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January 7, 2010
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Matthew J. Wolf, President
MALAA GeoScience USA, Inc.
2040 Savage Road
Charleston, SC 29416
Re: File No. EB-09-SE-087
Dear Mr. Wolf:
This is an official CITATION, issued pursuant to Section 503(b)(5) of the
Communications Act of 1934, as amended ("Act"), to MALAA GeoScience USA,
Inc. ("MALAA") for marketing in the United States an unauthorized radio
frequency device in violation of Section 302(b) of the Act ("Act"), and
Section 2.803(a) of the Commission's Rules ("Rules"), and for importing a
radio frequency device without filing FCC Form 740 (or the electronic
equivalent) with the United States Customs and Border Patrol in violation
of Section 2.1203 of the Rules. As explained below, future violations of
the Commission's rules in this regard may subject your company to monetary
forfeitures.
In April of 2009, the Enforcement Bureau's Spectrum Enforcement Division
("Division") received a complaint alleging that in February of 2009, MALAA
had been an exhibitor at a trade show and had displayed promotional
materials that featured two uncertified devices, the Movement and
Surveying Radar 200 ("MSR 200") and/or the Movement and Surveying Radar
300 ("MSR 300"), without including a marketing disclaimer advising that
the devices had not yet been certified by the Federal Communications
Commission as is required by Section 2.803(c) of the Rules. By letter of
inquiry ("LOI") dated July 15, 2009, the Division initiated an
investigation into whether MALAA had marketed unauthorized radio
frequency devices in the United States.
In your response to the LOI, you state that you are an American company
that markets geophysical and geo-industry related products in North and
South America. You state that you are the American representative of
Reutech Mining ("Reutech"), which is the South African manufacturer of the
MSR 200 and the MSR 300.
In the LOI Response, you also explain that you have never sold or leased
either the MSR 200 or the MSR 300 in the United States. However, you
concede that you did market the MSR 300 surveying device at three trade
shows that took place in the United States in February and June of 2009,
and in three advertisements in a professional publication that was
distributed in the United State in 2009, without having obtained the
required FCC authorization for that device, or satisfying the disclaimer
notice requirements of Section 2.803(c) of the Rules. In addition, you
admit that in July of 2009, you imported one unit of the MSR 300 into the
United States for the purpose of certification testing, but failed to file
a Federal Communications Commission Form 740 (or the electronic
equivalent) with the United States Customs and Border Patrol for that
device.
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:
[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 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....
Transmitters that are utilized for operation under Part 90 of the Rules,
such as the MSR 200 and/or MSR 300, are generally required by Section
90.203 to be approved prior to marketing through the equipment
certification procedures described in Sections 2.1031-2.1060 of the Rules.
Under Section 2.803(c) of the Rules, a party is allowed, in limited
circumstances, to market devices prior to receiving equipment
authorization from the Commission. Specifically, devices may be
Advertised or displayed, e.g., at a trade show or exhibition, prior to
equipment authorization . . . provided that the advertising contains, and
the display is accompanied by, a conspicuous [disclaimer] notice worded as
follows: This device has not been authorized as required by the Rules of
the Federal Communications Commission. This device is not, and may not be,
offered for sale or lease, or sold or leased, until authorization is
obtained.
In your LOI response, you admit that on at least three occasions within
the past year you marketed one radio frequency device, the MSR 300, in the
United States without prior certification, and without accompanying the
marketing materials for that device with a disclaimer that satisfied the
requirements of Rule 2.803(c).
Under Section 2.1203 of the Rules, no radio frequency device may be
imported into the Customs territory of the United States unless the
importer declares that the device meets one of the conditions for entry
set forth in Section 2.1204 of the Rules. Pursuant to Section 2.1205 of
the Rules, this declaration must be filed electronically, where electronic
filing with Customs is available, or using FCC Form 740, where electronic
filing with Customs has not been implemented.
In your LOI Response, you admit that you imported one unit of the MSR 300
into the United States without properly filing a FCC Form 740 (or the
electronic equivalent) with the United States Customs and Border Patrol.
Accordingly, it appears that MALAA has violated Section 302(b) of the Act
and Section 2.803(a) of the Rules by marketing an unauthorized radio
frequency device in the United States, and violated Section 2.1203 of the
Rules by importing a radio frequency device into the United States without
filing a Federal Communications Commission Form 740 (or the electronic
equivalent).
If, after receipt of this citation, you violate 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 MALAA is
taking to ensure that it does not violate the Commission's rules governing
the marketing and importation of unauthorized radio frequency devices in
the future.
The nearest Commission field office is the Atlanta, Georgia office. Please
call Deborah Broderson at 202-418-0652, 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:
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Federal Communications Commission
445 12th Street, S.W., Rm. 3-C366
Washington, D.C. 20554
Under the Privacy Act of 1974, we are informing 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 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.
Thank you in advance for your anticipated cooperation.
Sincerely,
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 U.S.C. S: 503(b)(5).
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a).
47 C.F.R. S: 2.1203.
47 C.F.R. S: 2.803(c).
See letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to MALAA GeoScience
USA, Inc. (July 15, 2009) ("LOI").
See letter from Mitchell Lazarus, Counsel for MALAA GeoScience USA, Inc.,
to Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (August 14, 2009) ("LOI
Response") at 2.
Id. at 3. There is no common ownership between MALAA and Reutech Mining.
Id.
Id. at 2.
Id. at 4 and Exhibit C.
Id. at 3-4.
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a)(1).
In its LOI Response, MALAA requested that the frequency and power
information relating to the MSR 200 and MSR 300 be subject to confidential
treatment, pursuant to Section 0.459 of the Rules. 47 C.F.R. S: 0.459.
Based on MALAA's submissions, it appears that the MSR 200 and MSR 300
devices would be subject to regulation under Part 90 of the Rules. 47
C.F.R. S: 90.01 et seq.
47 C.F.R. S: 90.203.
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.
47 C.F.R. S: 2.803(c).
We note that Reutech obtained a grant of certification for the MSR 300 on
September 24, 2009. See FCC ID XOP-5840-SL-3000.
See LOI Response at 4 and Exhibit C. Our investigation did not uncover
similar evidence with respect to the marketing of the MSR 200.
47 C.F.R. S: 2.1203.
47 C.F.R. S: 2.1204.
47 C.F.R. S: 2.1205.
See LOI Response at 3-4.
See 47 C.F.R. S: 1.80(b)(3).
5 U.S.C. S: 552(a)(e)(3).
See 18 U.S.C. S: 1001.
Federal Communications Commission DA 10-07
2
Federal Communications Commission DA 10-07
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554