Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-07-SE-206
In the Matter of
) NAL/Acct. No.: 200932100072
LawMate Technology Co., Ltd.
) FRN: 0017134156
)
forfeiture ORDER
Adopted: December 6, 2012 Released: December 6, 2012
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Forfeiture Order, we issue a monetary forfeiture in the amount
of fourteen thousand dollars ($14,000) to LawMate Technology Co., Ltd.
(LawMate) for its willful and repeated violations of Section 302(b) of
the Communications Act of 1934, as amended (Act), and Section 2.803(a)
of the Commission's rules (Rules). The noted violations involve the
marketing of unauthorized radio frequency devices for more than two
years.
II. BACKGROUND
2. On July 15, 2009, the Enforcement Bureau's Spectrum Enforcement
Division (Division) released a Notice of Apparent Liability for Forfeiture
to LawMate in the amount of $14,000 for its apparent willful and repeated
violations of Section 302(b) of the Act and Section 2.803(a) of the Rules
by marketing uncertified radio frequency devices in the United States. In
the NAL, the Division found that LawMate manufactured and marketed two
models of wireless video transmitters (model numbers TD-2418CK and
TD-1218CK) in the United States before obtaining FCC certifications for
the models. The finding was based on LawMate's admission in response to a
Division letter of inquiry that it sold the uncertified wireless video
transmitters to customers in the United States within the one-year period
prior to the issuance of the NAL.
1. LawMate responded to the NAL on November 14, 2009. In its NAL
Response, LawMate declares that it "is willing to pay [a] penalty
charge" for its violations of Section 302(b) of the Act and Section
2.803(a) of the Rules, but requests cancellation or reduction of the
proposed forfeiture amount based on certain remedial efforts that
LawMate states it intends to implement, its claimed financial
hardship, and its assertion of a history of compliance with the Rules.
III. Discussion
2. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and the
Commission's Forfeiture Policy Statement. In assessing forfeitures,
Section 503(b)(2)(E) of the Act requires that we take into account the
"nature, circumstances, extent, and gravity of the violation and, with
respect to the violator, the degree of culpability, any history of
prior offenses, ability to pay, and such other matters as justice may
require." As discussed below, we have considered LawMate's NAL
Response in light of these statutory factors and find no basis for
reduction or cancellation of the proposed forfeiture.
3. 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 wireless
video transmitters, 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.
4. In its NAL Response, LawMate seeks cancellation or reduction of the
proposed forfeiture amount based on its stated intention to undertake
certain remedial measures to ensure future compliance with the Rules.
Although we have adjusted forfeitures downward when a licensee makes
voluntary disclosures to Commission staff and takes corrective
measures after discovering its violations but prior to any Commission
inquiry or initiation of enforcement action, we have not reduced
forfeitures based on a licensee's remedial conduct after the
initiation of an investigation. The Commission has long held that
corrective action taken to come into compliance with the Rules is
expected, and such corrective action does not nullify or mitigate
prior violations or associated forfeiture liability. LawMate's
intention to take steps to ensure future compliance, while laudable,
does not negate its willful and repeated violations of the Rules.
Accordingly, we decline to reduce the forfeiture on this basis.
5. LawMate also seeks reduction of the forfeiture based on its claim that
payment of the forfeiture would place "undue stress on [its] financial
situation." Any claim of inability to pay must specifically identify
the basis for the claim by reference to the financial documentation
submitted. Further, in general, an individual's or entity's "gross
revenues are the best indicator of its ability to pay a forfeiture."
LawMate, however, has not provided any financial or other
documentation to support or corroborate its asserted financial status.
Accordingly, we decline to reduce the forfeiture based on LawMate's
unsupported claim of financial hardship.
6. Finally, LawMate asserts that the Division should cancel or reduce the
proposed forfeiture based on LawMate's claim that it has not
previously violated our Rules. We disagree. When evaluating a
petitioner's compliance history, we take into account both concurrent
and prior violations, including violations occurring outside the
statute of limitations, as well as the duration of each such
violation. During the course of the Division's investigation into this
matter, LawMate admitted to marketing in the United States a total of
four uncertified wireless video transmitter models; the marketing of
each uncertified model in the United States is a separate, continuing
violation. Moreover, LawMate reported that it had imported into the
United States units of one of these models-TD-2405CK-from 2005 to
2006, and units of two of these models-TD-2418CK and TD-1218CK-from
2006 to 2008. Based on the number and duration of these violations, we
find that LawMate does not have a history of compliance with the
Rules, and decline to reduce the proposed forfeiture.
7. Having considered LawMate's response to the NAL in light of the
applicable statutory factors, our Rules and the Forfeiture Policy
Statement, we find that LawMate willfully and repeatedly violated
Section 302(b) of the Act and Section 2.803(a) of the Rules in
connection with its marketing of the uncertified TD-2418CK and
TD-1218CK wireless video transmitters, and is therefore liable for a
forfeiture in the amount of $14,000.
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, 0.311, and
1.80 of the Commission's rules, LawMate Technology Co., Ltd. IS LIABLE
FOR A MONETARY FORFEITURE in the amount of fourteen thousand dollars
($14,000) for willful and repeated violations of Section 302(b) of the
Communications Act of 1934, as amended and Section 2.803(a) of the
Commission's rules.
9. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Commission's rules within thirty (30) calendar
days after the release date of this Forfeiture Order. If the
forfeiture is not paid within the period specified, the case may be
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. LawMate Technology Co., Ltd. shall send electronic
notification of payment to Nissa Laughner at Nissa.Laughner@fcc.gov,
Daudeline Meme at Daudeline.Meme@fcc.gov, and to Samantha Peoples at
Sam.Peoples@fcc.gov on the date said payment is made.
12. The payment must be made by check or similar instrument, wire
transfer, or credit card, and must include the NAL/Account number and FRN
referenced above. Regardless of the form of payment, a completed FCC Form
159 (Remittance Advice) must be submitted. When completing the FCC Form
159, enter the Account Number in block number 23A (call sign/other ID) and
enter the letters "FORF" in block number 24A (payment type code). Below
are additional instructions you should follow based on the form of payment
you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
13. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer - Financial Operations, Federal
Communications Commission, 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 by phone, 1-877-480-3201,
or by e-mail, ARINQUIRIES@fcc.gov.
14. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by first class mail and FedEx Express to Sabar Yang, General Manager,
LawMate Technology Co., Ltd., 3F1, No. 34, Lane 60, Wen-Hu St., Nei-Hu
District, Taipei 114, Taiwan, R.O.C.
FEDERAL COMMUNICATIONS COMMISSION
John D. Poutasse
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a).
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." Id. S: 2.803(e)(4).
See LawMate Tech. Co., Ltd., Notice of Apparent Liability for Forfeiture,
24 FCC Rcd 9120 (Enf. Bur. 2009) (NAL).
See id. at 9121, para 5.
See Letter from Sabar Yang, General Manager, LawMate Technology Co., Ltd.,
to Kathryn S. Berthot, Chief, Spectrum Enforcement Division, FCC
Enforcement Bureau at Attachment (Oct. 1, 2008) (on file in EB-07-SE-206)
(LOI Response). In its LOI Response, LawMate admitted to marketing in the
United States a total of four uncertified wireless video transmitter
models, two of which were marketed more than one year prior to the
issuance of the NAL. See id. Because Section 503(b)(6)(B) of the Act, 47
U.S.C. S: 503(b)(6)(B), precluded the Division from imposing forfeiture
liability against LawMate for violations occurring more than one year
prior to the date the NAL was issued, the Division only proposed
forfeitures for the two models marketed in the prior year. See NAL, 24 FCC
Rcd at 2121, 2123, paras. 5, 9.
See Letter from Sabar Yang, General Manager, LawMate Technology Co., Ltd.,
to Kathryn S. Berthot, Chief, Spectrum Enforcement Division, FCC
Enforcement Bureau (Nov. 14, 2009) (on file in EB-07-SE-206) (NAL
Response). The Division sent the NAL to LawMate by first class mail and
certified mail. Because the copy of the NAL sent by certified mail was
returned unclaimed, the Division resent the NAL to LawMate on October 20,
2009, via overnight mail and facsimile, and the Division afforded LawMate
additional time to respond to the NAL. See Letter from Kathryn S. Berthot,
Chief, Spectrum Enforcement Division, FCC Enforcement Bureau, to Sabar
Yang, General Manager, LawMate Technology Co., Ltd. (Oct. 20, 2009) (on
file in EB-07-SE-206).
NAL Response at 1.
See id. at 1-2. LawMate also argues that the forfeiture amount should be
reduced to reflect only one violation because Section 302(b) of the Act
and Section 2.803(a) of the Rules prohibit similar conduct. See id. at 2.
Consistent with the findings of the NAL, however, the Bureau calculated
the number of violations at issue based on the number of noncompliant
models marketed, imposing a separate base forfeiture for each of two
models. See, e.g., San Jose Navigation, Inc., Notice of Apparent Liability
for Forfeiture, 21 FCC Rcd 2873, 2877, para. 14 (2006) (finding that the
marketing of each model is a separate and continuing violation warranting
assessment of a separate base forfeiture), forfeiture ordered, Forfeiture
Order, 22 FCC Rcd 1040 (2007), consent decree ordered, Order and Consent
Decree, 25 FCC Rcd 1494 (2010).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
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), recon. denied, Memorandum Opinion and Order, 15
FCC Rcd 303 (1999) (Forfeiture Policy Statement).
47 U.S.C. S: 503(b)(2)(E).
Id. 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). Wireless video transmitters are intentional radiators
that must be certified by the Commission prior to marketing. See id. S:
15.201. An intentional radiator is "[a] device that intentionally
generates and emits radio frequency energy by radiation or induction." Id.
S: 15.3(o).
See NAL Response at 1. Specifically, LawMate describes several remedial
measures it plans to implement, including discontinuing production of the
uncertified models, posting a notice on its commercial website indicating
that the models may not be marketed in the United States, and advising
distributors to cease marketing the models in the United States. See id.
In addition, LawMate avers that it is "currently executing" a compliance
audit on all products exported to the United States. See id. at 2.
See, e.g., Sutro Corp., Memorandum Opinion and Order, 19 FCC Rcd 15274,
15277, para. 10 (2004) (stating that the Commission will generally reduce
the assessed forfeiture "based on the good faith corrective efforts of a
violator when those corrective efforts were taken prior to Commission
notification of the violation").
See, e.g., Behringer USA, Inc., Forfeiture Order, 22 FCC Rcd 10451, 10459,
para. 19 (2007) (forfeiture paid).
See id. ("[T]he Commission has repeatedly found that corrective measures
implemented after [the] Commission has initiated an investigation or taken
enforcement action do not nullify or mitigate past violations.").
NAL Response at 2. LawMate requests that the Division reduce the
forfeiture from $14,000 to $7,000, alleging that the costs associated with
its intended remedial efforts, the loss of future revenue from the sale of
the uncertified models in the United States, and the payment of the
forfeiture would place "undue stress on [its] financial situation." Id.
As stated previously in the NAL, the Commission will not consider 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." See NAL, 24 FCC Rcd at 9124, para.
14.
PJB Commc'ns of Va., Inc., Memorandum Opinion and Order, 7 FCC Rcd 2088,
2089, para. 8 (1992).
See, e.g., Bureau D'Electronique Appliquee, Inc., Forfeiture Order, 20 FCC
Rcd 17893, 17899-900, para. 19 (Enf. Bur. 2005) (denying inability to pay
claim because company failed to provide supporting financial
documentation).
See NAL Response at 2.
See, e.g., Paulino Bernal Evangelism, Memorandum Opinion and Order, 21 FCC
Rcd 9532, 9536, para. 12 (Enf. Bur. 2006) (in determining whether a
licensee has a history of overall compliance, offenses need not be "prior"
to be considered), review granted in part, denied in part, Order on
Review, 23 FCC Rcd 15959 (2008).
Although Section 503(b)(6)(B) of the Act prohibits the Commission from
proposing forfeitures for violations occurring more than one year prior to
issuance of the NAL, it does not preclude the Commission from taking into
account the underlying facts of these violations when determining relative
culpability for violations occurring within the statute of limitations.
See, e.g., Globcom, Inc., Notice of Apparent Liability for Forfeiture and
Order, 18 FCC Rcd 19893, 19903, para. 23 (2003) (taking into account
violations occurring outside the statute of limitations when determining
the appropriate forfeiture amount for violations occurring within the
statutory period), forfeiture ordered, Order of Forfeiture, 21 FCC Rcd
4710 (2006).
We note that in several cases, not only have we declined to reduce for
history of compliance but have upwardly adjusted the base forfeiture
amount based, in part, on the duration of the violations. See, e.g., Power
7 Tech. Corp., Notice of Apparent Liability for Forfeiture, 24 FCC Rcd
1660, 1663-64, para. 12 (Enf. Bur. 2009) (upwardly adjusting the base
forfeiture amount for marketing unauthorized equipment from $7,000 to
$25,000 based on a one-year duration and the "substantial number" of units
sold in the United States) (forfeiture paid).
See LOI Response at 1.
See id. at Attachment. In this regard, we note that the definition of
marketing in Section 2.803(e)(4) of the Rules includes "importation . . .
for the purpose of selling or leasing or offering for sale or lease." See
supra note 3.
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: 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).
See 47 C.F.R. S: 1.80.
47 U.S.C. S: 504(a).
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
(Continued from previous page . . . )
(continued . . . )
Federal Communications Commission DA 12-1960
2
Federal Communications Commission DA 12-1960