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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-11-AT-0007
)
US Jetting, Inc. NAL/Acct. No.: 201232480001
)
Alpharetta, Georgia FRN: 0020688966
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: January 20, 2012 Released: January 20, 2012
By the District Director, Atlanta Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find US Jetting, Inc. (US Jetting) apparently liable for a
forfeiture in the amount of eight thousand four hundred dollars
($8,400) for its apparent willful and repeated violation of Section
302(b) of the Communications Act of 1934, as amended (Act), and
Sections 2.803(a)(1) and 15.201(b) of the Commission's rules (Rules).
The noted apparent violations involve US Jetting's marketing of radio
frequency devices in the United States prior to obtaining Commission
authorization for such devices. Further, we order US Jetting to submit
a statement signed under penalty of perjury by an officer or director
of the company stating that it is no longer marketing unauthorized
radio frequency devices in the United States.
II. BACKGROUND
2. On January 25, 2011, agents from the Enforcement Bureau's Atlanta
Office (Atlanta Office), accompanied by US Jetting's President,
inspected US Jetting's store in Alpharetta, Georgia in response to a
complaint. The agents observed that US Jetting was marketing in the
United States an intentional radiator with a US Jetting label but no
FCC equipment authorization label. Specifically, US Jetting was
marketing a wireless handheld remote controller for its high-pressure
water jetting equipment. US Jetting's President admitted that: (a) the
company assembled the device; (b) the device was not certified; and
(c) the company had sold the device to end users. The agents verbally
warned him that he was prohibited from selling the remaining inventory
of the device. According to Commission records, the agents confirmed
that the radiator, a wireless handheld remote controller for US
Jetting's high-pressure water jetting equipment, had not been
certified by the Commission.
3. On March 10, 2011, the Atlanta Office issued a letter of inquiry (LOI)
to US Jetting. The LOI directed US Jetting to respond to a series of
questions regarding its apparent marketing of an intentional radiator
prior to obtaining FCC authorization for the device. US Jetting
responded to the LOI, admitting that it began manufacturing the
wireless handheld remote controller in its Alpharetta facility in June
2010, after the previous manufacturer discontinued manufacturing the
device. US Jetting also stated that it discontinued manufacturing the
device in February 2011. US Jetting admitted that it marketed about 75
units of the device between 2009 and 2011 and that they were mostly
sold to consumers of the US Jetting water jetting equipment.
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 Devices Without the Required Commission Authorization
5. Pursuant to Section 302(b) of the Act, "[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 15.201(b)
of the Rules requires intentional radiators operating above 490 kHz,
to be certificated by the Commission. For a device subject to
certification, 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...in the case of a device subject to certification, such device has
been authorized by the Commission...and is properly identified and
labeled....
6. On January 25, 2011, agents from the Atlanta Office observed US
Jetting offering for sale a wireless handheld remote controller in its
Alpharetta store. The device is an intentional radiator that emits RF
energy on the frequency 315 MHz and thus must be certified by the
Commission. US Jetting admitted that it began manufacturing the
wireless handheld remote controller device in June 2010 and that it
offered for sale and sold the device for a period of two years,
lasting from 2009 until 2011. At the time of the inspection, US
Jetting had not received an equipment authorization from the
Commission for this device or any wireless handheld remote
controllers. Based on the evidence before us, we find that US Jetting
apparently willfully and repeatedly violated Section 302(b) of the Act
and Sections 2.803(a)(1) and 15.201(b) of the Rules by marketing and
selling unauthorized radio frequency devices.
A. Proposed Forfeiture
7. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for the importation or
marketing of unauthorized equipment is seven thousand dollars
($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. Because
US Jetting marketed and sold unauthorized radio frequency devices for
a period of two years, we conclude an upward adjustment in forfeiture
in the amount of $1,400 is appropriate. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the instant
case, we conclude that US Jetting is apparently liable for a $8,400
forfeiture for marketing one model of an unauthorized radio frequency
device in the United States.
8. We order US Jetting to submit a written statement pursuant to Section
1.16 of the Rules signed under penalty of perjury by an officer or
director of the company stating that it is no longer marketing the
unauthorized wireless handheld controller and describing the
disposition of the remaining inventory of the device. This statement
must be provided to the Enforcement Bureau at the address listed in
paragraph 13 within thirty (30) calendar days of the release date of
this NAL.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, US Jetting, Inc. is
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of eight thousand four hundred dollars ($8,400) for violation
of Section 302(b) of the Act and Sections 2.803(a)(1) and 15.201(b) of
the Commission's rules.
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture and Order, US
Jetting, Inc. SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
11. IT IS FURTHER ORDERED that US Jetting, Inc. SHALL SUBMIT a written
statement under penalty of perjury as described in paragraph 8 to the
Enforcement Bureau Office listed in paragraph 13 within thirty (30)
calendar days of the release date of this Notice of Apparent Liability
for Forfeiture and Order.
12. 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. 20554.8 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. US Jetting shall send
electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
13. 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. The written statement must
be mailed to Federal Communications Commission, Enforcement Bureau,
South Central Region, Atlanta Office, 3575 Koger Blvd; Suite 320,
Duluth, GA 30096, and must include the NAL/Acct. No. referenced in the
caption. The statement should also be emailed to SCR-Response@fcc.gov.
14. 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.
15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and regular mail, to US Jetting, Inc. at 850
McFarland Pkwy, Alpharetta, GA 30004.
FEDERAL COMMUNICATIONS COMMISSION
Douglas Miller
District Director
Atlanta Office
South Central Region
Enforcement Bureau
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803(a)(1), 15.201(b).
See 47 C.F.R. S: 2.803(e)(4) (defining marketing as including "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").
See 47 C.F.R. S: 15.3 (defining "intentional radiator" as a "device that
intentionally generates and emits radio frequency energy by radiation or
induction").
See Letter from Douglas Miller, District Director, Atlanta Office, to Nick
Woodhead, President, US Jetting, Inc., dated March 10, 2011.
Id.
See Letter from Nick Woodhead, President, US Jetting, Inc., to Douglas
Miller, District Director, Atlanta Office, dated April 26, 2011 at 1-2
(LOI Response).
Id.
LOI Response at 3.
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 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10 (2001) (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."
47 U.S.C. S: 302a(b).
47 C.F.R. S: 15.201(b). Certification "is an equipment authorization
issued by the Commission, based on representations and test data submitted
by the applicant." 47 C.F.R. S: 2.907.
47 C.F.R. S: 2.803(a)(1).
47 C.F.R. S: 15.201(b).
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 47 C.F.R. S: 1.80. See also SmartLabs, Inc., Notice of Apparent
Liability for Forfeiture, 26 FCC Rcd 7780 (Enf.. Bur. 2011) (establishing
base forfeiture amount of $7,000 for marketing one model of an
unauthorized device).
47 C.F.R. S: 1.16.
47 U.S.C. S:S: 302a(b), 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80, 2.803(a)(1), 15.201(b).
8 See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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(continued....)
Federal Communications Commission DA 12-63
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Federal Communications Commission DA 12-63