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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
) File No. EB-06-SE-388
Richard Mann d/b/a
) NAL/Acct. No. 200732100016
The Antique Radio Collector
) FRN # 0016215626
Toledo, OH
)
FORFEITURE ORDER
Adopted: November 23, 2007 Released: November 27, 2007
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 seven thousand dollars ($7,000) to Richard Mann d/b/a
The Antique Radio Collector ("Antique Radio Collector") for willful
and repeated violations 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 Antique Radio
Collector's marketing of uncertified AM radio transmitters.
II. background
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)(1) of the Rules prohibits the sale or lease, offer of sale or
lease, importation, or shipment of radio frequency devices, as well as
the distribution of such devices for the purpose of selling such
devices, unless, in the case of a device subject to certification, the
device has first been properly authorized, identified and labeled in
accordance with the Rules. Section 2.801(a)(1) of the Rules defines a
radio frequency device as "any device which in its operation is
capable of emitting radio frequency energy ...." Radio frequency
devices subject to the Rules include, among other items, radio
communication transmitting devices and "any part or component thereof
which in use emits radiofrequency energy." Section 15.201(b) of the
Rules requires intentional radiators to be certified by the Commission
prior to marketing.
3. On November 15, 2006, the Spectrum Enforcement Division of the
Enforcement Bureau issued a Letter of Inquiry ("LOI") to Antique Radio
Collector in response to a complaint alleging that Antique Radio
Collector was marketing in the United States fully-assembled AM
transmitters, specifically, the SSTRAN model AMT3000 AM transmitter.
In its LOI Response dated November 25, 2006, Antique Radio Collector
indicated that it was not aware of a certification authorizing a fully
assembled AMT3000 transmitter. The LOI Response indicated that Richard
Mann, owner of Antique Radio Collector, purchased the transmitters in
kit form from a third party and assembled the transmitters in his
residence. Antique Radio Collector advertised the assembled
transmitters for sale online at www.oldtimeradio.com, and it has sold
a number of completed units to end users since December 2003.
4. On March 15, 2007, the Enforcement Bureau's Spectrum Enforcement
Division ("Division") released a Notice of Apparent Liability for
Forfeiture ("NAL") finding that Antique Radio Collector marketed
uncertified AM radio transmitters in apparent willful and repeated
violation of Section 302(b) of the Act and Section 2.803(a)(1) of the
Rules. The NAL proposed a forfeiture in the amount of seven thousand
dollars ($7,000) for the apparent violations.
5. In its April 7, 2007 response to the NAL, Antique Radio Collector
seeks reduction or cancellation of the proposed forfeiture.
Specifically, Antique Radio Collector argues that it "does not possess
or offer" fully-assembled AMT3000 transmitters but only offers a
service, the assembly of AM transmitter kits made available by the
manufacturer. Thus, asserts Antique Radio Collection, it neither
violated the Act nor the Rules.
III. DISCUSSION
6. The forfeiture amount proposed in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and the
Commission's Forfeiture Policy Statement. In assessing forfeitures,
Section 503(b)(2)(E) 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.
7. We find no merit to the claim that Antique Radio Collector sold only an
assembly service of a product manufactured by a third party. We note that
Antique Radio Collector's LOI Response included marketing material that
stated "we [Antique Radio Collector] have your AMT3000 shipped to us from
the manufacturer (they do not offer pre-built transmitters), build and
test it for you and then ship your AMT3000 ready for use." Thus, in its
LOI Response, Antique Radio Collector submitted evidence demonstrating
that Antique Radio Collector assembled SSTRAN AMT3000 transmitters and
advertised these devices in connection with the assembly service. While
"kits," as defined in Section 15.3(p) of the Rules, are not generally
subject to equipment authorization requirements, we have found that the
sale and shipment of an unauthorized device assembled from a kit violates
Section 302(b) of the Act and Section 2.803(a)(1) of the Rules, regardless
of the identity of the kit manufacturer.
8. On the basis of the information before us, we conclude further that
Antique Radio Collector willfully and repeatedly violated Section 302(b)
of the Act and Section 2.803(a)(1) of the Rules. Section 312(f)(1) of the
Act, provides that "the term `willful,' when used with reference to the
commission or omission of any act, means the conscious or 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."
Section 312(f)(1) of the Act defines "repeated" as "the commission or
omission of [any] act more than once or, if such commission or omission is
continuous, for more than one day." In its LOI Response, Antique Radio
Collector admits to the marketing of 46 complete units to end users since
December 2003. Because Antique Radio Collector failed to obtain an
authorization for the assembled SSTRAN AMT3000 transmitters prior to the
marketing of these fully assembled transmitters, we find that Antique
Radio Collector willfully and repeatedly violated Section 302(b) of the
Act and Section 2.803(a)(1) of the Rules.
9. We have considered Antique Radio Collector's response to the NAL in
light of the above statutory factors, our Rules, and the Forfeiture Policy
Statement and conclude that it willfully and repeatedly violated the
referenced sections of the Act and Rules, that the proposed forfeiture in
the amount of seven thousand dollars ($7,000) is appropriate, and that
Antique Radio Collector has not demonstrated that a reduction or
cancellation of the proposed forfeiture is warranted.
IV. ordering Clauses
10. 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, Richard Mann
d/b/a The Antique Radio Collector IS LIABLE FOR A MONETARY FORFEITURE in
the amount of seven thousand dollars ($7,000) for willful and repeated
violation of Section 302(b) of the Act and Section 2.803(a)(1) of the
Rules.
11. 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 credit card
through the Commission's Debt and Credit Management Center at (202)
418-1995, or 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. A request for
full payment under an installment plan should be sent to: Associate
Managing Director - Financial Operations, 445 12th Street, SW, Room 1A625,
Washington, D.C. 20554.
12. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Richard Mann d/b/a
The Antique Radio Collector, 4231 Willys Parkway, Toledo, OH 43612.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a)(1).
See 47 C.F.R. S: 2.801(a) and (d).
See 47 C.F.R. S: 15.201(b).
Under Section 15.3(o) of the Rules, 47 C.F.R. S: 15.3 (o), an intentional
radiator is "[a] device that intentionally generates and emits radio
frequency energy by radiation or induction."
Letter from Kathy Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, to Richard Mann, Antique Radio Collector (November 15,
2006).
Letter from Richard Mann d/b/a The Antique Radio Collector, to Neal
McNeil, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission (November 25, 2006) ("LOI Response").
Richard Mann d/b/a The Antique Radio Collector, Notice of Apparent
Liability for Forfeiture, 22 FCC Rcd 4956 (Enf. Bur., Spectrum Enf. Div.
2007).
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)(E).
LOI Response.
47 C.F.R. S: 15.3(p). Section 15.3(p) of the Rules defines a "kit" as
"[a]ny number of electronic parts, usually provided with a schematic
diagram or printed circuit board, which, when assembled in accordance with
instructions, results in the a device subject to the regulations in this
part, even if additional parts of any type are required to complete
assembly."
But see 47 C.F.R. S:S: 2.815(c) (prohibiting the manufacture and marketing
of specific amplifier kits that do not meet equipment authorization
requirements) and 15.25 (specifying equipment authorization requirements
for TV interface devices marketed as kits).
See Leslie D. Brewer, Forfeiture Order, 15 FCC Rcd 9999 (Enf. Bur. 2000)
(the sale and shipment of an assembled, unauthorized kit violates Section
302(b) of the Act and Sections 2.803(a)(1) and 15.201(b) of the Rules).
See also Liam Patrick Ryan d/b/a L.P. Ryan/Low Power Radio, Notice of
Apparent Liability for Forfeiture, DA 07-4570 (Enf. Bur., Spectrum Enf.
Div. rel. Nov. 13, 2007); Ramsey Electronics Inc., Notice of Apparent
Liability, 21 FCC Rcd 458 (Enf. Bur., Spectrum Enf. Div. 2006); CB Shack
500 Alabama Highway, Forfeiture Order, 14 FCC Rcd 7067 (Compl. & Inf. Bur.
1999), recon. dismissed,15 FCC Rcd 821 (Enf. Bur. 2000).
47 U.S.C. S: 312(f)(1).
The legislative history of Section 312(f)(1) of the Act clarifies that
this definition of willful applies to both Sections 312 and 503(b) of the
Act, H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982), and the
Commission has so interpreted the term in the Section 503(b) context. See
Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC
Rcd 4387, 4387-88 (1991), recon. denied, 7 FCC Rcd 3454 (1992) (stating
that "inadvertence ... is at best, ignorance of the law, which the
Commission does not consider a mitigating circumstance" and applying the
definitions of willful in Sections 312(f)(1) to forfeiture cases). See
also Abocom Systems, Inc., Memorandum Opinion and Order, 22 FCC Rcd 7448,
7451 (Enf. Bur. 2007) (rejecting Abocom's argument that it was only
"inadvertently noncompliant" and that "its actions were not deliberate or
intended to violate the rules," and imposing a forfeiture for willful and
repeated violations of Section 302(b) of the Act and Section 2.803(a)(1)
of the Rules).
47 U.S.C. S: 312(f)(2).
Id. See also Southern California Broadcasting Co., 6 FCC Rcd at 4388
(applying the definition of "repeated" in Section 312(f)(2) of the Rules
to forfeiture cases).
Section 2.803(e)(4) of the Rules defines "marketing" as the "sale or
lease, or offering to sale or lease, including advertising for sale or
lease, or importation, shipment or distribution for the purpose of selling
or leasing or offering for sale or lease." 47 C.F.R. S: 2.803(e)(4).
Section 1.80(b)(4) of the Rules, 47 C.F.R.S: 1.80(b)(4), sets a base
forfeiture amount of seven thousand dollars ($7,000) for marketing
violations. See e.g., Behringer USA, Inc., Notice of Apparent Liability
for Forfeiture and Order, 21 FCC Rcd 1820, 1827-28 (2006), forfeiture
ordered, 22 FCC Rcd 10451 (2007) (forfeiture paid); Rocky Mountain Radar,
22 FCC Rcd 1334, 1339 (Enf. Div., Spectrum Enf. Div. 2007) (imposing base
forfeitures of seven thousand dollars ($7,000) for each model of equipment
marketed without authorization).
47 C.F.R. S:S: 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 07-4716
2
Federal Communications Commission DA 07-4716