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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
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 14, 2006 Released: April 18, 2006
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Vitec Group Communications Limited ("Vitec") apparently liable for a
forfeiture in the amount of fourteen thousand dollars ($14,000) for
apparent willful and repeated violation of Section 302(b) of the
Communications Act of 1934, as amended ("Act"), and Section
2.803(a)(2) of the Commission's Rules ("Rules"). The noted apparent
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 ("Vitec") 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. The Commission's equipment authorization database, however,
indicated that Vitec did not hold any equipment certifications.
2. The Bureau subsequently began an investigation of Vitec's marketing
activities. As part of the investigation, the Bureau 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. Further, according to the specifications posted
on www.clearcom.com, the CellCom was capable of operation in the 1880
- 1930 MHz frequency range. Unlicensed intercom systems, such as the
Cell-Com, are authorized to operate in the frequency range 1920 - 1930
MHz and are not authorized to operate on the frequencies between 1880
and 1920 MHz. It therefore appeared that the CellCom was ineligible
for equipment certification and thus could not be advertised before
equipment authorization even with the disclaimer 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. Vitec
also asserted that the inquiries set forth in the LOI were "moot"
because they were based on the "incorrect allegation" that its digital
wireless intercom system was ineligible for equipment certification.
In support of this assertion, Vitec noted that "these devices, which
operate in the frequency range 1920.0 - 1930.0 MHz at a power output
of 0.25 watts," were certified on November 2, 2005.
5. On February 13, 2006, the Bureau sent Vitec a follow-up LOI, seeking
to clarify whether the CellCom 10 system is the same intercom system
that was previously advertised on Vitec's website as being capable of
operation in the 1880 - 1930 MHz frequency range. In its response,
Vitec indicated that the devices, as they are configured to operate in
the United States, are restricted to a transmit range of 1920 - 1930
MHz. Vitec acknowledged that the system, through password protected
software, is capable of being programmed to operate outside the United
States on frequencies outside the 1920 - 1930 MHz band (for example,
in Europe where the band 1880 - 1900 MHz is available for these
devices). Vitec asserted, however, that it is not possible for users
in the United States to operate the system on frequencies beyond the
1920 - 1930 MHz band because the passwords for the software are only
provided to authorized dealers.
III. DISCUSSION
2. 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:
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].
3. The record establishes that Vitec advertised its digital wireless
intercom system in the April 2005 issue of Broadcast Engineering and
displayed it at the 2005 NAB trade show between April 16 and 21, 2005.
The record also establishes that Vitec did not hold any grants of
equipment certification until November 2, 2005. Vitec argues that its
advertising or display prior to equipment certification was
permissible if the disclaimer notice specified by Section 2.803(c) was
provided. However, Vitec clearly did not include a disclaimer notice
in the April 2005 Broadcast Engineering advertisement and it provided
no evidence that it included a disclaimer notice with its display at
the 2005 NAB trade show.
4. In both LOI responses submitted through its attorney, Vitec claims
that it did not "market" its digital wireless intercom system in the
United States prior to November 2, 2005. This claim, however, is
contradicted by Vitec's direct response to the first LOI, which stated
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" (emphasis added). Moreover, we note that
the definition of "marketing" set forth in Section 2.803(e)(4) of the
Rules specifically includes "advertising."
5. Accordingly, we find that Vitec apparently 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 and at the 2005 NAB trade show
prior to certification.
6. 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. 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."
7. 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") and Section 1.80 of the Rules, the
base forfeiture amount for the marketing of unauthorized equipment is
$7,000. In this case, Vitec marketed an intercom system that includes
two types of uncertified transmitters (base station and mobile).
Vitec's marketing of each uncertified transmitter is a separate
violation. We find that a proposed forfeiture amount of $7,000 is
apparently warranted for each violation for a total proposed
forfeiture of $14,000. Accordingly, applying the Forfeiture Policy
Statement and statutory factors to the instant case, we conclude that
Vitec is apparently liable for a $14,000 forfeiture.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to pursuant to Section
503(b) of the Act and Section 1.80 of the Rules, Vitec Group
Communications Limited IS hereby NOTIFIED of its APPARENT LIABILITY
FOR A FORFEITURE in the amount of fourteen thousand dollars ($14,000)
for willfully and repeatedly violating Section 302(b) of the Act and
Section 2.803(a)(2) of the Rules.
9. 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, Vitec Group Communications Limited SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
10. 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.
11. 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.
12. 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.
13. 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 Receivables Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.
14. 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
Joseph P. Casey
Chief, Spectrum Enforcement Division
47 U.S.C. S 302a(b).
47 C.F.R. S 2.803(a)(2).
Clear-Com Communications Systems is a trade name that Vitec, a British
company, uses in the United States. In this NAL, 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).
See Part 15, Subpart D of the Rules, 47 C.F.R. SS 15.301- 15.323.
See 47 C.F.R. S 2.803(g).
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.
Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, to Clear-Com Communications Systems
(February 13, 2006).
See paragraph 4 supra.
Letter from Christopher D. Imlay, Esq. to Kathryn S. Berthot and Thomas D.
Fitz-Gibbon, Spectrum Enforcement Division, Enforcement Bureau (March 2,
2006).
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."
See ACR Electronics, Inc., FCC 06-37 (released March 23, 2006) (imposing a
forfeiture of $65,000 for advertising and displaying radio frequency
devices prior to certification without the disclaimer notice specified in
Section 2.803(c)).
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).
47 U.S.C. S 503(b).
47 U.S.C. S 503(b)(2)(D).
12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999).
47 C.F.R. S 1.80.
See Samson Technologies, Inc., 19 FCC Rcd 4221, 4225 (2004).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-861
2
Federal Communications Commission DA 06-861