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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-04-SE-349
Shenzhen Ruidian Communication ) NAL/Acct. No. 200632100003
Co. Ltd. ) FRN # 0011287802
Shenzhen, China )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: November 25, 2005 Released: November
29, 2005
By the Chief, Spectrum Enforcement Division, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture, we find Shenzhen Ruidian Communication Co. Ltd.
(``Shenzhen Ruidian Communication'') apparently violated a
Commission order by willfully and repeatedly failing to
respond to a directive of the Enforcement Bureau
(``Bureau'') to provide certain information and documents.
Based on our review of the facts and circumstances of this
case, and for the reasons discussed below, we find that
Shenzhen Ruidian Communication is apparently liable for a
monetary forfeiture in the amount of four thousand dollars
($4,000).
II. BACKGROUND
2. In November 2004, the Bureau received a complaint
from Global Link Corporation Limited (``Global Link'')
alleging that an unidentified manufacturer based in China
was marketing the Freetalker two-way radio wrist watch in
the United States using an FCC Identifier1 granted to Global
Link for a similar two-way radio device. Subsequent
investigation by the Bureau revealed that the Freetalker, a
Family Radio Service/General Mobile Radio Service 22-channel
two-way radio, had been marketed on at least one U.S.-based
website since September 2003.2
3. In February 2005, the Bureau received additional
information and documentation concerning this matter from a
company that holds the patent rights to the two-way radio
device manufactured by Global Link. Specifically, this
company indicated that Shenzhen Ruidian Communication was
the manufacturer of the Freetalker two-way radio and
provided photographs of the Freetalker device labeled with
the FCC Identifier granted to Global Link.
4. A search of the Commission's equipment
authorization database revealed that Shenzhen Ruidian
Communication was granted an equipment certification for a
Family Radio Service/General Mobile Radio Service two-way
radio wrist watch on September 3, 2004, at least a year
after the Freetalker was first marketed in the United
States.3 The Bureau subsequently began an investigation to
determine whether Shenzhen Ruidian Communication had
marketed the Freetalker two-way radio in the United States
prior to obtaining an equipment certification in violation
of Section 302(b) of the Communications Act of 1934, as
amended (``Act''), and Section 2.803(a) of the Rules, and
whether Shenzhen Ruidian Communication marketed the
Freetalker labeled with Global Link's FCC Identifier. On
March 10, 2005, the Bureau sent a letter of inquiry to
Shenzhen Ruidian Communication via international certified
mail, return receipt requested, facsimile and email.4 The
letter directed Shenzhen Ruidian Communication to submit a
response to the letter within 20 days. Shenzhen Ruidian
Communication did not respond to this letter of inquiry.
5. On June 9, 2005, the Bureau sent a follow-up
letter to Shenzhen Ruidian Communication via Federal Express
and via facsimile. This follow-up letter directed Shenzhen
Ruidian Communication to respond to the March 10, 2005
letter of inquiry within 15 days and warned that failure to
respond would constitute a violation of a Commission order,
subjecting it to possible enforcement action, including
monetary forfeitures. The Federal Express delivery tracking
system indicates that the follow-up letter was received by
Shenzhen Ruidian Communication on June 13, 2005. To date,
the Bureau has not received any response from Shenzhen
Ruidian Communication.
III. DISCUSSION
6. Under Section 503(b)(1) of the Act and Section
1.80(a) of the Rules, any person who is determined by the
Commission to have willfully or repeatedly failed to comply
with any provision of the Act or any rule, regulation, or
order issued by the Commission shall be liable to the United
States for a forfeiture penalty.5 In exercising our
forfeiture 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.''6
7. Sections 4(i), 4(j), and 403 of the Act afford the
Commission broad authority to investigate the entities it
regulates. Section 4(i) authorizes the Commission to
``issue such orders, not inconsistent with this Act, as may
be necessary in the execution of its functions,'' and
section 4(j) states that ``the Commission may conduct its
proceedings in such manner as will best conduce to the
proper dispatch business and to the ends of justice.''
Section 403 likewise grants the Commission ``full authority
and power to institute and inquiry, on its own
motion...relating to the enforcement of any of the
provisions of this Act.''7 Pursuant to that authority, the
Bureau twice ordered Shenzhen Ruidian Communication to
submit a timely written response to its inquiry letter and
to provide the information and documents requested. To
date, however, Shenzhen Ruidian Communication has not filed
the required response. A party cannot ignore the directives
in a Bureau inquiry letter.8 We therefore conclude that
Shenzhen Ruidian Communication apparently willfully and
repeatedly failed to respond to a Bureau order.
8. 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'')9 and Section 1.80 of the Rules,10 the base
forfeiture amount for failure to respond to a Commission
communication is $4,000. We find that Shenzhen Ruidian
Communication's willful and repeated failure to respond to a
Bureau order warrants a proposed forfeiture. Misconduct of
this type exhibits a disregard for the Commission's
authority that cannot be tolerated, and, more importantly,
threatens to compromise the Commission's ability to
adequately investigate violations of its rules.
Accordingly, applying the Forfeiture Policy Statement and
statutory factors to the instant case, we conclude that
Shenzhen Ruidian Communication is apparently liable for a
$4,000 forfeiture.
9. We also direct Shenzhen Ruidian Communication
to respond fully to the March 10, 2005, LOI within thirty
days of the release of this order. Failure to do so may
constitute an additional violation potentially subjecting
Shenzhen Ruidian Communication to further penalties,
including potentially higher monetary forfeitures.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Act and Section 1.80 of the Rules,
Shenzhen Ruidian Communication IS hereby NOTIFIED of its
APPARENT LIABILITY FOR FORFEITURE in the amount of Four
Thousand Dollars ($4,000) for willfully and repeatedly
failing to fully respond in writing to a Bureau order.
11. IT IS FURTHER ORDERED THAT, pursuant to
Section 1.80 of the Rules, within thirty (30) days of the
release of this Notice of Apparent Liability for Forfeiture,
Shenzhen Ruidian Communication 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 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.
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 the
NAL under an installment plan should be sent to: Associate
Managing Director - Financial Operations, 445 12th Street,
S.W., Room 1A625, Washington, D.C. 20554.11
16. IT IS FURTHER ORDERED, that pursuant to
Section 403 of the Act, Shenzhen Ruidian Communication shall
fully respond to the March 10, 2005, Letter of Inquiry sent
by the Enforcement Bureau within 30 days of the release of
this Order.
17. IT IS FURTHER ORDERED that a copy of this
Notice of Apparent Liability for Forfeiture shall be sent by
FedEx International Airbill to Shenzhen Ruidian
Communication Co. Ltd., Linda Zhou, President, 3/F No. 1,
Linyuan east Rd., Shangmeilin, Shenzhen, China 518049.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Spectrum Enforcement Division
Enforcement Bureau
_________________________
1FCC Identifier # QL2FRSFW13. Pursuant to Section 2.925 of
the Commission's Rules (``Rules''), 47 C.F.R. § 2.925, each
radio frequency device that receives a grant of equipment
certification from the Commission must be labeled with a
unique FCC Identifier.
2Specifically, the Bureau found that the Freetalker was
marketed on the www.alibaba.com website beginning in
September 2003.
3FCC Identifier # SDOFRSD018. See supra n. 2.
4Letter from Kathryn Berthot, Deputy Chief, Spectrum
Enforcement Division, Enforcement Bureau, to Linda Zhou,
President, Shenzhen Ruidian Communications Co. Ltd. (March
10, 2005).
547 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1). See
also 47 U.S.C. § 312(f)(1). Section 312(f)(1) defines
willful as ``the conscious and deliberate commission or
omission of [any] act, irrespective of any intent to
violate'' the law. Consistent with congressional intent,
the Commission has interpreted willful in forfeiture
proceedings to mean actions or omissions that are committed
knowingly (i.e, that a violator intended to commit the act
or omission that was found to have violated a statutory
and/or regulatory provision) See also 47 U.S.C. §
503(b)(1)(D) (forfeitures for violation of 14 U.S.C. §
1464). Section 312(f)(1) of the Act defines willful as
``the conscious and deliberate commission or omission of
[any] act, irrespective of any intent to violate'' the law.
47 U.S.C. § 312(f)(1). The legislative history to Section
312(f)(1) of the Act clarifies that this definition of
willful applies to both sections 312 and 503(b) of the Act,
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982), and
the Commission has so interpreted the term in the Section
503(b) context. See, e.g., Application for Review of
Southern California Broadcasting Co., 6 FCC Rcd 4387, 4388
(1991) (``Southern California Broadcasting Co.''). The
Commission may also assess a forfeiture for violations that
are merely repeated, and not willful. See, e.g., Callais
Cablevision, Inc., 16 FCC Rcd 1359 (2001) (issuing a Notice
of Apparent Liability for, inter alia, a cable television
operator's repeated signal leakage). ``Repeated'' means
that the act was committed or omitted more than once, or
lasts more than one day. Southern California Broadcasting
Co., 6 FCC Rcd at 4388, ¶ 5; Callais Cablevision, Inc., 16
FCC Rcd at 1362 ¶ 9.
647 U.S.C. § 503(b)(2)(D).
747 U.S.C. § 403. Section 403 provides, in part: ``The
Commission shall have full authority and power at any time
to institute an inquiry, on its own motion, in any case and
as to any matter or thing concerning which complaint is
authorized to be made, to or before the Commission by any
provision of this Act, or concerning which any question may
arise under any of the provisions of this Act.'' See also
47 U.S.C. § 154(i), (j).
8See, e.g., SBC Communications, Inc., 17 FCC Rcd 7589,7591
¶4 (2002) (``SBC Communications''). In SBC Communications,
the Commission assessed a $100,000 forfeiture against a
carrier for its willful refusal to supply a sworn
declaration in response to an Enforcement Bureau letter of
inquiry. The Commission stated: ``[T]he order here was
squarely within the Commission's authority and, in any
event, parties are required to comply with Commission
orders even if they believe them to be outside the
Commission's authority.'' Id. at ¶ 5. See also World
Communications Satellite Systems, Inc., 19 FCC Rcd 2718
(Enf. Bur. 2004) (``WSSC'') ($10,000 forfeiture for
submitting a jurisdictional objection in lieu of a response
to a Bureau inquiry letter); American Family Ass'n, DA 04-
2330 (Enf. Bur. rel July 28, 2004); In re Richard E.
LaPierre, 15 FCC Rcd 23525 (Enf. Bur. 2000) ($4,000
forfeiture for repeated failure to respond to written
Commission inquiries).
912 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303
(1999).
1047 C.F.R. § 1.80.
11See 47 C.F.R. § 1.1914.