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Before the
Federal Communications Commission
Washington, D.C. 20554
)
File No. EB-08-SE-052
In the Matter of )
NAL/Acct. No. 200932100071
Inter Tech FM )
FRN # 0018458026
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 8, 2009 Released: July 10, 2009
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Inter Tech FM ("Inter Tech") apparently liable for a forfeiture in the
amount of twenty-two thousand dollars ($22,000) 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 noted apparent violations involve Inter Tech's
marketing of FM broadcast transmitters and external RF power
amplifiers ("amplifiers") without proper authorization.
II. background
2. In response to complaints alleging that Inter Tech was marketing
unauthorized FM broadcast equipment in the United States, the Spectrum
Enforcement Division of the Enforcement Bureau ("Division") began an
investigation. As part of this investigation, Division staff reviewed
Inter Tech's website on February 7, 2008, and observed that Inter Tech
was marketing certain transmitters and amplifiers on its website. The
Division sent Inter Tech a letter of inquiry ("LOI") on March 28,
2008.
3. In its April 23, 2008 response to the First LOI, Inter Tech identified
the FM transmitter models that it currently manufactured and marketed
in the United States under the trade name Cybermax. Inter Tech stated
that all of the transmitter models it manufactured were marketed
exclusively to full power FM stations operating in the broadcast
services under Part 73 of the Rules, and verified in accordance with
the requirements set forth in Section 73.1660(a)(1) of the Rules. As
proof of verification, Inter Tech provided verification records for
the Max 15 DSP FM exciter, an exciter that Inter Tech claimed was
incorporated into its transmitters.
4. Inter Tech also admitted that it marketed several Cybermax amplifier
models for "export only," but denied being the manufacturer of these
models, claiming that these models consisted of third-party modules
that Inter Tech incorporated into casings. Inter Tech did not,
however, state whether the Cybermax amplifiers it marketed or the
modules incorporated therein were certified in accordance with the
requirements set forth in Section 2.815(b) of the Rules.
5. In its First Response, Inter Tech failed to provide sufficient
evidence that the transmitters and amplifiers marketed under the trade
name Cybermax were authorized. Accordingly, the Division issued a
follow-up LOI on July 10, 2008, requesting further information about
the Cybermax product line. In its July 23, 2008 response to the
follow-up Second LOI, Inter Tech stated that it believed that by
verifying the exciter contained in the Cybermax transmitters, it had
complied with Section 73.1660(a)(1) of the Rules. Inter Tech also
indicated that the modules incorporated into the Cybermax amplifiers
were manufactured by Broadcast Warehouse, but did not state directly
whether the modules or amplifiers had been certified. Instead, Inter
Tech explained that it believed that "when [an amplifier] was
assembled with other RF components, e.g., as a stand alone
transmitter, that certification for the amplifier component was not
required," and that it was "operating under the premise of self
verification." Inter Tech stated that it ensured that these amplifiers
were exported through the use of a disclaimer and a policy of delivery
to foreign addresses only. Inter Tech also stated, however, that upon
learning that products capable of amplification below 144 MHz were
required to be certified, it "stopped marketing and selling such
products to the domestic market." Finally, Inter Tech stated that it
had "never altered, changed, used, duplicated, incorporated, copied,
made changes to names, trade names, or models of any identical
certified equipment."
6. The Bureau issued a Third LOI on November 24, 2008. In its Third
Response, dated November 26, 2008, but received on December 22, 2008,
Inter Tech provided a complete and detailed list of its Cybermax
transmitters, indicating that four transmitter models contained the
verified exciter, with no amplification, and four transmitter models
contained the verified exciter coupled with a Broadcast Warehouse
amplifier. Inter Tech indicated that three of the four transmitter
models with amplification contained the verified exciter and the
Broadcast Warehouse amplifier TX-300, while the fourth transmitter
model with amplification contained the verified exciter and the
Broadcast Warehouse amplifier TX-150.
7. In its Third Response, Inter Tech also indicated that it used only two
certified Broadcast Warehouse amplifiers to create the six Cybermax
amplifiers marketed on its website. One of these models ranged in
power from 25 to 50 watts, while the other ranged in power from 150 to
300 watts. Inter Tech claimed that because Broadcast Warehouse was
fully aware of Inter Tech's intent to incorporate the Broadcast
Warehouse amplifiers into the Cybermax product line, and because the
Cybermax amplifiers were marketed for export only, Inter Tech did not
need the authorization of Broadcast Warehouse or the Commission to use
the Broadcast Warehouse amplifiers in the Cybermax models prior to
marketing. Inter Tech failed to explain, however, why it had stated in
its Second Response that it had ceased marketing the amplifiers in the
United States upon learning that the amplifiers were required to be
certified.
III. discussion
A. Marketing of Unauthorized Transmitters
8. Section 302 of the Act authorizes the Commission to make reasonable
regulations, consistent with the public interest, governing the
interference potential of equipment that emits radio frequency energy,
and prohibits, among other things, the offering for sale of radio
frequency devices to the extent that such activity does not comply
with these regulations. Specifically, 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 Rules prohibits the sale or
lease, offer of sale or lease, importation, or shipment of radio
frequency devices, as well as the distribution of such devices for the
purpose of selling such devices, unless the device complies with
applicable administrative, technical, labeling and identification
requirements of the Rules.
9. Section 73.1660(a)(1) of the Rules requires verification of AM, FM, or
TV transmitters used in the broadcast services, in accordance with the
procedures described in Part 2 of the Rules. Under Section 2.811 of
the Rules, the requirements of Section 2.803(a) through (d) of the
Rules are not applicable to transmitters operated in any of the Part
73 radio broadcast services, provided that the conditions set forth in
Part 73 for the acceptability of such transmitters for use under
licensing are met. Therefore, absent compliance with the verification
requirement set forth in Section 73.1660(a)(1) of the Rules, Part 73
transmitters are considered to be "unauthorized" and may not be
marketed in the United States. Under Section 2.909(b) of the Rules,
manufacturers or importers of equipment subject to verification are
responsible for the equipment's compliance with all applicable
technical and administrative rules.
10. We conclude that Inter Tech apparently manufactured and marketed two
unauthorized transmitters in the United States from February 7, 2008
until at least July 10, 2008, the date of the Second LOI. It appears
that Inter Tech has since ceased marketing these two unauthorized
transmitters in the United States. Inter Tech claims that the Cybermax
transmitters were verified in accordance with Section 73.1660(a)(1) of
the Rules for use in the FM broadcast service. As proof of
verification, Inter Tech submitted verification records for the Max 15
DSP FM exciter, an exciter that Inter Tech stated was incorporated
into each of the transmitters. The verification of the exciter,
however, is insufficient to verify the Cybermax transmitters because
the addition of the Broadcast Warehouse amplifiers altered the
emanating characteristics of the device. Inter Tech incorporated two
different certified Broadcast Warehouse amplifiers into its
transmitters. Thus, we conclude that for the purpose of assessing
liability in this case, Inter Tech manufactured and marketed two
unverified transmitter models. As the manufacturer of these
transmitter models, Inter Tech is responsible for the transmitter's
compliance with the Commission's technical and administrative rules
prior to marketing in the United States. Accordingly, we find that
Inter Tech apparently marketed two unauthorized transmitters in the
United States, in willful and repeated violation of Section 302(b) of
the Act and Section 2.803(a) of the Rules.
B. Marketing of Third-Party Amplifiers under the Cybermax Name
11. Under Section 2.815(c) of the Rules, amplifiers capable of operation
on any frequency below 144 MHz must be certificated. Under Section
2.1043 of the Rules, changes to certificated equipment shall not be
performed without application for and authorization of a new grant of
certification, unless such changes do not affect the characteristics
required to be reported to the Commission or unless such changes
constitute a permissive change to equipment by the manufacturer or a
party working under the express authorization of the manufacturer.
Moreover, under Section 2.924 of the Rules, changes to the model
number or trade name of equipment that is electrically identical and
that is subject to certification by anyone other than the grantee, or
under the authorization of the grantee, must be performed in
accordance with the procedures set forth in Section 2.933 of the
Rules. Section 2.933 of the Rules, in turn, provides for the filing of
a new application for equipment authorization with the Commission.
Finally, under Section 2.909(a) of the Rules, if radio frequency
equipment is modified by any party other than the grantee and that
party is not working under the authorization of the grantee, the party
performing the modification is responsible for compliance of the
product with all applicable administrative and technical requirements.
12. We find that Inter Tech was the responsible party for the two
uncertified amplifier models marketed in the United States from
February 7, 2008, until at least July 10, 2008, the date of the Second
LOI. Inter Tech states that it is merely a system integrator that
incorporated the Broadcast Warehouse models into casings. While Inter
Tech denies making changes to the trade name and/or model number of
these amplifiers, it marketed these amplifiers under the Cybermax
trade name and model number. Absent authority from Broadcast Warehouse
pursuant to Sections 2.924 and 2.929(b) of the Rules, Inter Tech's
replacement of the Broadcast Warehouse name and number with the
Cybermax name and model number constitutes a modification under
Section 2.909(a) of the Rules. While Inter Tech claims that Broadcast
Warehouse was aware of Inter Tech's intent to incorporate the
amplifier modules into its Cybermax product line, Inter Tech offered
no proof that Broadcast Warehouse authorized its actions. Accordingly,
as the modifier of two Broadcast Warehouse models subject to
certification, Inter Tech is responsible for the equipment's
compliance with the Commission's technical and administrative rules.
As such, Inter Tech was required to obtain certification for the use
of the Cybermax name in conjunction with the Broadcast Warehouse
amplifiers prior to marketing the devices in the United States.
13. Inter Tech claims that these amplifiers are marketed for "export
only," and thus are exempt under Section 2.807(b) of the Rules from
the marketing restrictions set forth in Section 2.803(a)(1) of the
Rules. This exemption, however, only applies to devices that the
manufacturer actually exports. While Inter Tech stated in its Second
Response that all marketing materials for these amplifiers contained
the disclaimer "export only," the marketing materials provided by
Inter Tech in its First Response contained an advertisement for the
one of the Cybermax amplifier models without any such disclaimer, and
with the offer to deliver it anywhere in the United States, or to make
it available for local pick up. Moreover, in its Second Response,
Inter Tech stated that it had ceased marketing the amplifiers in the
United States when it learned that these amplifier models had to be
certified as a result of the Second LOI, an admission that Inter Tech
failed to explain in its Third Response. We find, accordingly, that
Inter Tech apparently marketed two unauthorized amplifiers in the
United States in willful and repeated violation of Section 302(b) of
the Act and Sections 2.803(b) of the Rules.
C. Proposed Forfeiture
14. Under Section 503(b)(1)(B) of the Act, any person who is determined by
the Commission to have willfully or repeatedly failed to comply with
any provision of the Act or any Rule, regulation, or order issued by
the Commission shall be liable to the United States for a forfeiture
penalty. To impose such a forfeiture penalty, the Commission must
issue a notice of apparent liability and the person against whom such
notice has been issued must have an opportunity to show, in writing,
why no such forfeiture penalty should be imposed. The Commission will
then issue a forfeiture if it finds by a preponderance of the evidence
that the person has violated the Act or Rule. As set forth below, we
conclude under this standard that Inter Tech is apparently liable for
a forfeiture in the amount of twenty-two thousand dollars ($22,000)
for its apparent willful and repeated violations of Section 302(b) of
the Act and Section 2.803(a) of the Rules.
15. At the time of Inter Tech's apparent violations, under Section
503(b)(2)(B) of the Act, we were authorized to assess a forfeiture
penalty against certain entities, such as Inter Tech, who are not
common carriers, broadcast licensees, or cable operators, eleven
thousand dollars ($11,000) for each violation, or for each day of a
continuing violation, up to a total of ninety seven thousand five
hundred dollars ($97,500) for any single continuing violation. 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."
16. 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 Inter Tech'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 Inter
Tech's conduct has continued since at least February 2008, the
forfeiture amount we propose herein relates only to Inter Tech's
apparent violations that have occurred within the past year.
17. Under 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 of the Rules, the
base forfeiture amount for each violation involving the marketing of
unauthorized equipment is $7,000. Further, we have found that each
instance of marketing of an unauthorized model constitutes a separate
and continuing violation. Consistent with recent precedent, we propose
a total forfeiture of $14,000 for the marketing of the two unverified
transmitters. With respect to the marketing of the two certified
Broadcast Warehouse amplifiers under the Cybermax name, however, we
propose to reduce the base forfeiture amount from $7,000 per model to
$4,000 per model. Inter Tech's marketing of these amplifiers, which
had previously been certified by Broadcast Warehouse, is similar to
the marketing of mislabeled equipment, which we consider to be a less
egregious violation and for which we have proposed a base forfeiture
of $4,000. Accordingly, we propose a forfeiture of $14,000 for the
willful and repeated marketing of two unauthorized transmitter models,
and $8,000 for the willful and repeated marketing of two unauthorized
amplifier models, for an aggregate forfeiture of twenty-two thousand
dollars ($22,000).
iV. ORDERING CLAUSES
18. Accordingly, IT IS ORDERED that, pursuant to pursuant to Section
503(b) of the Act and Sections 0.111, 0.311 and 1.80 of the Rules,
Inter Tech FM IS hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of twenty-two thousand dollars ($22,000) for
willfully and repeatedly violating Section 302(b) of the Act and
Section 2.803(a) of the Rules.
19. 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, Inter Tech FM SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
20. 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. Inter Tech FM will also send electronic
notification on the date said payment is made to Neal.McNeal@fcc.gov
and Nissa.Laughner@fcc.gov.
21. 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.
22. 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.
23. 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 Chris Rea, Inter Tech FM, 8725 W. Sunset
Road, Suite 200, Niles, Illinois 60714.
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).
Section 2.815 of the Rules, 47 C.F.R. S: 2.815, defines an external radio
frequency power amplifier as "any device which, (1) when used in
conjunction with a radio transmitter as a signal source is capable of
amplification of that signal, and (2) is not an integral part of a radio
transmitter as manufactured."
"Marketing" includes the sale or lease, offer for sale or lease (including
advertising for sale or lease), importing, shipping, and/or distribution
for the purpose of selling or leasing or offering for sale or lease. 47
C.F.R.
S: 2.803(e)(4).
www.intertechfm.com (accessed February 7, 2008).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Chris Rea, Inter
Tech FM (March 28, 2008) ("First LOI").
See Letter from Chris Rea, Inter Tech FM to Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (April 23, 2008)
("First Response").
Id. at 1, 6. The Cybermax transmitter models identified by Inter Tech
included: (1) the Cybermax FM 15+; (2) the Cybermax FM 15+ DSP; (3) the
Cybermax FM 20+; (4) the Cybermax FM 20+ DSP; (5) the Cybermax FM 150; (6)
the Cybermax FM 150 DSP; (7) the Cybermax FM 300; and (8) the Cybermax FM
300 DSP. Inter Tech also acknowledged that it marketed and manufactured
several other Cybermax models which are essentially identical to these
models. Id. at 6. We note that in a related matter that the Division
issued a Notice of Apparent Liability to Inter Tech for its unauthorized
marketing of a single, now discontinued transmitter, the Cybermax FF TX 1,
in violation of Section 302(b) of the Act and Section 2.803(a) of the
Rules, and for providing incorrect material factual information in
violation of Section 1.17(a)(2) of the Rules. The Division action was
limited to the discontinued transmitter only and did not address the
transmitters subject to this proceeding. See Inter Tech FM, Notice of
Apparently Liability for Forfeiture, 24 FCC Rcd 1151 (Enf. Bur., Spectrum
Enf. Div. 2009), response pending.
See First Response at 4. See also 47 C.F.R. S: 73.1660(a)(1) (requiring
AM, FM or TV transmitters to be verified for compliance following the
procedures describe in Part 2 of the Rules). Verification is a
self-authorization procedure where the manufacturer or the importer, in
the case of imported equipment, makes measurements or takes the necessary
steps to insure that the equipment complies with the appropriate technical
standards. See 47 C.F.R. S:S: 2.902 and 2.909(b). While Inter Tech claims
to have marketed these transmitters solely to full power FM stations,
Inter Tech admitted that one of these transmitters was "inadvertently"
sold to Sidon Video Productions and then resold to a Low Power FM ("LPFM")
station located in the United States. First Response at 6.
See First Response at 4. See also 47 C.F.R. S: 2.955 (describing those
verification records required to be maintained by the manufacturer).
Inter Tech's use of the word "module" in this context does not refer to
the Commission's Part 15 certification for modular use, as these
amplifiers are not low power devices. See 47 C.F.R. S: 15.212. Inter Tech
refers to these devices as modules to indicate that these devices are
standardized components often used in the creation of other devices, such
as transmitters. The Commission's definition of "modular device," however,
is a legal term of art, indicating Part 15 devices certified for
incorporation into new devices without necessitating the certification of
the final device. See 47 C.F.R. S: 15.212.
See First Response at 5. Inter Tech identified these amplifier models
under the following trade names and numbers: the Cybermax FM 150A (also
sold as Cyclone FM150A), and the Cybermax FM300A (also sold as Cyclone
FM300A). Inter Tech also acknowledged that it marketed several other
Cybermax amplifiers models which are essentially identical to the models
listed above.
47 C.F.R. S: 2.815(b).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Chris Rea, Inter
Tech FM (July 10, 2008) ("Second LOI").
See Letter from Chris Rea, Inter Tech FM to Kathryn S. Berthot, Chief,
Spectrum Enforcement Division, Enforcement Bureau, Federal Communications
Commission (July 23, 2008) ("Second Response").
Id. at 2.
Id. at 1-2.
Id.
Id. at 1.
Id. at 2.
Id.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Chris Rea, Inter
Tech FM (November 24, 2008) ("Third LOI").
See Letter from Chris Rea, Inter Tech FM to Kathryn S. Berthot, Chief,
Spectrum Enforcement Division, Enforcement Bureau, Federal Communications
Commission (November 26, 2008) ("Third Response), at 2. The four Cybermax
transmitters which contained the verified exciter with no amplification
are: (1) the Cybermax FM 15+; (2) the Cybermax FM 15+ DSP; (3) the
Cybermax FM 20+; and (4) the Cybermax FM 20+ DSP. Id.
Id. The four Cybermax transmitters which contained the verified excited
coupled with the Broadcast Warehouse amplifier are: (1) the Cybermax FM
150; (2) the Cybermax FM 150 DSP; (3) the Cybermax FM 300; and (4) the
Cybermax FM 300 DSP. Id.
Id. According to Inter Tech, the Cybermax FM 150 DSP, the Cybermax FM 300,
and the Cybermax FM 300 DSP transmitters included the verified exciter and
the Broadcast Warehouse amplifier TX-300. Id.
Id. Inter Tech indicated that the Cybermax FM 150 transmitter included the
verified exciter and the Broadcast Warehouse amplifier TX-150. Id.
Id. Inter Tech identified the following Broadcast Warehouse amplifiers as
the modules that it incorporated into its own casing: the TX25-50 and the
TX150-300.
Id. Commission records indicate that these amplifiers were certified under
two FCC Identification Numbers, as follows: (1) FCC ID TUOTX25-50
(TX25-50); and (2) FCC ID TUOTX150-300 (TX150-300).
Id.
See supra note 20 and accompanying text.
47 U.S.C. S: 302a(a).
Section 2.801(a)(1) of the Rules defines a radio frequency device as "any
device which in its operation is capable of emitting radio frequency
energy ...." Radio frequency devices subject to the Rules include, among
other items, radio communication transmitting devices and "any part or
component thereof which in use emits radiofrequency energy." 47 C.F.R. S:
S: 2.801(a)(1) and (d).
47 C.F.R. S: 73.1660(a)(1).
See 47 C.F.R. S: 2.811.
47 C.F.R. S: 2.909(b).
Inter Tech stated in its First Response that as of that date, it marketed
and planned to continue manufacture of the Cybermax transmitters that are
the subject of this NAL. See First Response at 1, 6. In its Second and
Third Responses, Inter Tech did not indicate an intent to discontinue
manufacture or sale of these transmitters, and implied that it believed
that such manufacture and marketing was compliant with the Rules. See
Second Response at 2; Third Response at 2.
A review of Inter Tech's website on March 18, 2009 reveals that these
transmitters are currently marketed as "export only." See
www.intertechfm.com (March 18, 2009).
See First Response at 4; Second Response at 2.
47 C.F.R. S: 2.955 (listing records required to be maintained as proof of
verification). Under the verification procedures, the manufacturer of
radio frequency devices, or the importer in the case of imported devices,
must make measurements or take the necessary steps to obtain measurements
to ensure that the subject devices comply with the Commission's technical
standards. Id. See also 47 C.F.R. S: 2.902(b).
See supra note 10 and accompanying text.
See supra notes 25 and 26 and accompanying text.
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.
See Syntax-Brillian Corporation, Forfeiture Order and Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 6323, 6327 (2008) (emphasizing that
equipment subject to verification but noncompliant with our technical and
administrative Rules is considered to be "unauthorized" under 503(b)(5) of
the Act and may not be marketed in the United States) ("Syntax-Brillian
Forfeiture Order"). See also Behringer USA, Inc., Notice of Apparent
Liability for Forfeiture, 21 FCC Rcd 1820, 1825 (2006) (imposing liability
for the marketing of non-verified equipment), forfeiture ordered, 22 FCC
Rcd 10451 (2007) (forfeiture paid) ("Behringer").
47 C.F.R. S: 2.1043.
47 C.F.R. S: 2.924.
Under Section 2.924 of the Rules, a device is considered to be
electrically identical if no changes are made to the device authorized by
the Commission, or if the changes made to the device would be treated as
class I permissive changes within the scope of Section 2.1043(b)(1) of the
Rules, 47 C.F.R. S: 2.1043(b)(1).
47 C.F.R. S: 2.933.
Id.
47 C.F.R. S: 2.909(a).
See First Response at 5.
See First Response at 5; Second Response at 2.
47 C.F.R. S:S: 2.924, 2.929(b).
See 47 C.F.R. S: 2.909(a).
Id.
47 C.F.R. S: 2.807(b).
See First Response at 5; Third Response at 2.
See Gibson Tech Ed, Inc. d/b/a/ Hobbytron.com, Memorandum Opinion and
Order, 21 FCC Rcd 9642, 9645 (Enf. Bur. 2006); New Image Electronics,
Forfeiture Order, 17 FCC Rcd 3594, 3596 (Enf. Bur. 2002).
Marketing materials for the other Cybermax amplifiers were not included as
part of its First Response.
See Second Response at 2. In its Third Response, Inter Tech indicated
that it had discontinued marketing of the Cybermax FM150A and Cybermax FM
300A amplifiers. See Third Response at 2.
47 U.S.C. S: 503(b).
47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591 (2002) (forfeiture paid).
47 U.S.C. S: 503(b)(2)(A). 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, 23 FCC Rcd 9845
(2008) (adjusting the maximum statutory amounts for non- licensees from
$11,000/$97,500 to $16,000/$112,500); Amendment of Section 1.80 of the
Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
Inflation, Order, 19 FCC Rcd 10945 (2004) (adjusting the maximum statutory
amounts for non-licensees 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, Order, 15 FCC Rcd 18221 (2000)
(adjusting the maximum statutory amounts for non-licensees from
$10,000/$75,000 to $11,000/$87,500). The most recent inflation adjustment
took effect September 2, 2008 and applies to violations that occur after
that date. See 73 Fed. Reg. 44663-5.
47 U.S.C. S: 503(b)(2)(E). See also 47 C.F.R. S: 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
Forfeitures.
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, 21 FCC Rcd at 1825; 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, 9671-72 (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. denied, 11 FCC
2d 193 (1967).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 C.F.R. S: 1.80.
See, e.g., San Jose Navigation, Inc., Notice of Apparent Liability for
Forfeiture, 21 FCC Rcd 2873 (2006), forfeiture ordered, Forfeiture Order,
22 FCC Rcd 1040 (2007); Behringer 21 FCC Rcd at 1827; ACR Electronics,
Inc., 19 FCC Rcd 22293, 22302 (2004), forfeiture ordered, 21 FCC Rcd 3698
(2006); Samson Technologies, Inc., Notice of Apparent Liability for
Forfeiture, 19 FCC Rcd 4221, 4225 (2004), consent decree ordered, 19 FCC
Rcd 24509 (2004) (all finding that the marketing of each separate
unauthorized model constitutes a separate violation).
See, e.g., Behringer, Notice of Apparent Liability for Forfeiture, 21 FCC
Rcd at 1827 (proposing a base forfeiture of $7,000 per model before upward
adjustment); 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) (proposing a base forfeiture of
$7,000 per model for the marketing of unauthorized equipment prior to
upward adjustment); Samson Technologies, Inc., Notice of Apparent
Liability for Forfeiture, 19 FCC Rcd 4221, 4225 (2004) (proposing a base
forfeiture of $7,000 per model for a total proposed forfeiture of
$35,000).
See, e.g., Proxim Wireless Corporation, 24 FCC Rcd 1145, 1150 (Enf. Bur.,
Spectrum Enf. Div. 2009) (forfeiture paid); Data Capture Solutions, Inc.,
Notice of Apparent Liability for Forfeiture and Admonishment, 23 FCC Rcd
12743, 12747(Enf. Bur., Spectrum Enf. Div. 2008), response pending; Ryzex,
Inc., Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 878, 884
(Enf. Bur., Spectrum Enf. Div. 2008), response pending; DBK Concepts,
Inc., Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 2870, 2875
(Enf. Bur., Spectrum Enf. Div. 2008), response pending; Multi-Tech
Systems, Inc., Notice of Apparent Liability for Forfeiture, 23 FCC Rcd
17824 (Enf. Bur., Spectrum Enf. Div. 2008) (all proposing reduced
forfeitures of $4,000 per model for marketing unauthorized equipment that
violates labeling rules only).
47 U.S.C. S: 503(b).
47 C.F.R. S:S: 0.111, 0.311 and 1.80.
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Federal Communications Commission DA 09-1513
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Federal Communications Commission DA 09-1513