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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