******************************************************** 
                      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 )

   )

   Power 7 Technology Corporation ) File No. EB-08-SE-597

   ) NAL/Acct. No. 200932100047

   ) FRN 0015078983

   )

                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: February 17, 2009 Released: February 19, 2009

   By the Chief, Spectrum Enforcement Division, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture and Order ("NAL"),
       we find Power 7 Technology Corporation ("Power 7") apparently liable
       for a forfeiture in the amount of twenty-five thousand dollars
       ($25,000) for willful and repeated violation 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
       Power 7's marketing of unauthorized radio frequency devices.

   II. BACKGROUND

    2. In March 2008, the FCC's Enforcement Bureau ("Bureau") received a
       complaint alleging that the emissions of the Macally FM Cup Automobile
       Full Channel FM Transmitter and iPOD Charger ("FM Cup Transmitter")
       exceed the limit specified in Section 15.239(b) of the Rules for
       intentional radiators operating in the 88-108 MHz band. The Bureau's
       Spectrum Enforcement Division ("Division") subsequently began an
       investigation of the FM Cup Transmitter. As part of the investigation,
       the FCC's Office of Engineering and Technology ("OET") Laboratory
       tested the FM Cup Transmitter on April 23, 2008. The tests confirmed
       that the emissions from the FM Cup Transmitter exceeded the limit
       specified in Section 15.239(b) of the Rules. In pursuance of its
       investigation, the Division directed a letter of inquiry ("LOI") dated
       June 18, 2008, to Macally USA Mace Group, Inc. ("Macally"). In its
       July 17, 2008, response to the LOI, Macally identified Power 7 as the
       manufacturer of the FM Cup Transmitter from April 2007 to the present.

    3. As an intentional radiator, the FM Cup Transmitter was required by
       Section 15.201 of the Rules to be approved prior to marketing through
       the equipment certification procedures described in Sections 2.1031 -
       2.1060 of the Rules. Commission records indicate that Power 7 did not
       obtain an equipment certification for the FM Cup Transmitter until
       July 11, 2008.

    4. By LOI dated July 29, 2008, the Division initiated an investigation
       into whether Power 7 marketed an unauthorized radio frequency device
       -- specifically, the FM Cup Transmitter -- in the United States. In
       its response, Power 7 states that it manufactured 66,750 FM Cup
       Transmitters for Macally and shipped them between March 29, 2007, and
       April 12, 2008. Power 7 states that the reason it did not obtain a
       certification for the FM Cup Transmitter until July 11, 2008, is that
       the Project Manger "was under pressure for product delivery, and was
       not aware of the FCC requirement status." Additionally, Power 7
       asserts that it modified the FM Cup Transmitter to comply with Section
       15.239(b) of the Rules and that all units shipped during or after
       November 2007 comply with Section 15.239(b).

   III. DISCUSSION

   A. Marketing of Unauthorized and Non-Compliant Equipment

    5. 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 that is 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 [emphasis added].

   In addition, Section 15.239(b) of the Rules provides that:

   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. The provisions in S: 15.35 for limiting peak emissions
   apply.

    6. Power 7 admits that it manufactured 66,750 FM Cup Transmitters and
       shipped them to Macally between March 29, 2007 and April 12, 2008;
       that those devices were uncertified; and that all FM Cup Transmitters
       shipped between March and October 2007 were non-compliant with the
       emissions limit of 15.239(b) of the Rules.

    7. We find, therefore, that Power 7 apparently marketed 66,750 FM Cup
       Transmitters that were uncertified. We also find that the devices
       marketed prior to November 2007 were non-compliant with the emissions
       limit of Section 15.239(b) of the Rules.

    8. We, accordingly, find that Power apparently marketed uncertified and
       non-compliant radio frequency devices in willful and repeated
       violation of Section 302(b) of the Act and Section 2.803(a) of the
       Rules.

   B. Proposed Forfeiture

    9. 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, 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."

   10. 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 a Notice of Apparent Liability. Section 503(b)(6) does
       not, however, bar the Commission from assessing whether Power 7'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 Power 7's conduct has continued over a period that began on March
       29, 2007, the forfeiture amount we propose herein relates only to
       Power 7's apparent violations that have occurred within the past year.

   11. Pursuant to 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 the marketing of unauthorized or
       non-compliant equipment is $7,000. At the time of Power 7's apparent
       violations, we were authorized under Section 503(b)(2)(D) of the Act
       to assess an entity that is neither a common carrier, a broadcast
       licensee nor a cable operator a forfeiture of up to $11,000 for each
       violation or each day of a continuing violation, up to a statutory
       maximum forfeiture of $97,500 for any single continuing violation.

   12. Based on the record before us, and having considered the statutory
       factors enumerated above, we conclude that a significant upward
       adjustment of the $7,000 base forfeiture amount is warranted in view
       of the substantial number of uncertified and non-compliant FM Cup
       Transmitters that Power 7 marketed in the United States and the fact
       that the violations continued over a 12-month period. Accordingly,
       applying the Forfeiture Policy Statement and statutory factors to the
       instant case, we conclude that Power 7 is apparently liable for a
       $25,000 forfeiture.

   IV. ORDERING CLAUSES

   13. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
       Communications Act of 1934, as amended, and Section 1.80 of the
       Commission's Rules,  Power 7 Technology Corporation., is hereby
       NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
       twenty-five thousand dollars ($25,000) for marketing radio frequency
       devices that were uncertified and non-compliant in willful and
       repeated violation of Section 302(a) of the Act and Section 2.803(a)
       of the Rules.

   14. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
       Commission's Rules within thirty days of the release date of this
       Notice of Apparent Liability for Forfeiture, Power 7 Technology
       Corporation, 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. Power 7 will also send electronic
       notification on the date said payment is made to
       Thomas.Fitz-Gibbon@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 ("GAAP"); 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, and regular mail, to S.T. Wang, Vice General Manager, Power
       7 Technology Corporation, c/o Part II Research, Inc., 4601 E. Airport
       Drive, Ontario, CA 91761 and by Federal Express to S.T. Wang, Vice
       General Manager, Power 7 Technology Corporation, 2F, No. 176 Jian-Yi
       Rd., Chung Ho City, Taipeh, Taiwan 235.

   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).

   See 47 C.F.R. S: 15.239(b).

   Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
   Enforcement Bureau, Federal Communications Commission to Macally. (June
   18, 2008).

   Letter from Mike Chen, President, Macally USA Mace Group, Inc., to
   Spectrum Enforcement Division, Enforcement Bureau, Federal Communications
   Commission. (July 17, 2008).

   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.

   Power 7 was granted an equipment certification for the FM Cup Transmitter
   under FCC ID # TQN-FMCUPB0807 on July 11, 2008.

   Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
   Division, Enforcement Bureau, to Power 7 Technology Corporation. (July 29,
   2008).

   Letter from ST Wang, Vice General Manager, Power 7 Technology
   Corporation., to Federal Communications Commission, Enforcement Bureau,
   Spectrum Enforcement Division (undated; received August 29, 2008) ("LOI
   Response").

   LOI Response at 1. Although Power 7 maintains that it was not aware of the
   requirement that it obtain a certification for the FM Cup Transmitter
   prior to marketing in the U.S., we note that it holds other FCC
   certifications and therefore was apparently familiar with the FCC
   equipment authorization requirements.

   Id.

   47 C.F.R. S: 2.801 defines a radiofrequency device as "any device which in
   it its operation is capable of emitting radiofrequency energy by
   radiation, conduction, or other means."

   Marketing, as defined in 47 C.F.R. S: 2.803(e)(4), "includes sale or
   lease, or offering for 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."

   Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
   violations for which forfeitures are assessed under Section 503(b) of the
   Act, provides that "[t]he term `willful', ... means the conscious and
   deliberate commission or omission of such act, irrespective of any intent
   to violate any provision of this Act or any rule or regulation of the
   Commission authorized by this Act ...." See Southern California
   Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991).

   Section 312(f)(2) 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, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana,
   Notice of Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359,
   1362 P: 10 (2001) ("Callais Cablevision") (issuing a Notice of Apparent
   Liability for, inter alia, a cable television operator's repeated signal
   leakage).

   47 U.S.C. S: 503(b).

   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
   USA, Inc. 21 FCC Rcd 1820, 1827, P: 20 (2006), response pending; Globcom,
   Inc. d/b/a Globcom Global Communications, 18 FCC Rcd 19893, 19903 P: 23
   (2003), forfeiture ordered, 21 FCC Rcd 4710 (2006); Roadrunner
   Transportation, Inc., 15 FCC Rcd 9669, 9671-71 P: 8 (2000); Cate
   Communications Corp., 60 RR 2d 1386, 1388 P: 7 (1986); Eastern
   Broadcasting Corp., 10 FCC 2d 37, 37-38 P: 3 (1967), recon. den.,11 FCC 2d
   193 (1967); Bureau D'Electronique Appliquee, Inc., 20 FCC Rcd 3445,
   3447-48 P:P: 8-9 (Enf. Bur., Spectrum Enf. Div., 2005), forfeiture
   ordered, 20 FCC Rcd 17893 (Enf. Bur., Spectrum Enf. Div., 2005) ("Bureau
   D'Electronique Appliquee").

   12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999).

   47 C.F.R. S: 1.80.

   47 U.S.C. S: 503(b)(2)(D). The Commission, on three occasions, amended
   Section 1.80(b)(3) of the Rules, 47 C.F.R. S: 1.80(b)(3), 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, Order, 15 FCC
   Rcd 18221 (2000) (adjusting the maximum statutory amounts from
   $10,000/$75,000 to $11,000/$87,500); 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 from $11,000/$87,500 to $11,000/$97,500); and 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 from $11,000/$97,500 to $16,000/$112,500). 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. Power 7's
   apparent violations occurred before September 2, 2008, and are therefore
   subject to the $11,000/$97,500 forfeiture limits.

   See, e.g., San Jose Navigation, Inc., Notice of Apparent Liability, 21 FCC
   Rcd 2873, 2877-8, P: 15 (2006) (upwardly adjusting a proposed forfeiture
   based on the volume of non-compliant devices distributed, and the
   three-year span in which such devices were marketed), forfeiture ordered,
   22 FCC Rcd 1040 (2007), recon. pending; Abocom Systems, Inc., Memorandum
   Opinion and Order, 22 FCC Rcd 7448, 7450-1 (Enf. Bur. 2007) (upwardly
   adjusting a forfeiture based on the large number of non-compliant devices
   distributed, the 17 month span during which the devices were marketed, and
   ability to pay); and Bureau D'Electronique Appliquee, 20 FCC Rcd at 3448,
   P: 9 (upwardly adjusting a proposed forfeiture based on the volume of
   unauthorized devices distributed, and the five-year span in which such
   devices were marketed).

   47 U.S.C. S: 503(b), 47 C.F.R. S: 1.80.

   Federal Communications Commission DA 09-253

   2

   Federal Communications Commission DA 09-253