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Before the
Federal Communications Commission
Washington, D.C. 20554
)
File No. EB-09-SE-083
In the Matter of )
NAL/Acct. No. 201032100002
Richfield Electronics (China) Ltd. )
FRN 0003786449
)
notice of apparent liability for forfeiture
Adopted: October 27, 2009 Released: October 29, 2009
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. By this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Richfield Electronics (China) Ltd. ("Richfield") apparently liable for
a forfeiture in the amount of eighteen thousand dollars ($18,000) for
willfully and repeatedly violating Section 302(b) of the
Communications Act of 1934, as amended ("Act") and Section 2.803(a)(1)
of the Commission's Rules ("Rules"). The noted violations involve
Richfield's marketing of equipment that did not comply with the
emission limit of Section 15.239(b) of the Rules and the labeling
requirements Section 2.925(a)(1) of the Rules.
II. Background
2. In March 2008, the Commission's Enforcement Bureau received a
complaint alleging that the Whole House FM Transmitter ("WH
Transmitter") exceeded the emission limit of Section 15.239(b) of the
Rules. Based on that complaint, the Bureau's Spectrum Enforcement
Division initiated an investigation. As part of that investigation,
the Commission's Office of Engineering and Technology ("OET") tested
the WH Transmitter. OET's tests confirmed that the WH Transmitter
substantially exceeded the emission limit specified in Section
15.239(b). OET also observed that the WH Transmitter was not labeled
with an FCC Identification number. Based on OET's test results, the
Division investigated TAW-Global, LLC ("TAW"), a U.S. distributor of
the WH Transmitter. That investigation culminated in the issuance of a
Citation against TAW for marketing the non-compliant and unlabeled WH
Transmitter, and yielded Richfield as the manufacturer of the device.
The Division thereafter issued Richfield a Letter of Inquiry ("LOI")
on April 17, 2009, and a Further LOI on July 7, 2009.
3. In its LOI Response, Richfield stated that it manufactured the WH
Transmitter in China, and that it shipped the device to TAW for
distribution in the United States. Richfield did not state when it
began shipping the WH Transmitter to TAW or specify the total number
of units it manufactured and shipped to TAW, but TAW previously
indicated that it began importing the device in May 2004 and that it
imported a total of 18,371 units and distributed a total of 11,689
units in the U.S. Richfield indicated that the device has been
certificated in accordance with the Commission's equipment
authorization procedures. In its Further LOI Response, Richfield
admitted that after the device was certificated it modified the
device's antenna to improve "sound quality." Specifically, Richfield
explained that the antenna modification involved a "flexible copper,"
1.5 meters in length. According to Richfield, it did not realize that
the antenna, as modified, would cause increased field strength
emission levels. Richfield claimed that it began modifying the antenna
in December 2008 and that only the final 2,500 units shipped to TAW in
February 2009 had the modified antenna. We note, however, that the
sample WH Transmitter tested and found to be non-compliant by OET was
purchased and tested in May 2008 - approximately seven months prior to
December 2008. Finally, Richfield stated that it began labeling the WH
Transmitter with the FCC ID on December 17, 2008, at the request of
TAW.
III. discussion
A. Richfield marketed non-compliant and unlabeled equipment
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)(1) of the Rules 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 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.
As an intentional radiator, the WH Transmitter is required by Section
15.201 of the Rules to be approved prior to marketing in accordance with
the equipment certification procedures described in Sections 2.1031 -
2.1060 of the Rules. In addition, because the WH Transmitter operates in
the 106.7-107.9 MHz frequency band, it is subject to the emission limit
specified in Section 15.239(b) of the Rules, which provides:
The field strength of any emissions within the permitted 200 kHz band
shall not exceed 250 microvolts/meter at 3 meters. The emission limit in
this paragraph is based on measurement instrumentation employing an
average detector ....
5. Richfield acknowledged in its LOI Response that it manufactured the WH
Transmitter and that it shipped the device to TAW for distribution in
the United States. As noted above, OET tested the WH Transmitter and
determined that the device substantially exceeded the emission limit
set forth in Section 15.239(b). Although Richfield claimed that it
began modifying the antenna for the WH Transmitter in December 2008,
the sample tested by OET was purchased and tested approximately seven
months earlier, in May 2008. Based on the record before us, including
the information contained in the complaint and the test conducted by
OET, we find that the WH Transmitter apparently failed to comply with
the emission limit set forth in Section 15.239(b) at some point prior
to December 2008, when Richfield purportedly began modifying the
device's antenna. Accordingly, we find that Richfield manufactured and
distributed WH Transmitters that were not compliant with the emission
limit set forth in Section 15.239(b) in apparent willful and repeated
violation of Section 302(b) of the Act and Section 2.803(a)(1) of the
Rules.
6. We also find that the WH Transmitter did not comply with the
Commission's applicable labeling requirements of Section 2.925(a)(1)
of the Rules. Section 2.925(a)(1) requires that each device covered
under an equipment certification "bear a nameplate or label listing"
the "FCC Identifier," which consists of two elements, the grantee code
and the equipment code and is preceded by the term FCC ID. Richfield
acknowledged that, prior to December 2008, it did not label the WH
Transmitter with the FCC ID and thus did not comply with Section
2.925(a)(1) of the Rules. Accordingly, we find that Richfield
apparently willfully and repeatedly violated Section 302(b) of the Act
and Section 2.803(a)(1) of the Rules by marketing equipment that was
not labeled in accordance with Section 2.925(a)(1) of the Rules.
A. Proposed Forfeiture
7. Section 503(b)(1)(B) of the Act and Section 1.80(a)(1) of the Rules
provide that any person who is determined by the Commission to have
willfully or repeatedly failed to comply with any term or condition of
a Commission license, permit, certificate or other authorization or
any provision of the Act, or Commission rule, regulation, or order,
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 provision(s) of the Act, Rules or authorizations.
Based on the record before us, we conclude that Richfield is
apparently liable for forfeiture for its apparent willful and repeated
violations of Section 302(b) of the Act and Section 2.803(a)(1) of the
Rules for marketing equipment that was non-compliant and unlabeled.
8. Section 503(b)(2)(D) of the Act authorizes the Commission to assess a
maximum forfeiture of $16,000 for each violation, or each day of a
continuing violation, not to exceed $112,500 for any single act or
failure to act, by an entity, such as Richfield, that is not a
broadcast licensee, a cable operator or a common carrier. Section
1.80(b)(4) establishes a base forfeiture amount of $7,000 for
marketing unauthorized or non-compliant equipment.
9. In assessing forfeiture liability, Section 503(b)(2)(E) of the Act
directs the Commission 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." As explained below, having considered the statutory factors
and the circumstances presented, we find that an aggregate proposed
$18,000 forfeiture is warranted.
10. We have taken into account the duration and extent of Richfield's
violations, and find it appropriate to upwardly adjust the $7,000 base
forfeiture amount established for equipment violations to $14,000. In
this regard, we have considered the recent decision in Power 7 that
proposed an upwardly adjusted $25,000 forfeiture against a
manufacturer/importer that marketed an FM transmitter which was
uncertified and exceeded the field strength emission limit of Section
15.239(b) of the Rules. The $25,000 proposed forfeiture was based on
the duration of the violations and the large volume of the
unauthorized, non-compliant units that it manufactured and shipped.
Richfield's violations apparently involved a significantly smaller
number of manufactured and shipped units. Accordingly, we find that
the $14,000 proposed forfeiture amount reflects both the duration and
extent of Richfield's violations.
11. In addition to the $14,000 forfeiture proposed for Richfield's
marketing of non-compliant and unauthorized equipment, we propose a
$4,000 forfeiture for Richfield's violation of the labeling
requirements of Section 2.925(a)(1) of the Rules. We find that the
marketing of non-labeled equipment is not as significant as the
marketing of non-complaint equipment, and thus believe a downward
adjustment of the $7,000 base forfeiture to $4,000 is warranted.
Accordingly, the aggregate base forfeiture proposed against Richfield
is $18,000.
IV. conclusion
12. In sum, we propose a forfeiture amount of $18,000 for Richfield's
marketing of non-compliant and unlabeled equipment in apparent willful
and repeated violation of Section 302(b) of the Act and Section
2.803(a)(1) of the Rules.
V. ordering clauses
13. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Sections 0.111, 0.311 and 1.80 of the Commission's Rules,
Richfield Electronics (China) Ltd. is NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of eighteen thousand dollars
($18,000) for its willful and repeated violations of Section 302(b) of
the Act and Section 2.803(a)(1) of the Rules.
14. 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, Richfield Electronics (China) Ltd. SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
15. 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. Richfield Electronics (China) Ltd. will
also send electronic notification on the date said payment is made to
Kathy Berthot at Kathy.Berthot@fcc.gov and to Ava Holly Berland at
Holly.Berland@fcc.gov.
16. 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.
17. 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.
18. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by certified mail return receipt
requested to Flora Cho, Operations Manager, Richfield Electronics
(China) Ltd., 7/F, Unit 14 & 16, Shing Yip Ind. Bldg., 19-21 Shing Yip
St., Kwun Tong, Kowloon, Hong Kong, SAR.
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)(1).
The term "marketing" is broadly defined as "the sale or lease, or offering
to 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." 47 C.F.R. S: 2.803(e)(4).
47 C.F.R. S:S: 15.239(b) and 2.925(a).
See Thomas Allen Webb, CEO, 24 FCC Rcd 2404 (2009).
See id. at 2404.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Mr. Z.T. Yun,
Director, Richfield Electronics (China) Ltd. (April 7, 2009) ("LOI").
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Mr. Z.T. Yun,
Director, Richfield Electronics (China) Ltd. (July 7, 2009) ("Further
LOI").
See Letter from Flora Cho, Operations Manager, Richfield Electronics
(China) Ltd. to Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (May 15, 2009) ("LOI
Response").
Id. at 1.
24 FCC Rcd at 2404.
See FCC ID QKQRF-2001 (granted: November 5, 2002; grantee: Richfield
Electronics (China) Ltd.).
See Letter from Flora Cho, Operations Manager, Richfield Electronics
(China) Ltd. to Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (August 6, 2009)
("Further LOI Response").
Id. at 1.
Id..
See id.
See id.
See LOI Response at 1.
An intentional radiator is "[a] device that intentionally generates and
emits radio frequency energy by radiation or induction." 47 C.F.R. S:
15.3(o).
47 C.F.R. S: 15.201.
A certification is an equipment authorization issued by the Commission,
based on representations and test data submitted by the applicant. See 47
C.F.R. S: 2.907(a).
47 C.F.R. S:S: 2.1031 - 2.1060.
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 P: 5 (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, 1362-63 P:P: 10-14
(2001); Southern California, 6 FCC Rcd at 4388 P: 5.
See Power 7 Technology Corporation, Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd 1660, 1662-64 P:P: 6-12 (Spectrum Enf. Div., Enf.
Bur. 2009) (proposing a $25,000 forfeiture against a manufacturer for
marketing an FM transmitter that was not certificated in accordance with
the Commission's equipment authorization procedures and was not compliant
with the emission limit of Section 15.239(b) of the Rules) ("Power 7");
see also Proxim Wireless Corporation, Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd 1145, 1146-49 P:P: 5-12 (Spectrum Enf. Div., Enf.
Bur. 2009) (proposing a $7,000 forfeiture against manufacturer for
marketing a wireless access point that OET tests confirmed did not comply
with radar detection requirement of Section 15.407(h)(2) of the Rules)
("Proxim"); Ikusi-Angel Iglesias, S.A.., Notice of Apparent Liability for
Forfeiture, 19 FCC Rcd 15560, 15561-63 P:P: 4-10 (Spectrum Enf. Div., Enf.
Bur. 2004) (proposing a $7,000 forfeiture against a manufacturer for
marketing a remote control transmitter that OET tests determined, and the
manufacturer acknowledged, did not comply with the timing requirement of
Section 15.231(a) of the Rules, 47 C.F.R. S: 15.231(a)).
See also 47 C.F.R. S: 2.926 (detailing the grantee code and the equipment
product code elements).
See Proxim, 24 FCC Rcd at 1147-49 P:P:8-12 (proposing a $4,000 forfeiture
against a manufacturer for failing to properly label its wireless access
point).
47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1).
47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).
See, e.g., SBC Communications, Inc., 17 FCC Rcd 7589, 7591, P: 4 (2002).
47 U.S.C. S: 503(b)(2)(D). The Commission thrice amended Section
1.80(b)(3) of the Rules, 47 C.F.R. S: 1.80(b)(3), to increase the maxima
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, Order, 23 FCC
Rcd 9845 (2008) (adjusting the maxima statutory amounts from to
$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 maxima statutory
amounts 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 maxima
statutory amounts from $10,000/$75,000 to $11,000/$87,500).
47 C.F.R. S: 1.80(b)(4).
47 U.S.C. S: 503(b)(2)(E).
24 FCC Rcd at 1661-62 P:P: 4-8.
See id. at 1662-64 P:P: 6-12.
See supra note 11 and accompanying text.
See Proxim, 24 FCC Rcd at 1149 P: 12.
47 C.F.R. S:S: 0.111, 0.311, 1.80.
47 U.S.C. S: 302a(b) and 47 C.F.R. S: 208(a)(1).
(Continued from previous page)
(continued....)
Federal Communications Commission DA 09-2303
3
Federal Communications Commission DA 09-2303