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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB 05-SE-077
In the Matter of
) NAL/Acct. No. 200632100006
San Jose Navigation, Inc.
) FRN # 0010366078
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 14, 2006 Released: March 14, 2006
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we
propose a forfeiture amount of seventy five thousand dollars ($75,000)
against San Jose Navigation, Inc. ("San Jose") for its marketing of
intentional radiating equipment, Global Positioning Satellite ("GPS")
signal re-radiator kits, in apparent willful and repeated violation of
Section 302(b) of the Communications Act of 1934, as amended ("Act")
and Sections 2.803 and 15.205 of the Commission's Rules ("Rules").
The GPS re-radiator kits are not Commission authorized and are not
eligible for such authorization, because they operate in restricted
frequency bands allocated for authorized safety-of-life operations.
II. BACKGROUND
2. Section 302 of the Act authorizes the Commission to make reasonable
regulations, consistent with the public interest, governing the
interference potential of equipment that emits radio frequency energy,
and prohibits, inter alia, the offering for sale of radio frequency
devices to the extent such activity does not comply with those
regulations. The purpose of this section is to ensure that radio
transmitters and other electronic devices meet certain standards to
control interference before they reach the market. The Commission
carries out its responsibilities under Section 302 in two ways. First,
the Commission establishes technical regulations for transmitters and
other equipment to minimize their potential for causing interference
to radio services. Second, the Commission administers an equipment
authorization program to ensure that equipment reaching the market
complies with the technical requirements.
3. The equipment authorization program requires that intentional
radiators be issued a grant of certification prior to the initiation
of marketing. "Marketing" includes the sale or lease, offer for sale
or lease (including advertising for sale or lease), importing,
shipping, and/or distribution for the purpose of selling or leasing or
offering for sale or lease. 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:
(1) In the case of a device subject to certification, such device has been
authorized by the Commission in accordance with the rules in this chapter
and is properly identified and labelled as required by Sec. 2.925 and
other relevant sections in this chapter.
Under Section 15.201 of the Rules, intentional radiators must ordinarily
be authorized in accordance with the certification procedure prior to
marketing. However, under Section 2.803(g) of the Rules, intentional
radiators and other radio frequency devices that could not be authorized
or legally operated under the current rules - for example, intentional
radiators, such as GPS re-radiators, which operate in the restricted
frequency bands listed in Section 15.205 of the Rules -- may not be
"operated, advertised, displayed, offered for sale or lease, sold or
leased, or otherwise marketed absent a license issued under part 5 of this
chapter or a special temporary authorization issued by the Commission."
4. In early 2005, the Commission received complaints from the Department
of Transportation, National Telecommunications & Information
Administration ("NTIA") and other federal government agencies
("federal agencies"). The federal agencies expressed concern that GPS
re-radiator equipment potentially could interfere with federal
government GPS operations. In response to these complaints, the
Spectrum Enforcement Division ("Division") of the Commission's
Enforcement Bureau ("Bureau") initiated investigations into the
marketing of such equipment in the United States.
5. During the course of the Division's investigations, retail companies
found to be marketing the subject GPS re-radiator kits in the United
States, identified San Jose as the manufacturer of such kits. The
Division staff subsequently found that San Jose was marketing four
models of GPS re-radiator kits, Models RA-45, RA-46, RK-104 and
RK-304, on its website. These models consist of a receive antenna, an
amplifier to boost the signal level, and a radiating antenna. A GPS
re-radiator does not internally generate a radio frequency signal.
Rather, a GPS re-radiator is designed and configured to take radio
frequency signals from an outside source, the global positioning
satellites, amplify those signals, and radiate those signals through
its antenna. The Commission has determined that this type of
configuration constitutes intentional radiating devices under Section
15.3(o) of the Rules.
6. On May 4, 2005, the Division issued a letter of inquiry ("LOI") to San
Jose. In its response to the LOI, San Jose admitted that it
manufactures the four models of GPS re-radiator kits, Models RA-45,
RA-46, RK-104 and RK-304. San Jose stated that it manufactured
approximately 5,000 units of these devices for sale in the United
States between August 2001 and May 20, 2005, and distributed these
5,000 units to distributors in the United States between March 15,
2002 and March 15, 2005. According to San Jose, it did not realize
that the devices violate the Rules prior to receiving the letter of
inquiry. San Jose submitted two "FCC Class B Declaration Reports
(DOCs)" for the Models RA-45 and RA-46, issued by the SGS Taiwan Ltd.
test laboratory on April 15, 2005.
III. DISCUSSION
7. Under Section 503(b)(1)(b) of the Act, 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. To impose such a forfeiture penalty, the Commission must
issue a notice of apparent liability and the person against whom such
notice has been issued must have an opportunity to show, in writing,
why no such forfeiture penalty should be imposed. The Commission will
then issue a forfeiture if it finds by a preponderance of the evidence
that the person has violated the Act or a Commission rule. Under this
standard, we issue this NAL.
A. Marketing unlawful equipment.
8. As detailed below, we find that San Jose apparently willfully and
repeatedly violated Section 302(b) of the Act and Sections 2.803 and
15.205 of the Rules by marketing four models of GPS re-radiator kits,
which by their nature are ineligible for equipment certification.
9. We find that San Jose manufactured and distributed for sale the four
models of GPS re-radiator kits from at least March 2002 to March 2005.
We further find that these kits are intentional radiators. Intentional
radiators, as previously stated, ordinarily must be certificated prior
to marketing in the United States. According to San Jose's
specifications, its four models of GPS re-radiator kits operate in the
GPS L1 band, at 1575.42 MHz. Because the GPS L1 band is shared
co-equally between the federal government and non-government
operations, and is within the restricted frequency bands listed in
Section 15.205 of the Rules, intentional radiating equipment is
prohibited from emitting signals other than spurious emissions in
that band. Indeed, the Commission recently denied a petition for
rulemaking requesting amendment of the rules to permit marketing of
GPS re-radiator kits, noting that the restricted bands in which these
devices operate are allocated for authorized radio services that
concern safety-of-life operations or that require the reception of
extremely low signal levels due to the nature of their operation.
Accordingly, we find that San Jose's four models of GPS re-radiator
kits, which operate in the restricted frequency bands, are not
eligible for Commission equipment certification.
10. Additionally, we find that the documents San Jose submitted "FCC Class
B Declaration Reports (DOCs)" for Models RA-45 and RA-46, which
purport to demonstrate that models comply with Part 15 technical
requirements, do not demonstrate compliance. As explained above, the
Models simply cannot comply with Part 15 technical requirements
because the equipment operates within the restricted frequency bands
and thus cannot be authorized.
11. We also find the reports irrelevant and flawed. The reports appear to
be Declaration of Conformity ("DOC") test reports. Intentional
radiating equipment, however, is subject to the Commission's
certification, not DOC, equipment authorization procedures. Further,
the reports indicate that the models were tested for compliance with
Part 15 emission limits in the 30 MHz to 1000 MHz frequency range, but
the models, in fact, operate in the GPS L1 band at 1575.42 MHz, which
is above the frequency range tested by SGS Taiwan. The reports also
indicate that the models were connected to a computer during testing,
even though these devices are not designed to be connected to a
computer during operation. Finally, we note that San Jose's testing
appears to have been initiated only after the Division initiated its
investigation in early 2005, and the test reports were issued more
than three years after San Jose began distributing its GPS signal
re-radiator kits in the United States.
B. Proposed Forfeiture Amount.
12. Section 503(b)(6) of the Act bars the Commission from proposing a
forfeiture for apparent violations that occurred more than one year
prior to the date of this NAL, but does not prohibit us from assessing
whether San Jose's conduct prior to that time period apparently
violated the provisions of the Act and Rules and from considering such
conduct in determining the appropriate forfeiture amount for
violations that occurred within the one-year statutory period.
Therefore, the forfeiture amount proposed herein takes into account
the continuing nature San Jose's apparent violations, but relates to
the company's marketing of Models RA-45, RA-46, RK-104 and RK-304
within the last year.
13. Section 1.80 of the Rules establishes a base forfeiture amount of
$7,000 for the marketing of unauthorized equipment. Section
503(b)(2)(C) of the Act, however, authorizes the Commission to assess
a maximum forfeiture of $11,000 for each violation, or each day of a
continuing violation, up to a statutory maximum forfeiture of $97,500
for any single continuing violation. In determining the appropriate
forfeiture amount, Section 503(b)(2)(D) of the Act directs the
Commission to consider factors, such as "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."
14. Consistent with precedent, we find that San Jose's marketing of four
distinct models of intentional radiators constitutes separate and
continuing violations, warranting the assessment of separate base
forfeiture amounts. Having weighed the statutory factors enumerated
above, we find that circumstances presented warrant a substantial
upward adjustment of the aggregate base forfeiture amount of $28,000
($7,000 for each of the four unlawfully marketed models).
15. Specifically, the record establishes that San Jose marketed, imported
and distributed for sale GPS re-radiator kits that by design
intentionally emit signals in restricted frequency bands, potentially
interfering with and jeopardizing critical authorized safety-of-life
operations. The record further establishes that San Jose imported and
distributed for sale a significant number (5,000) of its kits.
Additionally, San Jose's apparent violations were continuous in
nature, occurring over a three-year period. Given the critical safety
concerns, the volume of unauthorized devices distributed, the
continuous nature of the violations, and the fact that the devices are
not capable of being certified in any event, we conclude that a
significant upward adjustment is warranted. Accordingly, we propose an
aggregate forfeiture in the amount of $75,000 for San Jose's willful
and repeated violations of Section 302(b) of the Act and Sections
2.803 and 15.205 of the Rules.
16. Finally, we do not find San Jose's claim -- that it was unaware that
its GPS re-radiator devices violated the rules until it received the
Division's letter of inquiry -- warrants a downward adjustment of the
proposed aggregate forfeiture amount. It is a well established and
long-standing principle that ignorance of the law is not a mitigating
factor and does not warrant a downward adjustment of an assessed
forfeiture.
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 of the Rules, San Jose Navigation,
Inc. IS hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in
the amount of seventy five thousand dollars ($75,000) for willfully
and repeatedly violating Section 302(b) of the Act and Sections
2.803(a) and 15.205 of the Rules.
18. 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, San Jose Navigation, Inc. SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
19. 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
payment of the full amount of the NAL 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.
20. 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.
21. 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.
22. 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 San Jose Navigation, Inc., 9F, No. 105,
Shi-Cheng Road, Pan-Chiao City, Taipei, Taiwan, R.O.C.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
Section 15.3(o) of the Rules, 47 C.F.R. S 15.3(o), defines an intentional
radiator as a "device that intentionally generates and emits radio
frequency energy by radiation or induction."
47 U.S.C. S 302a(b).
47 C.F.R. SS 2.803 and 15.205.
See 47 C.F.R. Part 2, Subpart J.
Certification is an equipment authorization issued by the Commission or
one of its designated Telecommunications Certification Bodies, based on
representations and test data submitted by the applicant. 47 C.F.R. S
2.907(a).
47 C.F.R. S 2.803(e)(4).
47 C.F.R. S 15.101.
The retailers received Citations for marketing the unauthorized GPS
re-radiator devices. See Gilsson Technologies, 20 FCC Rcd 8241 (Enf. Bur.
Spectrum Enf. Div., 2005); Wal-Mart Stores, Inc., 20 FCC Rcd 7618 (Enf.
Bur. Spectrum Enf. Div., 2005).
San Jose is a manufacturer headquartered in Taipei, Taiwan, and the
grantee of two unrelated Commission equipment certifications. See FCC
Identifier RUU-G19041000 (granted November 19, 2004); FCC Identifier
RUU-G00548213 (granted March 17, 2004).
See [1]www.sanav.com.
See Rocky Mountain Radar, 12 FCC Rcd 22453 (1997).
See Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission to San
Jose Navigation, Inc. (May 4, 2004).
See Letter from San Jose Navigation, Inc. to Jennifer Burton, Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission (June 20, 2005) ("Response").
Id. at 2.
Id.
Id. at 3. San Jose's statements are inconsistent in this regard.
Specifically, although San Jose stated that it began distributing these
devices in the United States in March 2002, it also stated that it
distributed approximately 4,000 devices to one U.S. distributor between
July 2001 and December 2004, and approximately 1,000 devices to another
U.S. distributor between March 2002 and March 2005. Id. Thus, it is not
clear whether San Jose actually began distributing these devices in March
2002 or July 2001. For purposes of this NAL, however, we will consider
that San Jose has been distributing the devices since at least March 2002.
See Response at 4.
47 U.S.C. S 503(b)(1)(B); 47 C.F.R. S 1.80(a)(1). Section 312(f)(1) and
(2) of the Act defines "willful" as "the conscious and deliberate
commission or omission of [any] act, irrespective of any intent to
violate" the law, and defines "repeated" as "the commission or omission of
such act more than once" and if continuous "more than one day." 47 U.S.C.
S 312(f)(1) and (2). The legislative history of Section 312(f)(1) and (2)
clarifies that the definitions of willful and repeated applies to both
Sections 312 and 503(b) of the Act. See H.R. Rep. No. 97-765, 97^th Cong.
2d Sess. 51 (1982). Consistent with the legislative history, the
Commission has so interpreted the terms in the Section 503(b) context.
See, e.g., Southern California Broadcasting Co., 6 FCC Rcd 4387, 4388 P 5
(1991); Callais Cablevision, Inc., 16 FCC Rcd 1359, 1362 P 9 (2001).
See 47 U.S.C. S 503(b); 47 C.F.R. S 1.80(f).
See, e.g., SBC Communications, Inc., 17 FCC Rcd 7589, 7591 P 4 (2002).
See supra note 11 and accompanying text.
47 C.F.R. S 2.1 defines "spurious emissions" as "[e]missions on a
frequency or frequencies which are outside the necessary bandwidth and the
level of which may be reduced without affecting the corresponding
transmission of information. Spurious emissions include harmonic
emissions, parasitic emissions, intermodulation products and frequency
conversion products, but exclude out-of-band emissions."
See GPS Networking, Inc., RM-11002, 20 FCC Rcd 12256, 12258 (2005). It
should be noted that one commenter in that proceeding expressed concern
that GPS re-radiator devices could interfere with accurate E911 location
reporting. Id. at note 4.
A DOC is a procedure where the responsible party - the manufacturer, or in
the case of imported equipment, the importer - has measurements taken to
ensure that the equipment complies with the appropriate technical
standards. See 47 C.F.R. S 2.906(a). Under the DOC procedure, the
measurements must be made by an FCC-accredited laboratory. See 47 C.F.R. S
2.948(a)(3). In addition, a copy of the DOC listing the party responsible
for compliance must be included in the literature supplied with the
product. See 47 C.F.R. S 2.1077.
The DOC procedure may be used only for certain types of unintentional
radiators. See 47 C.F.R. S 15.101.
47 U.S.C. S 503(b)(6).
See, e.g., Globcom, Inc. d/b/a Globcom Global Communications, 18 FCC Rcd
19893, 19903 P 23 (2003), rev. pending; Roadrunner Transportation, Inc.,
15 FCC Rcd 9669, 9671-71 P 8 (2000); Cate Communications Corp., 60 RR 2d
1386, 1388 P 7 (1986); Eastern Broadcasting Corp., 10 FCC 2d 37, 37-38 P 3
(1967); Bureau D'Electronique Appliquee, Inc., 20 FCC Rcd 3445, 3447-48 PP
8-9 (Enf. Bur., Spectrum Enf. Div., 2005), forfeiture ordered, DA 05-2928
(Enf. Bur., Spectrum Enf. Div., November 8, 2005) ("Bureau D'Electronique
Applique").
47 C.F.R. S 1.80.
47 U.S.C. S 503(b)(2)(C). The Commission twice amended Section 1.80(b)(3)
of the Rules, 47 C.F.R. S 1.80(b)(3), to increase the maxima forfeiture
amounts, in accordance with the inflation adjustment requirements
contained in the Debt Collection Improvement Act of 1996, 28 U.S.C. S
2461. See Amendment of Section 1.80 of the Commission's Rules and
Adjustment of Forfeiture Maxima to Reflect Inflation, 15 FCC Rcd 18221
(2000) (adjusting the maximum statutory amounts from $10,000/$75,000 to
$11,000/$87,500); Amendment of Section 1.80 of the Commission's Rules and
Adjustment of Forfeiture Maxima to Reflect Inflation, 19 FCC Rcd 10945
(2004) (adjusting the maximum statutory amounts from $11,000/$87,500 to
$11,000/$97,500); see also 47 C.F.R. S 1.80(c).
47 U.S.C. S 503(b)(2)(D). See also 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., Samson Technologies, Inc., 19 FCC Rcd 4221, 4225 P 9 (2004),
consent decree ordered, 19 FCC Rcd 24509 (2004) (finding that the
marketing of each model of unauthorized equipment constitutes separate
violations).
See The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd
17087, 17112 (1997), recon. denied, 15 FCC Rcd 303 (1999) (noting that the
we "retain the discretion to issue a higher or lower forfeiture" than the
base forfeiture amounts set forth in our Rules and our Forfeiture
Guidelines).
Cf. Pilot Travel Centers, LLC, 19 FCC Rcd 23113, 23117 P 16 (2004)
(upwardly adjusting a proposed forfeiture based on a finding that the
marketing and distribution of unauthorized radio transmitters, inter alia,
potentially interferes with transmitters and other devices authorized to
operate in such frequency ranges); Callais Cablevision, Inc., 17 FCC Rcd
22626, 22630-32 PP 20-23 (2002) (upwardly adjusting a forfeiture based on
a finding that a cable system's signal leakage violations increased the
likelihood of interference with aeronautical frequencies and potentially
jeopardized air safety); Centel Cellular of North Carolina Limited
Partnership, 10 FCC Rcd 915 (1994), modified, 11 FCC Rcd 10800, 10804-05
PP 6-7 (1996) (upwardly adjusting a forfeiture based on a finding that a
wireless carrier constructed a tower that directly penetrated an air
safety zone and interfered with airline flight paths, threatening and
potentially jeopardizing air safety).
See, e.g., Bureau D'Electronique Applique, 20 FCC Rcd at 3448 P 9
(upwardly adjusting a proposed aggregate forfeiture based on the volume of
unauthorized devices distributed, and the five-year span in which such
devices were marketed).
See supra note 27 and accompanying text.
See supra note 18 and accompanying text.
See Profit Enterprises, Inc., 8 FCC Rcd 2846, 2846 P 5 (1993) (denying the
mitigation claim of a manufacturer/distributor who thought that the
equipment certification and marketing requirements were inapplicable,
stating that its "prior knowledge or understanding of the law is
unnecessary to a determination of whether a violation existed ...
ignorance of the law is [not] a mitigating factor"); see also Southern
California Broadcasting Co., 6 FCC Rcd at 3448 P 3; Lakewood Broadcasting
Service, Inc., 37 FCC 2d 437, 438 P 6 (1972).
47 C.F.R. SS 0.111, 0.311, 1.80.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Id.
Federal Communications Commission FCC 06-30
2
Federal Communications Commission FCC 06-30
References
Visible links
1. http://www.sanav.com/