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Before the
Federal Communications Commission
Washington, D.C. 20554
)
File No. EB-10-SE-001
In the Matter of )
NAL/Acct. No. 201032100032
Cellphone-Mate Inc. )
FRN 0010188936
)
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
Cellphone-Mate Inc. ("Cellphone-Mate") 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
Cellphone-Mate'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
Cellphone-Mate's SureCall(TM) Model CM2000-WL dual band cellular/PCS
signal amplifier ("amplifier) was labeled with FCC Identification
number RSNDUAL-62UNDER, 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
Cellphone-Mate on January 29, 2010. Cellphone-Mate responded to the
LOI on March 1, 2010. In its LOI Response, Cellphone-Mate admitted
that it marketed the amplifier with a label specifying the FCC ID
number as RSNDUAL-62UNDER. Cellphone-Mate explained that it made a
typo on the label and that the actual FCC ID number for the amplifier
is FCC ID number RSNDUAL-60UNDER, which was granted on August 28,
2009. Cellphone-Mate stated that it began marketing the amplifier in
September 2009.
III. Discussion
A. Cellphone-Mate 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. Cellphone-Mate
admitted in its LOI response that it marketed units of the amplifier 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 Cellphone-Mate'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 Cellphone-Mate for its marketing of improperly labeled
amplifiers 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, Cellphone-Mate
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, Cellphone-Mate 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. Cellphone-Mate 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 Hongtao Zhan, CEO, Cellphone-Mate Inc.,
48820 Kato Rd., Suite 300B, Fremont, CA 94539.
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 Hongtao Zhan,
CEO, Cellphone-Mate Inc. (January 29, 2010).
See Letter from Hongtao Zhan, CEO, Cellphone-Mate Inc. to Kathryn S.
Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission (March 1, 2010) ("LOI Response").
Id. at 1.
Id.
Id. Cellphone-Mate requested confidential treatment of the number of units
of the amplifier imported and marketed in the United States pursuant to
Section 0.459 of the Rules, 47 C.F.R. S: 0.459. Id. at 6. 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 June 24, 2010, Cellphone-Mate obtained a grant of certification
pursuant to Section 2.933 of the Rules authorizing a change in the
identification for the amplifier to FCC ID RSNDUAL-62UNDER. 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 amplifiers manufactured and
marketed by Cellphone-Mate beginning June 24, 2010 and does not negate any
labeling violations by Cellphone-Mate 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 10-1257
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Federal Communications Commission DA 10-1257