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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                   )                               
     In the Matter of                  File No. EB-07-SE-167       
                                   )                               
     Microboards Technology, LLC       NAL/Acct. No. 200832100071  
                                   )                               
     Chanhassen, Minnesota             FRN # 0018045856            
                                   )                               


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: August 21, 2008 Released: August 25, 2008

   By the Chief, Spectrum Enforcement Division, Enforcement Bureau:

   I. introduction

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       Microboards Technology, LLC ("Microboards") is apparently liable for a
       forfeiture in the amount of fourteen thousand dollars ($14,000) for
       willful and repeated violation of Section 302(b) of the Communications
       Act of 1934, as amended ("Act"), and Section 2.803(a) of the
       Commission's Rules ("Rules"). The apparent violations involve
       marketing unauthorized and non-compliant digital devices in the United
       States.

   II. background

    2. The Spectrum Enforcement Division ("Division") of the Enforcement
       Bureau received a complaint alleging that Microboards was marketing
       the Orbit 3 Disc Duplicator, and the MicroOrbit Disc Duplicator
       digital video disc ("DVD") and/or compact disc ("CD") duplicators  in
       the United States without the appropriate labels as required in
       Section 15.19 of the Rules. The complaint alleged that the equipment
       may not have been tested, or otherwise determined to comply with the
       conducted and emission limits in Sections 15.107 and 15.109 of the
       Rules, prior to marketing. The Division subsequently began an
       investigation. The investigation established that Microboards was
       either marketing, or had marketed through its website, the devices
       mentioned in the complaint.

    3. On February 29, 2008, the Division issued a letter of inquiry ("LOI")
       to Microboards. On April 21, 2008, Microboards responded to the LOI.
       In its response, Microboards acknowledged that the Orbit 3 Disc
       Duplicator and the MicroOrbit Disc Duplicator are subject to the
       verification equipment authorization procedures specified in Parts 2
       and 15 of the Rules. Microboards indicated that these two devices are
       manufactured by its subsidiary, Microboards Manufacturing, LLC, in
       Salida, California. Microboards stated that it marketed the Orbit 3
       Disc Duplicator for approximately six months before it was verified in
       September 2007 and again in March 2008 with a different power supply.
       Microboards also stated that it marketed the MicroOrbit Disc
       Duplicator from March 2007, when the device's controller (CPU) was
       changed to a different, larger board, until it was retested for
       verification in March 2008. Microboards indicated that when the
       MicroOrbit Disc Duplicator was tested in March 2008, it was found to
       comply with the Class A limits for conducted and radiated emissions
       but did not comply with the Class B radiated emission limits.
       Microboards further stated that it has taken steps to ensure that the
       MicroOrbit Disc Duplicator will be marketed only for commercial use
       until it can be brought into acceptable margins for Class B radiated
       emission limits. Finally, Microboards admitted that it sold units of
       the Orbit 3 Disc Duplicator and the MicroOrbit Disc Duplicator in the
       United States prior to verification of those devices.

   III. discussion

    4. 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)(2) 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 not required to have a grant of
   equipment authorization issued by the Commission, but which must comply
   with all applicable administrative (including verification of the
   equipment or authorization under a Declaration of Conformity, where
   required), technical, labeling and identification requirements specified
   in this chapter.

   Pursuant to Section 15.101(a) of the Rules, unintentional radiators, such
   as Microboards' Orbit 3 Disc Duplicator and MicroOrbit Disc Duplicator,
   are required to be approved prior to marketing through the verification
   procedures described in Sections 2.951-2.962 of the Rules. In addition,
   unintentional radiators are required to comply with the conducted and
   radiated emissions specified in Sections 15.107 and 15.109 of the Rules.
   As the manufacturer of the Orbit 3 Disc Duplicator and MicroOrbit Disc
   Duplicator, Microboards is the party responsible for verifying that these
   devices are compliant with all applicable technical and administrative
   requirements.

    5. Microboards admitted that it marketed and sold units of the Orbit 3
       Disc Duplicator for approximately six months before it was verified in
       September 2007. Microboards also admitted that it marketed and sold
       units of the MicroOrbit Disc Duplicator from March 2007, after it had
       received a CPU upgrade, until it was retested for verification in
       March 2008. We, accordingly, find that the Orbit 3 Disc Duplicator and
       MicroOrbit Disc Duplicator were marketed in the United States prior to
       authorization. Additionally, Microboards acknowledged that the
       MicroOrbit Disc Duplicator is not compliant with the Class B radiated
       emission limits. Based on our review of Microboards' website, it
       appears that Microboards was marketing the MicroOrbit Disc Duplicator
       for general Class B use prior to March 2008. Thus, we find that
       Microboards apparently willfully and repeatedly violated Section
       302(b) of the Act and Section 2.803(a)(2) of the Rules by marketing
       unauthorized digital devices in the United States and, in the case of
       the MicroOrbit Disc Duplicator, by marketing a non-compliant digital
       device in the United States.

    6. 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."

    7. 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 an NAL. Section 503(b)(6) does not, however, bar the
       Commission from assessing whether Microboards' 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
       Microboards' conduct has continued over a period that began on March
       2007, the forfeiture amount we propose herein relates only to
       Microboards' apparent violations that have occurred within the past
       year.

    8. 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(b)(4) of the Rules,
       the base forfeiture amount for the 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. Based on the record before us, we find that Microboards is
       apparently liable for a base forfeiture of $7,000 for each of the two
       models of unauthorized or non-compliant devices it marketed, for a
       total proposed forfeiture of $14,000. Consistent with precedent, we
       have considered the statutory factors set forth above and conclude
       that no adjustment of the proposed forfeiture from the aggregate base
       amount is warranted.

   IV. ORDERING CLAUSES

    9. 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, Microboards
       Technologies IS hereby NOTIFIED of its APPARENT LIABILITY FOR A
       FORFEITURE in the amount of fourteen thousand dollars ($14,000) for
       willfully and repeatedly violating Section 302(b) of the Act and
       Section 2.803(a) of the Rules.

   10. 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, Microboards Technologies, SHALL
       PAY the full amount of the proposed forfeiture or SHALL FILE a written
       statement seeking reduction or cancellation of the proposed
       forfeiture.

   11. 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. Microboards will also send electronic
       notification on the date said payment is made to Gabriel Collazo at
       Gabriel.Collazo@fcc.gov and Neal McNeil at Neal.McNeal@fcc.gov.

   12. 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.

   13. 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.

   14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
       for Forfeiture shall be sent first class and certified mail to John
       Westrum, Vice President of Operations, Microboards Technologies, LLC,
       8150 Mallony Court, PO Box 846, Chanhassen, MN 55317, and by facsimile
       and first class mail to its counsel, Robert J. Ungar, Esq., Fish &
       Richardson, P.C., 1425 K Street, NW, Washington, DC 20005.

   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).

   47 C.F.R. S: 15.19. The complaint also included the GX-1 Disc Publisher,
   DX-1 Disc Publisher, and the PF-2 Disc Printer, which have been
   discontinued and replaced with newer devices.

   47 C.F.R. S:S: 15.107 and 15.109.

   See Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
   Division, Enforcement Bureau, Federal Communications Commission to
   Microboards. (February 29, 2008).

   See Letter from Microboards Technology, LLC, to Gabriel Collazo, Spectrum
   Enforcement Division, Enforcement Bureau (April 21, 2008) ("LOI
   Response").

   Id. at 3.

   Id. at 5.

   Id. at 3.

   Id. Microboards stated that the MicroOrbit Disc Duplicator had been tested
   in March 2003, before the device's controller was changed, and found to
   comply with Class B limits. Id.

   Id. A Class A digital device is "[a] digital device that is marketed for
   use in a commercial, industrial or business environment, exclusive of a
   device which is marketed for use by the general public or is intended to
   be used in the home." 47 C.F.R. S: 15.3(h). A Class B digital device is
   "[a] digital device that is marketed for use in a residential environment
   notwithstanding use in commercial, business and industrial environments."
   47 C.F.R. S: 15.3(i). Class B devices are subject to stricter conducted
   and radiated emission limits than Class A devices. See 47 C.F.R. S:S:
   15.107 and 15.109.

   LOI Response at 3.

   Id. at 4. Pursuant to Sections 0.457 and 0.459 of the Rules, 47 C.F.R.
   S:S: 0.457 and 0.459, Microboards requested confidential treatment of
   certain information submitted in its LOI Response, including the specific
   number of units of the Orbit 3 Disc Duplicator and the MicroOrbit Disc
   Duplicator sold in the United States, asserting that this information is
   commercially sensitive and has not been previously disclosed. Microboards
   asserted that disclosure of this information would result in substantial
   competitive harm. We agree and will accord confidential treatment of
   Microboards' sales figures. For purposes of this NAL, we need not address
   Microboards' request for confidential treatment of certain other
   information included in its response.

   47 C.F.R. S: 15.101(a).

   An unintentional radiator is "[a] device that intentionally generates
   radio frequency energy for use within the device, or that sends radio
   frequency signal by conduction to associated equipment via connecting
   wiring, but which is not intended to emit RF energy by radiation or
   induction." 47 C.F.R. S: 15.3(z)

   47 C.F.R. S:S: 2.951 - 2.962.

   See 47 C.F.R. S:S: 15.107 and 15.109.

   See 47 C.F.R. S: 2.909(b).

   See note 11, supra.

   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,
   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, 4388 (1991), recon.
   denied, 7 FCC Rcd 3454 (1992) ("Southern California").

   Section 312(f)(2) of the Act, which also applies to forfeitures assessed
   pursuant to Section 503(b) of the Act, provides that "[t]he term
   `repeated,'... means the commission or omission of such act more than once
   or, if such commission or omission is continuous, for more than one day."
   47 U.S.C. S: 312(f)(2). See Callais Cablevision, Inc., Notice of Apparent
   Liability for Forfeiture, 16 FCC Rcd 1359, 1362 (2001); Southern
   California, 6 FCC Rcd at 4388.

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

   47 U.S.C. S: 503(b)(2)(E).

   47 U.S.C. S: 503(b)(6).

   See 47 U.S.C. S: 503(b)(2)(E), 47 C.F.R. S: 1.80(b)(4); see also Behringer
   USA, Inc., Notice of Apparent Liability,  21 FCC Rcd 1820, 1825
   (2006),forfeiture ordered, 22 FCC Rcd 10451 (2007) (forfeiture paid);
   Globcom, Inc. d/b/a Globcom Global Communications, Notice of Apparent
   Liability, 18 FCC Rcd 19893, 19903 (2003), forfeiture ordered, Forfeiture
   Order,  21 FCC Rcd 4710 (2006); Roadrunner Transportation, Inc.,
   Forfeiture Order,  15 FCC Rcd 9669, 9671-71 (2000); Cate Communications
   Corp., Memorandum Opinion and Order,  60 RR 2d 1386, 1388 P: 7 (1986);
   Eastern Broadcasting Corp., Memorandum Opinion and Order, 10 FCC 2d 37,
   37-38 (1967), recon. den.,11 FCC 2d 193 (1967); Bureau D'Electronique
   Appliquee, Inc., Notice of Apparent Liability, 20 FCC Rcd 3445, 3447-48
   (Enf. Bur., Spectrum Enf. Div. 2005), forfeiture ordered, Forfeiture
   Order, 20 FCC Rcd 17893 (Enf. Bur., Spectrum Enf. Div. 2005).

   12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).

   47 C.F.R. S: 1.80(b)(4).

   47 U.S.C. S: 503(b)(2)(D). The Commission has amended Section 1.80(b)(3)
   of the Rules, 47 C.F.R. S: 1.80(b)(3), three times 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); Amendment of Section 1.80 of the Commission's Rules and
   Adjustment of Forfeiture Maxima to Reflect Inflation, 23 FCC Rcd 9845
   (2008) (adjusting the maximum statutory amounts from $11,000/$97,500 to
   $16,000/$112,500). The most recent inflation adjustment is effective
   September 2, 2008. See 73 Fed. Reg. 44663-5.

   See, e.g., San Jose Navigation, Inc., Notice of Apparent Liability for
   Forfeiture,  21 FCC Rcd 2873 (2006), forfeiture ordered, 22 FCC Rcd 1040
   (2007), response pending; Samson Technologies, Inc., Notice of Apparent
   Liability for Forfeiture, 19 FCC Rcd 4221, 4225 (2004), consent decree
   ordered, 19 FCC Rcd 24509 (2004) (both finding that the marketing of each
   separate model of unauthorized equipment constitutes a separate
   violation).

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

   47 C.F.R. S: 0.111, 0.311 and 1.80.

   (Continued from previous page)

   (continued....)

   Federal Communications Commission DA 08-1937

   3

   Federal Communications Commission DA 08-1937