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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Vitec Group Communications Limited ) File No. EB-05-SE-172
Cambridge, United Kingdom ) NAL/Acct. No. 200632100009
) FRN 0012947594
)
FORFEITURE ORDER
Adopted Date: October 31, 2006 Released Date: November 2, 2006
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of eleven thousand two hundred dollars ($11,200) to Vitec
Group Communications Limited ("Vitec") for willful and repeated
violation of Section 302(b) of the Communications Act of 1934, as
amended ("Act"), and Section 2.803(a)(1) of the Commission's Rules
("Rules"). The noted violations involve Vitec's marketing of
unauthorized radio frequency devices in the United States.
II. BACKGROUND
1. In May 2005, the Enforcement Bureau ("Bureau") received a complaint
alleging that Clear-Com Communication Systems was marketing unapproved
radiofrequency devices in the United States in violation of Section
302(b) of the Act and Section 2.803(a) of the Rules. Specifically, the
complaint indicated that Vitec advertised an unapproved digital
wireless intercom system called the "CellCom Digital Wireless
Intercom" ("CellCom") in the April 2005 issue of Broadcast Engineering
and also displayed it at the 2005 National Association of Broadcasters
("NAB") trade show in Las Vegas, NV. Digital wireless intercom
systems, such as the CellCom, are classified as intentional radiators
and are required by Section 15.201 of the Rules to be approved prior
to marketing through the equipment certification procedures described
in Sections 2.1031 - 2.1060 of the Rules.
2. The Bureau's Spectrum Enforcement Division (Division") subsequently
began an investigation of Vitec's marketing activities. As part of the
investigation, the Division obtained a copy of the April 2005 issue of
Broadcast Engineering and confirmed that it contains an advertisement
for the CellCom. Section 2.803(c) of the Rules allows the advertising
or display of radio frequency devices prior to equipment authorization
only if the following disclaimer notice is provided:
This device has not been authorized as required by the rules of the
Federal Communications Commission. This device is not, and may not be,
offered for sale or lease, or sold or leased, until authorization is
obtained.
The Broadcast Engineering advertisement does not contain this notice.
3. The Bureau determined through internet research that the website
www.clearcom.com contained photographs of Vitec's display of the
CellCom at the 2005 National Association of Broadcasters ("NAB") trade
show, which took place April 16-21, 2005. The disclaimer notice
specified by Section 2.803(c) of the Rules is not visible in the
photographs of Vitec's NAB display. The Bureau's internet research
also established that Vitec was advertising the CellCom on the website
and that this advertising did include the notice specified by Section
2.803(c) of the Rules.
4. The Bureau sent Vitec a letter of inquiry ("LOI") on October 24, 2005.
Vitec submitted responses both directly and through its counsel. In
its direct response, Vitec stated that it obtained equipment
certifications covering its digital wireless intercom system on
November 2, 2005 and that it did not sell or distribute the product in
the United States prior to the grant of the certifications. Vitec
acknowledged, however, that "the advertising in Broadcast Engineering
and display at NAB did take place as you note during April 2005, the
object being to market this product prior to launch." In the
subsequent response submitted through its counsel, Vitec denied any
violation of the Act or the Rules. Vitec stated that it manufactures
its "CellCom 10" digital wireless intercom system in England and
imports it into the United States. Vitec further stated that it
displayed the system at the 2005 NAB trade show and advertised it on
its website and in "at least" Broadcast Engineering magazine. Vitec
asserted, however, that it did not "market or sell" the system in the
United States prior to receipt of the equipment certifications on
November 2, 2005.
5. On April 14, 2006, the Bureau's Spectrum Enforcement Division issued a
Notice of Apparent Liability for Forfeiture ("NAL") to Vitec in the
amount of fourteen thousand dollars ($14,000) for apparent willful and
repeated violation of Section 302(b) of the Act and Sections
2.803(a)(2) of the Rules. In its response, Vitec argues that the
proposed forfeiture should be cancelled because its pre-certification
advertising of the Cellcom 10 digital wireless system did not violate
the Section 302(b) of the Act or Section 2.803(a)(2) of the Rules, and
that, if there is basis for a monetary forfeiture, the amount proposed
by the NAL is excessive.
III. DISCUSSION
2. The forfeiture amount proposed in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
("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 assessing forfeitures,
Section 503(b)(2)(D) of the Act requires that we 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.
3. 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 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 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 S
2.925 and other relevant sections in this chapter [emphasis added].
4. Vitec provides a "Statement Under Penalty of Perjury" indicating that
it did provide the disclaimer notice specified by Section 2.803(c) of
the Rules when it displayed the CellCom 10 at the NAB convention
between April 16 and 21, 2005. On the basis of that information, we
find the display of the CellCom at the NAB convention did not violate
Section 302(b) of the Act or Section 2.803(a)(1) of the Rules.
5. Vitec admits that it advertised its digital wireless intercom system
in the April 2005 issue of Broadcast Engineering before the grant of
an equipment authorization and furnishes a copy of the advertisement,
which does not include the disclaimer notice specified by Section
2.803(c) of the Rules. Vitec, however, argues that it was not required
to include the disclaimer notice because the Broadcast Engineering
advertisement did not offer or advertise the CellCom 10 for "sale or
lease." We reject this argument. The purpose of Vitec's Broadcast
Engineering advertisement was to generate future sales by advertising
the CellCom 10 prior to certification. This is illustrated by Vitec's
statement in its direct response to the first LOI that "the
advertising in Broadcast Engineering . . . did take place as you note
during April 2005, the object being to market this product prior to
launch" (emphasis added).
6. Vitec also argues that the one year statute of limitations contained
in Section 503(b)(6)(B) of the Act bars imposing a forfeiture on the
basis of Vitec's Broadcast Engineering advertisement. Specifically,
Vitec claims that the statute of limitations date passed before the
issuance of the NAL because the Broadcast Engineering issue in which
Vitec's advertisement appeared, April 2005, was distributed to
subscribers during March 2005, which is more than one year before the
April 14, 2006, issuance of the NAL. We reject this argument. The
April issue of Broadcast Engineering was current until the end of that
month and, therefore, Vitec's violation continued through the end of
April 2005, which is within the one year statute of limitations
period.
7. We, accordingly, find that Vitec willfully and repeatedly violated
Section 302(b) of the Act and Section 2.803(a)(2) of the Rules by
marketing its digital wireless intercom system in the April 2005 issue
of Broadcast Engineering prior to certification.
8. Vitec also argues that, if there is basis for a monetary forfeiture,
the amount proposed by the NAL is excessive. First, Vitec contends
that the calculation of the proposed base forfeiture amount -- $14,000
-- is erroneous. The base forfeiture amount for the marketing of
unauthorized equipment is $7,000. We proposed a $14,000 forfeiture
because the CellCom system included two types of uncertified
transmitters -- base station and mobile -- whose marketing constituted
separate offenses. Vitec argues that the base forfeiture amount should
be $7,000 because CellCom 10 is a single device. We reject that
argument. The base and mobile transmitters constituting the CellCom 10
are covered by separate equipment authorizations and must, therefore,
be considered distinct devices.
9. In addition, Vitec contends that the Spectrum Enforcement Division's
holding in Schumacher Electronic Corporation, 19 FCC Rcd 6344 (Enf.
Bur. 2004), consent decree issued, 19 FCC Rcd. 8825 (Enf. Bur. 2004),
requires a reduction of the forfeiture amount in this case. In
Schumacher, the Spectrum Enforcement Division proposed a forfeiture of
$7,000 for willful and repeated violation of Section 302(b) of the Act
and Section 2.803(a)(2) of the Rules where Schumacher had displayed
three unauthorized battery charger models at a trade show without
providing the disclaimer specified by Section 2.803(c) of the Rules.
Schumacher is not consistent with the Commission's decision in Samson
Technologies, Inc., 19 FCC Rcd 4221 (2004), consent decree issued, 19
FCC Rcd 24542 (2004). In that case, the Commission determined that a
base forfeiture amount of $7,000 is warranted for each kind of
unauthorized device that is marketed (a total of $35,000 for five
devices). Samson has been followed in numerous cases and we will
follow it here. Accordingly, we find that our calculation of the
proposed base forfeiture amount -- $14,000 -- was correct.
10. Vitec also argues that none of the upward adjustment criteria set
forth in the Forfeiture Policy Statement and 47 C.F.R. S 1.80(b)(4)
apply. This argument has no merit because the forfeiture amount
proposed by the NAL does not include an upward adjustment.
11. In addition, Vitec argues that the proposed forfeiture amount should
be reduced on the basis of the following downward adjustment criteria:
minor violation, good faith and history of overall compliance. The
Commission has held that a violation of a provision of the
Communications Act cannot be classified as a "minor" violation.
Therefore, we do not find that Vitec's violation of the Communications
Act was minor. Further, Vitec has not identified any specific action
that would constitute good faith -- nor are we aware of any.
Accordingly, we do not find that Vitec acted in good faith. We do,
however, find that Vitec has a history of overall compliance which
warrants reduction of the forfeiture amount to $11,200.
12. We have examined Vitec's response to the NAL pursuant to the statutory
factors set forth in Paragraph 7 above, and in conjunction with the
Policy Statement as well. As a result of our review, we conclude that
cancellation of the forfeiture is not warranted but that the
forfeiture amount should be reduced from $14,000 to $11,200.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules, Vitec
Group Communications, Ltd.., IS LIABLE FOR A MONETARY FORFEITURE in
the amount of eleven thousand two hundred dollars ($11,200) for
willful and repeated violation of Section 302(b) of the Act and
Section 2.803(a)(1) of the Rules.
14. 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, 445 12^th Street, S.W., Room
1A625, Washington, D.C. 20554.
15. 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 Vitec Group Communications Limited, 4065
Hollis Street, Emeryville, CA 94608, and to its attorney, Christopher
D. Imlay, Esq., Booth, Freret, Imlay & Tepper, P.C., 14356 Cape May
Road, Silver Spring, MD 20904-6011.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
47 U.S.C. S 302a(b).
47 C.F.R. S 2.803(a)(1).
Clear-Com Communications Systems is a trade name that Vitec, a British
company, uses in the United States. In this Forfeiture Order, we will
refer to the company as Vitec throughout.
An intentional radiator is "A device that intentionally generates and
emits radio frequency energy by radiation or induction." 47 C.F.R. S 15.3
(o).
47 C.F.R. S 15.201.
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. S 2.907(a).
47 C.F.R. SS 2.1031 - 2.1060
47 C.F.R. S 2.803(c).
Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, to Clear-Com Communications Systems (October
24, 2005).
Letter from Chris Exelby, Managing Director, Vitec Group Communications,
to Thomas D. Fitz-Gibbon, Spectrum Enforcement Division, Enforcement
Bureau (November 25, 2005).
Letter from Christopher D. Imlay, Esq. to Kathryn S. Berthot and Thomas D.
Fitz-Gibbon, Spectrum Enforcement Division, Enforcement Bureau (December
6, 2005).
The Commission's equipment authorization data base indicates that,
November 2, 2005, Vitec was granted equipment certifications FCC ID #
S30-CEL-BP (portable two-way radios) and FCC ID # S30-CEL-TA (base
station) for the Vitec CellCom 10 Digital Wireless Intercom.
Vitec Group Communications, Ltd., 21 FCC Rcd 4025 (Enf. Bur., Spectrum
Enf. Div., 2006).
Letter from Christopher D. Imlay, Esq. to Chief, Spectrum Enforcement
Division, Enforcement Bureau (May 18, 2006) ("NAL response").
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) ("Forfeiture
Policy Statement").
47 U.S.C. S 503(b)(2)(D).
47 C.F.R. S 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."
NAL response, Exhibit B.
Id. at pp. 6-7, Exhibit A.
Id. at pp. 6-7.
47 U.S.C. S 503(b)(6)(B), which provides that "No forfeiture penalty shall
be determined or imposed against any person under this subsection if such
person does not hold a broadcast station license issued under subchapter
III of this chapter and if the violation charged occurred more than 1 year
prior to the date of issuance of the required notice or notice of apparent
liability."
NAL response at p. 6.
Section 312(f)(1) of the Act, 47 U.S.C. S 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).
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. S
312(f)(2).
NAL response at p. 11.
Forfeiture Policy Statement and 47 C.F.R. S 1.80.
FCC ID S30-CEL-BP and FCC ID S30-CEL-TA.
E.g., Pilot Travel Centers, LLC, 19 FCC Rcd 23113, 23117 (2004) (proposing
$91,000 base forfeiture amount for 13 devices), consent decree issued, 21
FCC Rcd 5308 (2006); Behringer USA, Inc., 21 FCC Rcd. 1820, 1827 (2006)
(proposing $350,000 base forfeiture amount for 50 devices), response
pending; San Jose Navigation, Inc., 21 FCC Rcd 2873, 2877 (2006)
(proposing $28,000 base forfeiture amount for four devices), response
pending; Via Technologies, 19 FCC Rcd 19556 (Enf. Bur., Spectrum Enf.
Div., 2004) (proposing $14,000 base forfeiture amount for two devices),
forfeiture ordered, 19 FCC Rcd 24341 (2004); Ramsey Electronics, Inc., 21
FCC Rcd 458, 462 (Enf. Bur., Spectrum Enf. Div., 2006) (proposing $28,000
base forfeiture amount for four devices); Gibson Tech Ed, Inc., 20 FCC Rcd
14438, 14441 (Enf. Bur., Spectrum Enf. Div., 2005) (proposing $14,000 base
forfeiture amount for two devices), forfeiture ordered, 21 FCC Rcd 2915
(Enf. Bur., Spectrum Enf. Div., 2006), recon. den., 21 FCC Rcd 9642 (Enf.
Bur. 2006); and Bureau D'Electronique Appliquee, Inc., 20 FCC Rcd 3445,
3448 (Enf. Bur., Spectrum Enf. Div., 2005) (proposing $14,000 base
forfeiture amount for two devices), forfeiture ordered, 20 FCC Rcd 17893
(Enf., Bur., Spectrum Enf. Div., 2005).
See Forfeiture Policy Statement, 12 FCC Rcd at 17100; 47 C.F.R. S
1.80(b)(4), Note to paragraph (b)(4): Section II. Adjustment Criteria for
Section 503 Forfeitures.
NAL response at p. 11.
See Forfeiture Policy Statement, 12 FCC Rcd at 17100; 47 C.F.R. S
1.80(b)(4), Note to paragraph (b)(4): Section II. Adjustment Criteria for
Section 503 Forfeitures.
NAL response at p. 11.
Catherine R. Waddill, 13 FCC Rcd 23861, 23866 (1998); Paging Network of
Los Angeles, Inc., 8 FCC Rcd 1702, 1703 (1993).
47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-2229
3
Federal Communications Commission DA 06-2229