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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of File No. EB-07-SE-390
)
Digital Antenna, Inc. NAL/Acct. No. 200832100045
)
Sunrise, Florida FRN # 0005061015
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: May 8, 2008 Released: May 12, 2008
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Digital Antenna, Inc. ("Digital Antenna") apparently violated a
Commission order by willfully and repeatedly failing to respond fully
to a directive of the Enforcement Bureau ("Bureau") to provide certain
information and documents. Based on our review of the facts and
circumstances of this case, and for the reasons discussed below, we
find that Digital Antenna is apparently liable for a monetary
forfeiture in the amount of $11,000.
II. background
2. Digital Antenna manufactures and markets, among other things, cellular
and PCS boosters and repeaters used for amplifying cellular and PCS
signals. On November 5, 2007, the Bureau's Spectrum Enforcement
Division ("Division") issued a Letter of Inquiry ("LOI") to Digital
Antenna in response to complaints alleging that Digital Antenna was
marketing its boosters/repeaters to end users who are neither licensed
cellular or PCS providers nor authorized by their licensed cellular or
PCS provider to operate the device on the provider's network and that
the boosters/repeaters were causing interference to licensed services.
The LOI directed Digital Antenna to submit a sworn written response to
a series of questions relating to the number of boosters/repeaters it
manufactured and distributed, its retailers, distributors and
individual customers, its marketing materials, and the FCC
certification of the products.
3. On November 6, 2007, Digital Antenna provided an incomplete response
to the LOI, in substance and in form. The response acknowledged that
Digital Antenna manufactures and markets the six models of cellular
and PCS boosters identified in the LOI. Digital Antenna asserted that
its products are certified by the Commission and do not have to be
licensed under Parts 22 and 24 of the Commission`s rules because they
are not transmitters. It provided the requested marketing materials,
but did not provide the requested information concerning its
retailers, distributors and individual customers, or the number of
units of each of the devices it manufactured and distributed.
Additionally, it did not submit a sworn statement or affidavit as
directed in the LOI and required by the Commission's rules.
4. On February 4, 2008, the Division issued a second LOI to Digital
Antenna, directing Digital Antenna to provide the information that it
had failed to supply in its first response. The second LOI stated
that, contrary to Digital Antenna's assertions, cellular and PCS
boosters and repeaters are transmitters and may only be used by
licensed cellular/PCS providers or by end user customers with the
express authorization of the licensed provider. The second LOI
directed Digital Antenna to respond within 15 calendar days and warned
Digital Antenna that failure to provide complete responses to the LOI
may result in enforcement action, including possible monetary
forfeitures.
5. In its second LOI response, Digital Antenna asserted its belief that
the authorization of a licensed cellular or PCS provider is not
required for end users to operate its devices. Although it provided
the dates it began manufacturing and marketing its products, it again
failed to provide requested information regarding the number of units
of each device manufactured and sold and to identify its retailers,
distributors and individual customers, stating that the "number of
units sold and a list of customers for these products is not provided
due to the time consuming nature compared to the amount of time
allowed for this response." In addition, Digital Antenna failed to
support its second LOI response with a sworn statement or affidavit as
required.
III. discussion
A. Failure to Provide Complete Responses to the LOI
6. We find that Digital Antenna apparently violated Commission orders by
failing to provide complete responses to a Bureau inquiry. Sections
4(i), 4(j), and 403 of the Act afford the Commission broad authority
to investigate the entities it regulates. Section 4(i) authorizes the
Commission to "issue such orders, not inconsistent with this Act, as
may be necessary in the execution of its functions," and Section 4(j)
states that "the Commission may conduct its proceedings in such manner
as will best conduce to the proper dispatch of business and to the
ends of justice." Section 403 likewise grants the Commission "full
authority and power to institute an inquiry, on its own motion ...
relating to the enforcement of any of the provisions of this Act."
7. As indicated above, the Bureau twice directed Digital Antenna to
provide certain information related to its products. Such information
was necessary to enable the Commission to perform its enforcement
function and evaluate whether Digital Antenna or any other entities
violated Commission rules. There is no question that Digital Antenna
received the LOIs. To date, however, Digital Antenna has failed to
provide full and complete responses. Irrespective of whether Digital
Antenna agrees with the Bureau that either an FCC license or
authorization from a licensed cellular or PCS provider is required to
operate its devices, it was obligated to respond fully and completely
to the Bureau's inquiry. Therefore, Digital Antenna's failure to fully
respond to the Bureau's inquiry constitutes an apparent willful and
repeated violation of a Commission order.
A. Proposed Forfeiture
8. Section 503(b)(1) of the Act and Section 1.80(a)(1) of the Rules
authorize 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 determining the appropriate
forfeiture amount, Section 503(b)(2)(E) of the Act directs us 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."
9. Under Section 503(b)(2)(C) of the Act and Section 1.80(b)(3) of the
Rules, the Commission is authorized to assess a maximum forfeiture of
$11,000 for each violation, or each day of a continuing violation, by
an entity not specifically designated in Sections 503(b)(2)(A) or
503(b)(2)(B) of the Act, up to a statutory maximum forfeiture of
$97,500 for any single continuing violation.
10. Section 1.80 of the Rules and the Commission's Forfeiture Policy
Statement establish a base forfeiture amount of $4,000 for failure to
respond to Commission communications. We find that Digital Antenna's
failure to respond fully to the LOIs in the circumstances presented
here warrants a substantial increase to this base amount. Misconduct
of this type exhibits a disregard for the Commission's authority and,
more importantly, threatens to compromise the Commission's ability to
adequately investigate violations of its Rules. Prompt and full
responses to Bureau inquiry letters are essential to the Commission's
enforcement function. We therefore propose an $11,000 forfeiture
against Digital Antenna for failing to respond fully to Commission
communications. This forfeiture amount is consistent with recent
precedent in similar cases, where companies failed to provide
responses to multiple Bureau inquiries concerning compliance with the
Commission's Rules despite evidence that the LOIs had been received.
11. We also direct Digital Antenna to respond fully to the February 4,
2008 LOI within thirty days of the release of this NAL. Failure to do
so may constitute an additional violation subjecting Digital Antenna
to further penalties, including potentially higher monetary
forfeitures.
IV. ordering clauses
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Section 1.80 of the Rules, Digital Antenna, Inc. is NOTIFIED
of its APPARENT LIABILITY FOR A FORFEITURE in the amount eleven
thousand dollars ($11,000) for willful and repeated violation of a
Commission order.
13. 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, Digital Antenna, Inc. SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
14. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. Digital Antenna will also send
electronic notification on the date said payment is made to
Katherine.Power@fcc.gov and Ricardo.Durham@fcc.gov.
15. IT IS FURTHER ORDERED that, pursuant to Sections 4(i), 4(j) and 403 of
the Act, Digital Antenna, Inc. shall fully respond to the February 4,
2008 Letter of Inquiry sent by the Enforcement Bureau in the manner
described by that Letter of Inquiry within thirty (30) days of the
release of this NAL.
16. The response to this NAL, 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.
17. 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.
18. 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 Mr. Anthony Gallagher, President, Digital
Antenna, Inc., 5325 NW 108th Avenue, Sunrise, FL 33351.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Letter from Kathryn S.Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Mr. Anthony
Gallagher, President, Digital Antenna, Inc. (November 5, 2007).
Response from Anthony Gallagher, President, Digital Antenna, Inc., to
Kathryn Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau
, Federal Communications Commission (November 6, 2007) ("response").
Id. at 2.
Id.
47 C.F.R. S: 1.16.
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Mr. Anthony
Gallagher, President, Digital Antenna, Inc. (February 4, 2008).
Response from Anthony Gallagher, President, Digital Antenna, Inc., to
Kathryn Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission (February 15, 2008) ("second LOI
response"). Although the second LOI response was dated February 15, 2008,
it was not received by the Commission until February 27, 2008. Thus, it
was filed beyond the deadline given in the second LOI of February 19,
2008.
Id. at 1.
Id. at 2.
47 U.S.C. S: 154(i).
47 U.S.C. S: 154(j).
47 U.S.C. S: 403.
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 indicates 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, e.g., Southern California
Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4387-88 P:
5 (1991) ("Southern California Broadcasting").
The Commission may also assess a forfeiture for violations that are merely
repeated, and not willful. See, e.g., Callais Cablevision, Inc., Notice of
Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10
(2001) ("Callais Cablevision") (issuing a Notice of Apparent Liability
for, inter alia, a cable television operator's repeated signal leakage).
"Repeated" means that the act was committed or omitted more than once.
Southern California Broadcasting, 6 FCC Rcd at 4388 P: 5; Callais
Cablevision, 16 FCC Rcd at 1362 P: 9.
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7599-7600 P:P: 23-28 (ordering $100,000 forfeiture for egregious and
intentional failure to certify the response to a Bureau inquiry); Globcom,
Inc., Notice of Apparent Liability for Forfeiture and Order, 18 FCC Rcd
19893, 19898 n. 36 (2003) (noting delayed response to an LOI is considered
dilatory behavior which may result in future sanctions) (subsequent
history omitted); BigZoo.Com Corporation, Notice of Apparent Liability for
Forfeiture and Order, 19 FCC Rcd 24437 (Enf. Bur. 2004), forfeiture
ordered, 20 FCC Rcd 3954 (Enf. Bur. 2005) ("BigZoo") (ordering $20,000
forfeiture for failure to respond to an LOI); World Communications
Satellite Systems, Inc., Notice of Apparent Liability for Forfeiture, 18
FCC Rcd 18545 (Enf. Bur. 2003), forfeiture ordered, 19 FCC Rcd 2718
(ordering a $10,000 forfeiture for non-responsive reply to an LOI); Donald
W. Kaminski, Jr., Notice of Apparent Liability for Forfeiture, 16 FCC Rcd
10707 (Enf. Bur. 2001), forfeiture ordered, 18 FCC Rcd 26065 (Enf. Bur.
2003) (ordering $4,000 forfeiture for individual's failure to respond to
an LOI).
47 U.S.C. S: 503(b)(1); 47 C.F.R. S: 1.80(a)(1).
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b)(2)(C); 47 C.F.R. S: 1.80(b)(3).
In 2004, the Commission 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, Order, 19 FCC Rcd 10945 (2004) (adjusting the
maximum statutory forfeiture amounts from $11,000/$87,500 to
$11,000/$97,500); see also 47 C.F.R. S: 1.80(c).
See 47 C.F.R. S: 1.80(b)(4); 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").
See, e.g., Universal Telecommunications, Inc., Notice of Apparent
Liability for Forfeiture and Order, 21 Rcd 6579 (Enf. Bur. 2006)
(proposing a $20,000 forfeiture for failure to respond to an LOI);
Hauppauge Computer Works, Inc., Notice of Apparent Liability for
Forfeiture and Order, 23 FCC Rcd 3684 (Enf. Bur., Spectrum Enf. Div.,
2008) (proposing an $11,000 forfeiture for failure to respond to an LOI);
BigZoo, 20 FCC Rcd at 3955 (ordering a $20,000 forfeiture for failure to
respond to an LOI) (forfeiture paid); Liberty Phones, Inc., Notice of
Apparent Liability for Forfeiture and Order, 22 FCC Rcd 17264 (Enf. Bur.,
Inv. & Hearings Div., 2007) (proposing a $20,000 forfeiture for failure to
respond to an LOI). Most of these cases ordered or proposed forfeitures of
$20,000 for failure to respond to Commission communications. We note,
however, that all but one of these cases involved common carriers, which
are subject to a higher maximum statutory forfeiture amount than
non-common carriers like Digital Antenna. See 47 U.S.C. 503(b)(2)(B)-(C).
We do not decide here whether failure to respond to an LOI constitutes a
continuing violation.
(Continued from previous page)
(continued ...)
Federal Communications Commission DA 08-1093
5
Federal Communications Commission DA 08-1093