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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Inteligain Corporation, Inc. ) File No. EB-04-SE-218
Calabasas, California )
) NAL/Acct. No. 200532100014
)
) FRN # 0009360082
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 8, 2005 Released: September
12, 2005
By the Chief, Spectrum Enforcement Division, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture ("NAL"), we find that Inteligain Corporation,
Inc. (``Inteligain'') has apparently willfully and
repeatedly violated 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 by marketing the
Inteligain model DBA-819 dual band cellular and Personal
Communications Service (``PCS'') amplifier, FCC ID #
RCUDBA819-807, in a manner inconsistent with a condition in
its equipment certification intended to ensure compliance
with RF exposure limits. We conclude that Inteligain is
apparently liable for a forfeiture in the amount of seven
thousand dollars ($7,000).
II. BACKGROUND
2. In July 2004, the Enforcement Bureau's
Spectrum Enforcement Division received a complaint alleging
that the label on the Inteligain model DBA-819 dual band
cellular and PCS amplifier (``DBA-819 amplifier'') did not
include any FCC identifier, which suggested that the device
had not been certified in accordance with the Commission's
equipment authorization requirements. Under Section
2.925(a)(1) of the Rules,3 certified equipment must include
a label or nameplate listing the FCC identifier.
3. A review of Commission records revealed that
an equipment authorization for the DBA-819 amplifier was
granted in January 2003 to Arrista Technologies, Inc. under
FCC ID # P35SSG-819-1W2W. This authorization included the
following condition intended to ensure compliance with the
RF radiation maximum permissible exposure limits set forth
in Section 1.1310 of the Rules4:
The antenna(s) used for this transmitter must be
installed to provide a separation distance of at
least 50 cm from all persons and must not be co-
located or operating in conjunction with any other
antenna or transmitter. Users and installers must
be provided with antenna installation instructions
and transmitter operating conditions for
satisfying RF exposure compliance.
In July 2003, Inteligain filed an application seeking a
change in the FCC identifier for the DBA-819 amplifier.5 In
its application, Inteligain noted that the application ``is
for a change in the FCC identifier only with no change in
the design, circuitry or construction'' of the device and
specifically requested that the above condition regarding RF
exposure compliance be placed on the authorization. The
user manual submitted with the application included in the
``Warnings'' section the following instruction to users:
``Directly wired vehicle antennas, mounted a minimum
distance of 50 cm (19.5'') away from any person, are
recommended.'' On July 29, 2003, Inteligain was granted an
authorization for the DBA-819 amplifier under FCC ID #
RCUSG819-807 which included the same condition regarding RF
exposure compliance that was on the original authorization.
4. On September 7, 2004, the Spectrum
Enforcement Division sent Inteligain a letter of inquiry
(``LOI'').6 In its response dated September 29, 2004,
Inteligain stated that after receiving an equipment
authorization for the DBA-819 amplifier in July 2003 under
FCC ID # RCUSG819-707, it delayed bringing the device to
market first because of technical problems and then because
of a potential patent infringement problem with the device.
Inteligain stated that it subsequently entered into an
agreement with the patent holder to manufacture the device
and began manufacturing the device in May 2004. Inteligain
also stated that it had manufactured 3,602 units of the DBA-
819 amplifier to date and that each device has a label with
an FCC identifier attached to the back at the time of
manufacture. Inteligain asserted that ``[t]hrough a clerical
error, we changed part of the grant code [of the FCC
identifier], specifically, the letters SG to DBA, so we
would know that these units were produced under the patent
royalty Agreement.'' Inteligain indicated that since May
2004, it had sold and shipped these devices to ten
retailers.
5. Inteligain further asserted that after
receiving the LOI, it filed an application to change the FCC
identifier of the DBA-819 amplifier from RCUSG819-807 to
RCUDBA819-807. Inteligain's application indicated that
other than the change in FCC identifier, ``the equipment is
electrically and mechanically the same'' and requested that
the same condition regarding RF exposure compliance that was
on the original authorization under FCC ID # P35SSG-819-1W2W
and the authorization under FCC ID # RCUSG819-807 be placed
on the new authorization. On September 18, 2004,
Inteligain was granted an authorization for the DBA-819
amplifier under FCC ID # RCUDBA819-807 which included the
condition regarding RF exposure compliance.
6. However, in reviewing Inteligain's response,
the Spectrum Enforcement Division found that the user manual
for the DBA-819 amplifier submitted with Inteligain's
response instructs users in the ``Warnings'' section that
``Directly wired vehicle antennas, mounted a minimum
distance of 20 cm (7.87 inches) [emphasis added] away from
any person, are recommended.'' Thus, the user manual
currently being distributed by Inteligain with the DBA-819
amplifier does not comply with the explicit condition
regarding RF exposure compliance set forth in the
authorization.
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 device 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.
Pursuant to Section 2.1091 of the Rules,7 certain mobile
devices,8 such as the DBA-819 amplifier, that operate in the
cellular and PCS services are subject to routine
environmental evaluation for RF radiation exposure prior to
equipment authorization or use.9 Applications for
equipment authorization of such mobile devices subject to
routine environmental evaluation must contain a statement
confirming compliance with the maximum permissible exposure
limits for occupational/controlled exposure10 and general
population/uncontrolled exposure11 set forth in Section
1.1310 of the Rules. Further, Section 2.1091(d)(3) of the
Rules provides that if appropriate, compliance with exposure
limits for such mobile devices can be accomplished by the
use of warning labels and by providing users with
information concerning minimum separation distances from
transmitting structures and proper installation of antennas.
8. The original application for equipment
authorization for the DBA-819 amplifier included an RF
exposure analysis which demonstrated that the device
complies with the maximum permissible exposure limits for
occupational/controlled exposure and general
population/uncontrolled exposure set forth in Section 1.1310
when the antenna is mounted a minimum distance of 50 cm from
all persons. The original equipment certification granted
for the DBA-819 amplifier under FCC ID # P35SSG-819-1W2W
included the following condition:
The antenna(s) used for this transmitter must be
installed to provide a separation distance of at
least 50 cm from all persons and must not be co-
located or operating in conjunction with any other
antenna or transmitter. Users and installers must
be provided with antenna installation instructions
and transmitter operating conditions for
satisfying RF exposure compliance.
Inteligain subsequently filed two applications seeking to
change the FCC identifier for the DBA-819 amplifier, first,
in July 2003, to FCC ID # RCUSG819-807 and later, in
September 2004, to FCC ID # RCUDBA819-807. Both of these
applications indicated that there was no change in the
design, circuitry and construction of the device and both
applications requested that the above condition regarding RF
exposure compliance be placed on the authorization. The
authorization granted under FCC ID # RCUSG819-807 and the
current authorization granted under FCC ID # RCUDBA819-807
both include this condition. However, the user manual
which Inteligain is currently distributing with the DBA-819
amplifier instructs users in the ``Warnings'' section that
``Directly wired vehicle antennas, mounted a minimum
distance of 20 cm (7.87 inches) [emphasis added] away from
any person, are recommended.'' Based on the RF exposure
analysis provided in the original equipment authorization
application for the DBA-819 amplifier, it appears that the
DBA-819 amplifier will not comply with applicable RF
radiation exposure limits when the antenna is installed only
20 cm away from persons. We conclude that by marketing the
DBA-819 amplifier without the proper warning concerning
minimum separation distance required by the condition in its
equipment authorization, Inteligain apparently violated
Section 302(b) of the Act and Section 2.803(a)(1) of the
Rules.
9. Section 2.925 of the Rules requires that
equipment authorized under the certification procedures bear
a nameplate or label listing the FCC identifier.
Inteligain's response indicates that between May 2004 and
September 2004, Inteligain manufactured and distributed DBA-
819 amplifiers labeled with an incorrect FCC identifier.
Inteligain failed to correct this error until after receipt
of the Enforcement Bureau's LOI. We find, therefore, that
Inteligain apparently marketed an amplifier that was not
compliant with the labeling requirements of Section 2.925.
10. Accordingly, we find that Inteligain
apparently willfully12 and repeatedly 13 violated Section
302(b) of the Act and Section 2.803(a)(1) 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.14 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.''15
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'')16 and Section 1.80 of the Rules,17 the
base forfeiture amount for the importation or marketing of
unauthorized equipment is $7,000. Here, Inteligain
marketed, and apparently continues to market, equipment in a
manner inconsistent with a condition in its equipment
authorized intended to ensure compliance with RF exposure
limits. Given the public safety nature of this violation,
we believe that a proposed forfeiture is warranted.18
Accordingly, applying the Forfeiture Policy Statement and
statutory factors to the instant case, we conclude that
Inteligain is apparently liable for a $7,000 forfeiture.
13. Finally, pursuant to Section 403 of the Act,
19 we direct Inteligain to submit an affidavit, signed by an
officer or director, within 30 days of the release of this
NAL demonstrating that it taken steps to come into
compliance with the condition in its certification for the
DBA-819 amplifier with respect to any new DBA-819 amplifiers
marketed by Inteligain. We note that failure to submit the
affidavit may subject Inteligain to further enforcement
action. In addition, we urge Inteligain to take steps to
provide existing users of the DBA-819 amplifier with revised
manuals detailing the correct antenna installation
instructions and transmitter operating conditions for
satisfying RF exposure compliance.
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, Inteligain IS hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of seven thousand
dollars ($7,000) for willfully and repeatedly violating
Section 302(b) of the Act and Section 2.803(a)(1) of the
Rules.
15. 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,
Inteligain, 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 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.
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. 20554.20
20. IT IS FURTHER ORDERED that, pursuant to
Section 403 of the Act, Inteligain must submit the affidavit
described in paragraph 13 above, within 30 days from the
release of this NAL, to: Federal Communications Commission,
Enforcement Bureau, Spectrum Enforcement Division, 445 12th
Street, S.W., Room 7-C833, Washington, D.C. 20554,
Attention: Brett Greenwalt.
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 Dana Mitchell President, Inteligain Corporation, Inc.,
26500 Agoura Road Suite 102-656, Calabasas, California
91302.
FEDERAL COMMUNICATIONS
COMMISSION
Joseph P. Casey
Chief, Spectrum Enforcement
Division
Enforcement Bureau
_________________________
147 U.S.C. § 302a(b).
247 C.F.R. § 2.803(a)(1).
347 C.F.R. § 2.925(a)(1).
447 C.F.R. § 1.1310.
5It appears that Arrista assigned its rights to this device
to Inteligain.
6See Letter from Joseph P. Casey, Chief, Spectrum
Enforcement Division, Enforcement Bureau, to Inteligain
Corporation, Inc. (September 7, 2004).
747 C.F.R. § 2.1091.
8Section 2.1091(b) defines a ``mobile device'' as ``a
transmitting device designed to be used in other than fixed
locations and to generally be used in such a way that a
separation distance of at least 20 centimeters is normally
maintained between the transmitter's radiating structure(s)
and the body of the user or nearby persons.''
9See 47 C.F.R. § 2.1091(c).
10The occupational/controlled exposure limits apply in
situations in which persons are exposed as a consequence of
their employment provided those persons are fully aware of
the potential for exposure and can exercise control over
their exposure. The limits for occupational/controlled
exposure also apply in situations where an individual is
transient through a location where the occupational limits
apply, provided that he or she is made aware of the
potential for exposure. 47 C.F.R. § 1.1310, Note 1 to Table
1.
11The general population/uncontrolled exposure limits apply
in situations in which the general public may be exposed, or
in which persons that are exposed as a consequence of their
employment may not be fully aware of the potential for
exposure or cannot exercise control over their exposure.
47 C.F.R. § 1.1310, Note 1 to Table 1.
12Section 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).
13Section 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).
1447 U.S.C. § 503(b).
1547 U.S.C. § 503(b)(2)(D).
1612 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303
(1999).
1747 C.F.R. § 1.80.
18We are not proposing a separate forfeiture for
Inteligain's labeling violation.
1947 U.S.C. § 403.
20See 47 C.F.R. § 1.1914.