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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
IKUSI-Angel Iglesias, S.A. ) File No. EB-03-SE-
214
) NAL/Acct. No.:
200432100014
) FRN: 0011383791
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: August 13, 2004 Released: August
17, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find IKUSI-Angel Iglesias, S.A.
(``IKUSI'') apparently liable for a forfeiture in the amount
of seven thousand dollars ($7,000) for importing and
marketing in the United States non-compliant equipment in
willful and repeated violation of Section 302(b)1 of the
Communications Act of 1934, as amended (``Act''), and
Sections 2.803(a)(1)2 and 15.231(a)3 of the Commission's
Rules (``Rules'').
II. BACKGROUND
2. The Office of Engineering and Technology referred
to the Enforcement Bureau a complaint alleging that IKUSI's
Remote Crane Transmitter (``RCT Model TM60''),4 a radio
frequency device designed for the remote control of cranes
and hoists, fails to comply with Section 15.231(a) of the
Rules, which requires a manually operated transmitter to
employ a switch that will automatically cease transmission
within five seconds or less.5 According to the complainant,
the Model TM60 operates in a ``maintained or continuous
mode'' rather than ceasing after five seconds when manually
activated.
3. On January 22, 2004, the Office of Engineering and
Technology Laboratory (``OET Lab'') tested the RCT Model
TM60, a manually operated transmitter, and confirmed that
the unit failed to satisfy the timing requirement of Section
15.231(a). The OET Lab determined that the IKUSI
transmitter not only failed to cease transmission before the
five second requirement, but continued transmitting
approximately 234 seconds beyond the required stop time. On
March 29, 2004, the Spectrum Enforcement Division of the
Enforcement Bureau issued a letter of inquiry (``LOI'') to
IKUSI, seeking information and documents concerning the
compliance of the RCT Model TM60 with the periodic operation
limits set forth in Section 15.231 of the Rules.6
4. IKUSI submitted a response to the LOI on April 26,
2004.7 In its Response, IKUSI does not dispute that the RCT
Model TM60 fails to comply with the Commission's periodic
operation timing requirement for the 5-second transmission
limit set forth in Section 15.231(a).8 Indeed, IKUSI admits
that the TM60 is programmed for a 240-second time-out
duration, as stated in the TM60 manuals.9 Nevertheless,
IKUSI contends that it ``proceeded on the basis of its good
faith belief'' that the TM60 met all applicable Commission
rules, based on representations from the National
Certification Laboratory (``NCL''), an independent testing
facility that prepared IKUSI's equipment certification
application.10 IKUSI asserts that, while it was preparing
its Response to the LOI, it ``became aware for the first
time'' that NCL made ``apparently inaccurate statements'' in
documents it submitted to the American Telecommunications
Certification Body, Inc. (``ATCB''), which processed the
Model TM60 authorization application.11 Nevertheless, IKUSI
argues that it had ``no reason to believe that it needed to
review the equipment authorization file after grant of the
certification in order to verify that NCL had provided it
with all relevant documents.''12
5. IKUSI maintains that if it had been informed by
NCL or ATCB that the Model TM60 needed to comply with the
five-second transmission limitation, it would have modified
the device, requested a waiver of the rule, or abandoned its
certification application. 13 IKUSI states that when it was
notified that the Model TM60 ``may not comply'' with
Commission Rules, it ceased the shipment of the device into
the United States.14 IKUSI also submits that it is
currently in the process of preparing a new RCT model for
equipment certification and sale in the United States.
Finally, IKUSI contends that it is unaware of any reports of
harmful interference caused by the TM60's ``limited periods
of continuous operation.''15
III. DISCUSSION
6. Section 302(b) of the Act provides that no 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 Commission regulations.
Section 2.803(a)(1) of the Rules prohibits the importation
and marketing, including the offering for sale, displaying
and advertising, of radio frequency devices that have not
received Commission authorization.
7. Section 15.231 of the Rules establishes periodic
operation limits for radio frequency devices, which operate
``in the band 40.66 - 40.70 MHz and above 70 MHz.'' Section
15.231(a) specifically requires a manually operated
transmitter to employ a switch that ``will automatically
deactivate the transmitter within not more than 5 seconds of
being released.''
8. In the instant case, IKUSI admits that the RCT
Model TM60 fails to comply with the periodic operation
limits set forth in Section 15.231 of the Rules.16
Accordingly, IKUSI apparently willfully17 and repeatedly18
violated Section 302(b) of the Act and Sections 2.803(a) and
15.231 of the Rules by importing and marketing the non-
compliant Model TM60 device in the United States.
9. While IKUSI asserts that it relied in good faith
on the work of the test facility that tested the Model TM60
and prepared its certification application, IKUSI is
nevertheless responsible and accountable for the acts or
omissions of its agents, contractors, and/or employees.19
Nor does the absence of reports of harmful interference
caused by the Model TM60's non-compliance mitigate the
failure of the device to comply with Commission Rules.20
Further, while we commend IKUSI's commitment to comply with
the Commission's rules in the future, such post-remedial
measure does not lessen, mitigate, or excuse IKUSI's
violations. 21 Indeed, corrective action taken to come into
compliance with Commission Rules is expected. 22
10. Section 1.80(b) of the Rules sets a base
forfeiture amount of seven thousand dollars ($7,000) for
importing and marketing non-compliant equipment. The
Commission's Forfeiture Policy Statement also specifies that
the base forfeiture amounts shall be adjusted based upon
consideration of the factors enumerated in Section
503(b)(2)(D) of the Act, such as ``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.''23 In this case, IKUSI
imported and marketed its RCT Model TM60, which does not
comply with the timing requirements set forth in Section
15.231(a). We therefore find it appropriate and consistent
with precedent to propose a base forfeiture of $7,000 for
importing and marketing non-compliant equipment.24
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,25 and Sections 0.111, 0.311 and
1.80(f)(4) of the Rules,26 IKUSI, Inc. IS hereby NOTIFIED of
its APPARENT LIABILITY FOR FORFEITURE in the amount of seven
thousand dollars ($7,000) for willfully and repeatedly
violating Section 302(b) of the Act and Sections 2.803(a)(1)
and 15.231(a) of the Rules.
12. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty (30) days of the release
date of this Notice of Apparent Liability for Forfeiture,
IKUSI, Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
13. 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/Acct. No. and FCC Registration Number (FRN) referenced
above. Payment by check or money order may be mailed to the
Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O.Box 73482, Chicago, IL 60673-
7482. Payment by overnight mail may be sent to Bank One/LB
73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL
60661. Payment by wire transfer may be made to ABA Number
071000013, receiving bank ``Bank One,'' account number
1165259.
14. The response, if any, must be mailed to the Office
of the Secretary, Federal Communications Commission, 445
12th Street, S.W., Washington, D.C. 20554, ATTN:
Enforcement Bureau - Spectrum Enforcement Division, and must
include the NAL/Acct. No. referenced in the caption.
15. 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; 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.
16. Requests for payment of the full amount of this
NAL under an installment plan should be sent to: Chief,
Revenue and Receivable Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.27
17. Under the Small Business Paperwork Relief Act of
2002, Pub. L. No. 107-198, 116 Stat. 729 (June 28, 2002),
the FCC is engaged in a two-year tracking process regarding
the size of entities involved in forfeitures. If you
qualify as a small entity and if you wish to be treated as a
small entity for tracking purposes, please so certify to us
within thirty (30) days of release of this NAL, either in
your response to the NAL or in a separate filing to be sent
to the Enforcement Bureau - Spectrum Enforcement Division.
Your certification should indicate whether you, including
your parent entity and its subsidiaries, meet one of the
definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (``OCBO'')
set forth in Attachment A of this NAL. This information
will be used for tracking purposes only. Your response or
failure to respond to this question will have no effect on
your rights and responsibilities pursuant to Section 503(b)
of the Act. If you have questions regarding any of the
information contained in Attachment A, please contact OCBO
at (202) 418-0990.
18. IT IS FURTHER ORDERED that a copy of this Notice
of Apparent Liability for Forfeiture shall be sent by first
class mail and certified mail return receipt requested, to
Mr. Miguel Portillo, Director, TLC Division, IKUSI-Angel
Iglesias, S.A., Poligono Industrial 27, N 30 (Martutene),
Apartado 1320, 20080 San Sebastian, Spain, and to counsel
for IKUSI-Angel Iglesias, S.A., Mace J. Rosenstein, Esquire,
and David L. Martin, Esquire, Hogan & Hartson, L.L.P., 555
Thirteenth Street, N.W., Washington, D.C. 20004-1109.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau Attachment A
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 CFR 121.104 and 13 CFR 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
_________________________
11. 47 U.S.C. § 302a(b).
21. 47 C.F.R. § 2.803(a)(1).
31. 47 C.F.R. § 15.231(a).
41. On October 3, 2001, the Commission staff issued a
grant of certification to IKUSI for the RCT, and assigned
the device FCC Identification Number PVT-TM60.
51. See 47 C.F.R. § 15.231(a).
2.
61. Letter from Joseph P. Casey, Chief, Spectrum
Enforcement Division, Enforcement Bureau, to Miguel
Portillo, Director, TLC Division, IKUSI-Angel Iglesias, S.A.
(March 29, 2004) (``LOI'').
7Letter from Mace J. Rosenstein, Esquire and David L.
Martin, Esquire, Hogan & Hartson, L.L.P., to Yasin Ozer,
Spectrum Enforcement Division, Enforcement Bureau (April
26, 2004) (``Response''). IKUSI's Response included a
Confidentiality Request in which IKUSI sought confidential
treatment of its entire Response. On June 9, 2004, the
Spectrum Enforcement Division issued an order (which has
become final) denying in large part IKUSI's request, finding
that IKUSI's request was overbroad. The Division, however,
decided to accord confidential treatment to one specific
item -- the number of devices that IKUSI had shipped for
sale in the United States. See IKUSI-Angel Iglesias, S.A.,
Order, DA 04-1648 (Enf. Bur., Spectrum Enforcement Division,
released June 9, 2004).
81. Response at 1.
91. Id. at 1-2.
101. IKUSI states that it has been unable to
contact the NCL, and that it believes the company went out
of business. See id. at 3.
111. Id. at 3-4.
121. Id. at 4 n.8.
131. Id. at 5.
141. Id. at 2.
15Id. at 5-6.
161. Id. at 1-2.
171. Section 312(f)(1) of the Act, 47 U.S.C.
312(f)(1), which applies to Section 503(b) of the Act,
provides that ``[t]he 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
this Act ....'' See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
181. As provided by 47 U.S.C. § 312(f)(2), a
continuous violation is ``repeated'' if it continues for
more than one day. The Conference Report for Section
312(f)(2) indicates that Congress intended to apply this
definition to Section 503 of the Act as well as Section 312.
See H.R. Rep. 97th Cong. 2d Sess. 51 (1982). See Southern
California Broadcasting Company, 6 FCC Rcd 4387, 4388 (1991)
and Western Wireless Corporation, 18 FCC Rcd 10319 at fn. 56
(2003).
191. See Wagenvoord Broadcasting Co., 35 FCC 2d
361, 361--362, ¶ 3 (1972) (no mitigation of forfeiture
amount because of reliance on consulting engineer's
erroneous advice); Roadrunner Electronics, Inc., 8 FCC Rcd
6398, 6398 ¶ 6 (FOB 1993) (finding vendor responsible for
selling compliant radiofrequency devices, despite its claims
that it was not aware of its inventory and that its
employees failed to comply with Commission Rules). See also
Eure Family Limited Partnership., 17 FCC Rcd 21861, 21863-64
¶¶ 6-7 (2002) (no mitigation of forfeiture amount because
actions were those of lessee/contractor), MTD, Inc., 6 FCC
Rcd 34, 35 (1991) (no lessening of responsibility when
contractors are used).
201. See, e.g., AGM-Nevada, LLC, 18 FCC Rcd 1476,
1478-79 ¶ 8 (Enf. Bur. 2003).
211. See AT&T Wireless Services, Inc., 17 FCC Rcd
21866, 21871 ¶ 14; KGVL, Inc., 42 FCC 2d 258, 259 (1973).
221. See Seawest Yacht Brokers, 9 FCC Rcd 6099,
6099 (1994).
231. The Commission's Forfeiture Policy Statement
and Amendment of Section 1.80 of the Rules to Incorporate
the Forfeiture Guidelines, 12 FCC Rcd 17087, 17110 (1997),
recon. denied (1999).
241. See New Image Electronics, 17 FCC Rcd 3594,
3595 ¶¶ 4-5 (Enf. Bur. 2002) (imposing a $7,000 forfeiture
against a vendor for marketing non-compliant long-range
cordless telephones).
251. 47 U.S.C. § 503(b).
261. 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
271. 47 C.F.R. § 1.1914.