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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of File No. EB-06-SE-199
)
Hawking Technologies, Inc. NAL/Acct. No. 200732100022
)
Irvine, California FRN # 0012065009
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 28, 2007 Released: April 2, 2007
By the Commission:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Hawking Technologies, Inc. ("Hawking") apparently liable for a
forfeiture in the amount of fifty thousand dollars ($50,000) 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(d)
of the Commission's Rules ("Rules"). The apparent violations involve
marketing external radio frequency power amplifiers in a manner that
was inconsistent with the terms of Hawking's equipment authorization
and the requirements of Section 15.204(d) of the Rules.
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. The equipment authorization
program requires that radio frequency equipment be tested for
compliance with applicable technical requirements in accordance with
one of three authorization procedures - certification, Declaration of
Conformity, or verification - 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.
3. 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.
In addition, Section 15.204(a) of the Rules 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) 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.
(1) 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.
(2) The outside packaging and user manual for external radio frequency
power amplifiers sold in accordance with paragraph (d)(1) of this section
must include notification that the amplifier can be used only in a system
which it has obtained authorization. Such a notice must identify the
authorized system by FCC Identifier.
Thus, under Section 15.204(d), an external radio frequency power amplifier
may only be marketed for individual sale for use with a transmission
system or systems in which it has previously been authorized and must be
of a design such that it can only be connected as part of a system in
which it has been previously authorized (e.g., through use of a
non-standard or "unique" connector). Further, the packaging and user
manual must include notification that the amplifier can only be used in a
system in which it has obtained authorization and identify such system by
FCC Identifier. In adopting these requirements, the Commission stated that
"combining RF amplifiers with systems that they have not been tested and
shown to be in compliance with should not be permitted due to the high
risk of potential interference."
4. In December 2004, the Commission's Enforcement Bureau ("Bureau")
received complaints alleging that Hawking was illegally marketing the
Hawking Model HSB1 external radio frequency power amplifier ("HSB1
amplifier") for individual sale. The Bureau's Spectrum Enforcement
Division investigated these complaints.
5. External radio frequency power amplifiers such as the HSB1 amplifier
are used to boost the power of radio transmitters such as wireless
access points. The equipment certification issued for the HSB1
amplifier under FCC ID # SOYHSB1 explicitly stated that the HSB1
amplifier may be used only with wireless access points authorized
under equipment certification FCC ID # NDD9572030410. As part of its
investigation, the Bureau purchased a unit of the HSB1 amplifier. The
purchased unit was not sold with a wireless access point and, thus,
was marketed for individual sale. As noted above, under Section
15.204(d) of the Rules, an external radio frequency power amplifier
may only be marketed for individual sale for use with a transmission
system or systems in which it has previously been authorized. The
Bureau's investigation disclosed, however, that Hawking was marketing
the HSB1 amplifier as a device that could be connected to any other
wireless device, including those with which it is not authorized to be
used. For example, the "Hi-Gain 24 Series 2.4 GHz Wireless Range
Extending Antennas Product Information Brochure" packaged with the
HSB1 amplifier stated 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." Additionally, Hawking's internet site
included statements that the HSB1 amplifier "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." In response to a letter of inquiry ("LOI"), Hawking
stated that it had imported and distributed in the United States 7,520
units of the HSB1 amplifier.
6. On the basis of its investigation, the Bureau issued a Notice of
Apparent Liability for Forfeiture ("NAL") to Hawking on June 22, 2005,
proposing a $22,000 forfeiture for marketing external radio frequency
power amplifiers in a manner that was inconsistent with the terms of
its equipment authorization and the rules in apparent willful and
repeated violation of Section 302(b) of the Act and Sections 2.803(a)
and 15.204 of the Rules. In its response to the NAL, Hawking did not
dispute the violations but sought reduction or cancellation of the
proposed forfeiture amount. On April 17, 2006, the Bureau released a
Forfeiture Order affirming the violations but reducing the forfeiture
amount to $17,600 on basis of Hawking's history of overall compliance.
7. The Bureau subsequently received a new complaint alleging that Hawking
was illegally marketing another external radio frequency power
amplifier model - the Hawking Model HSB2 amplifier ("HSB2 amplifier")
- for individual sale. An equipment certification issued to Hawking
under FCC ID # SOYHSB2AP authorizes the HSB2 amplifier to be used in a
digital transmission system with a wireless access point that is
identified in the certification application as the Hawking Model
HWBA54G ("HWBA54G wireless access point"). Another equipment
certification issued to Hawking under FCC ID # SOYHSB1-PCI authorizes
the HSB1 amplifier to be used in a digital transmission system with a
PCI card identified in the certification application as the Hawking
Model HWP54G ("HWP54G PCI card").
8. As part of its investigation of the new complaint, the Bureau
purchased a unit of the HSB2 amplifier. The HSB2 amplifier was
packaged with an antenna and reverse SMA connector (as its unique
connector) but the package did not include a wireless access point or
PCI card. An insert packaged with the HSB2 amplifier states that the
HSB1 and HSB2 amplifiers "are identical in function and form." In
addition, the user's manual packaged with the HSB2 amplifier contains
instructions for connecting the HSB2 amplifier to the HWP54G PCI card,
which is authorized to be used with the HSB1 amplifier. Further, the
"Hi-Gain 24 Series 2.4 GHz Wireless Range Extending Antennas Product
Information Brochure" ("product brochure") packaged with the HSB2
amplifier states that the HSB1 amplifier "attaches to any wireless
device." The product brochure also provides instructions on how to use
Hawking's "jumper cables" (connector converters) to attach the HSB1
amplifier to any wireless devices.
9. As noted above, Section 15.204(d)(2) of the Rules provides that the
outside packaging and user manual for external radio frequency power
amplifiers marketed for individual sale in accordance with Section
15.204(d)(1) must include notification that the amplifier "can be used
only in a system in which it has obtained authorization" and that such
notification must identify the authorized system by FCC Identifier.
The user's manual packaged with the HSB2 amplifier does not contain
any such notification. In addition, the outside packaging of the HSB2
amplifier does not include clear notification that the amplifier can
be used only in a system in which it has obtained authorization and
identify the authorized system by FCC Identifier. Rather, one side of
the box in which the HSB2 amplifier is packaged contains the following
statement: "The HSB2 is certified by the FCC to work with various
wireless devices as a system. Please check the Hawking Technologies
website for the latest certifications. FCC ID # SOYHSB2AP." The back
of the box states "[a]lso works with other certified wireless network
adapters and devices with removable antennas."
10. The Enforcement Bureau conducted internet research on the HSB2
amplifier between May 1 and June 21, 2006. The Bureau's research
indicated that Hawking was advertising the HSB2 amplifier on its
website, www.hawkingtech.com. The advertising contained a list of
items packaged with the HSB2 amplifier, which did not include a
wireless access point or PCI card. Thus, Hawking was marketing the
HSB2 amplifier for individual sale. The advertising also contained an
illustration of the HSB2 amplifier being used in conjunction with the
HWP54G PCI card but did not indicate which wireless devices are
authorized to be used with the HSB2 amplifier.
11. Moreover, the Bureau's internet research indicated that Hawking was
advertising the Hawking Model HACST "TNC to RP Connector Adapter"
("HACST connector adapter") and the Hawking Model HACSA "MCX to SMA
Jumper Cable" ("HACSA jumper cable") on its website. The advertising
stated that the HACST connector adapter "makes any wireless networking
device with TNC antenna connectors compatible with Hawking's entire
line of Hi-Gain WiFi Range Extending Products"; "converts any Wireless
device with TNC connectors to SMA connectors for use with Hawking's
Hi-Gain Range Extending Antennas and Boosters"; and is "compatible
with most Linksys and Cisco devices." The advertising also stated that
the HACSA jumper cable "makes any Apple Airport with an external
antenna connector compatible with Hawking's entire line of Hi-Gain
WiFi Range Extending Products." The advertising included direct links
to pages illustrating the use of an HACST connector adapter to connect
a Linksys or Cisco wireless access point to a device appearing to be
an HSB1 or HSB2 amplifier and the use of an HACSA jumper cable to
connect an Apple Airport wireless access point to a device appearing
to be an HSB1 or HSB2 amplifier. Both of these illustrations also
included language indicating that the connector adaptors and jumper
cables are for "[u]se with Hawking Hi-Gain Antenna or a Hawking
Hi-Gain Range Extending Device." The Bureau's internet research
further indicated that the HSB2 amplifier was listed on Hawking's
website under the category "Hi-Gain Wi-Fi Range Extending Products."
12. Additionally, Hawking's internet advertising for the HSB2 amplifier
contained the following testimonial from a Hawking customer under the
heading "What Others Are Saying About the Signal Booster":
I'm now using one of Hawking's signal boosters, a little box you attach to
any Wi-Fi router to, well, boost its signal. And since I installed it, my
dead spot has disappeared entirely. I'm using the HSB1 model, which
doesn't seem to be on the market anymore, but the HSB2 (about $85) is
similar [emphasis added].
13. On June 26, 2006, the Bureau issued an LOI to Hawking. Hawking
responded to the LOI on July 11, 2006. In its response, Hawking states
that it imported 5,000 HSB2 units into the United States in July 2005,
sold 4,566 units and halted importation of the HSB2 amplifier
following receipt of the LOI.
14. With respect to the notification requirements of Section 15.204(d)(2)
of the Rules, Hawking asserts that it "checked all certification
issues with the TCB and was under the assumption that the packaging
and users manual complied with all FCC regulations and rules."
Additionally, Hawking claims that a specified page on its internet
site contains "[t]he listing of wireless systems with which the HSB2
is authorized to be used ...."
15. The Bureau conducted follow-up research on July 13 and 18, 2006. The
Bureau's observations on July 13, 2006 indicated that the internet
page specified by Hawking did not contain a listing of wireless
systems with which the HSB2 amplifier is authorized to be used. The
Bureau's observations on July 18, 2006 indicated that Hawking is
continuing to market the HSB2 amplifier on its website for individual
sale.
III. discussion
16. 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. As set
forth in detail below, we conclude under this standard that Hawking is
apparently liable for forfeiture for its apparent willful and repeated
violations of Sections 302(b) of the Act and Sections 2.803(a) and
15.204(d) of the Rules.
A. Illegal Marketing of External Radio Frequency Power Amplifiers for
Individual Sale
17. We conclude that Hawking apparently violated Section 302(b) of the Act
and Sections 2.803(a) and 15.204(d) of the Rules by willfully and
repeatedly marketing external radio frequency power amplifiers in a
manner that was inconsistent with the terms of Hawking's equipment
authorization and the requirements of Section 15.204(d) of the Rules.
As set forth above, under Section 15.204(d) of the Rules, an external
radio frequency amplifier may be marketed for individual sale only for
use with a transmission system or systems in which it has previously
been authorized and must use a unique connector. Additionally, the
packaging and user manual must include notification that the amplifier
can only be used in a system in which it has obtained authorization.
The HSB2 amplifier is authorized to be used as a system with the
HWBA54G wireless access point under FCC ID # SOYHSB2AP. Since the HSB2
amplifier is apparently identical to the HSB1 amplifier, the HSB2
amplifier is also apparently authorized to be used as a system with
the HWP54G PCI card. Accordingly, the HSB2 amplifier may be marketed
for individual sale only for use as a system with the HWBA54G wireless
access point or the HWP54G PCI card. As detailed below, the record
before us indicates that the HSB2 amplifier is being marketed as a
device that can be connected to devices with which it is not
authorized to be used.
18. The insert packaged with the HSB2 amplifier states that the HSB1 and
HSB2 amplifiers "are identical in function and form." The product
brochure packaged with the HSB2 amplifier states that the HSB1
amplifier "attaches to any wireless device" and provides instructions
on how to use jumper cables (connector converters) to attach the HSB1
amplifier to any wireless device. When read together, the insert and
the product brochure clearly indicate that the HSB2 amplifier can be
connected to any wireless device, including those with which it is not
authorized to be used. In its response to the LOI, Hawking asserts
that the insert was intended "to correct a factory mistake and in no
way related to the outdated Hi-Gain 24 product brochure with the HSB2
that states the HSB1 attaches to any wireless device" and that the
product brochure has now been updated. This explanation is not
acceptable. Hawking is responsible for marketing the HSB2 amplifier
packaged with material indicating that it can be connected to "any
wireless device."
19. Furthermore, while Hawking packaged the HSB2 amplifier with a reverse
SMA connector, Hawking effectively circumvented the unique connector
requirement of Section 15.204(d)(1) by advertising connector adaptors
for use with the HSB2 amplifier. Hawking advertised the HACST
connector adapter which "makes any wireless networking device with TNC
antenna connectors compatible with Hawking's entire line of Hi-Gain
WiFi Range Extending Products," "converts any Wireless device with TNC
connectors to SMA connectors for use with Hawking's Hi-Gain Range
Extending Antennas and Boosters," and is "compatible with most Linksys
and Cisco devices." Hawking similarly advertised the HACSA jumper
cable that "makes any Apple Airport with an external antenna connector
compatible with Hawking's entire line of Hi-Gain WiFi Range Extending
Products." In its response to the LOI, Hawking claims that this
advertising was "an error in part by our website manager."
Specifically, Hawking contends that "[t]he entire line refers to
Hawking's entire line of passive antennas and not the HSB2 Signal
Booster." We find this explanation disingenuous. Hawking's advertising
specifically referred to Hawking "boosters" as products that can be
used with "any Wireless device with TNC connectors" when an HACST
connector adapter is utilized. In addition, the HSB2 amplifier was
listed on Hawking's internet site under the category "Hi-Gain Wi-Fi
Range Extending Products."
20. Hawking's internet advertising also included direct links to pages
illustrating the use of an HACST connector adapter and an HACSA jumper
cable to connect, respectively, a Linksys or Cisco wireless access
point and an Apple Airport wireless access point, to devices appearing
to be HSB1 or HSB2 amplifiers. In its response to the LOI, Hawking
claims that the devices appearing in the illustrations to be HSB1 or
HSB2 amplifiers are actually "a new (in development) passive antenna
product that utilizes the same housing as the HSB1 and HSB2." We find
this explanation altogether unconvincing. Both illustrations
specifically include language indicating that the connector adapters
and jumper cables are for "[u]se with Hawking Hi-Gain Antenna or a
Hawking Hi-Gain Range Extending Device" [emphasis added]. As noted
above, the HSB2 amplifier was listed on Hawking's internet site under
the category "Hi-Gain Wi-Fi Range Extending Products."
21. We note, moreover, that Hawking's internet advertising for the HSB2
amplifier included a testimonial from a customer. This testimonial
indicated that Hawking's signal boosters can be attached to any Wi-Fi
router to boost its signal.
22. Finally, neither the outside packaging of the HSB2 amplifier nor the
user's manual packaged with the HSB2 amplifier complies with the
notification requirements of Section 15.204(d)(2) of the Rules.
Hawking claims in its LOI response that it "checked all certification
issues with the TCB and was under the assumption that the packaging
and users manual complied to all FCC regulations and rules." However,
as the certification holder, Hawking is responsible for ensuring its
compliance with our rules. We note that the user's manual packaged
with the HSB2 amplifier does not contain any notification. Further,
while the side of the box indicates that the HSB2 amplifier is
certified to "work with various wireless devices as system," this
language does not provide clear notification that the HSB2 amplifier
can be used only with devices with which it is authorized as a system.
In addition, the side of the box states "Please check the Hawking
Technologies website for the latest certifications." Hawking claims in
its LOI response that a specified page on its internet site contains
the listing of wireless systems with which the HSB2 amplifier is
authorized to be used. We note, however, that the webpage specified by
Hawking did not contain such a listing. Similarly, while the back of
the box states "Also works with other certified wireless network
adapters and devices with removable antennas," this language is
inadequate to provide the requisite notification that the HSB2
amplifier can be used only with devices with which it is authorized as
a system.
23. We find, on the basis of the substantial evidence discussed above,
that Hawking apparently has marketed the HSB2 amplifier for individual
sale as a product that can be connected to devices with which it is
not authorized to be used. Accordingly, we conclude that Hawking
apparently marketed the HSB2 amplifier in a manner that was
inconsistent with the terms of its equipment authorization and the
requirements of Section 15.204(d) of the Rules in apparent willful and
repeated violation of Section 302(b) of the Act and Sections
2.803(a)(2) and 15.204(d) of the Rules.
B. Proposed Forfeiture
24. 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."
25. Section 503(b)(6) of the Act bars the Commission from proposing a
forfeiture for violations that occurred more than a year prior to the
issuance of a Notice of Apparent Liability. Section 503(b)(6) does
not, however, bar the Commission from assessing whether Hawking'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. Thus, while we may consider the fact
that Hawking's conduct has continued over a period that began in July
2005, the forfeiture amount we propose herein relates only to
Hawking's apparent violations that have occurred within the past year.
26. 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 importation or marketing of
unauthorized or non-compliant equipment is $7,000. Section
503(b)(2)(D) of the Act 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.
27. Based on the record before us, and having considered the statutory
factors enumerated above, we conclude that a substantial upward
adjustment of the $7,000 base forfeiture amount is warranted. First,
we are troubled that Hawking apparently continues to violate the rules
regarding the marketing of external radio frequency power amplifiers.
In this regard, as noted above, the Bureau previously issued a $17,600
forfeiture to Hawking for marketing external radio frequency power
amplifiers for individual sale in a manner that was inconsistent with
the terms of its equipment authorization and the Commission's Rules.
Hawking did not dispute those prior violations and in fact paid the
forfeiture. The Bureau's prior enforcement action put Hawking on
notice that these requirements must be taken seriously, yet Hawking
apparently failed to take adequate steps to ensure its future
compliance in this area. We believe that Hawking's repetition of its
prior violations evinces a pattern of noncompliance and disregard for
the Commission's rules which warrants a substantial upward adjustment
of the base forfeiture amount. We also believe that an upward
adjustment is warranted in view of the substantial number of HSB2
amplifiers that Hawking imported and sold and the fact that the
violations continued over a 12-month period. Accordingly, applying the
Forfeiture Policy Statement and statutory factors to the instant case,
we conclude that Hawking is apparently liable for a $50,000
forfeiture.
IV. ORDERING CLAUSES
28. Accordingly, IT IS ORDERED that, pursuant to pursuant to Section
503(b) of the Act and Sections 0.111, 0.311 and 1.80 of the Rules,
Hawking Technologies, Inc., IS hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of fifty thousand dollars
($50,000) for willfully and repeatedly violating Section 302(b) of the
Act and Sections 2.803(a) and 15.204(d) of the Rules.
29. 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 and Order, Hawking Technologies, Inc., SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
30. 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.
31. 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.
32. 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 practices; 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.
33. 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.
34. 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 Hawking Technologies, Inc., 15281 A
Barranca Pkwy., Irvine, CA 92618.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
47 U.S.C. S 302a(b).
47 C.F.R. SS 2.803(a) and 15.204(d).
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). A Declaration of Conformity is a procedure where the responsible
party - the manufacturer, or in the case of imported equipment, the
importer - makes measurements or takes other necessary steps to ensure
that the equipment complies with the appropriate technical standards. 47
C.F.R. S 2.906(a). Under the Declaration of Conformity procedure, the
measurements must be made by an FCC-accredited laboratory. 47 C.F.R. S
2.948(a)(3). In addition, a copy of the Declaration of Conformity listing
the party responsible for compliance must be included in the literature
supplied with the product. 47 C.F.R. S 2.1077. Verification is also a
procedure where the manufacturer, or in the case of imported equipment,
the importer, makes measurements or takes the necessary steps to ensure
that the equipment complies with the appropriate technical standards.
However, unlike the Declaration of Conformity procedure, it does not
require that an accredited laboratory make the measurements or that a
Declaration of Conformity be supplied with the equipment. 47 C.F.R. S
2.902(a).
47 C.F.R. S 2.803(e)(4).
47 C.F.R. S 2.801 defines a radio frequency device as "any device which in
it its operation is capable of emitting radio frequency 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."
47 C.F.R. S 15.204(d).
Modification of Parts 2 and 15 of the Commission's Rules for Unlicensed
Devices and Equipment Approval, Report and Order, ET Docket No. 03-201, 19
FCC Rcd 13539, 13545 (2004).
The term "wireless access point" is not defined in the Rules. However, we
take official notice that a wireless access point is a
transmitter/receiver whose most common use is to connect wireless devices
to the internet.
47 C.F.R. S 15.204(d).
Hawking Technologies, Inc., 20 FCC Rcd 10852, 10853 (Enf. Bur., Spectrum
Enf. Div., 2005), forfeiture ordered, 21 FCC Rcd 3966 (Enf. Bur., Spectrum
Enf. Div., 2006) ("Hawking").
Hawking, 20 FCC Rcd at 10853.
Letter from Kathryn Berthot, Deputy 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)
at 2-3.
The $22,000 forfeiture amount proposed by the NAL included an upward
adjustment of $15,000 on the basis of Hawking's substantial economic gain
from the marketing of 7,520 units.
Hawking, 20 FCC Rcd 10852.
Hawking, 21 FCC Rcd at 3969.
Hawking, 21 FCC Rcd at 3971. Commission records indicate that Hawking paid
the $17,600 forfeiture in full on May 25, 2006.
The term "PCI card" is not defined in the Rules. However, we take official
notice that a PCI card is a transmitter/receiver which is installed in a
computer and whose use is to connect the computer to the internet.
The housing of the purchased device indicates the model number HSB1.
However, we refer to the purchased device as an HSB2 because both its
outside packaging and the user's manual indicate that the model number is
HSB2. Additionally, Hawking asserts in its LOI response that the
manufacturer used the wrong model number on the housing.
User's manual at 6-7
Product brochure at 4.
Product brochure at 7-8.
We take official notice that a "Wi-Fi router" is a wireless access point.
Letter from Kathryn Berthot, Deputy Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Hawking
Technologies, Inc. (June 26, 2006).
Letter from Frank Lin, Chief Executive Officer, Hawking Technologies, Inc.
to Thomas Fitz-Gibbon, Attorney, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (July 11, 2006)
("LOI Response").
Id. at 3.
A TCB (Telecommunication Certification Body) is a private entity that
processes applications for equipment certifications. See 47 C.F.R. S
2.960.
LOI Response at 1.
LOI Response at 2.
47 U.S.C. S 503(b)(1)(B); 47 C.F.R. S 1.80(a)(1). Section 312(f)(1) of the
Act defines "willful" as "the conscious and deliberate commission or
omission of [any] act, irrespective of any intent to violate" the law. 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, 97^th Cong. 2d Sess. 51
(1982), and the Commission has so interpreted the term in the Section
503(b) context. See, e.g., Southern California Broadcasting Co., 6 FCC Rcd
4387, 4388 (1991) ("Southern California"). The Commission may also assess
a forfeiture for violations that are merely repeated, and not willful.
See, e.g., Callais Cablevision, Inc., 16 FCC Rcd 1359 (2001) ("Callais
Cablevision") (issuing a notice of apparent liability for forfeiture for,
inter alia, a cable television operator's repeated signal leakage). The
term "repeated" means that the act was committed or omitted more than
once, or lasts more than one day. Callais Cablevision, 16 FCC Rcd at 1362,
P 9; Southern California, 6 FCC Rcd at 4388, P 5.
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).
The equipment certification issued under FCC ID # SOYHSB1-PCI authorizes
the HSB1 amplifier to be used with the HWP54G PCI card.
Product brochure at 4.
Product brochure at 7-8.
LOI Response at 2.
The term "booster" is not defined in the Rules. However, we take official
notice that this term is commonly used to refer an external radio
frequency power amplifier. Hawking describes the HSB2 amplifier as a
"signal booster" in its internet advertising.
LOI Response at 3.
LOI Response at 1.
47 U.S.C. S 503(b).
47 U.S.C. S 503(b)(2)(E). See also 47 C.F.R. S 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
Forfeitures.
47 U.S.C. S 503(b)(6).
See 47 U.S.C. S 503(b)(2)(D), 47 C.F.R. S 1.80(b)(4); see also Behringer
USA, Inc. 21 FCC Rcd 1820, 1827, P 20 (2006), response pending; Globcom,
Inc. d/b/a Globcom Global Communications, 18 FCC Rcd 19893, 19903 P 23
(2003), forfeiture ordered, 21 FCC Rcd 4710 (2006); 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), recon. den.,11 FCC 2d 193 (1967);
Bureau D'Electronique Appliquee, Inc., 20 FCC Rcd 3445, 3447-48 PP 8-9
(Enf. Bur., Spectrum Enf. Div., 2005), forfeiture ordered, 20 FCC Rcd
17893 (Enf. Bur., Spectrum Enf. Div., 2005) ("Bureau D'Electronique
Appliquee").
12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999).
47 C.F.R. S 1.80.
47 U.S.C. S 503(b)(2)(E). The Commission twice amended Section 1.80(b)(3)
of the Rules, 47 C.F.R. S 1.80(b)(3), to increase the maximum 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).
Hawking, 21 FCC Rcd at 3971.
As noted above, Commission records indicate that Hawking paid the $17,600
forfeiture in full on May 25, 2006.
See e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 7891, 7896, PP 19-20,
forfeiture ordered, 17 FCC Rcd 21866 (2002) (tripling the aggregate base
forfeiture amount based on the licensee's continued violations following
prior monetary forfeiture).
See, e.g., San Jose Navigation, Inc., 21 FCC Rcd 2873, 2877-8, P 15 (2006)
(upwardly adjusting a proposed forfeiture based on 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), recon.
pending; Bureau D'Electronique Appliquee, 20 FCC Rcd at 3448, P 9
(upwardly adjusting a proposed forfeiture based on the volume of
unauthorized devices distributed, and the five-year span in which such
devices were marketed).
47 U.S.C. S 503(b).
47 C.F.R. S 0.111, 0.311 and 1.80.
See 47 C.F.R. S 1.1914.
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Federal Communications Commission FCC 07-45