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Vitec Group Communications Limited, Cambridge, United Kingdom

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Released: December 4, 2009

Federal Communications Commission

FCC 09-106

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
Vitec Group Communications Limited
)
File No. EB-05-SE-172
Cambridge, United Kingdom
)
NAL/Acct. No. 200632100009
)
FRN 0012947594
)

ORDER ON REVIEW

Adopted: December 3, 2009

Released: December 4, 2009

By the Commission:

I. INTRODUCTION

1.
In this Order on Review, we deny the Application for Review1 filed by Vitec Group
Communications Limited (“Vitec”). Vitec seeks review of a Memorandum Opinion and Order issued by
the Enforcement Bureau (“Bureau”) on April 20, 2007.2 In that Memorandum Opinion and Order, the
Bureau denied Vitec’s Petition for Reconsideration3 of a monetary forfeiture in the amount of eleven
thousand two hundred dollars ($11,200) for willful and repeated violation of Section 302(b) of the
Communications Act of 1934, as amended (“Act”),4 and Section 2.803(a)(1) of the Commission’s Rules
(“Rules”).5 The noted violations involve Vitec’s marketing of unauthorized radio frequency devices in
the United States.

II. BACKGROUND

2.
In May 2005, the Bureau received a complaint alleging that Clear-Com Communication
Systems6 was marketing unapproved radiofrequency devices in the United States in violation of Section
302(b) of the Act and Section 2.803(a) of the Rules. Specifically, the complaint indicated that Vitec
advertised an unapproved digital wireless intercom system called the “CellCom Digital Wireless
Intercom”7 in the April 2005 issue of Broadcast Engineering and also displayed it at the 2005 National


1 Application for Review filed on April 20, 2007, by Christopher D. Imlay, counsel for Vitec Group Communications
Limited (“Application for Review”).
2 Vitec Group Communications Limited, Memorandum Opinion and Order, 22 FCC Rcd 7396 (Enf. Bur. 2007).
3 Petition for Reconsideration filed on November 29, 2007, by Christopher D. Imlay, counsel for Vitec Group
Communications Limited (“Petition for Reconsderation”)
4 47 U.S.C. § 302a(b).
5 47 C.F.R. § 2.803(a)(1).
6 Clear-Com Communications Systems is a trade name that Vitec, a British company, uses in the United States. In
this Order on Review, we refer to the company as Vitec throughout.
7 Vitec subsequently identified this device as the “CellCom 10” digital wireless intercom system. Letter from
Christopher D. Imlay, Esq. to Kathryn S. Berthot and Thomas D. Fitz-Gibbon, Spectrum Enforcement Division,
Enforcement Bureau (December 6, 2005) at 2.

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FCC 09-106

Association of Broadcasters (“NAB”) trade show in Las Vegas, NV. Digital wireless intercom systems,
such as the CellCom 10, are classified as intentional radiators8 and are required by Section 15.201 of the
Rules9 to be approved prior to marketing through the equipment certification10 procedures described in
Sections 2.1031 – 2.1060 of the Rules.11
3.
The Bureau’s Spectrum Enforcement Division (“Division”) subsequently investigated
Vitec’s marketing activities. As part of the investigation, the Division obtained a copy of the April 2005
issue of Broadcast Engineering and confirmed that it contains an advertisement for the CellCom 10. The
advertisement describes the CellCom 10 as “revolutionary” and exhorts readers to “join the revolution.”
Section 2.803(c) of the Rules12 allows the advertising or display of radio frequency devices prior to
equipment authorization only if the following disclaimer notice is provided:
This device has not been authorized as required by the rules of the Federal Communications
Commission. This device is not, and may not be, offered for sale or lease, or sold or leased, until
authorization is obtained.
The Broadcast Engineering advertisement did not contain this notice.
4.
The Division further determined through Internet research that the website
www.clearcom.com contained photographs of Vitec’s display of the CellCom 10 at the 2005 NAB trade
show, which took place on April 16-21, 2005. The disclaimer notice specified by Section 2.803(c) of the
Rules also was not visible in those photographs.
5.
The Division sent Vitec a letter of inquiry (“LOI”)13 on October 24, 2005. Vitec
submitted responses both directly14 and through its counsel.15 In its direct response, Vitec stated that it
obtained equipment certifications16 covering its digital wireless intercom system on November 2, 2005,
and that it did not sell or distribute the product in the United States prior to the grant of the
certifications.17 Vitec acknowledged, however, that “the advertising in Broadcast Engineering and


8 An intentional radiator is “[a] device that intentionally generates and emits radio frequency energy by radiation or
induction.” 47 C.F.R. § 15.3 (o).
9 47 C.F.R. § 15.201.
10 A certification is an equipment authorization issued by the Commission, based on representations and test data
submitted by the applicant. See 47 C.F.R. § 2.907(a).
11 47 C.F.R. §§ 2.1031 – 2.1060.
12 47 C.F.R. § 2.803(c).
13 Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement Division, Enforcement Bureau, to Clear-
Com Communications Systems (October 24, 2005).
14 Letter from Chris Exelby, Managing Director, Vitec Group Communications, to Thomas D. Fitz-Gibbon,
Spectrum Enforcement Division, Enforcement Bureau (November 25, 2005) (“November 25, 2005 LOI Response”).
15 Letter from Christopher D. Imlay, Esq., to Kathryn S. Berthot and Thomas D. Fitz-Gibbon, Spectrum
Enforcement Division, Enforcement Bureau (December 6, 2005) (“December 6, 2005 LOI Response”).
16 The Commission’s equipment authorization data base indicates that, on November 2, 2005, Vitec was granted
equipment certifications under FCC ID # S3O-CEL-BP (portable two-way radios) and FCC ID # S3O-CEL-TA
(base station) for the Vitec CellCom 10 Digital Wireless Intercom.
17 November 25, 2005 LOI Response at 1.
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FCC 09-106

display at NAB did take place as you note during April 2005, the object being to market this product prior
to launch.”18 In the subsequent response submitted through its counsel, Vitec denied any violation of the
Act or the Rules.19 The Division directed a second LOI to Vitec on February 13, 2006.20 In its response
to that letter, Vitec stated that it manufactures its CellCom 10 digital wireless intercom system in England
and imports it into the United States.21 Vitec asserted that it did not “market or sell” the system in the
United States prior to its receipt of the equipment certifications on November 2, 2005.22
6.
On April 14, 2006, the Division issued a Notice of Apparent Liability for Forfeiture
(“NAL”) to Vitec in the amount of fourteen thousand dollars ($14,000) for apparent willful and repeated
violation of Section 302(b) of the Act and Sections 2.803(a)(1) of the Rules.23 In its NAL response, Vitec
argued that the proposed forfeiture should be cancelled because its pre-certification advertising and
display of the Cellcom 10 digital wireless intercom system did not violate Section 302(b) of the Act or
Section 2.803(a)(1) of the Rules, and that, if there was a basis for a monetary forfeiture, the amount
proposed by the NAL was excessive.24 Vitec provided a statement indicating that it furnished the required
disclaimer notice at the 2005 NAB convention. Based on this statement, the Division found that the
display of the CellCom 10 at the NAB convention did not violate Section 302(b) of the Act and Section
2.803(a)(1) of the Rules. The Division, however, did find that the advertisement of the Cellcom 10 in
Broadcast Engineering magazine without a disclaimer notice violated Section 302(b) of the Act and
Section 2.803(a)(1) of the Rules.25 The Division also concluded that Vitec had a history of overall
compliance which warranted reduction of the forfeiture amount from $14,000 to $11,200, but rejected
Vitec’s other arguments for reduction of forfeiture amount.26 In its Petition for Reconsideration, Vitec
reiterated arguments originally made in its NAL response.27 The Bureau again rejected those arguments
in its Memorandum Opinion and Order.28
7.
In its Application for Review, Vitec again argues that its pre-certification advertising did
not violate the Section 302(b) of the Act or Section 2.803(a)(1) of the Rules, that the one-year statute of


18 Id.
19 December 6, 2005, LOI Response at 2.
20 Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement Division, Enforcement Bureau, to
Christopher D. Imlay, Esq. (February 13, 2006).
21 Letter from Christopher D. Imlay, Esq., to Kathryn S. Berthot and Thomas D. Fitz-Gibbon, Spectrum
Enforcement Division, Enforcement Bureau (March 2, 2006) at 3.
22 Id. at 3.
23 Vitec Group Communications, Ltd., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 4025 (Enf. Bur.,
Spectrum Enf. Div., 2006).
24 Letter from Christopher D. Imlay, Esq. to Chief, Spectrum Enforcement Division, Enforcement Bureau (May 18,
2006) (“NAL Response”) at 5-12.
25 Vitec Group Communications Limited, Forfeiture Order, 21 FCC Rcd 12871, 12890 (Enf. Bur., Spectrum Enf.
Div. 2006)
26 Id. at 12891-92.
27 Petition for Reconsideration at 6-12.
28
Vitec Group Communications Limited, Memorandum Opinion and Order, 22 FCC Rcd 7396 , 7399-7401(Enf.
Bur. 2007).
3

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FCC 09-106

limitations bars imposition of a forfeiture, and that, even if there is a basis for a monetary forfeiture, the
$11,200 forfeiture amount assessed by the Bureau is excessive.29

III.

DISCUSSION

8.
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)(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 device30
unless … [i]n the case of a device that is subject to certification, such device has been
authorized by the Commission in accordance with the rules in this chapter and is properly
identified and labeled as required by § 2.925 and other relevant sections in this chapter
[emphasis added].
9.
Vitec claims that it did not admit “that any advertising or marketing of [the Cellcom 10]
was included in the Broadcast Engineering entry.”31 Vitec did, in fact, make such an admission when it
stated that “The CellCom 10 has been advertised in, at least, Broadcast Engineering Magazine.”32 Vitec
does not deny that the device depicted in the Broadcast Engineering advertisement is the Cellcom 10.
We, therefore, find that Vitec advertised the CellCom 10 in the April 2005 issue of Broadcast
Engineering
prior to the grant of an equipment authorization.33 Vitec, however, contends, as it did in its
NAL response and its Petition for Reconsideration, that it was not required to include the disclaimer
notice specified by Section 2.803(c) of the Rules in the Broadcast Engineering advertisement because the
Broadcast Engineering advertisement did not offer or advertise the CellCom 10 for “sale or lease.”34
Specifically, Vitec argues that the advertisement did not “suggest or state that any particular device was
for sale or lease,” that the purpose the advertisement was to “to exhort readers to visit the booth [at the
NAB convention], not to buy any particular product …”35 and that the CellCom 10 was not actually
available for sale at the time of the advertisement.36 We disagree with Vitec’s claim that its advertisement
did not exhort the reader to buy any particular product. To the contrary, the advertisement described the
CellCom 10 as “revolutionary” and exhorted readers to “join the revolution.” Its clear intent was to
generate future sales of the CellCom 10. We also concur with the Bureau’s finding that the lack of
availability of the CellCom 10 at the time of the pre-certification advertising is not material.37


29 Application for Review at 2-3, 7-13.
30 47 C.F.R. § 2.801 defines a radiofrequency device as “any device which in it its operation is capable of emitting
radiofrequency energy by radiation, conduction, or other means.”
31 Application for Review at 8.
32 December 6, 2005 LOI Response at 3.
33 NAL Response at 6-7, Exhibit A.
34 NAL Response at 6-7; Petition for Reconsideration at 6-8; Application for Review at 8-10.
35Application for Review at 9.
36 NAL Response at 7; Petition for Reconsideration at 7; Application for Review at 8-9.
37 See ACR Electronics, Inc., Notice of Apparent Liability for Forfeiture, 19 FCC Rcd 22293 (2004) (proposing a
4

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Furthermore, we agree with the Bureau that Vitec’s construction of the Commission’s marketing
regulations to permit “pre-marketing a product that is anticipated to be available in the future”38 would
largely eviscerate the prohibition against pre-certification advertising without a disclaimer and likely lead
to widespread abuse of the marketing regulations. We will not construe the rules to allow such “pre-
marketing” of unauthorized devices without the disclaimer required by Section 2.803(c). We, accordingly
reject Vitec’s argument and find that Vitec marketed the CellCom 10 prior to certification without the
required disclaimer notice. We therefore affirm the Bureau’s determination that Vitec willfully39 and
repeatedly40 violated Section 302(b) of the Act and Section 2.803(a)(1) of the Rules.
10.
Vitec also argues that the one year statute of limitations of Section 503(b)(6)(B) of the
Act41 bars imposition of a forfeiture on the basis of Vitec’s Broadcast Engineering advertisement.42 In its
response to the NAL, Vitec claimed that the statute of limitations expired before the issuance of the NAL
because the Broadcast Engineering issue in which Vitec’s advertisement appeared, April 2005, was
distributed to subscribers during March 2005, which is more than one year before the April 14, 2006,
issuance of the NAL.43 The Division rejected that argument.44 Vitec contended in its petition for
reconsideration that the violation, if any, occurred only “on the first day of publication of that issue of
Broadcast Engineering magazine” during March 200545 -- another argument rejected by the Bureau.46
Vitec again argues that the violation, if any, was a “one day event.”47 We disagree with Vitec’s
interpretation and affirm the Bureau’s finding. The April issue of Broadcast Engineering was current





$75,000 forfeiture for pre-certification advertising of a device that was not yet available for sale without the
requisite disclaimer), forfeiture ordered, 21 FCC Rcd 3698 (2006) (forfeiture paid) (“ACR Electronics”).
38 Petition for Reconsideration at 8.
39 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies to violations for which forfeitures are assessed
under Section 503(b) of the Act, provides that “[t]he term ‘willful,’ … means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate any provision of this Act or any rule or
regulation of the Commission authorized by this Act ….” See Southern California Broadcasting Co.,
Meomorandum Opinion and Order, 6 FCC Rcd 4387 (1991).
40 Section 312(f)(2) of the Act provides that “[t]he term ‘repeated,’ … 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. §
312(f)(2).
41 Section 503(b)(6)(B) of the Act provides that
No forfeiture penalty shall be determined or imposed against any person under this subsection if
such person does not hold a broadcast station license issued under subchapter III of this chapter
and if the violation charged occurred more than 1 year prior to the date of issuance of the required
notice or notice of apparent liability.
47 U.S.C. § 503(b)(6)(B).
42 Application for Review at 11-12.
43 NAL Response at 6.
44 21 FCC Rcd at 12890.
45 Petition for Reconsideration at 12.
46 22 FCC Rcd at 7400.
47 Application for Review at 11.
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until the end of that month and, therefore, Vitec’s violation continued at least through the end of April
2005, and, therefore, the NAL was issued within the one-year statute of limitations period.
11.
Additionally, Vitec argues that, if there is a basis for a monetary forfeiture, the $14,000
base forfeiture amount calculated by the Bureau is excessive and, therefore, the $11,200 forfeiture amount
is also excessive.48 The base forfeiture amount for marketing unauthorized equipment is $7,000.49 The
Division found that the CellCom 10 included two types of uncertified devices that were eventually
authorized under separate equipment authorizations – base stations and mobile transmitters – whose
marketing constituted separate offenses and, thus, found that the aggregate base forfeiture amount is
$14,000.50 Vitec argues, as it did in its Petition for Reconsideration, that the CellCom 10 is a single
device.51 Specifically Vitec states that “The CellCom 10 is one device, incorporating two components ….
The components are not sold separately. They do not work separately. The belt packs and base station
constitute a single system.”52
12.
We find that Vitec’s designation and marketing of the CellCom 10’s base and mobile
transmitters as a single model is not dispositive. While it is true that the CellCom 10 functions only if its
users have both the base and mobile transmitters, it does not follow that the base and mobile transmitters
can be sold only as a package. For example, both base and mobile transmitters can be sold separately as
replacements, while mobile transmitters can be sold separately to expand the number of mobile
transmitters.53 We conclude that Vitec’s marketing strategy does not change the essential nature of the
CellCom 10 base and mobile transmitters as separate and distinct devices. We, accordingly, affirm the
Bureau’s determinations that the CellCom 10 includes two distinct kinds of devices, that $14,000 is the
correct base forfeiture amount, and that $11,200 is the proper forfeiture amount, as adjusted to reflect
Vitec’s history of overall compliance.
13.
We have examined Vitec’s Application for Review pursuant to the statutory factors
prescribed by Section 503(b)(2)(D) of the Act and Section 1.80 of the Rules, and in conjunction with the
Forfeiture Policy Statement. We find that neither cancellation nor reduction of the forfeiture is warranted
and that the Memorandum Opinion and Order should be affirmed.

IV. ORDERING CLAUSES

14.
Accordingly,

IT IS ORDERED

that, pursuant to Section 1.115 of the Rules,54 Vitec’s
Application for Review of the Bureau’s April 20, 2007, Memorandum Opinion and Order

IS DENIED

and the Memorandum Opinion and Order

IS AFFIRMED

.
15.
Payment of the forfeiture must be made by check or similar instrument, payable to the
order of the Federal Communications Commission. The payment must include the NAL/Account


48 Application for Review at 12.
49 See 47 C.F.R. § 1.80(b)(4), Note to Paragraph (b)(4): Section I. Base Amounts for Section 503 Forfeitures.
50 21 FCC Rcd at 12891.
51 Petition for Reconsideration at 9; Application for Review at 12.
52 Application for Review at 12.
53 Because the devices have separate equipment authorizations, FCC ID S3O-CEL-BP and FCC ID S3O-CEL-TA,
they are authorized to be marketed separately.
54 47 C.F.R. § 1.115.
6

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FCC 09-106

Number and FRN Number 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. Please contact the Financial Operations Group Help Desk at 1-877-480-3201
or Email: ARINQUIRIES@fcc.gov with any questions regarding payment procedures. Vitec will also
send electronic notification on the date said payment is made to Thomas.Fitz-Gibbon@fcc.gov.
16.

IT IS FURTHER ORDERED

that a copy of this Order On Review shall be sent by first
class mail and certified mail return receipt requested to Vitec Group Communications Limited, 4065
Hollis Street, Emeryville, CA 94608, and to its attorney, Christopher D. Imlay, Esq., Booth, Freret, Imlay
& Tepper, P.C., 14356 Cape May Road, Silver Spring, MD 20904-6011.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
7

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