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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Gibson Tech Ed, Inc. ) File No. EB-04-SE-123
Orem, Utah ) NAL/Acct. No. 200532100013
) FRN 0007050479
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: August 30, 2005 Released: September 1,
2005
By the Chief, Spectrum Enforcement Division:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Gibson Tech Ed, Inc. (``Gibson'')
apparently liable for a forfeiture in the amount of fourteen
thousand dollars ($14,000) for apparent willful and repeated
violation of Sections 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 Gibson's marketing of two models of
unauthorized FM broadcast transmitters.
II. BACKGROUND
2. On June 30, 2004, the Enforcement Bureau (``Bureau'')
issued Gibson a Citation3 for marketing unauthorized FM
broadcast transmission equipment manufactured by Veronica Ltd.
(``Veronica''), in violation Section 302(b) of the Act and
Section 2.803 of the Rules, and for failing to respond to a
letter of inquiry (``LOI'').4
3. While investigating Gibson's marketing of Veronica FM
transmitters and power amplifiers, Bureau staff observed that
Gibson was also marketing FM transmitters identified on
Gibson's website as ``Ramsey'' equipment.5 The Bureau
subsequently investigated Gibson's marketing of Ramsey FM
transmitters and determined through internet research on
December 2, 2004, and April 18, 2005, that Gibson was offering
for sale, on its Hobbytron.com website, fully assembled FM
broadcast transmitters designated as R-FM25B-WT and R-FM100B-
WT. Gibson's website indicated that both transmitters operate
in the FM broadcast band, 88 - 108 MHz, and that the output
power of the R-FM100B-WT is adjustable between 25 mW and one
watt. The output power of the R-FM25B-WT was not indicated on
Gibson's website, but information in Ramsey's catalog
indicates that it is adjustable between 5 µW and 25mW. The
FCC's equipment authorization database indicates that neither
Gibson nor Ramsey has received a grant of equipment
certification6 for either the R-FM25B-WT or the R-FM100B-WT.
4. The Hobbytron.com website indicated that customers
purchasing the above transmission equipment are required, as a
condition of purchase, to sign a form which ``protects our
company from the end user causing trouble with the FCC.''
Specifically, the form is captioned ``FM Transmitter
Certification Form,'' and states that ``[t]his form is used to
verify that your purchase of a FM TRANSMITTER product(s) will
be used in accordance with appropriate laws regulating
intentional radiators.'' This form requires the purchaser to
certify as follows:
I hereby certify that the product(s) will be
operated in accordance with applicable laws of the land
for the intended destination of operation. If resold,
we additionally certify that we will . . . enforce this
compliance to the purchaser. I do understand that the
product(s) may exceed the legal limits set by the FCC
and may not be authorized to be used in the USA. If
for any reason I am notified that I am interfering with
the signal of anyone else, I agree to terminate my
transmission to prevent any further interference.
In any case, Gibson Tech Ed, Inc. or HobbyTron.com
will not be responsible for my use of this product and
it is my sole responsibility to know and obey the
applicable laws. . . . [I] . . . further agree to
defend, indemnify, and hold harmless Gibson Tech Ed,
Inc. (dba Hobbytron.com) from any claims actions or
demands resulting from improper use of this equipment.
5. On March 4, 2005, as part of an investigation of
Ramsey's equipment marketing activities, the Bureau sent
Ramsey an LOI.7 In its response,8 Ramsey listed Gibson as
one its ``retailers/distributors'' but asserted that ``R-
FM25B-WT and R-FM100B-WT are not valid Ramsey product numbers
or designations.''9 Additionally, Ramsey stated that it
manufactures the FM100BWT in the United States and claimed
that no equipment certification is needed for the FM100BWT
because it requires buyers in the United States to provide
signed statements that the device will be exported.
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 device10 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].
7. The record establishes that Gibson marketed the FM
broadcast transmitters designated as R-FM25B-WT and R-FM100B-
WT in the United States and that neither Gibson nor Ramsey has
received a grant of equipment certification for either the R-
FM25B-WT or the R-FM100B-WT. Section 15.201(b) of the Rules11
requires certification (with inapplicable exceptions) of
intentional radiators. As intentional radiators, R-FM25B-WT
and R-FM100B-WT are, therefore, required to be certified12
before being marketed in the United States.
8. Gibson's use of the ``FM Transmitter Certification
Form'' appears to be an attempt to circumvent the prohibition
on marketing of unapproved radio frequency devices such as the
R-FM25B-WT and R-FM100B-WT by placing responsibility for any
problems which may result from their use on the buyer.
Although Section 2.807(b) exempts devices "manufactured solely
for export" from the prohibition on marketing of unauthorized
equipment set forth in Section 2.803(a) of the Rules, this
exemption only applies to devices that the manufacturer
actually exports13 and, thus, is not applicable here.
Furthermore, the specific language in Gibson's ``FM
Transmitter Certification Form,'' in particular the sentence
``I do understand that the product(s) may exceed the legal
limits set by the FCC and may not be authorized to be used in
the USA,'' leaves little doubt that Gibson was fully aware
that the R-FM25B-WT and R-FM100B-WT have not been authorized
for sale in the United States.
9. We find, accordingly, that Gibson apparently marketed
two models of uncertified FM broadcast transmitters in the
United States, in willful14 and repeated15 violation of
Section 302(b) of the Act and Section 2.803(a)(2) of the
Rules.
10. Section 1.80(d) of the Rules provides in pertinent part
that:
No forfeiture penalty shall be imposed upon any person
under this section, if such person does not hold a license,
permit, certificate, or other authorization issued by the
Commission, and if such person is not an applicant for a
license, permit, certificate, or other authorization issued
by the Commission, unless, prior to the issuance of the
appropriate notice, such person: (1) Is sent a citation
reciting the violation charged; (2) is given a reasonable
opportunity (usually 30 days) to request a personal
interview with a Commission official, at the field office
which is nearest to such person's place of residence; and
(3) subsequently engages in conduct of the type described in
the citation.. . .. When the requirements of this paragraph
have been satisfied with respect to a particular violation
by a particular person, a forfeiture penalty may be imposed
upon such person for conduct of the type described in the
citation without issuance of an additional citation.
Gibson apparently does not hold a license, permit,
certificate, or other authorization issued by the Commission.
However, a forfeiture penalty apparently can be imposed against
Gibson because the Bureau issued a citation to Gibson on June 30,
2004, for the same type of conduct, namely, marketing
unauthorized equipment in violation of Section 302(b) of the Act
and Section 2.803 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.16 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.''17
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'')18 and Section 1.80 of the Rules,19 the base
forfeiture amount for the marketing of unauthorized equipment
is $7,000. In this case, Gibson marketed two distinct models
of unauthorized broadcast transmission equipment. Gibson's
marketing of each of these two unauthorized models is a
separate violation. We find that a proposed forfeiture amount
of $7,000 is apparently warranted for each of the two models
for a total proposed forfeiture of $14,000.20 Accordingly,
applying the Forfeiture Policy Statement and statutory factors
to the instant case, we conclude that Gibson is apparently
liable for a $14,000 forfeiture.
13. Finally, Gibson is apparently continuing to advertise
the unauthorized Ramsey equipment on its Hobbytron.com
website. Accordingly, we require, pursuant to Section 403 of
the Act,21 that Gibson submit a report within 30 days of the
date of this NAL describing the steps it has taken to come
into compliance with the Act and the Rules.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED that, pursuant to pursuant
to Section 503(b) of the Act and Section 1.80 of the Rules,
Gibson Tech Ed, Inc., IS hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of fourteen thousand
dollars ($14,000) for willfully and repeatedly violating
Section 302(b) of the Act and Section 2.803(a) of the Rules.
15. IT IS FURTHER ORDERED that, pursuant to Section 403 of
the Act, Gibson Tech Ed, Inc. SHALL SUBMIT the report
described in paragraph 13 within thirty 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.,
Washington, D.C. 20054.
16. 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, Gibson Tech Ed,
Inc., SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
17. 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.
18. 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.
19. 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.
20. 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 Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.22
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 Gibson
Tech Ed, Inc., 1053 S 1680 W, Orem, UT 84058, and to its
attorney, Howard J. Barr, Esq., Womble, Carlyle, Sandridge &
Rice, 1401 I Street, N.W., Washington, D.C. 20005.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Spectrum Enforcement Division
_________________________
1 47 U.S.C. § 302a(b).
2 47 C.F.R. § 2.803(a).
3 Citation issued on June 30, 2004, to Gibson Tech Ed, Inc., by
Joseph P. Casey, Chief, Spectrum Enforcement Division,
Enforcement Bureau.
4 Letter from Joseph P. Casey, Chief , Spectrum Enforcement
Division, Enforcement Bureau, to Gibson Tech Ed, Inc. (May 14,
2004).
5 ``Ramsey'' refers to Ramsey Electronics, Inc., located in
Victor, NY.
6 A certification is an equipment authorization issued by the
Commission, based on representations and test data submitted by
the applicant. See 47 C.F.R. § 2.907(a).
7 Letter of March 4, 2005, from Kathryn S. Berthot to Michael A.
Leo.
8 Letter of March 28, 2005, from Michael A. Leo to the
Enforcement Bureau, Attention: Thomas Fitz-Gibbon.
9 A comparison of information from Hobbytron.com with information
from Ramsey's website and catalog indicates that the ``R-FM25B-
WT'' is apparently a fully assembled version of the Ramsey FM25B
transmitter kit, while the ``R-FM100B-WT'' appears to be
identical to the Ramsey FM100BWT fully assembled transmitter
manufactured by Ramsey.
10 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.''
11 47 C.F.R. § 15.201(b).
12 Ramsey acknowledges in the ``FM100B and FM35 Series FM
Transmitter Certification'' form provided with its marketing
materials that the FM100BWT is an intentional radiator.
13 See New Image Electronics, 17 FCC Rcd 3594, 3596 (Enf. Bur.
2002).
14 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).
15 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).
16 47 U.S.C. § 503(b).
17 47 U.S.C. § 503(b)(2)(D).
18 12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999).
19 47 C.F.R. § 1.80.
20 See Samson Technologies, Inc., 19 FCC Rcd 4221, 4225 (2004).
21 47 U.S.C. § 403
22 See 47 C.F.R. § 1.1914.