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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-10-LA-0130
)
Custom Interface Technologies NAL/Acct. No.:
) 201232900002
A Division of Thornstar Corporation
) FRN: 0019067206
Joshua Tree, California
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: November 16, 2011 Released: November 17, 2011
By the District Director, Los Angeles District Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Custom Interface Technologies, a Division of Thornstar
Corporation ("CIT"), in Joshua Tree, California, willfully and
repeatedly violated section 302(b) of the Communications Act of 1934,
as amended ("Act"), and sections 2.803(a)(1) and 74.851(f) of the
Commission's rules ("Rules") by manufacturing and marketing
unauthorized radio frequency devices. We conclude that CIT is
apparently liable for a forfeiture in the amount of fourteen thousand
dollars ($14,000).
II. BACKGROUND
2. In May and June, 2010, the Enforcement Bureau's Los Angeles Office
("Los Angeles Office") investigated allegations that uncertified video
assist transmitters were being sold and rented by various entities in
the Los Angeles area. The Los Angeles Office determined that three
film and video supply companies were marketing uncertified video
assist transmitters, models Modulus 3000 and Modulus 5000, which were
manufactured by CIT. On November 18, 2010, the Los Angeles Office
issued citations to the Companies. The Companies responded, with each
stating that it acquired the uncertified Modulus devices from CIT. On
November 26, 2010, a Los Angeles Office agent found that the Modulus
3000 and 5000 video assist transmitters were offered for sale on CIT's
website.
3. On March 2, 2011, the Los Angeles Office issued a Letter of Inquiry to
CIT. On May 5, 2011, in response to the LOI, CIT stated that it did
manufacture the Modulus video assist transmitter in two versions, the
3000 and the 5000, and that it "did not have any certifications or
authorizations with regard to the Modulus transmitter, as it was
manufactured for export only." CIT acknowledged that it received
notice from the Commission in 1996 concerning its marketing of the
Modulus 2000 video assist transmitter and the requirement that such
transmitters be certified prior to being marketed in the United
States. CIT further stated that it discontinued manufacture of the
Modulus models in 2010 and that it currently has no inventory of the
transmitters.
III. DISCUSSION
4. Section 503(b) of the Act, provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation, or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. Section 312(f)(1) of the Act defines willful as the
"conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate" the law. The legislative
history to section 312(f)(1) of the Act clarifies that this definition
of willful applies to both section 312 and 503(b) of the Act and the
Commission has so interpreted the term in the section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. The term "repeated" means the
commission or omission of such act more than once or for more than one
day.
A. Marketing of Uncertified Devices
5. 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 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 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.
As video assist transmitters, the Modulus 3000 and 5000 models are
required by section 74.851(f) of the Rules to be approved through the
equipment certification procedures described in Part 2 of the Rules prior
to marketing in the U.S.
6. CIT acknowledges that it manufactured the Modulus 3000 and 5000 video
assist transmitters and that it never obtained Commission
certifications or authorizations for the transmitters. Visits to the
CIT website by a Los Angeles agent revealed that CIT marketed these
transmitters for sale from at least May 28, 2010, through November 26,
2010 in the U.S. Although CIT claims it manufactured the Modulus
transmitters for export only, all three of the Los Angeles Companies
that received citations for marketing the Modulus 3000 and 5000
transmitters were referenced on the CIT website and all three stated
that they obtained the transmitters directly from CIT. Based on the
evidence before us, we find that CIT apparently willfully and
repeatedly violated section 302(b) of the Act and sections 2.803(a)(1)
and 74.851(f) of the Rules by manufacturing and marketing unauthorized
radio frequency devices, specifically, two models of the Modulus video
assist transmitters, in the United States.
B. Proposed Forfeiture
7. Pursuant to the Commission's Forfeiture Policy Statement and section
1.80 of the Rules, the base forfeiture amount for marketing of
unauthorized equipment is $7,000. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in section 503(b)(2)(E) of the Act, which include
the nature, circumstances, extent, and gravity of the violations, and
with respect to the violator, the degree of culpability, any history
of prior offenses, ability to pay, and other such matters as justice
may require. Applying the Forfeiture Policy Statement, section 1.80 of
the Rules, and the statutory factors to the instant case, we conclude
that CIT is apparently liable for a total forfeiture of $14,000 for
marketing two models of unauthorized video assist transmitters
manufactured by CIT, model Modulus 3000 and model Modulus 5000, in
violation of section 302(b) of the Act and sections 2.803(a)(1) and
74.851(f) of the Rules.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.204(b),
0.311, 0.314 and 1.80 of the Commission's rules, Custom Interface
Technologies, a Division of Thornstar Corporation, is hereby NOTIFIED
of this APPARENT LIABILITY FOR A FORFEITURE in the amount of fourteen
thousand dollars ($14,000) for marketing two models of uncertified
wireless video assist transmitters in willful and repeated violations
of section 302(b) of the Act and sections 2.803(a)(1) and 74.851(f) of
the Rules.
9. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the
Commission's rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Custom Interface
Technologies, a Division of Thornstar Corporation, SHALL PAY the full
amount of the proposed forfeiture, per paragraph 10, below, or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture, per paragraphs 11 and 12.
10. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the Account Number and FRN
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. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. Custom Interface
Technologies, a Division of Thornstar Corporation, shall also send
electronic notification on the date said payment is made to
WR-Response@fcc.gov.
11. 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. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Western
Region, Los Angeles District Office, 18000 Studebaker Rd., Suite 660,
Cerritos, CA 90703 and include the NAL/Acct. No. referenced in the
caption. Custom Interface Technologies, a Division of Thornstar
Corporation, also shall email the written response to
WR-Response@fcc.gov.
12. 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 ("GAAP"); 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.
13. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and regular mail, to Custom Interface Technologies, a
Division of Thornstar Corporation, at P.O. Box 1364, Joshua Tree, CA
92252.
FEDERAL COMMUNICATIONS COMMISSION
Nader Haghighat
District Director
Los Angeles District Office
Western Region
Enforcement Bureau
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803(a)(1), 74.851(f).
Video assist transmitters are authorized under Part 74, Subpart H of the
Commission's rules for use by television and motion picture producers,
transmitting on VHF and UHF television channels on a non-interference
basis. 47 C.F.R S: 74.870. This type of device is used as an aide in
composing camera shots on motion picture and television sets. 47 C.F.R S:
74.801. All such transmitters marketed for use in this service are
required to be certificated pursuant to Part 2 of the Commission's
regulations. 47 C.F.R S:S: 74.851(f), 2.803(a)(1).
The three companies were South Bay Film and Video Services, Abel Cine
Tech, and Wolf Seeberg Video ("Companies").
See South Bay Film and Video Services, Citation, 25 FCC Rcd 15989 (Enf.
Bur., Los Angeles Office 2010); Abel Cine Tech, Citation, 25 FCC Rcd 15985
(Enf Bur., Los Angeles Office 2010); Wolf Seeberg Video, Citation, 25 FCC
Rcd 15981 (Enf. Bur. Los Angeles Office 2010) (collectively, "Citations").
See Letter from Jonathan L. Kramer, Attorney for South Bay Film and Video
Services, to Nader Haghighat, District Director, Los Angeles Office,
Western Region, Enforcement Bureau, dated December 8, 2010 ("South Bay
Film and Video Service Citation Response"); Letter from Jonathan L.
Kramer, Attorney for Wolf Seeberg Video, to Nader Haghighat, District
Director, Los Angeles Office, Western Region, Enforcement Bureau, dated
December 15, 2010 ("Wolf Seeberg Video Citation Response"); See Letter
from Peter Abel, Chief Executive Officer, Abel Cine Tech, to Nader
Haghighat, District Director, Los Angeles Office, Western Region,
Enforcement Bureau, dated December 6, 2010 ("Abel Cine Tech Citation
Response").
See South Bay Film and Video Service Citation Response at 1; Wolf Seeberg
Video Citation Response at 1; Abel Cine Tech Citation Response at 1.
The website contained advertising, sales and contact information as well
as dealer contacts. See http:/:www.custominterface.com (last visited
November 26, 2010). The Los Angeles agent had previously visited the site
on May 28, 2010, and found the same information. See
http://www.custominterface.com (visited May 28, 2010).
See Letter of Inquiry from Nader Haghighat, District Director, Los
Angeles Office, Western Region, Enforcement Bureau, to Custom Interface
Technologies, dated March 2, 2011 ("LOI").
See Letter from Philip Spinelli, Custom Interface Technologies, to Nader
Haghighat, District Director, Los Angeles Office, Western Region,
Enforcement Bureau, dated May 5, 2011 ("LOI Response").
LOI Response at 1.
LOI Response at 1, Attachment 2.
LOI Response at 2.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the Act
(e.g., section 503).... As defined ... `willful' means that the licensee
knew that he was doing the act in question, regardless of whether there
was an intent to violate the law. `Repeated' means more than once, or
where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
sections 312 and 503, and are consistent with the Commission's application
of those terms ...").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recon. denied,
7 FCC Rcd 3454.,
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10 (2001) ("Callais
Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under section 503(b) of
the Act, provides that "[t]he term `repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day." See Callais Cablevision, Inc., 16 FCC Rcd at 1362.
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a)(1).
47 C.F.R. S:S: 74.801 - 74.882; see supra note 3.
47 C.F.R. S: 74.851(f).
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.
LOI Response at 1 - 2.
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."
Pursuant to section 2.807(b) of the Rules, the section 2.803 requirements
do not apply to radio frequency devices manufactured solely for export. 47
C.F.R. S: 2.807(b). See also 47 U.S.C. S: 302a(c). This exemption,
however, applies only to devices that the manufacturer actually exports.
See Inter Tech FM, Notice of Apparent Liability for Forfeiture, 24 FCC Rcd
9020 (Enf. Bur. 2009) (unauthorized FM broadcast transmitters and external
RF power amplifiers marketed for sale in U.S. were not covered by section
2.807(b) exemption despite claim that the devices were marketed for
"export only"); Gibson Tech Ed Inc., Memorandum Opinion and Order, 21 FCC
Rcd 9642 (Enf. Bur. 2006) (exception for sale of broadcast transmitters is
available to manufacturer of transmitters only if manufacturer in fact
exports the devices).
South Bay Film and Video Service Citation Response at 1 (stating that it
purchased the subject wireless video assist devices from CIT); Wolf
Seeberg Video Citation Response at 1 (stating that it purchased the
Modulus Models 3000 and 5000 wireless video assist devices from CIT); Abel
Cine Tech Citation Response at 1 (stating that it acquired the Modulus
devices from CIT to sell only to buyers or renters outside the United
States).
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
See Jason Kaltenbach D/B/A Metamerchant, Laguna Nigel, California, 22 FCC
Rcd 2087 (Enf. Bur. 2007) (assessing a $7,000 forfeiture for each of two
models of uncertified devices to the marketer of the devices).
47 U.S.C. S: 503(b), 302a(b); 47 C.F.R. S:S: 0.111, 0.204(b), 0.311,
0.314, 1.80, 2.803(a)(1), 74.851(f).
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 11-1911
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Federal Communications Commission DA 11-1911