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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                            )                               
     In the Matter of           File No. EB-05-SE-334       
                            )                               
     AboCom Systems, Inc.       NAL/Acct. No. 200632100017  
                            )                               
     Hsinchu City, Taiwan       FRN # 0007031842            
                            )                               


                          MEMORANDUM OPINION AND ORDER

   Adopted: April 20, 2007   Released:  April 24, 2007

   By the Chief, Enforcement Bureau:

   I. introduction

    1. In this Memorandum Opinion and Order ("Order"), we deny the petition
       for reconsideration filed by AboCom Systems, Inc. ("AboCom"). Abocom
       seeks reconsideration of a Forfeiture Order issued by the Spectrum
       Enforcement Division ("Division") of the Enforcement Bureau on
       November 7, 2006, in the amount of twenty-five thousand dollars
       ($25,000). In the Forfeiture Order, the Division found willful and
       repeated violations of Section 302(b) of the Communications Act of
       1934, as amended ("Act"), and Section 2.803(a) of the Commission's
       Rules ("Rules"), involving AboCom's marketing of wireless access
       points that do not comply with the terms of its equipment
       authorization and the requirements of Section 15.247(d) of the Rules.

   II. background

    2. In 2005, the Division received a report from Industry Canada
       indicating that a wireless access point marketed under an equipment
       certification granted to AboCom, FCC ID MQ4ARM94, did not comply with
       Canada's equipment certification standards. Specifically, the report
       from Industry Canada indicated that the device produced a spurious
       emission at frequency 2.6 GHz. The Division purchased a sample of the
       AboCom wireless access point and sent it to the Commission's Office of
       Engineering and Technology ("OET") Laboratory for testing. The OET
       Laboratory tested the device and determined that it produced a
       spurious emission on frequency 2.6 GHz that substantially exceeded the
       limit specified by Section 15.247(d) of the Rules.

    3. On March 2, 2006, the Division issued a letter of inquiry ("LOI") to
       AboCom. In its April 17, 2006 response to the LOI, AboCom stated that,
       beginning May 31, 2004, it manufactured the wireless access point
       authorized under FCC ID MQ4ARM94 for both Hawking Technologies, Inc.
       ("Hawking") and Phoebe Micro, Inc. ("Phoebe"). AboCom's response
       indicated that it shipped large quantities of the device to Hawking
       between May 31, 2004, and October 5, 2005, and to Phoebe between May
       12, 2004, and June 14, 2005. AboCom also provided a copy of a test
       report dated November 4, 2005, which purportedly showed that the
       device did not produce a spurious emission exceeding the limit
       specified by Section 15.247(d) of the Rules. Notably, however, the
       report was incomplete because it did not identify or describe the
       measurement procedures used.

    4. The OET Laboratory subsequently tested a second sample of the AboCom
       wireless access point and again found that it produced a spurious
       emission at 2.6 GHz that substantially exceeded the limit specified by
       Section 15.247(d). OET also determined that the device is capable of
       operating on frequencies beyond the 2.412 - 2.482 GHz range authorized
       by its equipment authorization.

    5. On July 13, 2006, the Division issued a Notice of Apparent Liability
       for Forfeiture  ("NAL") proposing a $25,000 forfeiture to AboCom for
       marketing wireless access points that do not comply with the terms of
       its equipment authorization and the requirements of Section 15.247(d)
       of the Rules in apparent willful and repeated violation of Section
       302(b) of the Act and Section 2.803(a) of the Rules. Following
       AboCom's failure to file a response to the NAL, the Division issued
       the Forfeiture Order affirming the violations and assessing a $25,000
       forfeiture.

    6. In its petition for reconsideration of the Forfeiture Order, AboComm
       does not dispute the violations but seeks reduction of the forfeiture
       amount. AboCom argues that, except in the case of very large entities,
       the Commission rarely imposes a $25,000 forfeiture, particularly in a
       case involving equipment manufacturing and marketing. AboCom asserts
       that a $25,000 forfeiture is harsh in this instance because the
       variances of the wireless access point from Section 15.247(d) of the
       Rules and the equipment authorization granted by the Commission were
       inadvertent and only "theoretically harmful." As such, AboCom further
       asserts that the marketing of the wireless access points has not been
       shown to be part of a deliberate plan to evade or disregard the rules.

   III. discussion

    7. The forfeiture amount 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. In examining AboCom's petition, 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 such other matters as justice may
       require. As discussed below, we conclude that the original $25,000
       forfeiture was fully consistent with these statutory provisions and
       the Commission's precedent; accordingly, we deny Abocom's petition for
       reconsideration.

    8. First, we reject AboCom's argument that the $25,000 forfeiture amount
       should be reduced because, except in the case of very large entities,
       the Commission rarely imposes a $25,000 forfeiture, particularly in a
       case involving equipment manufacturing and marketing. In fact,
       forfeiture amounts of $25,000 or more are not uncommon in equipment
       cases. As discussed in the NAL, an upward adjustment from the $7,000
       base forfeiture amount to $25,000 was warranted in this case because
       of the substantial number of non-compliant devices that AboCom
       marketed, the fact that the violations continued over a 17-month
       period, and AboCom's ability to pay a forfeiture. Regarding ability to
       pay, the Commission made clear in the Forfeiture Policy Statement that
       large or highly profitable entities, such as AboCom, can expect
       forfeitures higher than those reflected in the base amounts.

    9. We similarly reject AboCom's assertion that the $25,000 forfeiture is
       harsh because it was no more than "inadvertently noncompliant" and its
       actions were not deliberate or intended to violate the rules.
       Inadvertence or the lack of intent to violate the Commission's
       requirements is not a mitigating factor warranting reduction of a
       forfeiture. Moreover, we disagree with AboCom's contention that the
       variances of the device were only "theoretically harmful."  Industry
       Canada initially reported the compliance issue with AboCom's wireless
       access points to the Enforcement Bureau after determining that the
       devices were causing harmful interference to a local wireless service
       provider of a subscription high speed internet and television service.
       In any event, it is well-established that the absence of harm is not a
       mitigating factor and does not warrant a downward adjustment of an
       assessed forfeiture.

   10. In sum, we have examined AboCom's petition for reconsideration
       pursuant to the statutory factors prescribed by Section 503(b)(2)(E)
       of the Act, Section 1.80 of the Rules, and the Commission's Forfeiture
       Policy Statement. As a result of our review, we find that reduction of
       the forfeiture is not warranted and that the Forfeiture Order should
       be affirmed.

   IV. ORDERING CLAUSES

   11. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the Act
       and Section 1.106 of the Rules, AboCom's petition for reconsideration
       of the Forfeiture Order IS DENIED and the Forfeiture Order IS
       AFFIRMED.

   12. 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, money order 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 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: Associate Managing Director - Financial Operations, 445
       12th Street, S.W., Room 1A625, Washington, D.C. 20554.

   13. IT IS FURTHER ORDERED that copies of this Memorandum Opinion and Order
       shall be sent by facsimile and international registered mail to AboCom
       Systems, Inc., 1F No. 21 Yanfa, 2^nd Road, SBIP, Hsinchu City, Taiwan
       and by facsimile and certified mail, return receipt requested, to its
       counsel, Lewis H. Goldman, Esq., 45 Dudley Court, Bethesda, MD 20814.

   FEDERAL COMMUNICATIONS COMMISSION

   Kris Anne Monteith

   Chief, Enforcement Bureau

   AboCom Systems, Inc., Forfeiture Order, 21 FCC Rcd 13140 (Enf. Bur.,
   Spectrum Enf. Div. 2006).

   47 U.S.C. S 302a(b).

   47 C.F.R. S 2.803(a).

   A wireless access point is a transmitter/receiver used to provide wireless
   internet access.

   47 C.F.R. S 15.247(d).

   Industry Canada is a regulatory agency of the Canadian government.

   AboCom received a grant of equipment authorization for the wireless access
   point under FCC ID MQ4ARM94 on April 22, 2004.

   Section 2.1(c) of the Rules, 47 C.F.R. S 2.1(c), defines a spurious
   emission as an "[e]mission 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."

   See Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
   Division, Enforcement Bureau, Federal Communications Commission to AboCom
   Systems, Inc. (March 2, 2006).

   See Letter from Eric Oh-Yang, Chairman & Chief Executive Officer, AboCom
   Systems, Inc., to Brett Greenwalt, Engineer, Spectrum Enforcement
   Division, Enforcement Bureau, Federal Communications Commission (April 10,
   2006) ("LOI Response").

   The devices manufactured for Hawking were designated as Hawking model
   HWR54G and the devices manufactured for Phoebe were designated as Phoebe
   model AR315W.

   LOI Response, Exhibit B.

   47 C.F.R. S 2.947(b) and (c).

   AboCom Systems, Inc., Notice of Apparent Liability, 21 FCC Rcd 7875 (Enf.
   Bur., Spectrum Enf. Div. 2006).

   AboCom asserts that if "AboCom is able to resolve favorably to it [the
   question of whether AboCom's wireless access points are compliant] the
   Bureau will be immediately advised." Petition for Reconsideration at 1-2.

   Id. at 2.

   Id.

   Id.

   47 U.S.C. S 503(b).

   47 C.F.R. S 1.80.

   The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
   of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
   12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
   Policy Statement").

   47 U.S.C. S 503(b)(2)(D).

   Petition for Reconsideration, at 2.

   See, e.g., San Jose Navigation, Inc., Forfeiture Order, 22 FCC Rcd 1040
   (2007) (assessing a $75,000 forfeiture for equipment marketing
   violations); Behringer USA, Inc., Notice of Apparent Liability for
   Forfeiture, 21 FCC Rcd 1820, 1825 (2006) (proposing a $1,000,000
   forfeiture for equipment marketing violations), response pending; ACR
   Electronics, Inc., Forfeiture Order, 21 FCC Rcd. 3698, 3707 (2006)
   (assessing a $65,000 forfeiture for equipment marketing violations); Pilot
   Travel Centers, L.L.C., Notice of Apparent Liability for Forfeiture, 19
   FCC Rcd 23113 (2004) (proposing a $125,000 forfeiture for equipment
   marketing violations), consent decree ordered, 21 FCC Rcd 5308 (2006);
   Samson Technologies, Inc., Notice of Apparent Liability for Forfeiture, 19
   FCC Rcd 4221 (2004) (proposing a $35,000 forfeiture for equipment
   marketing violations), consent decree ordered, 19 FCC Rcd 24542 (2004);
   Rocky Mountain Radar, Notice of Apparent Liability for Forfeiture, 22 FCC
   Rcd 1334 (Enf. Bur., Spectrum Enf. Div. 2007) (proposing a $25,000
   forfeiture for equipment marketing violations); and Ramsey Electronics,
   Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd. 458 (Enf.
   Bur., Spectrum Enf. Div. 2006) (proposing a $25,000 forfeiture for
   equipment marketing violations).

   See, e.g., San Jose Navigation, Inc., Notice of Apparent Liability for
   Forfeiture, 21 FCC Rcd 2873, 2877-8 (2006) (upwardly adjusting a proposed
   forfeiture on the basis of factors which included the volume of
   non-compliant devices distributed, and the three-year span in which such
   devices were marketed), forfeiture ordered,  22 FCC Rcd 1040 (2007); and
   Bureau D'Electronique Appliquee, Notice of Apparent Liability for
   Forfeiture, 20 FCC Rcd 3445, 3448 (Enf. Bur., Spectrum Enf. Div. 2005)
   (upwardly adjusting a proposed forfeiture on the basis of the volume of
   unauthorized devices distributed, the five-year span in which such devices
   were marketed and ability to pay), forfeiture ordered, 20 FCC Rcd 17893
   (Enf. Bur., Spectrum Enf. Div. 2005) ("B.E.A.").

   AboCom had revenues of approximately 4 billion Taiwan dollars in 2005
   (approximately $133 million in US dollars). Worldscope-International
   Company Profiles, April 21, 2006.

   Specifically, the Commission stated:

   [O]n the other end of the spectrum of potential violations, we recognize
   that for large or highly profitable communication entities, the base
   forfeiture amounts ... are generally low. In this regard, we are mindful
   that, as Congress has stated, for a forfeiture to be an effective
   deterrent against these entities, the forfeiture must be issued at a high
   level .... For this reason, we caution all entities and individuals that,
   independent from the uniform base forfeiture amounts ..., we intend to
   take into account the subsequent violator's ability to pay in determining
   the amount of a forfeiture to guarantee that forfeitures issued against
   large or highly profitable entities are not considered merely an
   affordable cost of doing business. Such large or highly profitable
   entities should expect in this regard that the forfeiture amount set out
   in a Notice of Apparent Liability against them may in many cases be above,
   or even well above, the relevant base amount.

   Forfeiture Policy Statement, 12 FCC Rcd at 17099-100.  See also SBC
   Communications v. FCC, 373 F.3d 140, 152 ("[A] company's ability to pay is
   a statutory factor the FCC may consider, and it is reasonable to expect
   that a large fine might be necessary to deter a large company like SBC.")

   Petition for Reconsideration at 2-3.

   See Emery Telephone, Notice of Apparent Liability for Forfeiture, 13 FCC
   Rcd 23854, 23859 (1998) (inadvertence found not to be a mitigating
   circumstance), recon. dismissed in part and denied in part, Memorandum
   Opinion and Order, 15 FCC Rcd 7181 (1999); and B.E.A., 20 FCC Rcd at 17897
   ("inadvertent mistakes" found not to mitigate violations).

   Petition for Reconsideration at 2.

   See LOI Reponse at 131.

   See, e.g., Liberty Cable Co., Memorandum Opinion and Order, 16 FCC Rcd
   16105, 16113 (2001) (rejecting claim that the forfeiture should be reduced
   because cable system took care to avoid interference before commencing
   unauthorized operation); Pacific Western Broadcasters, Inc., Memorandum
   Opinion and Order, 50 FCC 2d 819 (1975) (finding that "[t]he Commission
   not only is concerned with actual interference, but is concerned with the
   potential for interference"); and Bureau D'Electronique Appliquee, Inc.,
   Forfeiture Order, 20 FCC Rcd 17893, 17898 (Enf. Bur., Spectrum Enf. Div.
   2005) (concluding that lack of interference from unauthorized devices does
   not warrant a reduction of the forfeiture).

   47 U.S.C. S 405.

   47 C.F.R. S 1.106.

   47 U.S.C. S 504(a).

   See 47 C.F.R. S 1.1914.

   (Continued from previous page)

   (continued....)

   Federal Communications Commission DA 07-1784

   6

   Federal Communications Commission DA 07-1784