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.
*****************************************************************
January 15, 2008
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
AND FACSIMILE AT (801) 437-1714
Mr. James Royer
President
Absolute Toy Marketing, Inc.,
d/b/a HobbyTron.com
1053 South 1675 West
Orem, UT 84058
Re: File No. EB-07-SE-250
Dear Mr. Royer:
This is an official CITATION, issued pursuant to section 503(b)(5) of the
Communications Act of 1934, as amended ("Act"), 47 U.S.C. S: 503(b)(5),
for marketing unauthorized radio frequency devices in the United States in
violation of section 302(b) of the Act, 47 U.S.C. S: 302a(b), and section
2.803 of the Commission's rules ("rules"), 47 C.F.R. S: 2.803. In
addition, you have failed to respond to directives of the Enforcement
Bureau to provide certain information and documents. As explained below,
future violations of these rules may subject Absolute Toy Marketing, Inc.
to monetary forfeitures.
After receiving a complaint, the Spectrum Enforcement Division
("Division") of the Enforcement Bureau began an investigation to determine
whether HobbyTron.com was marketing unauthorized FM transmitters in the
United States. On October 12, 2007, and again on October 18, 2007,
Division personnel observed that the HobbyTron.com website advertised the
sale of assembled FM broadcast transmitters, including models identified
on the website as R-FM30B-WT, R-FM100B-WT, and UX-150, which did not
appear to hold grants of equipment authorization from the Commission. As
part of the investigation, the Division sent a letter of inquiry ("LOI")
to HobbyTron.com on October 22, 2007, requesting, inter alia, a copy of
the grant of equipment authorization corresponding to each model of FM
transmitter marketed by HobbyTron.com. This LOI also made note of the
Notice of Apparent Liability for Forfeiture that had previously been
issued against Gibson Tech Ed Inc., d/b/a HobbyTron.com for willful and
repeated violation of this same marketing rule.
On November 15, 2007, you responded to our LOI as President of Absolute
Toy Marketing, Inc., d/b/a HobbyTron.com ("Absolute"). Your response was
not supported by an affidavit or declaration under penalty of perjury, as
directed by our LOI. You advised that Absolute became the owner of the
website HobbyTron.com at a public auction in April 2006. You stated that
Absolute sells electronic kits made in Canada by CanaKit Corporation and
transmitters made in the United States by Ramsey Electronics, Inc. You
stated that some kits sold on your website have been assembled for export,
and you asserted your belief that these items may be lawfully marketed
because your customers are required to fill out a form on which they state
that they will export the device. You stated that this export form had
previously been "provided to the FCC with no reply." You expressed your
assumption that the form was therefore acceptable. You chose not to answer
several questions that addressed the core of this investigation. Instead,
you asked that we address a new letter to you if your response did not
answer our initial questions.
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 rules
provides:
[N]o 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 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 15.201(b) of the rules provides that radio frequency devices, such
as the FM transmitters at issue, are subject to certification.
Specifically, this rule provides, "intentional radiators operating under
the provisions of this part shall be certificated by the
Commission...prior to the initiation of marketing."
Absolute acknowledged that it has controlled the Hobbytron.com website
since April 2006. Our investigation confirmed that Absolute has marketed
several FM broadcast transmitters, including models identified on its
HobbyTron.com website as R-FM30B-WT, R-FM100B-WT, and UX-150, which have
not been certificated and thus are not authorized by the Commission.
Accordingly, it appears that Absolute has violated section 302(b) of the
Act and section 2.803(a) of the rules by marketing unauthorized
radiofrequency devices in the United States. Furthermore, Absolute
apparently violated Commission orders by failing to answer material
questions of the LOI and failing to support its response with an affidavit
or declaration, signed under penalty of perjury, which responds to
Enforcement Bureau directives to provide certain information and
documents.
A party may not ignore the directives in a Bureau inquiry letter. You are
again ordered, pursuant to Sections 4(i), 4(j), and 403 of the Act, to
provide the information sought by our October 22, 2007 LOI. You must
provide this information in the manner indicated therein within 20 days of
the date of this citation.
If, after receipt of this citation, Absolute violates the Communications
Act or the Commission's rules in any manner described herein, the
Commission may impose monetary forfeitures not to exceed $11,000 for each
such violation or each day of a continuing violation.
If you choose to do so, you may respond to this citation within 30 days
from the date of this letter either through (1) a personal interview at
the Commission's Field Office nearest to your place of business, or (2) a
written statement. Your response should specify the actions that Absolute
is taking to ensure that it does not violate the Commission's rules
governing the marketing and importation of radiofrequency devices in the
future.
The nearest Commission field office is the Denver Field Office. Please
call Kevin M. Pittman at 202-418-1427 if you wish to schedule a personal
interview. You should schedule any interview to take place within 30 days
of the date of this letter. You should send any written statement within
30 days of the date of this letter to:
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Federal Communications Commission
445-12th Street, S.W., Rm. 3-C366
Washington, D.C. 20554
Under the Privacy Act of 1974, 5 U.S.C. S: 552(a)(e)(3), we are informing
you that the Commission's staff will use all relevant material information
before it, including information that you disclose in your interview or
written statement, to determine what, if any, enforcement action is
required to ensure your compliance with the Communications Act and the
Commission's rules.
The knowing and willful making of any false statement, or the concealment
of any material fact, in reply to this citation is punishable by fine or
imprisonment under 18 U.S.C. S: 1001.
Thank you in advance for your anticipated cooperation.
Sincerely,
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Enclosure
A "radiofrequency device" is defined as "any device which in its operation
is capable of emitting radio frequency energy by radiation, conduction, or
other means." 47 C.F.R. S: 2.801.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Monique Gibson,
Registered Agent, HobbyTron.com (October 22, 2007) ("LOI").
See Gibson Tech Ed., Inc., Notice of Apparent Liability for Forfeiture, 20
FCC Rcd 14438 (Enf. Bur., Spectrum Enf. Div., 2005) (finding Gibson Tech
Ed, Inc., d/b/a HobbyTron.com apparently liable for marketing unauthorized
FM broadcast transmitters in violation of 47 C.F.R. S: 2.803(a)),
forfeiture ordered, 21 FCC Rcd 2915 (Enf. Bur., Spectrum Enf. Div., 2006),
recon. denied, 21 FCC Rcd 9642 (Enf. Bur. 2006) ("Gibson Tech").
See Letter from Jim Royer, President, Absolute Toy Marketing, Inc., d/b/a
HobbyTron.com, to Kevin M. Pittman, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (November 15, 2007)
("Letter from Jim Royer, November 15, 2007"). Though this letter is
undated, the envelope shows a November 15, 2007 postmark.
See id. Previously Gibson Tech Ed., Inc., d/b/a HobbyTron.com owned and
operated the HobbyTron.com website.
See id.; see also Ramsey Electronics, Inc., Notice of Apparent Liability
for Forfeiture, 21 FCC Rcd 458 (Enf. Bur. 2006) (issuing a Notice of
Apparent Liability against the manufacturer for its marketing of
unauthorized FM transmitter models FM35WT and FM100BWT).
See Letter from Jim Royer, November 15, 2007.
Id. A sample of the form to which you refer was first obtained by Division
personnel during the 2004 investigation of Gibson Tech Ed., Inc., d/b/a
HobbyTron.com for the identical violation of 47 C.F.R. S: 2.803(a). In
fact, on two occasions during the 2004 enforcement action, the Commission
expressly stated the effect of this form on the company's liability. See
Gibson Tech, 21 FCC Rcd at 9644 ("Accordingly, the `export agreement'
Gibson asks its customers to sign does not relieve Gibson of liability for
marketing unlicensed transmitters."); 20 FCC Rcd at 14440 P: 8 ("Gibson's
use of the `FM Transmitter Certification Form' appears to be an attempt to
circumvent the prohibition on marketing of unapproved radio frequency
devices such as the R-FM25B-WT and R-FM100B-WT.").
See Letter from Jim Royer, November 15, 2007. The Commission also
previously addressed your assumption. See Gibson Tech, 21 FCC Rcd at 9644
n.22 ("To the extent that Gibson suggests the Commission acquiesced in
this attempt to circumvent the Commission's rules, we note that the
Commission is not required to develop corporate plans for Rule compliance
by individual retail outlets.") (citations omitted). Our records indicate
your familiarity with the 2004 investigation of Gibson Tech Ed., Inc. due
to your involvement on their behalf. See Letter from Jim Royer to Brian
Butler, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission (June 22, 2004).
See Letter from Jim Royer, November 15, 2007.
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a)(1).
47 C.F.R. S: 15.201(b).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591 (2002). In SBC Communications, Inc., the Commission imposed a
$100,000 forfeiture against a carrier for its willful refusal to supply a
sworn declaration in response to an Enforcement Bureau letter of inquiry.
The Commission stated, "[T]he order here was squarely within the
Commission's authority and, in any event, parties are required to comply
with Commission orders even if they believe them to be outside the
Commission's authority." Id. at 7591.
See 47 C.F.R. S: 1.80(b)(3).
Federal Communications Commission DA 08-74
2
Federal Communications Commission DA 08-74
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554