FCC 2d 258, 259 (1973).
30 47 U.S.C. § 503(b).
31 47 C.F.R. § 0.111, 0.311 and 1.80.
32 See 47 C.F.R. § 1.1914.