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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File No.: EB-06-SE-388
Richard Mann d/b/a
) Acct. No.: 200732100016
The Antique Radio Collector
) FRN: 0016215626
Toledo, Ohio
)
)
ORDER
Adopted: April 13, 2012 Released: April 13, 2012
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau (Bureau) of the Federal Communications
Commission (Commission) and Richard Mann d/b/a The Antique Radio
Collector (Mr. Mann). The Consent Decree settles an enforcement
proceeding regarding Mr. Mann's willful and repeated violation of
Section 302(b) of the Communications Act of 1934, as amended (Act),
and Section 2.803(a)(1) of the Commission's rules (Rules) in
connection with the marketing in the United States of uncertified AM
radio transmitters assembled from kits.
2. The Bureau and Mr. Mann have negotiated the Consent Decree that
resolves this matter. A copy of the Consent Decree is attached hereto
and incorporated herein by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and settling the enforcement proceeding.
4. In the absence of material new evidence relating to this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether Mr. Mann possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 503(b)
of the Act, and Sections 0.111 and 0.311 of the Rules, the Consent
Decree attached to this Order IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned enforcement proceeding
IS TERMINATED.
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Richard Mann d/b/a The Antique Radio Collector, 4231
Willys Parkway, Toledo, OH 43612.
FEDERAL COMMUNICATIONS COMMISSION
John D. Poutasse
Chief
Spectrum Enforcement Division
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File No.: EB-06-SE-388
Richard Mann d/b/a
) Acct. No.: 200732100016
The Antique Radio Collector
) FRN: 0016215626
Toledo, Ohio
)
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and
Richard Mann d/b/a The Antique Radio Collector, by their respective
authorized representatives, hereby enter into this Consent Decree for the
purpose of settling the Commission's enforcement proceeding regarding Mr.
Mann's willful and repeated violation of Section 302(b) of the
Communications Act of 1934, as amended, and Section 2.803(a)(1) of the
Commission's rules, in connection with the marketing in the United States
of uncertified AM radio transmitters assembled from kits.
I. DEFINITIONS
1. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C. S:
151 et seq.
b. "Adopting Order" means an order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "Application for Review" means the Application for Review of the
Reconsideration Order filed by Mr. Mann on June 2, 2008 seeking
cancellation or reduction of the forfeiture.
d. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
e. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
f. "Communications Laws" means collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to
which Mr. Mann may be subject by virtue of his business activities,
including but not limited to, the Equipment Marketing Rules.
g. "Compliance Plan" means the compliance obligations, programs, and
procedures that Mr. Mann may be required to implement pursuant to
paragraph 10.
h. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
i. "Equipment Marketing Rules" means Section 302(b) of the Act and
Section 2.803 of the Rules and other Communications Laws governing the
marketing of radio frequency devices within the United States and its
territories.
j. "Enforcement Proceeding" means the Bureau's Investigation, culminating
in the issuance of the NAL, the Forfeiture Order, and the
Reconsideration Order.
k. "Forfeiture Order" means Richard Mann d/b/a The Antique Radio
Collector, Forfeiture Order, 22 FCC Rcd 20516 (Enf. Bur., Spectrum
Enf. Div. 2007).
l. "Investigation" means the investigation commenced by the Bureau's
November 15, 2006 letter of inquiry regarding whether Mr. Mann
violated the Equipment Marketing Rules in connection with his
marketing in the United States of uncertified AM radio transmitters
that he assembled from kits.
m. "Mr. Mann" means Richard Mann d/b/a The Antique Radio Collector.
n. "Notice of Apparent Liability for Forfeiture" or "NAL" means Richard
Mann d/b/a The Antique Radio Collector, Notice of Apparent Liability
for Forfeiture, 22 FCC Rcd 4956 (Enf. Bur., Spectrum Enf. Div. 2007).
o. "Petition for Reconsideration" means the Petition for Reconsideration
of the Forfeiture Order filed by Mr. Mann on December 27, 2007 seeking
cancellation or reduction of the forfeiture.
p. "Parties" means Mr. Mann and the Bureau, each of which is a "Party".
q. "Reconsideration Order" means Richard Mann d/b/a The Antique Radio
Collector, Memorandum Opinion and Order, 23 FCC Rcd 6920 (Enf. Bur.
2008).
r. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
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." Under Section
2.803(a) of the Rules, the Commission prohibits the marketing of radio
frequency devices in the United States unless the devices are
authorized under the appropriate equipment authorization procedure and
comply with the applicable technical standards as well as the
administrative requirements relating to equipment labeling and
consumer disclosure. Under Section 15.201(b) of the Rules, intentional
radiators, such as AM transmitters, must be certified in accordance
with the procedures set forth in Sections 2.1031 through 2.1060 of the
Rules. "Kits," as defined in Section 15.3(p) of the Rules, however,
generally do not require authorization.
3. On November 15, 2006, the Bureau's Spectrum Enforcement Division
(Division) issued the letter of inquiry (LOI) to Mr. Mann in response to a
complaint alleging that Mr. Mann was assembling SSTRAN model AMT3000 AM
transmitters (AMT3000 transmitters) from kits and then marketing the
uncertified, assembled AMT3000 transmitters in the United States to end
users in violation of the Equipment Marketing Rules. Mr. Mann responded to
the LOI on November 25, 2006 (LOI Response). In his LOI Response, Mr. Mann
stated that he did not know if the Commission had ever issued a
certification authorizing a fully assembled AMT3000 transmitter. He also
stated that he had ordered un-built AMT3000 hobby kits from the
manufacturer, used his website (www.oldtimeradioprograms.com) to solicit
orders for the purchase and assembly of the AMT3000 hobby kits, and then
shipped fully assembled AMT3000 transmitters to his customers. Mr. Mann
also reported that he had shipped 46 of these assembled AMT3000
transmitters to end users in the United States.
2. On March 15, 2007, the Division issued the Notice of Apparent
Liability for Forfeiture against Mr. Mann, which proposed a forfeiture
in the amount of $7,000 for Mr. Mann's apparent marketing in the
United States of fully assembled, uncertified AMT3000 transmitters in
apparent willful and repeated violation of Section 302(b) of the Act
and Section 2.803(a)(1) of the Rules. On April 13, 2007, Mr. Mann
responded to the NAL. On November 27, 2007, the Division issued the
Forfeiture Order against Mr. Mann, which assessed a forfeiture in the
amount of $7,000 for Mr. Mann's willful and repeated violation of
Section 302(b) of the Act and Section 2.803(a)(1) of the Rules.
3. On December 27, 2007, Mr. Mann filed a Petition for Reconsideration of
the Forfeiture Order in which he sought cancellation or reduction of
the forfeiture. On April 30, 2008, the Bureau released the
Reconsideration Order, which affirmed the Forfeiture Order and denied
Mr. Mann's Petition for Reconsideration. The Reconsideration Order
also ordered Mr. Mann to file a report with the Commission confirming
that he had ceased marketing the AMT3000 "Enhanced" Transmitter Kit in
the United States. On June 2, 2008, Mr. Mann filed an Application for
Review of the Reconsideration Order. On June 3, 2008, Mr. Mann filed
the report ordered by the Reconsideration Order, stating that he had
"ceased offering the AMT3000 transmitter in any form." On December 21,
2011, the Bureau and Mr. Mann entered into a tolling agreement to toll
the applicable statute of limitations.
III. TERMS OF AGREEMENT
6. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by incorporation
of such provisions by reference in the Adopting Order.
7. Jurisdiction. Mr. Mann agrees that the Bureau has jurisdiction over him
and the matters contained in this Consent Decree and that the Bureau has
the authority to enter into and adopt this Consent Decree.
8. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the Effective Date, as defined herein. As of the
Effective Date, the Adopting Order and this Consent Decree shall have the
same force and effect as any other order of the Commission. Any violation
of the Adopting Order or of the terms of this Consent Decree shall
constitute a separate violation of a Commission order, entitling the
Commission to exercise any rights and remedies attendant to the
enforcement of a Commission order.
9. Settlement of Enforcement Proceeding. In express reliance on the
covenants and representations in this Consent Decree, and to avoid further
expenditure of public resources, the Bureau agrees to settle the
Enforcement Proceeding. In consideration for the settlement of the
Enforcement Proceeding, Mr. Mann agrees to the terms, conditions, and
procedures contained herein. The Bureau further agrees that, in the
absence of new material evidence, the Bureau will not use the facts
developed in the Enforcement Proceeding through the Effective Date, or the
existence of this Consent Decree, to institute on its own motion any new
proceeding, formal or informal, or take any action on its own motion
against Mr. Mann concerning the matters that were the subject of the
Enforcement Proceeding. The Bureau also agrees that it will not use the
facts developed in the Enforcement Proceeding through the Effective Date,
or the existence of this Consent Decree, to institute on its own motion
any new proceeding, formal or informal, or take any action on its own
motion against Mr. Mann with respect to Mr. Mann's basic qualifications,
including his character qualifications, to be a Commission licensee or
hold Commission licenses or authorizations.
10. Marketing Notification and Compliance Plan. By executing this Consent
Decree, Mr. Mann acknowledges that the marketing of radio frequency
devices assembled from kits, as defined in section 15.3(p) of the Rules,
without prior authorization is prohibited by the Equipment Marketing
Rules, and represents and warrants that he is not now marketing in the
United States any radio frequency devices, including radio frequency
devices assembled from kits, that are subject to the Equipment Marketing
Rules. Mr. Mann further agrees not to commence the marketing of any such
devices without first providing written notice to the Bureau at least six
(6) months prior to the date such marketing commences so as to permit the
Bureau and Mr. Mann to negotiate, and Mr. Mann to implement, a Compliance
Plan designed to ensure Mr. Mann's future compliance with the
Communications Laws. In the event Mr. Mann notifies the Bureau of his
intention to commence marketing in the United States any radio frequency
devices, including radio frequency devices assembled from kits, that are
subject to the Equipment Marketing Rules, Mr. Mann further agrees to
develop and implement a Compliance Plan, mutually agreed upon by the
Bureau and Mr. Mann, that is designed to ensure Mr. Mann's future
compliance with the Equipment Marketing Rules. The Compliance Plan shall
be memorialized in an amendment to this Consent Decree and shall be in
effect for a period of not more than twenty-four (24) months. Mr. Mann
further agrees that he shall not commence marketing in the United States
any radio frequency devices, including radio frequency devices assembled
from kits, that are subject to the Equipment Marketing Rules unless and
until the Compliance Plan has been implemented. Any such written notice
shall be submitted to the Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, 445 12th Street,
S.W., Room 3-C366, Washington, D.C. 20554, with a copy submitted
electronically to Nissa Laughner at Nissa.Laughner@fcc.gov and to Ricardo
Durham at Ricardo.Durham@fcc.gov. Unless stated otherwise, Mr. Mann's
obligations under this paragraph 10 shall expire twenty-four (24) months
after the Effective Date.
11. Voluntary Contribution. Mr. Mann agrees to make a voluntary
contribution to the United States Treasury in the amount of one hundred
thirty dollars ($130), which is reduced from the amount assessed in the
Forfeiture Order based on Mr. Mann's demonstrated inability to pay. The
payment must be made within thirty (30) calendar days after the Effective
Date. The payment must be made by check or similar instrument, payable to
the order of the Federal Communications Commission. The payment must
include the Account Number and FRN referenced in the caption to the
Adopting Order. 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 Account Number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type code).
Mr. Mann must also send electronic notification to Nissa Laughner at
Nissa.Laughner@fcc.gov, Ricardo Durham at Ricardo.Durham@fcc.gov and
Samantha Peoples at Sam.Peoples@fcc.gov on the date said payment is made.
12. Waivers. Mr. Mann waives any and all rights he may have to seek
administrative or judicial reconsideration, review, appeal, or stay, or to
otherwise challenge or contest the validity of this Consent Decree and the
Adopting Order, provided the Bureau issues an Adopting Order as defined
herein. Mr. Mann shall retain the right to challenge Commission
interpretation of the Consent Decree or any terms contained herein. If
either Party (or the United States on behalf of the Commission) brings a
judicial action to enforce the terms of the Adopting Order, neither Mr.
Mann nor the Commission shall contest the validity of the Consent Decree
or of the Adopting Order, and Mr. Mann shall waive any statutory right to
a trial de novo. Mr. Mann hereby agrees to waive any claims he may have
under the Equal Access to Justice Act, 5 U.S.C. S: 504 and 47 C.F.R. S:
1.1501 et seq., relating to the matters addressed in this Consent Decree.
13. Withdrawal of Pending Application for Review. Mr. Mann agrees that he
will file with the Commission a motion to withdraw his Application for
Review within five (5) calendar days after the Effective Date. The Bureau
agrees that within thirty (30) calendar days after the Effective Date, the
Bureau will issue an Order granting Mr. Mann's motion to withdraw the
Application for Review.
14. Invalidity. In the event that this Consent Decree in its entirety is
rendered invalid by any court of competent jurisdiction, it shall become
null and void and may not be used in any manner in any legal proceeding.
15. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent rule or order adopted by
the Commission (except an order specifically intended to revise the terms
of this Consent Decree to which Mr. Mann does not expressly consent), that
provision will be superseded by such rule or Commission order.
16. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties with
respect to the Enforcement Proceeding. The Parties further agree that this
Consent Decree does not constitute either an adjudication on the merits or
a factual or legal finding or determination regarding any compliance or
noncompliance with the Communications Laws.
17. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
18. Paragraph Headings. The headings of the paragraphs in this Consent
Decree are inserted for convenience only and are not intended to affect
the meaning or interpretation of this Consent Decree.
19. Authorized Representatives. Mr. Mann represents and warrants that he
is authorized to execute this Consent Decree on behalf of himself and The
Antique Radio Collector. The FCC signatory represents that he is signing
this Consent Decree in his official capacity and that he is authorized to
execute this Consent Decree.
20. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed and
delivered, shall be an original, and all of which counterparts together
shall constitute one and the same fully executed instrument.
________________________________
John D. Poutasse
Chief
Spectrum Enforcement Division
Enforcement Bureau
____________________________
Date
____________________________
Richard Mann
d/b/a The Antique Radio Collector
____________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a)(1).
47 U.S.C. S:S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a)(1).
Application for Review of Reconsideration Order, filed by Richard Mann
d/b/a The Antique Radio Collector (June 2, 2008).
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803.
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).
Section 2.801 of the Rules defines "radio frequency device" as "any device
which in its operation is capable of emitting radio-frequency energy by
radiation, conduction, or other means." 47 C.F.R. S: 2.801.
Letter from Kathryn Berthot, Chief, Spectrum Enforcement Division, FCC
Enforcement Bureau, to Richard Mann, Antique Radio Collector (Nov. 15,
2006).
Appeal of Forfeiture Order, filed by Richard Mann d/b/a The Antique Radio
Collector (Dec. 27, 2007). In the Appeal of Forfeiture Order, Mr. Mann
requested that the Commission reconsider its findings in the Forfeiture
Order based on arguments not previously presented to the Bureau in the NAL
Response. Under Section 1.115(c) of the Rules, the Commission is barred
from considering such arguments on appeal unless they have previously been
presented to the Bureau for consideration. See 47 C.F.R. S: 1.115(c)
("[n]o application for review will be granted if it relies on questions or
fact or law upon which the designated authority has been afforded no
opportunity to pass."). As such, the Bureau in the Reconsideration Order
treated Mr. Mann's Appeal of Forfeiture Order as a petition for
reconsideration rather than as an application for review so as to have the
opportunity to consider these arguments. See Richard Mann d/b/a The
Antique Radio Collector, Memorandum Opinion and Order, 23 FCC Rcd 6920,
6920 n.1 (Enf. Bur. 2008).
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a).
Id. S: 15.201(b).
Id. S:S: 2.1031-2.1060.
Id S: 15.3(p) (defining "kit" as "[a]ny number of electronic parts,
usually provided with a schematic diagram or printed circuit board, which,
when assembled in accordance with instructions, results in a device
subject to the regulations in this part, even if additional parts of any
type are required to complete assembly.").
See supra note 8.
The complaint was filed by a seller of a certified AM part 15 transmitter.
Letter from Richard Mann d/b/a The Antique Radio Collector, to Neal
McNeil, Assistant Division Chief, Spectrum Enforcement Division, FCC
Enforcement Bureau (Nov. 25, 2006).
Id. at 1.
Id.
Id.
Richard Mann d/b/a The Antique Radio Collector, Notice of Apparent
Liability for Forfeiture, 22 FCC Rcd 4956 (Enf. Bur., Spectrum Enf. Div.
2007).
Response to NAL, filed by Richard Mann d/b/a The Antique Radio Collector
(Apr. 13, 2007) (NAL Response).
Richard Mann d/b/a The Antique Radio Collector, Forfeiture Order, 22 FCC
Rcd 20516 (Enf. Bur., Spectrum Enf. Div. 2007).
See supra note 9.
Richard Mann d/b/a The Antique Radio Collector, Memorandum Opinion and
Order, 23 FCC Rcd 6920 (Enf. Bur. 2008).
Id.at 6923 P: 10.
See supra note 3.
Report to the Commission as Directed in "Memorandum Opinion and Order" and
Request for Reconsideration of the NAL, filed by Richard Mann d/b/a The
Antique Radio Collector (May 20, 2008).
Id. at 1.
Tolling Agreement, EB-06-SE-388, by and between John D. Poutasse, Acting
Chief, Spectrum Enforcement Bureau, Enforcement Bureau, Federal
Communications Commission, and Richard Mann d/b/a The Antique Radio
Collector (Dec. 21, 2011).
See supra note 6.
See supra note 7.
See supra note 14.
See supra note 23.
Federal Communications Commission DA 12-574
2
Federal Communications Commission DA 12-574
5