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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the matter of )
File No. EB-09-SE-205
Sound Around Inc. )
)
)
CITATION
ILLEGAL MARKETING OF RADIO FREQUENCY DEVICES
CAPABLE OF OPERATING ON RESTRICTED FREQUENCIES
Adopted: July 5, 2011 Released: July 7, 2011
By the Acting Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. This is an official CITATION issued pursuant to section 503(b)(5) of
the Communications Act of 1934, as amended ("Communications Act"), to
Sound Around Inc. ("Sound Around") for marketing in the United States
radiofrequency devices that operate on restricted frequencies in
violation of section 302(b) of the Communications Act and sections
2.803 and 15.205(a) of the rules ("Rules") of the Federal
Communications Commission ("Commission"), and for marketing wireless
microphones that are capable of operating in the 700 MHz band (698-806
MHz) in violation of section 74.851(g) of the Rules.
2. Sound Around should take immediate steps to come into compliance and
to avoid any recurrence of this misconduct, including removing from
display (including online display) all wireless microphones capable of
operating in the 700 MHz frequency band. As explained below and as
provided in the Communications Act, future violations of the Rules in
this regard may subject Sound Around to monetary forfeitures.
I. bACKGROUND
3. During the course of an investigation of an unrelated complaint, the
Spectrum Enforcement Division ("Division") of the Commission's
Enforcement Bureau observed that Sound Around was apparently marketing
on its website, www.pyleaudio.com, four models of wireless microphones
that operate in restricted frequency bands. By letter of inquiry
("LOI") dated September 30, 2009, the Division initiated an
investigation into whether Sound Around was marketing in the United
States uncertified wireless microphones that operate within restricted
frequency bands. On November 18, 2009, having not received a response
to the September 30, 2009 LOI, the Division resent the LOI to Sound
Around.
4. In its December 6, 2009 response to the LOI, Sound Around admits to
importing and marketing the wireless microphones in the United States
and states that it purchased the devices from a company based in
China. Sound Around also provides a marketing flyer that confirms that
two of the wireless microphones, Models PDWM94 and PDWM96, operate on
frequencies 114-116 MHz, which are within the 108-121.94 MHz
restricted frequency band. The marketing flyer also indicates that
Models PDWM3000 and PDWM5500 operate on frequencies 232.4-261.0 MHz
and 210-280 MHz, respectively, which are within the 240-285 MHz
restricted frequency band. Regarding authorization of the wireless
microphones, Sound Around states that "based on the information
provided by the manufacturer and therefore to the best of my
knowledge, all products listed in inquiry (3) [the subject wireless
microphones] are in fact up to spec. with all FCC technical
standards." In response to our request for a copy of the grant of
certification or the FCC Identification Number for the wireless
microphones, Sound Around further states that it had "requested the
grant of certification from the manufacturer and expect for them to
remit." Sound Around finally states that "if [the manufacturer] cannot
provide within the time-frame allowed by the FCC, Sound Around Inc.
will immediately cease to import the items listed in inquiry (3)."
5. Because Sound Around failed to fully respond to the LOI, the Division
sent a further inquiry to Sound Around on February 1, 2010. In that
further inquiry, the Division again asked Sound Around to provide a
copy of the grant of certification or the FCC ID Number for each of
the wireless microphones that operate within restricted frequency
bands. In its February 15, 2010 response to the further inquiry, Sound
Around states that it was unsuccessful in obtaining the grant of
certification although it had made repeated requests to the
manufacturer. To date, Sound Around still has not provided any proof
that these four models of wireless microphones have been certified and
a review of the Commission's Equipment Authorization Database reveals
that no certifications have been issued under the manufacturer's name.
6. Additionally, a subsequent review by Division staff of Sound Around's
web site revealed that Sound Around also was marketing wireless
microphone Model PDWM2600 that operates within the 801-850 MHz
frequency range, a portion of which is within in the 700 MHz frequency
band.
II. Applicable Law and Violations
7. Section 302(b) of the Communications Act states: "[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." The applicable
implementing regulations are set forth in sections 2.803, 15.201, and
15.3(o) of the Rules.
Specifically, section 2.803(a)(1) of the Rules provides:
[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: (1) In the case of a device 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 2.803(g) of the Rules provides in pertinent part
that:
[R]adio frequency devices that could not be authorized or legally operated
under the current rules ... shall not be operated, advertised, displayed,
offered for sale or lease, sold or leased, or otherwise marketed absent a
license issued under part 5 of this chapter or a special temporary
authorization issued by the Commission.
Further, pursuant to section 15.201(b) of the Rules, intentional
radiators, such as wireless microphones, must be authorized in accordance
with the Commission's certification procedures described in sections
2.1031 - 2.1060 of the Rules prior to the initiation of marketing in the
United States.
8. Commission Rules expressly prohibit the marketing of wireless
microphones that can operate in the 700 MHz frequency band.
Specifically, section 74.851(g) of the Rules prohibits the
manufacture, importation, sale, lease, offer for sale or lease, or
shipment of wireless microphones and other low power auxiliary
stations intended for use in the 700 MHz frequency band in the United
States.
9. Based on the information provided by Sound Around, wireless microphone
Models PDWM94, PDWM96, PDWM3000, and PDWM5500 are ineligible for
certification and therefore cannot be marketed in the United States.
Specifically, Sound Around confirmed that these wireless microphone
models operate within restricted frequency bands listed in section
15.205(a) of the Rules. Thus, these devices cannot comply with the
FCC's technical standards, cannot be certified as required by
Commission Rules, and consequently cannot be marketed within the
United States. Moreover, the Division observed wireless microphone
Model PDWM2600 on Sound Around's web site. The marketing of this
wireless microphone, which is capable of operating within the 700 MHz
frequency band, is prohibited by section 74.851(g) of the Rules.
10. We therefore issue this Citation to Sound Around for violating the
Commission's Rules as discussed above. Sound Around should take
immediate steps to ensure that it does not continue to violate the
Commission's Rules, including removing from display (including online
display) all wireless microphones that are capable of operating in the
700 MHz frequency band. To the extent that Sound Around markets
wireless microphones that operate outside the 700 MHz frequency band,
such as in the core TV bands (channels 2-51, excluding channel 37), it
should review the Commission Rules that apply to such devices.
III. future compliance
11. If, after receipt of this Citation, Sound Around violates the
Communications Act or the Commission's Rules by engaging in conduct of
the type described herein, the Commission may impose monetary
forfeitures of up to $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. In addition, violations of the Act or the Rules can result in
seizure of equipment through in rem forfeiture actions, as well as
criminal sanctions, including imprisonment.
12. Sound Around may respond to this Citation within thirty (30) days
after the release date of the Citation either by (1) requesting a
personal interview at the Commission's Field Office nearest to its
place of business, or (2) submitting a written statement. Sound
Around's written statement should specify the actions that it is
taking to correct the violations outlined above and to ensure that it
does not violate the Commission's Rules governing the marketing of
radio frequency devices in the future. Please reference EB file number
EB-09-SE-205 when corresponding with the Commission.
13. Under the Privacy Act of 1974, we also inform Sound Around that the
Commission's staff will use all relevant material information before
it, including information disclosed in its interview or written
statement, to determine if further enforcement action is required to
ensure compliance with the Communications Act and the Commission's
Rules. Please also note that section 1.17 of the Rules requires that
Sound Around 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.
IV. contact information
14. The closest FCC office is the New York Field Office in New York, New
York. Please call Karen Mercer at (202) 418-1160 if Sound Around
wishes to schedule a personal interview. The interview should take
place within thirty (30) days after the release date of this Citation.
Send any written statement within thirty (30) days after the release
date of this Citation to:
John D. Poutasse
Acting Chief, Spectrum Enforcement Division
Enforcement Bureau
Federal Communications Commission
445 12th Street, S.W., Rm. 3-C366
Washington, D.C. 20554
Re: EB File No. EB-09-SE-205
15. Reasonable accommodations for people with disabilities are available
upon request. Include a detailed description of the accommodation(s)
needed. Also include a way we can contact Sound Around if we need more
information. Please allow at least five (5) days advance notice; last
minute requests will be accepted, but may be impossible to fill. Send
an e-mail to fcc504@fcc.gov or call the Consumer & Governmental
Affairs Bureau:
For sign language interpreters, CART, and other reasonable accommodations:
202-418-0530 (voice), 202-418-0432 (tty).
To request this document in accessible formats for people with
disabilities (braille, large print, electronic files, audio format):
202-418-0530 (voice), 202-418-0432 (tty).
V. ordering clauses
16. IT IS ORDERED that a copy of this Citation shall be sent both by First
Class U.S. Mail and by Certified Mail, Return Receipt Requested to
Sound Around Inc. at its address of record, Mr. Zigmond Brach,
President, Sound Around Inc., 1600 63rd Street, Brooklyn, NY 11204.
FEDERAL COMMUNICATIONS COMMISSION
John D. Poutasse
Acting 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:S: 2.803, 15.205(a).
47 C.F.R. S: 74.851(g).
Advertisements for models PDWM94, PDWM96, PDWM3000 and PDWM5500 were
observed on Sound Around's web site on September 29, 2009. Information on
the web site indicated that these devices operate on frequencies 114-116
MHz (Models PDWM94 and PDWM96); 232.4-261.0 MHz (Model PDWM3000); and
210-280 MHz (Model PDWM5500). These advertisements remain on Sound
Around's web site. See
http://www.pyleaudio.com/itemdetail.asp?model=PDWM94,
http://www.pyleaudio.com/itemdetail.asp?model=PDWM96,
http://www.pyleaudio.com/itemdetail.asp?model=PDWM3000 and
http://www.pyleaudio.com/itemdetail.asp?model=PDWM5500 (visited September
29, 2009, November 18, 2009, July 21, 2010 and June 8, 2011).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Jerry Brach,
Vice President, Pyle Audio (September 30, 2009). The LOI was addressed to
Pyle Audio. The Division was subsequently informed that "Pyle" is a
registered trademark of Sound Around, Inc., which imports Pyle Audio brand
products. Thus, this Citation is addressed to Sound Around Inc. and the
company will hereinafter be referred to as Sound Around and not Pyle
Audio.
See Letter from Zigmond Brach, President, Sound Around Inc., to Jacqueline
Ellington, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission (December 6, 2009) ("LOI Response").
LOI Response at 1.
LOI Response at Exhibit B.
Id.
LOI Response at 2.
Id.
Id.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Jerry Brach,
Vice President, Sound Around Inc. (February 1, 2010).
See Letter from Zigmond Brach, President, Sound Around Inc., to Jacqueline
Ellington, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission (February 15, 2010), at 1.
See https://fjallfoss.fcc.gov/oetcf/eas/reports/GenericSearch.cfm.
See http://www.pyleaudio.com/itemdetail.asp?model=PDWM2600. The Division
observed this wireless microphone displayed on Sound Around's web site on
September 17, 2010, September 29, 2010 and June 9, 2011.
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a)(1).
47 C.F.R. S: 2.803(g).
47 C.F.R. S: 15.201(b).
Section 15.3(o) of the Rules defines an "intentional radiator" as 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:S: 2.1031 - 2.1060.
Section 2.803(e)(4) of the Rules defines "marketing" as the "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: 2.803(e)(4).
See FCC Adopts Order to Clear the 700 MHz Frequency for Public Safety and
Next Generation Consumer Users, News Release, 2010 WL 176680 (2010); and
Revisions to Rules Authorizing the Operation of Low Power Auxiliary
Stations in the 698-806 Band, Report and Order and Further Notice of
Proposed Rulemaking, 25 FCC Rcd 643 (2010). Effective June 12, 2010,
operation of wireless microphones in the 700 MHz frequency band is
prohibited.
47 C.F.R. S: 74.851(g).
Section 15.205(a) allows intentional radiators to transmit only spurious
emissions in the restricted frequency bands. Section 2.1 defines spurious
emissions as "[e]mission[s] on a frequency or frequencies which are
outside the necessary bandwidth and the level of which may be reduced
without affecting the corresponding transmission of information. Spurious
emissions include harmonic emissions, parasitic emissions, intermodulation
products and frequency conversion products, but exclude out-of-band
emissions." The subject wireless microphones intentionally transmit radio
frequency energy on restricted frequencies in the 114-116 MHz and 240-280
MHz bands.
Certain wireless microphones may be certified for use as licensed low
power auxiliary stations under Part 74 of the Rules. See 47 C.F.R. S:S:
74.801, 74.851. We note, however, that these four models of wireless
microphones do not operate on frequencies allocated for low power
auxiliary stations under Part 74. See 47 C.F.R. S: 74.802. Accordingly,
these wireless microphones are not eligible for certification as Part 74
devices.
See e.g. 47 C.F.R. S:S: 15.216, 74.802(e). The Commission's Rules are
available at
http://www.access.gpo.gov/cgi-bin/cfrassemble.cgi?title=201047.
See 47 U.S.C. S: 401, 501, 503; 47 C.F.R. S: 1.80(b)(3). This amount is
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 47 U.S.C. S: 510.
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 11-1165
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Federal Communications Commission DA 11-1165