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November 20, 2009
VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED
AND FACSIMILE AT 800.589.5939
Mr. Jim Troxell
President & CEO
Troxell Communications, Inc.
4830 S. 38th Street
Phoenix, Arizona 85040
Re: File No. EB-09-SE-103
Dear Mr. Troxell:
This is an official CITATION, issued pursuant to Section 503(b)(5) of the
Communications Act of 1934, as amended ("Act"), for marketing an
unauthorized radio frequency device in the United States in violation of
Section 302(b) of the Act, and Section 2.803(a) of the Commission's Rules
("Rules"). As explained below, future violations of the Commission's rules
in this regard may subject Troxell Communications, Inc. ("Troxell") to
monetary forfeitures.
On May 7, 2009, the Spectrum Enforcement Division of the Commission's
Enforcement Bureau ("Division") received a complaint alleging that Troxell
was marketing an unauthorized radio frequency device, namely the QRF600
interactive wireless audience response system (or "QRF600"), which
operates in the 2400 - 2483.5 MHz band. Division staff observed that
Troxell was marketing the QRF600 on its website, www.trox.com. A review of
Commission records at that time revealed no equipment authorization for
the device. Because it appeared that Troxell was marketing the QRF600
without proper authorization, the Division sent Troxell a letter of
inquiry ("LOI") on August 20, 2009.
In your September 10, 2009, response to the LOI, you state that Troxell
began marketing the QRF600 in the United States in March of 2009. You also
state that as of August 31, 2009, Troxell had sold 15 of the subject
audience response systems in the United States. You indicate that Troxell
does not manufacture or import the QRF600. You further state that on
information and belief, the QRF600 is manufactured and imported by QOMO
HiteVision, LLC ("QOMO"). You maintain that as a distributor, Troxell
relies on manufacturer statements regarding compliance with FCC
regulations, and has no independent knowledge about the testing or
compliance of the various products it distributes, including the QRF600.
You assert that upon receipt of the LOI, Troxell removed the subject
audience response system from its websites.
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
that:
[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.
Under Section 15.201(b) of the Rules, intentional radiators, such as the
QRF600 audience response system, must be authorized in accordance with the
Commission's certification procedures before marketing is initiated in the
United States.
Troxell admits to marketing the QRF600 in the United States, beginning in
March of 2009. The QRF600 was not certified by the Commission until
September 27, 2009. Accordingly, it appears that Troxell has violated
Section 302(b) of the Act and Sections 2.803(a) of the Rules by marketing
an unauthorized radio frequency device in the United States.
If, after receipt of this citation, Troxell violates the Communications
Act or the Commission's rules in any manner described herein, the
Commission may impose monetary forfeitures not to exceed $16,000 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 you are
taking to ensure that you do not violate the Commission's rules governing
the marketing of radio frequency equipment in the future.
The nearest Commission field office appears to be the San Diego Office, in
San Diego California. Please call Jennifer Burton at 202.418.7581 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:
Jennifer Burton, Esq.
Spectrum Enforcement Division
Enforcement Bureau
Re: EB-09-SE-103
Federal Communications Commission
445 12th Street, S.W., Rm. 3-A445
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 an 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.
We thank you in advance for your anticipated cooperation.
Sincerely,
Kathryn Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Federal Communications Commission
cc: Wilton A. Hom, Esq.
Wilton A. Hom, PLC
30833 Northwestern Hwy, Suite 203
Farmington Hills, MI 48334
47 U.S.C. S: 503(b)(5).
47 U.S.C. S: 302a(b); 47 C.F.R. S: 2.803(a).
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).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, to Mr. Jim Troxell, President & CEO, Troxell
Communications, Inc. (August 20, 2009).
Letter from Wilton Hom, Esq., Counsel to Troxell Communications, Inc., to
Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau (September 10, 2009) at 1.
Id.
Id. at 2.
Id. at 1.
Id. at 2.
47 C.F.R. S: 15.201(b).
Section 15.3(o) of the Rules defines an "intentional radiator" as a
"device that intentionally generates and emits radio frequency energy by
radiation or induction." 47 C.F.R. S: 15.3(o).
Section 2.803(e)(4) of the Rules defines "marketing" 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).
See FCC IDs XQGQRF600-RE and XQGQRF600-TR (granted: September 27, 2009;
grantee: QOMO HiteVision LLC.).
See 47 C.F.R. S: 1.80(b)(3).
Federal Communications Commission DA-09-2447
1
2
Federal Communications Commission DA-09-2447
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554