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October 14, 2010
VIA EMAIL AT SALES@PHONEJAMMER.COM
AND FACSIMILE AT 44700 596 8880
Victor McCormack
Phonejammer.com
P.O. Box 60405
London, E8 9BP, United Kingdom
Re: File No. EB-09-SE-242; Provision of Incorrect Material Factual
Information in a Commission Investigation
Dear Mr. McCormack:
This is an official CITATION, issued pursuant to section 503(b)(5) of the
Communications Act of 1934, as amended ("Communications Act"), to
Phonejammer.com ("Phonejammer") for providing incorrect, material factual
information to the Spectrum Enforcement Division ("Division") of the
Enforcement Bureau ("Bureau") in violation of section 1.17(a)(2) of the
Commission's rules ("Rules"). Specifically, in response to recent
Commission inquiries, Phonejammer claimed that it does not market, and has
not shipped or distributed, radio frequency devices designed to
intentionally interfere with licensed cellular and Personal Communications
Services ("PCS") ("phone jammers") to consumers in the United States.
However, these statements are flatly contradicted by record evidence that,
as recently as April and September of 2009, Phonejammer sold and shipped
phone jammers to consumers in the United States. The Commission requires
parties to take appropriate affirmative steps to determine the
truthfulness of information it submits to the agency. As explained below
and as provided in the Communications Act, future violations of the Rules
in this regard may subject Phonejammer to monetary forfeitures.
Background.
On November 9, 2009, the Bureau's Dallas, Texas Field Office ("Dallas
Field Office") received a complaint from a wireless service provider
regarding interference to its authorized cellular and PCS frequencies in
the 800 MHz and 1900 MHz bands. The complainant indicated that it had
traced the interference to a business located in Carrollton, Texas. During
the course of its investigation of the complaint, the Dallas Field Office
determined that the interference had been caused by a 5 watt adjustable
power phone jammer identified as Phonejammer model number PJ005 ("Model
PJ005"), installed at a Carrollton business. An employee of the Carrollton
business admitted to purchasing the Model PJ005 from Phonejammer on April
21, 2009 using Phonejammer's website, "phonejammer.com." The employee
subsequently relinquished the Model PJ005 phone jammer to the Dallas Field
Office and also provided a copy of an April 21, 2009 invoice sent by
e-mail from sales@phonejammer.com for the sale and shipment of Model
PJ005. The Phonejammer invoice clearly shows a billing and shipping
address in Carrollton, Texas.
On February 4, 2010, the Division issued a letter of inquiry ("LOI")
initiating an investigation into Phonejammer's marketing of phone jammers
in the United States. In its March 3, 2010 response ("LOI Response"),
Phonejammer, through counsel, acknowledged that www.phonejammer.com is its
website, but denied marketing or shipping phone jammers to consumers in
the United States. Specifically, Phonejammer claimed that it "does not
market to the United States, and has not shipped or distributed units to
the United States." Phonejammer also stated that it clearly discloses on
its website that its phone jammers are not marketed in the United States,
that use of its phone jammers is prohibited by law in the United States,
and that its phone jammers are not authorized for use in the United
States.
In March 2010, during the course of investigating a complaint from the St.
Lucie County, Florida Sheriff's Office ("SLCSO") regarding interference to
cellular and PCS frequencies utilized by SLCSO detectives, the Bureau's
Tampa, Florida Field Office ("Tampa Field Office") traced the interference
to a phone jammer installed at a business located in Port St. Lucie,
Florida. The phone jammer was identified as an eight watt adjustable power
phone jammer, Phonejammer model number PJ006 ("Model PJ006"). The owner of
the Port St. Lucie business admitted to purchasing the Model PJ006 from
Phonejammer on September 24, 2009 using Phonejammer's website,
www.phonejammer.com. The owner relinquished the Model PJ006 phone jammer
to the Tampa Field Office and also provided a copy of his credit card
statement showing a charge dated September 25, 2009, for the purchase and
shipment of the device from Phonejammer.
Applicable Law and Violations - Provision of Incorrect, Material
Information.
The Commission's rules require truthfulness and candor in all written or
oral statements submitted to the agency and its staff. Section 1.17 of the
Rules provides, in pertinent part, that in any investigation, no person
shall:
(1) In any written or oral statement of fact, intentionally provide
material factual information that is incorrect or intentionally omit
material information that is necessary to prevent any material factual
statement that is made from being incorrect or misleading; and
(2) In any written statement of fact, provide material factual information
that is incorrect or omit material information that is necessary to
prevent any material factual statement that is made from being incorrect
or misleading without a reasonable basis for believing that any such
material factual statement is correct and not misleading.
Any person who has received a letter of inquiry from the Commission or its
staff or is otherwise the subject of a Commission investigation must
comply with section 1.17 of the Rules. In expanding the scope of section
1.17 in 2003 to include written statements that are made without a
reasonable basis for believing the statement is correct and not
misleading, the Commission explained that this requirement was intended to
more clearly articulate the obligations of persons dealing with the
Commission, ensure that they exercise due diligence in preparing written
submissions, and enhance the effectiveness of the Commission's enforcement
efforts. Thus, even in the absence of an intent to deceive, a false
statement provided without a reasonable basis for believing that the
statement is correct and not misleading constitutes an actionable
violation of section 1.17 of the Rules. As the Commission has stated:
in preparing written statements in fact-based adjudications and
investigations, regulatees are on heightened notice that they must have a
reasonable basis to believe that what they say is correct and not
misleading. In these circumstances, we consider it justified to require
that parties use due diligence in providing information that is correct
and not misleading to the Commission, including taking appropriate
affirmative steps to determine the truthfulness of what is being
submitted. A failure to exercise such reasonable diligence would mean that
the party did not have a reasonable basis for believing in the
truthfulness of the information.
Notwithstanding Phonejammer's claim in its LOI Response that it "does not
market phone jammers in the United States" and "has not shipped or
distributed units to the United States," the record before us clearly
demonstrates that on at least two occasions within the past year,
Phonejammer has marketed (including selling and shipping) phone jammers to
individuals in the United States. As noted above, an individual in
Carrollton, Texas purchased a Model PJ005 phone jammer via Phonejammer's
website on April 21, 2009, and an individual in Port St. Lucie, Florida
purchased a Model PJ006 phone jammer via Phonejammer's website on
September 24, 2009. Phonejammer billed both individuals, collected
payment, and shipped both devices to addresses in the United States.
Accordingly, Phonejammer had no reasonable basis for believing that the
information it provided in its Response regarding its marketing of jamming
devices in the United States was correct and not misleading. Based on the
evidence in the record, we believe that, had Phonejammer exercised a
minimum of diligence prior to the submission of its LOI Response, it
presumably would not have submitted incorrect or misleading material
factual information. We therefore find that Phonejammer violated section
1.17(a)(2) of the Rules by providing material factual information that is
incorrect without a reasonable basis for believing that the material
factual information was correct.
Future Compliance.
If, after receipt of this Citation, Phonejammer violates the
Communications Act or the Rules by engaging in conduct of the type
described herein, the Commission may impose monetary forfeitures not to
exceed $16,000 for each such violation or each day of a continuing
violation and up to $112,500 for any single act or failure to act.
You may respond to this citation within thirty (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 Phonejammer has
taken or will take in the future to ensure that it does not violate the
Rules governing the provision of material, factual information to the
Commission.
Under the Privacy Act of 1974, we also hereby inform you that the
Commission's staff will use all relevant material information before it,
including information that you disclose in your interview or written
statement, to determine what, if any, enforcement action is required to
ensure your compliance with the Communications Act and the Rules. Please
also note that section 1.17 of the Rules requires that you provide
truthful and accurate statements to the Commission. In addition, 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.
Contact Information.
Please call Nissa Laughner at 202-418-1160 if you wish to schedule a
personal interview. You should schedule any interview to take place within
thirty (30) days of the date of this letter. You should send any written
statement within thirty (30) days of the date of this letter to:
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Federal Communications Commission
445-12th Street, S.W., Rm. 3-C366
Washington, D.C. 20554
Thank you in advance for your anticipated cooperation.
Sincerely,
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Federal Communications Commission
47 U.S.C. S: 503(b)(5).
47 C.F.R. S: 1.17(a)(2).
See Cosmetology Career Center, Warning of Unauthorized Operation and
Interference to Licensed Radio Stations, Document Number W201032500004
(Enf. Bur., Dallas Field Office, November 24, 2009).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Victor
McCormack, Phonejammer.com (February 4, 2010).
See Letter from Harbottle & Lewis LLP, Counsel for Phonejammer.com, to
Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (March 3, 2010).
Id. at 1.
Id.
Id. at 2.
47 C.F.R. S: 1.17.
47 C.F.R. S: 1.17(b)(4).
See Amendment of Section 1.17 of the Commission's Rules Concerning
Truthful Statements to the Commission, Report and Order, 18 FCC Rcd 4016,
4021 (2003), recon. denied, Memorandum Opinion and Order, 19 FCC Rcd 5790,
further recon. denied, Memorandum Opinion and Order, 20 FCC Rcd 1250
(2004).
See id. at 4017 (stating that the revision to section 1.17 of the Rules is
intended to "prohibit incorrect statements of omissions that are the
results of negligence, as well as an intent to deceive").
See id. at 4021.
See, e.g., Syntax-Brillian Corporation, Forfeiture Order and Notice of
Apparent Liability for Forfeiture, 23 FCC Rcd 6323, 6342 (2008) (finding
that a television manufacturer apparently provided incorrect material
information concerning its importation and interstate shipment of
non-DTV-compliant televisions without a reasonable basis for believing
that the information was correct and not misleading, in violation of
section 1.17(a)(2) of the Rules); Citicasters License, L.P., Memorandum
Opinion and Order and Notice of Apparent Liability for Forfeiture, 22 FCC
Rcd 19324, 19338 (2007) (forfeiture paid) (finding that a licensee's false
certification that it had not violated the Communication's Act or any
Commission rules during the preceding license term, although not made with
the intent to deceive the Commission, had no reasonable basis and
therefore, apparently violated section 1.17(a)(2) of the Rules).
See 47 C.F.R. S: 1.80(b)(3). These amounts are subject to further
adjustment for inflation (see id. S:1.80(b)(5)), and the forfeiture amount
applicable to any violation will be determined based on the statutory
amount designated at the time of the violation.
See 5 U.S.C. S: 552a(e)(3).
47 C.F.R. S: 1.17 ("... no person subject to this rule shall; (1) In any
written or oral statement of fact, intentionally provide material factual
information that is incorrect or intentionally omit material information
that is necessary to prevent any material factual statement that is made
from being incorrect or misleading; and (2) In any written statement of
fact, provide material factual information that is incorrect or omit
material information that is necessary to prevent any material factual
statement that is made from being incorrect or misleading without a
reasonable basis for believing that any such material factual statement is
correct and not misleading.").
See 18 U.S.C. S: 1001.
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Federal Communications Commission DA 10-1975
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FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554