******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. 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 WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 ) In the Matter of ) ) Relm Communications, Inc. ) NAL Acct. No. 415HF0005 Indianapolis, Indiana ) ) Liability for Monetary Forfeiture) NOTICE OF FORFEITURE Adopted: April 22, 1997 Released: April 24, 1997 By the Chief, Compliance Division: I. INTRODUCTION 1. This is a Notice of Forfeiture issued pursuant to Section 503(b) of the Communications Act of 1934, as amended, (the Act), 47 U.S.C.  503(b), and Section 1.80 of the Commission's rules, 47 C.F.R.  1.80, to Relm Communications, Inc. (Relm), for violating Sections 2.931 and 90.209(c)(1)(iii) of the Commission's Rules, 47 C.F.R.  2.931, 90.209(c)(1)(iii), by producing equipment that failed to comply with radiated emission limits and that was not representative of the data submitted with Relm's application for type acceptance. 2. The appropriate amount of forfeiture for this violation is $1,000. . II. BACKGROUND 3. Relm manufactures a land mobile transmitter that bears the FCC type acceptance identification symbol (FCC ID:) ARUSLU250. As part of a post-grant sampling program, the Office of Engineering and Technology's laboratory (Lab) requested a sample of this transmitter. Part 90 of the Commission's Rules require that type accepted land mobile transmitters licensed under this subpart must meet limits on radiation of spurious emissions as specified in Section 90.209(c)(1)(iii). Equipment that fails to meet these technical requirements cannot be granted an equipment authorization and cannot be marketed. 4. The test sample was received on April 20, 1993, and was tested on April 21, 1993. During testing, the Lab detected an emission at 2.78 GHz that exceeded the level permitted under Section 90.209(c)(1)(iii) of the Rules. On March 25, 1994, the Compliance and Information Bureau issued a Notice of Apparent Liability for Monetary Forfeiture (NAL) to Relm for violating Sections 2.931 and 90.209(c)(1)(iii) of the Commission's Rules, 47 C.F.R.  2.931, 90.209(c)(1)(iii). The NAL assessed a forfeiture in the amount of $7,000. In response to the NAL, Relm contends that it did not willfully violate the Commission's rules, and therefore, the forfeiture should be cancelled. In the alternative, Relm contends that the violation is minor. Relm also contends that it conducted itself in good faith by providing the model for testing and by ceasing shipment of the units until the problem was corrected. Thus, Relm contends that any monetary penalty that is imposed should be greatly reduced. III. DISCUSSION 5. Initially, we note that the monetary forfeiture penalty proposed in the NAL was determined by following the forfeiture guidelines established in the Commission's Policy Statement, Standards for Assessing Forfeitures, (Policy Statement), 8 FCC Rcd 6215 (1993). On July 12, 1994, the Court of Appeals for the D.C. Circuit vacated the forfeiture guidelines. United States Telephone Assn. v. FCC, 28 F.3d 1232 (D.C. Cir. 1994). In this Notice of Forfeiture, we have redetermined the forfeiture amount based solely on the facts and circumstances of the case and the statutory guidelines set forth in Section 503(b) of the Act, 47 U.S.C.  503(b)(2)(D). In particular, Section 503(b) of the Act requires that the Commission "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 other such matters as justice may require." 47 U.S.C.  503(b)(2)(D). Thus, we find Relm's arguments to reduce the forfeiture based on the percentage amounts as outlined in the Policy Statement to be moot and we decline to consider them. We base our review of the instant case solely on the arguments and the facts in light of the factors outlined in Section 503(b) of the Act. 6. As noted above, Relm contends that it did not willfully violate any rules and, thus, the Commission should close this forfeiture proceeding. We disagree. Section 312(f)(1), which also applies to Section 503(b) of the Act, provides that the term "willful", when used with reference to the commission or omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of the Act or any rule or regulation of the Commission. See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). The Commission need not show a willful intent to violate a rule before imposing a monetary penalty. It only needs to demonstrate that the acts that resulted in the violation were not accidental or unintentional acts. The record in this case clearly establishes that Relm manufactured and marketed the device at issue and that the device, as tested by the Commission and by Relm itself, did not comply with radiated emission limits. Therefore, Relm's violation was willful. 7. Relm also contends that, if a forfeiture is imposed, it should be greatly reduced because the violation was minor. Relm maintains that the spurious emissions exceeded the limits specified by the rules by a relatively small amount that is less than the output of many unlicensed devices. Relm argues that the likelihood of disruptive interference was low because the spurious signal appeared on the unit's power wiring rather than on the antenna output connector. Relm maintains that the power wiring is customarily attached to a power supply or a twelve volt automotive battery supply through extensive filtering so that there is less likelihood of efficient radiation than there would be if the signal appeared on the antenna terminal. Relm contends that it has no knowledge of the unit actually causing interference. We concur with Relm that the violation is relatively minor and are reducing the forfeiture amount, in part, for this reason. 8. Relm further contends that the forfeiture should be reduced because it acted in good faith. Relm maintains that it had no reason to believe that units manufactured in accord with the type accepted version would subsequently not comply with the Commission's rules. Consequently, Relm did not hesitate at the Commission's request and submitted a unit. When informed that its sample did not comply with the emissions limit, Relm conducted its own testing. Relm also informed the Commission that its own test results on three units revealed some other units did not comply. Based on these tests, Relm informed the Commission that it would halt production until the problem was corrected. Thus, Relm contends that it immediately corrected the violation as soon as it was brought to its attention. It further contends that it has no prior history of violations and that both of these factors merit a reduction of the amount of the penalty. Providing a sample for testing upon request, however, is required by the Commission's rules and is expected from grantees as a matter of course. Taking prompt corrective action upon receipt of notification of a deficiency does not justify cancellation of a penalty. Nevertheless, we concur with Relm's contention that it has no prior history of violations. Therefore, we are further reducing the forfeiture amount in part for this reason. Thus, in light of all the facts in this case, we are imposing a monetary forfeiture of $1,000. IV. ORDERING CLAUSES 9. Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the Act, 47 U.S.C.  503(b), and Section 1.80(f) of the Commission's Rules, 47 C.F.R.  1.80(f), that Relm Communications, Inc., IS LIABLE FOR A MONETARY FORFEITURE in the amount of one thousand dollars ($1,000) for marketing unauthorized equipment in violation of Section 302(b) of the Act and Sections 2.931 and 90.209(c)(1)(iii) of the Commission's Rules. 47 C.F.R.  2.931, 90.209(c)(1)(iii). The amount specified was determined after consideration of the factors set forth in Section 503(b) of the Act. 10. IT IS FURTHER ORDERED, pursuant to Section 1.80(f)(3) of the Commission's Rules, 47 C.F.R.  1.80(f)(3), that Relm Communications, Inc. shall, within thirty (30) days of the release date of this Order, pay the full amount of the forfeiture or file a petition for reconsideration or application for review pursuant to 1.106 and 1.115 of the Commission's rules, respectively. 47 C.F.R.  1.115 and 1.106. Forfeitures shall be paid by check, credit card, or money order payable to the Federal Communications Commission. The NAL/Acct. No. 415HF0005 should be written on your check or money order. Mail the payment to the following address: Federal Communications Commission P. O. Box 73482 Chicago, IL 60673-7482 Petitions for Reconsideration should be mailed to: Compliance Division, CIB Mail Stop 1500E3/LRL FCC 1919 M Street, N.W. Washington, D.C. 20554 attn: 415HF0005 Forfeiture penalties not paid within 30 days of the release date of this Order may be referred to the U.S. Attorney for recovery in a civil suit. 47 U.S.C.  504(a). 15. IT IS FURTHER ORDERED that this notice shall be sent by certified mail, return receipt requested, to Relm Communications, Inc., and a copy to its attorney. FEDERAL COMMUNICATIONS COMMISSION Magalie R. Salas Chief, Compliance Division Compliance and Information Bureau CC: Relm Communications, Inc. Attn: John W. Englert 7707 Records Street Indianapolis, IN 46226 John McVeigh, Esq. Fisher, Wayland, Cooper, Leader and Zaragoza L.L.P. 2001 Pennsylvania Avenue, Suite 400 Washington, DC 20006-1851 BCC: Chief, Sampling and Measurements Branch, OET Chief, Billings and Collections Branch, FMD Typed 5/26/94 LRL Edits 6/2/94 LRL Retyped 9/10/96 LRL Edits 9/12/96 LRL Edits 10/18/96 LRL Edits 2/24/97 LRL Edits 4/16/97 DMH