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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File No.: EB-07-SE-132
Leetek America, Inc., a subsidiary )
of NAL/Acct. No.: 200832100072
)
Lee Technology Korea, Co., Ltd. FRN: 0017761271
)
)
MEMORANDUM OPINION AND ORDER
Adopted: November 2, 2012 Released: November 2, 2012
By the Chief, Enforcement Bureau:
I. introduction
1. In this Memorandum Opinion and Order, we have before us a Petition for
Reconsideration filed by Leetek America, Inc. (Leetek) in response to
a Forfeiture Order issued by the Spectrum Enforcement Division
(Division) of the Enforcement Bureau. The Forfeiture Order held Leetek
liable for a forfeiture in the amount of $7,000 for willful and
repeated violation of Section 302(b) of the Communications Act of
1934, as amended (Act), and Section 2.803(a) of the Commission's rules
(Rules), based on Leetek's marketing of an unauthorized pager
transmitter system. For the reasons set forth below, we deny Leetek's
Petition for Reconsideration.
II. background
2. 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) of the Rules prohibits the sale or lease, offer for sale or
lease (including advertising for sale or lease), distribution for the
purpose of selling or leasing (or offering for sale or lease),
importation, or shipment, of radio frequency devices, such as pager
transmitter systems unless, in the case of a device subject to
certification, the device has first been properly authorized,
identified, and labeled in accordance with the Rules.
3. In April 2007, the Division received a complaint alleging that a pager
transmitter system marketed by Leetek in the United States was causing
interference to licensed operators. On November 5, 2007, Division
staff observed that Leetek was advertising for sale on its website
pager transmitter systems, including models LTK-1400S and LTK-1700CT,
without Commission authorization. The Division subsequently issued a
letter of inquiry to Leetek, directing Leetek to submit a sworn
response to a series of questions relating to its marketing of pager
transmitter systems in the United States. In its LOI Response, Leetek
admitted that it imported three units of the LTK-1700CT pager
transmitter system on September 22, 2007 and that the Commission
authorization for the device was not issued until January 3, 2008.
Leetek asserted, however, that it imported the three units of the
LTK-1700CT for "display in office and test market[ing]" purposes only.
Leetek also stated that LTK, its parent company, "never produced" the
LTK-1400S pager transmitter system.
4. On August 25, 2008, the Division released a Notice of Apparent
Liability for Forfeiture to Leetek in the amount of $14,000. In the
NAL, the Division found that Leetek apparently violated Section 302(b)
of the Act and Section 2.803(a) of the Rules by marketing two models
of pager transmitter systems, the LTK-1700CT and the LTK-1400S,
without prior Commission authorization. Leetek responded to the NAL on
September 2, 2008. In its NAL Response, Leetek repeated the argument,
initially made in its LOI Response, that it imported three units of
the LTK-1700CT solely for the purpose of design review and performance
testing. Leetek also clarified its LOI Response with respect to the
LTK-1400S pager transmitter system. Specifically, Leetek asserted that
it never produced or marketed a pager transmitter system denominated
"LTK-1400S," and that its third party website provider mistyped
"LTK-1400S" as the model number for Leetek's authorized LTK-1400A
pager transmitter system.
5. On September 25, 2012, the Division released the Forfeiture Order,
imposing a forfeiture in the amount of $7,000 for Leetek's marketing
of the LTK-1700CT pager transmitter system without Commission
authority. Based on additional information provided by Leetek in its
NAL Response, the Division concluded that the device mistakenly
marketed on Leetek's website under model number "LTK-1400S" was
properly authorized and declined to impose a forfeiture as to that
model. On September 27, 2012, Leetek filed a Petition for
Reconsideration of the Forfeiture Order. In its Petition for
Reconsideration, Leetek repeats arguments previously raised with
respect to its marketing of the LTK-1700CT pager transmitter system.
Leetek also argues for the first time that the LTK-1700CT was
incorrectly listed on the company's website by its third party website
provider, and that Leetek and its parent company, LTK, have a history
of compliance with the Rules that warrants reconsideration of the
forfeiture.
III. Discussion
6. Under Section 1.106(c)(1) of the Rules, a petition for reconsideration
that relies on facts or arguments not previously presented to the
designated authority may be granted only if (1) the facts or arguments
relate to events that occurred or circumstances that had changed since
the last opportunity to present such matters; or (2) the facts or
arguments were unknown to the petitioner, and could not have been
known by the petitioner with the exercise of ordinary diligence, until
after the petitioner's last opportunity to present such matters.
Section 1.106(c)(2) of the Rules also permits grant of a petition for
reconsideration that raises new facts or arguments if the designated
authority determines that consideration of the new information is
required in the public interest.
7. In its Petition for Reconsideration, Leetek argues for the first time
that the forfeiture should be reconsidered because the LTK-1700CT was
mistakenly listed on its website prior to authorization as a result of
a misunderstanding with its third party website provider. However,
Leetek fails to demonstrate, as required by Section 1.106(c)(1) of the
Rules, that this new argument relates to changed circumstances or
previously unknown facts. Indeed, in its NAL Response, Leetek made
nearly identical claims about the other model at issue, but failed to
mention the alleged communication mistake regarding model LTK-1700CT.
As such, the new argument is fatally untimely. Even if Leetek had made
this argument at an earlier stage in the proceeding, we disagree that
such an error would warrant either a reduction or cancellation of the
forfeiture. In contrast to the mistyping of "LTK-1400S" for the
authorized model LTK-1400A, in this instance it is undisputed that
Leetek advertised the uncertified LTK-1700CT on its website in
violation of Section 2.803(a) of the Rules. It is well established
Commission precedent that violators are held responsible and
accountable for their agents' acts or omissions.
8. Leetek also seeks reconsideration of the forfeiture based on its claim
that both Leetek and LTK have a history of compliance with the Rules.
In this regard, we note that Leetek's violation of the Rules commenced
shortly after its formation as the United States subsidiary of LTK and
its entry into the U.S. marketplace. We therefore find that Leetek
does not have a history of compliance and decline to reduce the
forfeiture on this basis.
9. Leetek's final argument, that it imported three units of the
LTK-1700CT solely for "design and function review," is merely
reiterative of an argument that it previously raised and that the
Division fully considered and properly rejected in the Forfeiture
Order. We therefore uphold the Division's finding that Leetek
willfully and repeatedly violated Section 302(b) of the Act and
Section 2.803(a) of the Rules and decline to further reduce the
forfeiture amount.
IV. ORDERING Clauses
10. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 405 of
the Communications Act of 1934, as amended, and Sections 0.111, 0.311, and
1.106 of the Commission's rules, the Petition for Reconsideration filed by
Leetek America, Inc. is hereby DENIED and the Forfeiture Order IS
AFFIRMED.
11. IT IS FURTHER ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and 1.80
of the Commission's rules, Leetek America, Inc. IS LIABLE FOR A MONETARY
FORFEITURE in the amount of seven thousand hundred dollars ($7,000) for
willful and repeated violation of Section 302(b) of the Communications Act
of 1934, as amended, and Section 2.803(a) of the Commission's rules. This
matter has been referred to the U.S. Department of Justice for enforcement
of the forfeiture pursuant to Section 504(a) of the Communications Act of
1934, as amended.
12. IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and Order
shall be sent by first class mail and certified mail return receipt
requested to Sungsoo Lee, Chief Executive Officer, Leetek America, Inc.,
530 Highland Station Drive, Suite 2004, Suwanee, GA 30024.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Petition for Reconsideration, filed by Leetek America, Inc. (Sept. 27,
2012) (on file in EB-07-SE-132) (Petition for Reconsideration).
Leetek America, Inc. is the United States subsidiary of Lee Technology
Korea, Co. Ltd. (LTK), which manufactures pager transmitter systems for
sale in the United States.
See Leetek America, Inc., File No. EB-07-SE-132, Order of Forfeiture, DA
12-1531, 2012 WL 4458698 (Enf. Bur. Sept. 25, 2012) (Forfeiture Order).
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a).
A pager transmitter system is a system licensed under Part 90 of the Rules
for low power, secondary use, including paging, in the frequency range
450-470 MHz. See id. S:S: 90.35, 90.261, 90.267.
47 U.S.C. S: 302a(b).
A radio frequency device is "any device which in its operation is capable
of emitting radiofrequency energy by radiation, conduction, or other
means." 47 C.F.R. S: 2.801.
See id. S: 2.803(a). Pager transmitter systems are intentional radiators
that must be certified by the Commission prior to marketing. See id. S:
15.201(b). An intentional radiator is a "device that intentionally
generates and emits radio frequency energy by radiation or induction." Id.
S: 15.3(o).
We note that the pager transmitter system that formed the basis of the
complaint had been taken out of service by March 31, 2007. Thus, any
violation of the Rules occurred outside the applicable statute of
limitations.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
FCC Enforcement Bureau, to Sungsoo Lee, Chief Executive Officer, Leetek
America, Inc. (Jan. 25, 2008) (on file in EB-07-SE-132) (LOI).
See See Letter from Sungsoo Lee, Chief Executive Officer, Leetek America,
Inc., to Kathryn S. Berthot, Chief, Spectrum Enforcement Division, FCC
Enforcement Bureau (Jan. 30, 2008) (on file in EB-07-SE-132) (LOI
Response) at 2-3.
Id. at 2.
Id. at 3.
See Leetek America, Inc., Notice of Apparent Liability for Forfeiture, 23
FCC Rcd 12737 (Enf. Bur. 2008) (NAL).
See id. at 12739-40, para. 8.
See Letter from Sungsoo Lee, Chief Executive Officer, Leetek America,
Inc., to Kathryn S. Berthot, Chief, Spectrum Enforcement Division, FCC
Enforcement Bureau (Sept. 2, 2008) (on file in EB-07-SE-132) (NAL
Response). As part of its NAL Response, Leetek provided a copy of its 2007
tax return purportedly to demonstrate that at the time of its submission,
Leetek as an entity was not "fully organized." See id. at 2.
See id.
See NAL Response at 2.
See Forfeiture Order, 2012 WL 4458698.
See id. at *2.
See Petition for Reconsideration at 2-3.
47 C.F.R. S: 1.106(c)(1).
Id. S: 1.106(c)(2).
See Petition for Reconsideration at 2.
See 47 C.F.R. S: 1.106(c)(1).
In this regard, we note that by advertising the LTK-1700CT for sale on its
website, Leetek could no longer qualify for either of the potentially
applicable import conditions in Section 2.1204 (a) of the Rules. See 47
C.F.R. S: 2.1204(a).
See, e.g., Eure Family Ltd. P'ship, 17 FCC Rcd 21861 (2002) (finding that
it is the antenna structure owner's primary responsibility to comply with
tower lighting requirements, and denying the claim that the forfeiture
should be cancelled because its lessee/contractor did not monitor, or
notify it regarding, outages).
See Petition for Reconsideration at 2-3.
See NAL, 23 FCC Rcd at 12738, paras. 3-4.
See Petition for Reconsideration at 2.
See Amendment of Certain of the Commission's Part 1 Rules of Practice and
Procedure and Part 0 Rules of Commission Organization, Report and Order,
26 FCC Rcd 1594, 1606, para. 27 (2011) (delegating to the relevant
bureaus or offices the authority to dismiss or deny petitions for
reconsideration of staff level decisions that are procedurally defective
or that merely repeat arguments that have been previously considered and
rejected). See also, e.g., EZ Sacramento, Inc., Memorandum Opinion and
Order, 15 FCC Rcd 18257, 18257, para. 2 (Enf. Bur. 2000) (in denying a
petition for reconsideration of related forfeiture orders, the Bureau
emphasized that "[a] petition [for reconsideration] that simply reiterates
arguments previously considered and rejected will be denied.") (citing
WWIZ, Inc., Memorandum Opinion and Order, 37 FCC 685, 686, para. 2 (1964),
aff'd sub nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965)).
In the Forfeiture Order, the Division correctly concluded that Leetek's
marketing of the uncertified LTK-1700CT does not fall within any of the
exceptions set forth in Section 2.803(c) or (d) of the Rules. See
Forfeiture Order, 2012 WL 4458698, at *2, para. 6; see also 47 C.F.R. S:
2.803(c), (d).
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. 47 U.S.C. S: 312(f)(1). The legislative history of
Section 312 clarifies that this definition of willful applies to Sections
312 and 503 of the Act, H.R. Rep. No. 97-765 (1982) (Conf. Rep.), and the
Commission has so interpreted the term in the Section 503(b) context, see
So. Cal. Broad. Co., Memorandum Opinion and Order, 6 FCC Rcd 4387,
4387-88, para. 5 (1991), recon. denied, 7 FCC Rcd 3454 (1992) (Southern
California).
Section 312(f)(2) of the Act, which also applies to forfeitures assessed
pursuant to Section 503(b) of the Act, defines "repeated" as "the
commission or omission of [any] 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 also Southern California, 6 FCC Rcd at 4388, para. 5.
47 U.S.C. S: 302a(b); 47 C.F.R. S: 2.803(a).
47 U.S.C. S:S: 154(i), 405; 47 C.F.R. S:S: 0.111, 0.311, 1.106.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80.
47 U.S.C. S: 302a(b); 47 C.F.R. S: 2.803(a).
47 U.S.C. S: 504(a).
(Continued from previous page . . . )
(continued . . . )
Federal Communications Commission DA 12-1768
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Federal Communications Commission DA 12-1768