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Before the
Federal Communications Commission
Washington, D.C. 20554
)
File No. EB-10-SE-017
In the Matter of )
NAL/Acct. No. 201032100031
Wireless Extenders, Inc. )
FRN 0011444023
)
Notice of apparent Liability for forfeiture
Adopted: July 2, 2010 Released: July 6, 2010
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Wireless Extenders, Inc. ("Wi-Ex") apparently liable for a forfeiture
in the amount of four thousand dollars ($4,000) for willful and
repeated violation of 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 apparent violation involves Wi-Ex's
marketing of radio frequency devices that are not labeled in
accordance with Section 2.925(a)(1) of the Rules.
II. BACKGROUND
2. The Enforcement Bureau received a complaint alleging that Wi-Ex was
marketing a dual band cellular/PCS signal booster ("booster") that was
labeled with FCC Identification number SO4YX510-PCS-CEL, an FCC ID
number which is not found in the FCC's Equipment Authorization
Database. Subsequently, the Enforcement Bureau's Spectrum Enforcement
Division ("Division") began an investigation. The Division issued a
letter of inquiry ("LOI") to Wi-Ex on February 2, 2010. Wi-Ex
responded to the LOI on March 2, 2010. In its LOI Response, Wi-Ex
admitted that it marketed its zBoost signal booster with a label
specifying the FCC ID number as SO4YX510-PCS-CEL. Wi-Ex explained that
it made an administrative error and mistakenly appended "-PCS-CEL,"
characters corresponding to its product model number, to the FCC ID
number "SO4YX510" on boosters certified under FCC ID number SO4YX510.
Wi-Ex stated that it began marketing the booster in 2006.
III. Discussion
A. Wi-Ex Apparently Marketed Improperly Labeled Devices
3. 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 in pertinent part 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 radiofrequency 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....
Additionally, Section 2.925(a)(1) of the Rules provides:
Each equipment covered in an application for equipment authorization shall
bear a nameplate or label listing the following: (1) FCC Identifier
consisting of the two elements in the exact order specified in S:2.926.
The FCC Identifier shall be preceded by the term FCC ID in capital letters
on a single line, and shall be of a type size large enough to be legible
without the aid of magnification.
The FCC Identification label enables the FCC and potential users to
readily determine whether a particular device has been properly authorized
and to obtain additional information about the device from the FCC's
publicly-accessible Equipment Authorization Database. Wi-Ex admitted in
its LOI response that it marketed units of the booster that do not include
the correct FCC ID number. Therefore, these devices are not labeled as
specified by Section 2.925(a)(1) of the Rules. We accordingly find that
Wi-Ex's marketing of these improperly labeled devices apparently willfully
and repeatedly violated Section 302(b) of the Act and Section 2.803(a)(1)
of the Rules.
A. Proposed Forfeiture
4. 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."
5. Under the Forfeiture Policy Statement and Section 1.80 of the Rules,
the base forfeiture amount for the marketing of unauthorized equipment
is $7,000 per model. We note that the $7,000 base forfeiture amount is
typically imposed for marketing devices that are not in compliance
with applicable technical requirements or are not authorized by an
equipment authorization. Because adherence to the Commission's
authorization procedures ensures that devices meet required technical
standards, we have previously found that a downward adjustment of the
base forfeiture amount from $7,000 to $4,000 is warranted for the
marketing of devices that are authorized but improperly labeled.
Consistent with this precedent, we propose a forfeiture of $4,000
against Wi-Ex for its marketing of improperly labeled boosters in
apparent willful and repeated violation of Section 302(b) of the Act
and Section 2.803(a)(1) of the Rules.
iV. ordering clauses
6. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Sections 0.111, 0.311 and 1.80 of the Rules, Wi-Ex IS
NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount of
four thousand dollars ($4,000) for marketing radio frequency devices
that are not labeled in accordance with Section 2.925(a)(1) of the
Rules, in willful and repeated violation of Section 302(b) of the Act
and Section 2.803(a)(1) of the Rules.
7. 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, Wi-Ex SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
8. 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. Wi-Ex will also send electronic
notification on the date said payment is made to Neal McNeil at
Neal.McNeil@fcc.gov and Kathy Berthot at Kathy.Berthot@fcc.gov.
9. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.80(f)(3) and 1.16 of the Rules. The written statement 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. The statement should also
be emailed to Neal McNeil at Neal.McNeil@fcc.gov and Kathy Berthot at
Kathy.Berthot@fcc.gov.
10. 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.
11. 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 Michael W. Rodgers, Founder and CTO,
Wireless Extenders, Inc., One Meca Way, Norcross, GA 30093.
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).
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."
47 C.F.R. S: 2.925(a)(1).
We note that the Wireless Telecommunications Bureau has a pending
proceeding in WT Docket No. 10-4 regarding the proper use of signal
boosters on frequencies licensed under Parts 22, 24, 27, and 90 of the
Rules. See Wireless Telecommunications Bureau Seeks Comment on Petitions
Regarding Use of Signal Boosters and Other Signal Amplification Techniques
Used With Wireless Services, Public Notice, 26 FCC Rcd 68 (WTB, 2010).
This NAL does not purport to address any issues raised in that pending
proceeding.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Pieter C.
Seidel, Engineering Manager, Wireless Extenders, Inc. (February 2, 2010).
See Letter from Michael W. Rodgers, Founder and CTO, Wireless Extenders,
Inc., to Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (March 2, 2010)
("LOI Response").
Id. at 1. Wi-Ex stated that it marketed the following four booster
products labeled with FCC ID number SO4YX510-PCS-CEL: zBoost, model number
YX510-PCS-CEL; zBoost Pro, model number YX610-PCS-CEL; zBoost CI, model
number YX710-PCS-CEL; and zBoost, BDA and power supply only, model number
YX511T-PCS-CEL. Id. Wi-Ex explained that all of these booster products,
which are certified under FCC ID number SO4YX510, use the same amplifier
unit and power supply and that the differences between these products have
to do with packaging, coaxial cables, and/or antenna styles which were
chosen to comply with the original certification under FCC ID number
SO4YX510. Id. Accordingly, we will treat these four product models as a
single model for purposes of this NAL.
Id. at 1. Wireless Extenders obtained a grant of certification for its
dual band cellular/PCS signal booster under FCC ID number SO4YX510 on
December 29, 2006.
Id. at 2. Wi-Ex requested confidential treatment of the number of units of
the booster produced and sold in the United States pursuant to Section
0.459 of the Rules, 47 C.F.R. S: 0.459. Id. at 3. We need not disclose
this information in the context of this particular NAL, and consequently,
we will defer action on the confidentiality request. See 47 C.F.R. S:
0.459(d)(3).
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a)(1).
47 C.F.R. S: 2.925(a)(1).
LOI Response at 1.
On May 26, 2010, Wi-Ex obtained a grant of certification pursuant to
Section 2.933 of the Rules authorizing a change in the identification for
the booster to FCC ID SO4YX510-PCS-CEL. See 47 C.F.R. S: 2.933 (stating
that a new application for equipment authorization will be filed whenever
there is a change in the FCC Identifier for the equipment). We note that
this grant applies to boosters manufactured and marketed by Wi-Ex
beginning May 26, 2010 and does not negate any labeling violations by
Wi-Ex prior to that date.
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); see
also Telrite Corporation, Notice of Apparent Liability for Forfeiture, 23
FCC Rcd 7231, 7237 (2008); Regent USA, Notice of Apparent Liability for
Forfeiture, 22 FCC Rcd 10520, 10523 (2007); San Jose Navigation, Inc.,
Forfeiture Order 22 FCC Rcd 1040, 1042 (2007).
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 (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).
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087,
17113 (1997) ("Forfeiture Policy Statement"), recon. denied, 15 FCC Rcd
303 (1999).
47 C.F.R. S: 1.80.
See Proxim Wireless Corporation, Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd 1145, 1149 (Enf. Bur., Spectrum Enf. Div. 2009)
(forfeiture paid); 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.
47 C.F.R. S: 0.111, 0.311 and 1.80.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 10-1256
2
Federal Communications Commission DA 10-1256