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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                    )                               
                                        File No. EB-06-SE-417       
     In the Matter of               )                               
                                        NAL/Acct. No. 200832100073  
     Data Capture Solutions, Inc.   )                               
                                        FRN 0018049874              
                                    )                               


          Notice of apparent Liability for forfeiture and admonishment

   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
       Data Capture Solutions, Inc. ("DCS") apparently liable for a
       forfeiture in the amount of four thousand dollars ($4,000) 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 noted apparent violations involve DCS's marketing
       of noncompliant portable data terminals ("PDTs").

   II. BACKGROUND

    2. The Enforcement Bureau's Spectrum Enforcement Division ("Division")
       received a complaint alleging that DCS had modified a PDT manufactured
       by Symbol Technologies, Inc. ("Symbol") by replacing the two megabytes
       per second ("mbps") radio assembly with an 11 mbps radio assembly
       without authorization from Symbol. The complaint also asserted that
       DCS affixed new labeling to the modified PDT that did not include the
       device's FCC Identifier ("FCC ID").

    3. The PDTs involved in this matter are equipped with internal radio
       assemblies which transmit the data collected by the PDTs. The internal
       radio assemblies discussed below are designated by Symbol as the
       LA3021, which has a data transmission rate of two mbps, and the
       LA4121, which has a data transmission rate of 11 mbps. Symbol holds
       grants of equipment certification for both of these radio assemblies.

    4. After its receipt of the complaint, the Division began an
       investigation. In pursuance of the investigation, the Division, on
       March 7, 2007, directed a letter of inquiry ("LOI") to DCS. DCS
       responded on April 18, 2007. After follow-up e-mail messages from
       Division staff on May 3 and November 8, 2007, DCS filed further
       responses to the LOI on May 22 and December 6, 2007. On February 1,
       2008, the Division directed a second LOI to DCS. DCS responded to the
       second LOI on March 10, 2008. After a follow-up e-mail message from
       Division staff on April 15, 2008, DCS filed a further response to the
       second LOI on May 8, 2008.

    5. DCS requested confidentiality of its LOI responses and that request
       remains pending. Accordingly, DCS's LOI responses are discussed in an
       Appendix hereto, and we are treating the Appendix as confidential at
       this time.

   III. Discussion

     A. DCS Apparently Marketed Improperly Labeled Devices

    6. 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 in
       pertinent part 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 radiofrequency 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....

   Section 2.909(a) of the Rules provides in pertinent part:

   If the radio frequency equipment is modified by any party other than the
   grantee and that party is not working under the authorization of the
   grantee pursuant to Sec. 2.929(b), the party performing the modification
   is responsible for compliance of the product with the applicable
   administrative and technical provisions in this chapter.

   As discussed in the confidential Appendix, we find that, under Section
   2.909(a) of the Rules, DCS became the party responsible for the compliance
   of the modified PDTs with the applicable technical and administrative
   provisions, including the labeling requirements.

    7. Section 2.909(d) of the Rules provides:

   If, because of modifications performed subsequent to authorization, a new
   party becomes responsible for ensuring that a product complies with the
   technical standards and the new party does not obtain a new equipment
   authorization, the equipment shall be labeled, following the
   specifications in S:2.925(d), with the following: `This product has been
   modified by [insert name, address and telephone number of the party
   performing the modifications].'

   Based on our review of DCS's LOI responses, as discussed in the
   confidential Appendix, we find that DCS did not label the modified PDTs as
   specified by Section 2.909(d).

    8. Section 2.925(a)(1) of the Rules provides:

   Each equipment covered in an application for equipment authorization shall
   bear a nameplate or label listing the following: (1) FCC Identifier
   consisting of the two elements in the exact order specified in S:2.926.
   The FCC Identifier shall be preceded by the term FCC ID in capital letters
   on a single line, and shall be of a type size large enough to be legible
   without the aid of magnification.

   As discussed in the confidential appendix, we find that the labels of the
   PDTs modified by DCS do not include the correct FCC ID numbers and,
   therefore, are not labeled as specified by Section 2.925(a)(1) of the
   Rules.

    9. Section 15.19(a) of the Rules provides in pertinent part:

   In addition to the requirements in part 2 of this chapter, a device
   subject to certification, or verification shall be labeled as follows: ...

   (3) All other devices shall bear the following statement in a conspicuous
   location on the device:

   This device complies with part 15 of the FCC Rules. Operation is subject
   to the following two conditions: (1) This device may not cause harmful
   interference, and (2) this device must accept any interference received,
   including interference that may cause undesired operation.

   As discussed in the confidential Appendix, we find that the labels of PDTs
   modified by DCS do not include the labeling required by Section
   15.19(a)(3).

   10. We, accordingly, find that DCS apparently marketed noncompliant radio
       frequency devices, in willful and repeated violation of Section 302(b)
       of the Act and Section 2.803(a) of the Rules.

   B. Proposed Forfeiture

   11. 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."

   12. 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 DCS'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 DCS's
       conduct has continued over a period that began during 2005 or earlier,
       the forfeiture amount we propose herein relates only to DCS's apparent
       violations that have occurred within the past year.

   13. Under  the Forfeiture Policy Statement and Section 1.80 of the Rules,
       the base forfeiture amount for the marketing of unauthorized equipment
       is $7,000 per model. As set forth in the confidential Appendix, DCS
       apparently marketed PDTs that were not labeled in accordance with
       Sections 2.909(d) and 15.19(a)(3) of the Rules. Although it is clear
       from the record that DCS has marketed such PDTs within the applicable
       one-year statute of limitations, it is not clear how many different
       models of such PDTs were marketed within the one-year period.
       Accordingly, under the specific circumstances of this case, we will
       not calculate the forfeiture amount based on the number of models.
       Thus, we find that DCS is apparently liable for a $7,000 forfeiture
       for marketing PDTs that were not properly labeled in willful and
       repeated violation of Section 302(a) of the Act and Section 2.803(a)
       of the of the Rules. We note that the $7,000 base forfeiture amount is
       typically imposed for marketing devices that are not in compliance
       with applicable technical requirements or are not authorized by an
       equipment authorization. Because marketing an improperly labeled
       device is not as significant a violation as marketing an unauthorized
       or technically non-compliant device, we find that a downward
       adjustment of the base forfeiture amount from $7,000 to $4,000 is
       warranted.

   14. As set forth in the confidential Appendix, DCS also apparently
       marketed modified PDTs that were not labeled in accordance with
       Section 2.925(a)(1) of the Rules (requiring a label containing the FCC
       ID). Because these PDTs were marketed outside the one-year statute of
       limitations, the forfeiture proposed above does not include these
       apparent violations. Nevertheless, we admonish DCS for marketing PDTs
       that were not labeled in accordance with Section 2.925(a)(1) of the
       Rules, in violation of Section 302(a) of the Act and Section 2.803(a)
       of the of the Rules.

   iV. ordering clauses

   15. 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, DCS, IS NOTIFIED
       of its APPARENT LIABILITY FOR A FORFEITURE in the amount of four
       thousand dollars ($4,000) for marketing PDTs that were not labeled in
       accordance with Sections 2.909(d) and 15.19(a)(3) of the Rules, in
       willful and repeated violation of Section 302(a) of the Act and
       Section 2.803(a) of the Rules.

   16. IT IS FURTHER ORDERED that DCS IS ADMONISHED for marketing PDTs that
       were not labeled in accordance with Section 2.925(a)(1) of the Rules,
       in violation of Section 302(a) of the Act and Section 2.803(a) of the
       of the Rules.

   17. 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, DCS SHALL PAY the full amount of the
       proposed forfeiture or SHALL FILE a written statement seeking
       reduction or cancellation of the proposed forfeiture.

   18. 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. DCS will also send electronic
       notification on the date said payment is made to
       Thomas.Fitz-Gibbon@fcc.gov.

   19. 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.

   20. 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.

   21. Requests for payment of the full amount of the NAL under an
       installment plan should be sent to: Associate Managing Director -
       Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
       D.C. 20554.

   22. 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 Data Capture Solutions, Inc., 151 Sheldon
       Road, P.O. Box 1510, Manchester, CT 06042, and to its attorneys, Ian
       D. Volner and Ronald E. Quirk, Jr., Venable LLP, 575 7th Street, NW,
       Washington, DC 20004-1601.

   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).

   PDTs are radio frequency devices that collect data. They are primarily
   used to take inventory.

   FCC ID H9PLA3021 and FCC ID H9PLA4121, respectively.

   See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
   Enforcement Bureau, Federal Communications Commission to Data Capture
   Solutions, Inc. (March 7, 2007).

   See Letter from Ian A. Volner and Ronald E. Quirk, Jr., Counsel for Data
   Capture Solutions, Inc., to Thomas D. Fitz-Gibbon, Esq., Spectrum
   Enforcement Division, Enforcement Bureau, Federal Communications
   Commission (April 18, 2007) ("First LOI Response").

   See Letter from Ian A. Volner and Ronald E. Quirk, Jr., Counsel for Data
   Capture Solutions, Inc., to Thomas D. Fitz-Gibbon, Esq., Spectrum
   Enforcement Division, Enforcement Bureau, Federal Communications
   Commission (May 22, 2007) ("Second LOI Response").

   See Letter from Ian A. Volner and Ronald E. Quirk, Jr., Counsel for Data
   Capture Solutions, Inc., to Thomas D. Fitz-Gibbon, Esq., Spectrum
   Enforcement Division, Enforcement Bureau, Federal Communications
   Commission (December 6, 2007) ("Third LOI Response").

   See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
   Enforcement Bureau, Federal Communications Commission to Ian A. Volner and
   Ronald E. Quirk, Jr., Counsel for Data Capture Solutions, Inc. (February
   1, 2008).

   See Letter from Ian A. Volner, Esq., and Ronald E. Quirk, Jr., Esq.,
   Counsel for Data Capture Solutions, Inc., to Kathryn S. Berthot, Chief,
   Spectrum Enforcement Division, Enforcement Bureau, Federal Communications
   Commission (March 10, 2008) ("Fourth LOI Response").

   See Letter from Ian A. Volner and Ronald E. Quirk, Jr., Counsel for Data
   Capture Solutions, Inc., to Kathryn S. Berthot, Chief, Spectrum
   Enforcement Division, Enforcement Bureau, Federal Communications
   Commission (May 8, 2008) ("Fifth LOI Response").

   47 C.F.R. S: 2.801 defines a radiofrequency device as "any device which in
   it its operation is capable of emitting radiofrequency energy by
   radiation, conduction, or other means."

   47 C.F.R. S: 2.909(a).

   See Ryzex, Inc., Notice of Apparent Liability for Forfeiture, 23 FCC Rcd
   878, 881 (Enf. Bur., Spectrum Enf. Div. 2008) ("Ryzex"), response pending;
   DBK Concepts, Inc., Notice of Apparent Liability for Forfeiture,  23 FCC
   Rcd 2870, 2873 (Enf. Bur., Spectrum Enf. Div. 2008) ("DBK"), response
   pending.

   See Ryzex, 23 FCC Rcd at 882; DBK Concepts 23 FCC Rcd.at 2873.

   47 C.F.R. S: 2.925(a)(1).

   47 C.F.R. S: 15.19(a).

   Marketing, as defined in 47 C.F.R. S: 2.803(e)(4), "includes sale or
   lease, or offering for 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."

   Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
   violations for which forfeitures are assessed under Section 503(b) of the
   Act, provides that "[t]he term `willful', ... means the conscious and
   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 authorized by this Act ...." See Southern California
   Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991).

   Section 312(f)(2) 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, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana,
   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).

   See Revision of Part 2 of the Commission's Rules Relating to the Marketing
   and Authorization of Radio Frequency Devices, Report and Order, 12 FCC Rcd
   4533, 4552 (1997) (stating that the marketing of modified equipment by a
   party who fails to perform the steps required by Section 2.909(d) would
   violate the marketing rules). See also Ryzex, 23 FCC Rcd at 883; DBK, 23
   FCC Rcd  at 2874.

   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)(D), 47 C.F.R. S: 1.80(b)(4); see also Behringer
   USA, Inc., Notice of Apparent Liability for Forfeiture,  21 FCC Rcd 1820,
   1825 (2006), forfeiture ordered, Forfeiture Order, 22 FCC Rcd. 1051
   (2007); Globcom, Inc. d/b/a Globcom Global Communications, Notice of
   Apparent Liability for Forfeiture, 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 (1986); Eastern Broadcasting Corp., Memorandum Opinion and Order, 10
   FCC 2d 37 (1967), recon. den.,11 FCC 2d 193 (1967); Bureau D'Electronique
   Appliquee, Inc., Notice of Apparent Liability for Forfeiture, 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).

   The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
   of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087,
   17113 (1997) ("Forfeiture Policy Statement"), recon. denied, 15 FCC Rcd
   303 (1999).

   47 C.F.R. S: 1.80.

   See Ryzex, 23 FCC Rcd at 884; DBK, 23 FCC Rcd at 2875.

   See 47 U.S.C. S: 503(b)(6); 47 C.F.R. S: 1.80(c)(3).

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

   See 47 C.F.R. S: 1.1914.

   (Continued from previous page)

   (continued....)

   Federal Communications Commission DA 08-1952

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   Federal Communications Commission DA 08-1952