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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of File No. EB-04-SE-367
)
Hawking Technologies, Inc. NAL/Acct. No. 200532100010
)
Irvine, California FRN # 0012065009
)
FORFEITURE ORDER
Adopted: April 13, 2006 Released: April 17, 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 seventeen thousand six hundred dollars ($17,600) to
Hawking Technologies, Inc. ("Hawking") for willful and repeated
violation of Section 302(b) of the Communications Act of 1934, as
amended ("Act"), and Sections 2.803(a) and 15.204(a) of the
Commission's Rules ("Rules"). The violations involve marketing
external radiofrequency power amplifiers in a manner that was
inconsistent with the terms of its equipment authorization and the
prohibition against the marketing of such devices.
II. background
2. On December 9 and 14, 2004, the Enforcement Bureau ("Bureau") received
complaints alleging that Hawking was illegally marketing the Hawking
Model HSB1 ("HSB1") external radio frequency power amplifier for
individual sale.
3. External radio frequency power amplifiers, such as the HSB1, are used
to boost the power of radio transmitters. Section 15.204(d)(1) of the
Rules provides that, if an external radio frequency power amplifier is
marketed for individual sale, it "must be of a design such that it can
only be connected as part of a system in which it has been previously
authorized." Hawking's equipment authorization, FCC ID # SOYHSB1,
provides that the HSB1 may be used only with wireless access points
authorized under the equipment authorization FCC ID# NDD9572030410.
4. The Bureau investigated the complaints about Hawking's marketing of
the HSB1. As part of the investigation, Bureau staff purchased a
sample of the HSB1 from an internet retailer on December 13, 2004, for
$78.68. The HSB1 was packaged with an antenna and a connector but the
package did not include a wireless access point. The packaging states
that "The HSB1 is certified by the FCC to work with the Hawking
HWBA54G Wireless-G Access Point as a single system (FCC ID: SOYHSB1).
More systems will be certified at a later time." Similarly, the user
manual ("Quick Installation Guide") included with the sample states
"RF Cable and HSB1 are designed to operate only with Hawking HWBA54G
as a single system" and that "[a]s of December 1, 2004, the HSB1 has
been certified by the FCC to operate as a single system with Hawking's
HSBA54G Wireless-G Access Point." However, the Product Information
Brochure packaged with the sample states that "... the HSB1 ...
attaches to any wireless device (Access Points, Routers, Bridges,
Network Adaptors, etc.) with a removable antenna. The HSB1 comes with
connector adaptors compatible with all major wireless brands." The
Bureau subsequently observed that retailers which had acquired HSB1
units from Hawking were similarly advertising the device on their
websites for use with all major wireless brands.
5. On December 21, 2004, the Bureau conducted internet research
concerning the HSB1. As of that date, Hawking's internet site
indicated that the HSB1 "works with all major 80211b and g wireless
brands" and "is the ONLY range-boosting product on the market with
support for all major wireless brands and networks"; and that
"connector adaptors are available for multiple brand support." Only
one of the pages observed on Hawking's internet site advertising the
HSB1 had a reference to the HSBA54G wireless access point and that
page also listed another wireless access point (Hawking Model HWR54G)
without indicating which wireless access point was authorized to be
used with HSB1.
6. On December 30, 2004, the Bureau issued a letter of inquiry ("LOI") to
Hawking. On January 17, 2005, Hawking responded to the LOI. In its
response, Hawking identified the Hawking Model HWBA54G as the only
wireless access point authorized under equipment authorization FCC ID
# NDD9572030410 and stated that the HSB1 is capable of operating with
other wireless access points "if such other access points use the same
`non-standard' connector." Hawking also stated that it imported and
distributed in the United States 7,520 units of the HSB1.
Additionally, Hawking asserted that, after receiving the LOI, it
halted the marketing of the HSB1 as an individual unit and began
preparation to bundle the HSB1 unit with the HWBA54G wireless access
point. On June 22, 2005, the Spectrum Enforcement Division issued a
Notice of Apparent Liability for Forfeiture ("NAL") to Hawking in the
amount of twenty-two thousand dollars ($22,000) for apparent willful
and repeated violation of Section 302(b) of the Act and Sections
2.803(a) and 15.204(a) of the Rules. The proposed forfeiture amount
included an upward adjustment of $15,000 for substantial economic gain
based on Hawking's estimated profit from the sale of these devices. In
its response to the NAL, Hawking does not contest the violations but
seeks reduction or cancellation of the proposed monetary forfeiture.
Hawking argues that the upward adjustment proposed in the NAL is
excessive, that it promptly remedied the violations and that it has a
history of overall compliance.
III. discussion
7. 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.
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)(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 S
2.925 and other relevant sections in this chapter [emphasis added].
Section 15.204(a) of the Commission's implementing regulations provides
that:
Except as otherwise described in paragraphs (b) and (d) of this section,
no person shall use, manufacture, sell or lease, offer for sale or lease
(including advertising for sale or lease), or import, ship or distribute
for purpose of selling or leasing, any external radio frequency power
amplifier or amplifier kit intended for use with a part 15 intentional
radiator.
Section 15.204(d)(1) of the Rules provides that:
Except as described in this paragraph, an external radio frequency power
amplifier or amplifier kit shall be marketed only with the system
configuration with which it was approved and not as a separate product. An
external radio frequency power amplifier may be marketed for individual
sale provided it is intended for use in conjunction with a transmitter
that operates in the 902-928 MHz, 2400-2483.5 MHz, and 5725-5850 MHz bands
pursuant to S15.247 of this part or a transmitter that operates in the
5.725-5.825 GHz band pursuant to S15.407 of this part. The amplifier must
be of a design such that it can only be connected as part of a system in
which it has been previously authorized. (The use of a non-standard
connector or a form of electronic system identification is acceptable.)
The output power of such an amplifier must not exceed the maximum
permitted output power of its associated transmitter.
9. Hawking does not contest the violations alleged in the NAL. On the
basis of the record, we conclude that Hawking willfully and repeatedly
violated Section 302(b) of the Act and Sections 2.803(a)(2) and
15.204(a) of the Rules.
A. Upward Adjustment
1. Background
10. Under the Forfeiture Policy Statement and Section 1.80(b)(4) of the
Rules, substantial economic gain is an upward adjustment factor for
Section 503 forfeitures.
2. Discussion
11. Hawking argues, in its response to the NAL, that the proposed $15,000
upward adjustment for substantial economic gain is excessive because
Hawking's profit per unit was only $0.09 per unit rather than the
estimated $2.00 per unit (for approximately 7,500 units) on which the
upward adjustment is based. The spread sheet provided with Hawking's
response indicates that Hawking made a pretax profit of $2.84 per
unit, which exceeds the $2.00 per unit estimated in the NAL. Hawking's
claim that its profit was only $0.09 per unit is inconsistent with the
$2.84 indicated on its spread sheet. We find, accordingly, that the
upward adjustment should remain at $15,000.
B. Correction of Violations
1. Background
12. The Forfeiture Policy Statement and Section 1.80(b)(4) of the Rules
permit downward adjustment of forfeitures on the basis of a minor
violation, good faith or voluntary disclosure, history of overall
compliance or inability to pay as well as other factors within the
discretion of the Commission and its staff.
2. Discussion
13. Hawking argues that it promptly corrected the violations. No
mitigation is warranted on the basis of Hawking's correction of the
violations. As the Commission stated in Seawest Yacht Brokers, 9 FCC
Rcd 6099, 6099 (1994), "corrective action taken to come into
compliance with Commission rules or policy is expected, and does not
nullify or mitigate any prior forfeitures or violations."
C. History of Overall Compliance
1. Background
14. Under the Forfeiture Policy Statement and Section 1.80(b)(4) of the
Rules, history of overall compliance is a downward adjustment factor
for Section 503 forfeitures.
2. Discussion
15. Hawking states that it has a history of overall compliance. We find
that Hawking does have a history of overall compliance. This warrants
warrant a reduction of the forfeiture amount from $22,000 to $17,600.
16. We have examined Hawking'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 the
forfeiture amount should be reduced from $22,000 to $17,600.
IV. ORDERING CLAUSES
17. 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, Hawking
Technologies, Inc., IS LIABLE FOR A MONETARY FORFEITURE in the amount
of seventeen thousand six hundred dollars ($17,600.00) for willful and
repeated violation of Section 302(b) of the Act and Sections 2.803(a)
and 15.204(a) of the Rules.
18. 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 may be made by credit card to
the Commission's Credit and Debt Management Center at (202) 418-1995
or by mailing a check or similar instrument, payable to the order of
the 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: Chief,
Revenue and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.
19. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by first class mail and certified mail return receipt requested
to Hawking Technologies, Inc., 15281 A Barranca Pkwy., Irvine, CA
92618. FEDERAL COMMUNICATIONS COMMISSION Joseph P. Casey Chief,
Spectrum Enforcement Division Enforcement Bureau
47 U.S.C. S 302a(b).
47 C.F.R. SS 2.803(a) and 15.204(a).
47 C.F.R. S 15.204(d)(1).
The term "wireless access point" is not defined in the Rules. However, the
Bureau takes official notice that a wireless access point is a
transmitter/receiver whose most common use is to connect wireless devices
to the internet.
Granted to Edimax Technology Co., Ltd., for wireless 802.11g access
points.
No connector adaptor was actually packaged with the HSB1. However, the
Product Information Brochure includes information about the connector
adaptors sold by Hawking and how to use them.
On March 15, 2005, the Bureau observed that Comp USA and PC Mall Sales,
Inc., both were advertising the HSB1 on their websites as "the ONLY range
boosting product on the market with support for all major wireless brands
and networks" and stated on their websites that "connector adaptors are
available for multiple brand support." Comp USA's website indicated that
its description of the device was "[b]ased on manufacturer's information."
See Letter from Joseph P. Casey, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Hawking
Technologies, Inc. (December 30, 2004).
See Letter from Frank Lin, Chief Executive Officer, Hawking Technologies,
Inc. to Thomas Fitz-Gibbon, Attorney, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (January 17, 2005)
("LOI Response").
LOI Response at 2.
Id at 3.
Id at 2.
Hawking Technologies, Inc., 20 FCC Rcd 10852 (Enf. Bur. 2005).
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
its operation is capable of emitting radiofrequency energy by radiation,
conduction, or other means."
47 C.F.R. S 15.3(o) defines an intentional radiator as "A device that
intentionally generates radio frequency energy by radiation or induction."
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).
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.
See, e.g., Behringer USA, Inc., 21 FCC Rcd 1820 (2006); and ASC Telcom,
Inc., d/b/a Alternatel, 17 FCC Rcd 23984 (2002), resolved by consent
decree 19 FCC Rcd 5160 (2004).
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.
See also Callais Cablevision, Inc., 17 FCC Rcd 22626, 22629 (2002); Radio
Station KGVL, Inc., 42 FCC 2d 258, 259 (1973); and Executive Broadcasting
Corp., 3 FCC 2d 699, 700 (1966).
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.
47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 06-853
4
Federal Communications Commission DA 06-853
20.