Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of File No. EB-07-SE-166
)
XLNT Idea, Inc. NAL/Acct. No. 200932100004
)
San Diego, California FRN # 0018234369
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 31, 2008 Released: November 4, 2008
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
XLNT Idea, Inc. ("XLNT Idea") is apparently liable for a forfeiture in
the amount of fourteen thousand dollars ($14,000) for willful and
repeated violations 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 digital devices in the United States.
II. background
2. The Spectrum Enforcement Division ("Division") of the Enforcement
Bureau received a complaint alleging that XLNT Idea was marketing the
Nexis 100AP AutoPrinter, the Nexis 100AP Publisher, and the Xi440
CD/DVD Printer in the United States without the appropriate labels as
required in Section 15.19 of the Rules. The complaint further alleged
that the equipment may not have been tested, or otherwise determined
to comply with the conducted and radiated 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 XLNT Idea was either marketing, or had marketed through its
website, the devices mentioned in the complaint. The product
descriptions of the devices indicated that all three function as
personal computer peripherals.
3. On February 11, 2008, the Division issued a letter of inquiry ("LOI")
to XLNT Idea. On March 12, 2008, XLNT Idea responded to the LOI. In
its response, XLNT Idea acknowledges that it manufactures the Nexis
100AP AutoPrinter, the Nexis 100AP Publisher, and the Xi440 CD/DVD
Printer at its facility in San Diego, California and markets all three
devices for both residential and commercial use. XLNT Idea states that
it began marketing the Nexis 100AP AutoPrinter and the Nexis 100AP
Publisher in January 2006 and began marketing the Xi440 CD/DVD printer
in August 2005. XLNT Idea maintains that until receiving the LOI, it
was unaware of the FCC technical and labeling requirements applicable
to its products. XLNT concedes that due to its ignorance of the
specific FCC requirements, it distributed a number of units of the
three products prior to testing the products for FCC compliance. XLNT
Idea indicates that after receiving the LOI, it ceased further
shipments of its devices and did not resume shipments until after it
had completed testing of the devices. Finally, XLNT Idea asserts that
the testing demonstrates that the devices meet the FCC's conducted and
radiated emission limits for both Class A and Class B digital devices
and that it has now satisfied the Declaration of Conformity
requirements for these devices.
III. Discussion
A. Marketing of Unauthorized Devices
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 that
function as digital computer peripherals, and are marketed for use in a
residential environment or for use by the general public, such as XLNT
Idea's Nexis 100AP AutoPrinter, Nexis 100AP Publisher, and Xi440 CD/DVD
Printer, are required to be approved prior to marketing through either the
Declaration of Conformity procedures described in Sections 2.1071-2.1077
of the Rules, or by the Certification procedures described in Sections
2.1031-2.1060 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, XLNT Idea is
the party responsible for assuring that these devices are compliant with
all applicable technical and administrative requirements.
5. XLNT Idea admits that it marketed and sold units of the Nexis 100AP
AutoPrinter and the Nexis 100AP Publisher for slightly over 24 months
before a sample representative of both units was tested in February
2008 to meet the Declaration of Conformity requirements. It also
admits that it marketed and sold units of the Xi440 CD/DVD Printer for
approximately 30 months before it was tested in March 2008 to meet the
Declaration of Conformity requirements. We, accordingly, find that the
Nexis 100AP AutoPrinter, the Nexis 100AP Publisher, and the Xi440
CD/DVD Printer were marketed in the United States prior to
authorization. Thus, we find that XLNT Idea 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.
B. Proposed Forfeiture
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, the Commission is 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 XLNT Idea'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 XLNT
Idea's conduct has continued over a period that began in August 2005,
the forfeiture amount we propose herein relates only to XLNT Idea's
apparent violations that have occurred within the past year.
8. Pursuant to the Commission's 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. As noted above,
XLNT Idea marketed three devices prior to authorization: the Nexis
100AP AutoPrinter, the Nexis 100AP Publisher, and the Xi440 CD/DVD
Printer. We note, however, that the Nexis 100AP AutoPrinter and the
Nexis 100AP Publisher are identical except that the Nexis 100AP
Publisher can burn cds and dvds; therefore, testing and authorization
of the Nexis 100AP Publisher is sufficient to demonstrate compliance
of the Nexis 100AP AutoPrinter. Thus, we find that XLNT Idea marketed
two distinct unauthorized devices prior to authorization. XLNT Idea's
marketing of each of these devices is a separate continuing violation.
Accordingly, we find that a total proposed forfeiture in the amount of
$14,000 is warranted for the marketing of unauthorized devices in
violation of Section 302(b) of the Act and Section 2.803(a) of the
Rules.
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, XLNT Idea 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, XLNT Idea, 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. XLNT Idea 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
Chalapathi Rao Atluri, Chief Executive Officer, XLNT Idea, Inc., 6262
Ferris Sq., San Diego, CA 92121, and by facsimile and first class mail
to its counsel, Michael J, Schrier, Esq., Bell, Boyd & Lloyd, LLP,
1615 L Street, N.W., Suite 1200, Washington, DC 20036-5610.
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.
47 C.F.R. S:S: 15.107 and 15.109.
Marketing materials included minimum hardware and software specifications
that a PC would need in order to send output to the printer/publishers.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to XLNT Idea, Inc.
(February 11, 2008).
See Letter from XLNT Idea, Inc., to Gabriel Collazo, Spectrum Enforcement
Division, Enforcement Bureau (March 12, 2008) ("LOI Response").
Id. at2-3, 7-8, 12.
Id. at 2, 6, 11.
Id. at 5, 10, 14.
Id. at 3, 8.
See 47 C.F.R. S: 15.3(h) and (i).
LOI Response at 4-6, 8-10, 13-14. XLNT Idea notes that because the Nexis
100AP AutoPrinter and Nexis 100AP Publisher are identical except that the
Nexis 100AP AutoPrinter cannot burn cds or dvds, it was only necessary to
test the Nexis 100AP Publisher and the tests results for the Nexis 100AP
Publisher also demonstrate compliance of the Nexis 100AP AutoPrinter. Id.
at 4. The test report covering the Nexis 100AP AutoPrinter and Nexis 100AP
Publisher was dated February 28, 2008. The test report for the Xi440
CD/DVD Printer was dated March 8, 2008.
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).
See 47 C.F.R. S: 15.3(i).
47 C.F.R. S:S: 2.1071-2.1077.
47 C.F.R. S:S: 2.1031-2.1060.
See 47 C.F.R. S:S: 15.107 and 15.109.
See 47 C.F.R. S: 2.909(b).
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 (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, 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, Report and Order,
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 C.F.R. S: 1.80(b)(4).
See n. 13, supra.
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 08-2437
2
Federal Communications Commission DA 08-2437