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 Number EB-05-ST-192
)
Clegg Industries, Inc. NAL/Acct. No. 200532980002
)
Torrance, California FRN # 0014417414
)
)
FORFEITURE ORDER
Adopted: September 27, 2006 Released: September 29, 2006
By the Regional Director, Western Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of seven thousand dollars ($7,000) to Clegg Industries,
Inc. ("Clegg") in Torrance, California, for repeatedly violating
Section 302(b) of the Commissions Act of 1934, as amended ("Act"), and
Section 2.803(a)(2) of the Commission's Rules ("Rules"). On December
21, 2005, the Enforcement Bureau's Seattle District Office issued a
Notice of Apparent Liability for Forfeiture ("NAL") after determining
that Clegg had apparently repeatedly imported and marketed
non-authorized radio frequency devices. In this Order, we consider
Clegg's argument that it was unaware that the device in question was
in violation of the Commission's Rules, and that it has since ensured
its compliance.
II. BACKGROUND
2. On April 10, 2005, a Western Region agent purchased a "Space Needle"
FM radio at the Space Needle gift shop in Seattle, Washington. The
agent noticed that the radio lacked any labeling as required by
Section 15.19(a)(1) of the Rules. The unit was turned over to the
Seattle District Office for further investigation.
3. On May 18, 2005, Seattle agents visited the Space Needle gift shop and
found a number of the "Space Needle" model radios for sale. The agents
interviewed the sales supervisor, and advised her that the Commission
required that certain labeling be placed on the devices prior to sale.
The sale supervisor had the "Space Needle" model radios removed from
the shelves.
4. On June 16, 2005, the Seattle office issued a Letter of Inquiry ("June
16, 2005 LOI") to the Space Needle Corporation requesting information
about the "Space Needle" model radio and the radios' importer. On June
24, 2005, the Seattle office received a response from the Space Needle
Corporation to the June 16, 2005 LOI. The response stated that the
importer of the radios was Clegg Industries, Inc., located in Torrance
California and that they had received a shipment of the radios from
Clegg on March 29, 2005. The response also indicated that the Space
Needle Corporation had ceased offering for sale the "Space Needle"
model radios on May 18, 2005, and had returned the radios to Clegg for
a refund.
5. On July 15, 2005, the Seattle Office issued a Letter of Inquiry ("July
15, 2005 LOI") to Clegg requesting information about the "Space
Needle" model radios. Specifically, the Seattle Office asked when
importation of the radios began, how many had been imported, and
whether a verification report for the "Space Needle" model existed. On
August 8, 2005, the Seattle Office received a response from Clegg to
the July 15, 2005 LOI. The response included a copy of the "FCC - Test
Report from International Electrical Certification Centre ("IECC")
Ltd.," which was performed at the request of the manufacturer, Zonotec
Industrial Co. Ltd. and concluded that the "Space Needle" model radio
complied with the FCC's Part 15 Rules. The verification report
indicated that IECC received a sample radio for testing on July 27,
2005 and conducted the testing on August 2, 2005 The response also
indicated that Clegg Industries had issued a credit to the Space
Needle Corporation for the subject radios. The response did not
indicate when importation of the radios began or how many of the
radios had been imported.
6. On December 21, 2005, the Seattle Office issued a NAL in the amount of
$7,000 to Clegg. In the NAL, the Seattle Office, found that Clegg
apparently repeatedly violated Section 302(b) of the Commissions Act
of 1934, as amended ("Act"), and Section 2.803(a)(2) of the
Commission's Rules ("Rules") by importing and marketing non-authorized
radio frequency devices. The Seattle Office specifically found that
Clegg imported and marketed the "Space Needle" model radios in March
2005, several months prior to their verification, and that the units
did not have the required labeling. The Seattle Office required Clegg
to file a report with the Acting District Director of the Seattle
Office detailing, for each of the models imported and marketed by
Clegg, how each model complies with the authorization and verification
requirements of Section 2.803 of the Rules, and the labeling
requirements of Section 15.19 of the Rules. After receiving an
extension of time, Clegg filed on February 21, 2006 ("Response"). In
its Response, Clegg argues that it was not aware that the device was
not in compliance with the Rules, that the device has subsequently
been tested and received verification, and that Clegg has conducted an
audit with the brokerage company which processed the import
documentation for that device. Clegg also attached to its response
"Certificates of Compliance," including "Declarations of Conformity"
and "Verifications," for all of the radios offered for sale in its
catalog, along with a copy of its catalog, and states that it has
taken efforts to ensure that both its inventory of radios, and its
catalog, comply with the Commission's labeling requirements.
III. DISCUSSION
7. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines. In examining
the Response, Section 503(b) of the Act requires that the Commission
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 other
such matters as justice may require.
8. 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 "[e]xcept 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, labeling and identification requirements specified in this
chapter."
9. Section 15.3(z) of the Rules states that FM Broadcast receivers are
unintentional radiators. Section 15.101 of the Rules, requires that
unintentional radiators shall be authorized prior to initiation of
marketing and in the case of FM Broadcast receivers, the required
authorization is verification. Section 15.19(a)(1) of the Rules states
that receivers associated with a licensed radio service, in this case,
the FM Broadcast service, shall bear the following statement in a
conspicuous location on the device:
"This device complies with part 15 of the FCC Rules. Operation is subject
to the condition that this device does not cause harmful interference."
10. The "Space Needle" model radios sold by the Space Needle Corporation,
were purchased from the importer Clegg Industries, Inc., in March
2005. As the importer of the devices, Clegg is deemed the responsible
party, as defined in Section 2.909 of the Rules and, as such, is
required to maintain the records listed in Section 2.955 of the Rules,
including the testing information that demonstrates the device's
compliance with the verification requirements. Clegg's August 8, 2005
response to the Seattle Office's July 15, 2005 LOI included a copy of
a verification report for the "Space Needle" model radio. The
verification report indicated that the testing laboratory received a
sample radio for testing on July 27, 2005 and conducted the testing on
August 2, 2005, indicating that the testing was performed following
Clegg's receipt of the July 15, 2005 LOI.
11. Clegg first argues that it was unaware that the "Space Needle" radio
was not in compliance with the Rules. As detailed above, Clegg, as the
importer of the "Space Needle" radio model, is deemed the responsible
party for the model and is therefore required to maintain the testing
information that demonstrates the model's compliance with the
verification requirements. Clegg's failure to fulfill those duties led
directly to its violation of Section 302(b) of the Act and Section
2.803(a)(2) of the Rules. We find that Clegg's lack of knowledge
concerning the regulatory requirements attendant to the products it
imports and markets does not mitigate its violation in this case.
12. We also find that Clegg's actions subsequent to receiving the LOI from
the Seattle Office, including testing the "Space Needle" model radio
so that it received verification, conducting an audit with the
brokerage company which processes import documentation for its
devices, and ensuring that both its inventory of radios, and its
catalog, comply with the Commission's labeling requirements were
appropriate, but do not mitigate Clegg's violation, or the forfeiture
amount proposed. The Commission expects violators to implement
corrective action to bring past violations into compliance. Therefore,
such actions do not nullify or mitigate past violations.
13. We have examined the Response to the NAL pursuant to the statutory
factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that Clegg
repeatedly violated Section 302(b) of the Act, and Section 2.803(a)(2)
of the Rules. Considering the entire record and the factors listed
above, we find that neither reduction nor cancellation of the proposed
$7,000 forfeiture is warranted.
IV. ORDERING CLAUSES
14. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, Clegg Industries,
Inc., IS LIABLE FOR A MONETARY FORFEITURE in the amount of $7,000 for
repeatedly violating Section 302(b) of the Act, and Section
2.803(a)(2) of the Rules.
15. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within 30 days of the release of this Order.
If the forfeiture is not paid within the period specified, the case
may be referred to the Department of Justice for collection pursuant
to Section 504(a) of the Act. 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. Requests for full payment under an installment plan should be
sent to: Associate Managing Director - Financial Operations, Room
1A625, 445 12th Street, S.W., Washington, D.C. 20554.
16. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Clegg
Industries, Inc., at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 U.S.C. S 302a(b).
47 C.F.R. S 2.803(a)(2).
47 C.F.R. S 15.19(a)(1).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200532980002
(Enf. Bur., Western Region, Seattle District Office, released December 21,
2005).
47 U.S.C. S 302a(b).
47 C.F.R. S 2.803(a)(2).
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 302a(b).
47 C.F.R. S 2.803(a)(2).
47 C.F.R. S 15.3(z).
47 C.F.R. S 15.101(a).
47 C.F.R. S 15.19(a)(1).
47 C.F.R. SS 2.909, 2.955.
To the extent Clegg is arguing that it was unaware of its responsibilities
under the Rules, the Commission has held that it does not consider
ignorance of the law to be a mitigating factor. Profit Enterprises, 8 FCC
Rcd 2846 (1993). Moreover, we note that the Seattle Office, in the NAL,
did not find Clegg's violation of Section 2.803 of the Rules to have been
willful.
See AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21875-76 (2002),
Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994). We do, however, find
that Clegg's submission satisfies the reporting requirement imposed in the
NAL.
47 U.S.C. SS 302a(b), 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4),
2.803(a)(2).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-1933
1
2
Federal Communications Commission DA 06-1933