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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of File No. EB-01-TS-040
)
ACR Electronics, Inc. NAL/Acct. No. 200532100004
)
Fort Lauderdale, Miami FRN No. 0008044232
)
FORFEITURE ORDER
Adopted: March 21, 2006 Released: March 23, 2006
By the Commission:
I. introduction
1. By this Forfeiture Order ("Order"), we find that ACR Electronics, Inc.
("ACR") marketed intentional radiating equipment prior to obtaining
Commission certification in willful and repeated violation of the
equipment marketing requirements of Section 302(b) of the
Communications Act of 1934, as amended ("Act") and Section 2.803(a) of
the Commission's Rules ("Rules"). For these violations, we impose a
monetary forfeiture in the amount of sixty five thousand dollars
($65,000).
II. background
2. Section 302(b) of the Act provides that "[n]o person shall
manufacture, import, sell, offer for sale, or ship devices of home
electronic equipment and systems, or use devices, which fail to comply
with regulations promulgated pursuant to this section." Section
2.803(a) of the Commission's implementing regulations prohibits
manufacturers from selling, leasing, or offering for sale or lease
(including advertising for sale or lease) radio devices subject to
certification, unless the Commission certificates that such devices
are compliant with applicable equipment technical standards.
Additionally, Section 15.201(b) of the Commission's implementing
regulations requires manufacturers to obtain certification "prior to
marketing" intentional radiating devices. An exception to the above
equipment marketing restrictions, however, allows manufacturers to
display and advertise devices that are in the development, design or
pre-production stages prior to certification, provided their displays
are accompanied by and their advertisements contain a conspicuously
placed notice, which states:
This device has not been authorized 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 exception to the equipment marketing restrictions is designed to
afford manufacturers greater flexibility in marketing their developing
products, while preserving the Commission's long-standing requirement that
trade show displays and advertisements be accompanied by a conspicuous
notice alerting potential business customers and consumers that the
devices have not been authorized by the Commission and may not be offered
for sale or lease, or sold or leased, until such authorization is
obtained.
3. The Notice of Apparent Liability for Forfeiture ("NAL") proposed a
$75,000 forfeiture against ACR for its apparent willful and repeated
violations of the above equipment marketing restrictions. As discussed
herein, we find, as the underlying NAL found, that ACR unlawfully
marketed its personal location beacon 406 GPS PLB-200 ("PLB-200"), an
intentional radiating device, to the industry and the general public
before it obtained certification and without the conspicuous
disclaimer notice required by Section 2.803(c) of the Rules ("required
disclaimer notice").
4. Specifically, the NAL found that ACR marketed the PLB-200 to the
industry prior to obtaining certification, by displaying mock-up
models of the PLB-200 at two industry trade shows, distributing
related promotional materials before and during the trade shows, and
making power point presentations to select business customers. The NAL
found that ACR did not include any disclaimer notice with its trade
show displays and several of its power point presentations. Moreover,
the NAL found that ACR did not include any disclaimer notice in the
over 700 PLB-200 brochures it distributed. To the contrary, one of the
brochures distributed by ACR included language on the "PLB
Specifications" page, under "Certification," that proclaimed that the
PLB-200 was "FCC approved." The other brochure distributed by ACR
stated prominently on the front cover "Personal Locator Beacon
APPROVED for sale in the U.S." The NAL further found that while ACR
included language in its own internal price lists that indicated that
FCC approval was pending, ACR did not include any disclaimer notice in
the price lists it actually distributed at the trade shows. And, the
NAL found that ACR did not include the required disclaimer notice in
the approximately 25 press kit folio it distributed -- but, instead,
included language that prominently proclaimed on the folder's front
cover in bold print "Personal Locator Beacons, New and Improved, For
Sale in the U.S." and, in contrast, included language on the folder's
back cover in a black border in small print "New Integral GPS PLB
Available April -- pending FCC approval." The NAL concluded that ACR's
displays, industry presentations, and distributed promotional
materials, without any disclaimer notice and/or without the requisite
disclaimer notice, constituted apparent willful and repeated
violations of the Commission's equipment marketing restrictions.
5. Additionally, the NAL found that several retail websites were offering
the PLB-200 for sale, and that these websites included prices,
specified delivery dates and allowed customers to place orders. The
NAL noted that one website stated that the PLB-200 was "FCC approved"
and another website represented that the PLB-200 "[e]xceeds rigorous
testing standards of ... [the] FCC." As late as the week of September
7, 2004, the NAL found that the PLB-200 was being offered for sale,
without the requisite disclaimer notice, in a sporting outdoor mail
order catalogue sent to consumers.
6. Moreover, the NAL found that ACR launched a substantial media campaign
by advertising the PLB-200 "in multiple outdoor and sporting magazines
and catalogues that were clearly directed and targeted to the
consuming general public," notwithstanding the company's
representations that its marketing efforts were "never directed at the
general public." Indeed, the NAL found that ACR devoted approximately
one third of its entire first quarter 2004 advertising budget
($100,000 out of $300,000) promoting the PLB-200 in full-page ads in
multiple publications available and targeted to consumer end-users.
The NAL further found that ACR did not include the required
disclaimer notice in its consumer advertisements. Rather, the NAL
found that ACR's full-page ads described the "NEW [TerraFix or
AquaFix] 406 Personal Locator Beacon, the best way to be found fast,"
and depicted the model in terms of actual model size. Only at the
bottom of the page in black border did the ads include the language,
"New Integral GPS PLB Available April - Pending FCC Approval." The NAL
concluded that ACR apparently willfully and repeatedly violated the
Commission's equipment marketing restrictions because its consumer
advertisements did not comport with the requirements of Section
2.803(c).
7. In its response to the NAL, ACR acknowledges that it did not include
the requisite disclaimer notice in its marketing materials for the
PLB-200 prior to obtaining certification from the Commission's Office
of Engineering and Technology on October 5, 2004. Nevertheless, ACR
seeks cancellation or a substantial reduction of the proposed
forfeiture. ACR reiterates the arguments it made in its response to
the Enforcement Bureau's Letter of Inquiry ("LOI"), which it claims
"have not been properly analyzed by the Commission." ACR also notes
that it "has had a long history of compliance with Commission rules,"
and further contends that the "quantum" of the proposed forfeiture was
unreasonable.
III. discussion
8. The forfeiture amount proposed in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
("Act"), Section 1.80 of the Rules, and the Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines. In assessing forfeitures,
Section 503(b)(2)(D) of the Act requires that we 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 such other matters as justice may
require. We have considered ACR's arguments in light of the above
statutory factors, and have determined that the proposed forfeiture
should be reduced on the basis of the company's past history of
compliance with the Commission's equipment marketing regulations.
9. In its response, ACR argues that the NAL failed to take into account
the nature of the trade shows at which it marketed the PLB-200.
Specifically, ACR asserts that the trade shows "were closed venues
allowing equipment suppliers to share information with customers, and
not to negotiate pricing or to inform end user consumers about the
product." Since end user consumers do not attend the trade shows, ACR
maintains that those who did attend "could reasonably have been
expected to understand that the PLB-200 was not for sale."
10. We find that the NAL properly considered and rejected ACR's arguments
concerning the nature of the trade shows. As noted in the NAL, the
Commission recognized in adopting the trade show exception that
industry trade shows are specialized and limited venues; nevertheless,
the Commission required that manufacturers displaying devices and
distributing related materials at trade shows conspicuously post the
requisite disclaimer notice to alert prospective wholesalers and
retailers that the devices have not been approved by the FCC and may
not be legally sold or offered for sale until approval is obtained.
Moreover, we find ACR's suggestion that its business customers "could
reasonably have been expected to understand that the PLB-200 was not
for sale" unpersuasive. Manufacturers may use industry trade shows to
display and advertise both new equipment that has been FCC-authorized,
as well as new equipment that is in the development stage or is
awaiting FCC authorization. In the latter situations, the disclaimer
notice required by Section 2.803(c) is necessary to ensure that
distributors and retailers clearly understand that the unauthorized
device may not be either sold or offered for sale. Absent the required
disclaimer notice, we are not persuaded that customers would
understand that the PLB-200 could not be sold or offered for sale,
particularly given that brochures distributed by ACR at the trade
shows inaccurately stated that the device was "FCC approved" or
"APPROVED for sale in the U.S."
11. ACR also argues that the NAL failed to take into account that "in
almost every instance," ACR "made it known that the equipment at issue
was unavailable for sale until such time as the FCC had provided its
approval," by including disclaimer notices that "at least partially
complied" with the requirements of Section 2.803(c). In this regard,
ACR asserts that "the Commission must acknowledge that the trade show
brochures describing the PLB-200 were largely enclosed within a press
kit folder, the back of which included the words `Pending FCC
Approval' in yellow print within a black border."
12. We find ACR's claim that it made it known that the PLB-200 was
unavailable for sale pending FCC approval "in almost every instance"
is belied by the record. As set forth in the NAL, ACR acknowledged in
its response to the LOI that it distributed approximately 700
brochures to potential distributors and retailers at the trade shows.
These brochures did not include any disclaimer, much less the specific
disclaimer required by Section 2.803(c), and, in fact, incorrectly
stated that the device was "FCC approved" or "APPROVED for sale in the
U.S." Moreover, the NAL found, and ACR does not dispute, that its
displays of the PLB-200 at the trade shows and the price lists
distributed at the trade shows did not include any disclaimer. The NAL
noted, by contrast, that ACR distributed only 25 complete press kit
folio at the trade shows, which included the words "APPROVED for sale
in the U.S." on the front cover and only included the words "Pending
FCC Approval" on the back cover. The vast majority of promotional
materials distributed by ACR at the trade shows did not include any
disclaimer notice, contrary to ACR's claims.
13. ACR asserts that the NAL "makes a great deal of independent Bureau
research findings that at least one retailer was accepting purchase
orders and that `several retail websites were offering the Terrafix
and Aquafix PLB-200s for sale." In this regard, ACR submits that it
"has no control over its customers' websites or advertising
materials." ACR also submits that violations attributed to retailer
websites and catalogues should not be deemed "willful" since ACR was
not aware of the content included in those sources.
14. As an initial matter, we note that the NAL did not find the marketing
of the PLB-200 on the retail websites and in retail catalogues to
constitute "willful" violations by ACR, nor did it propose forfeitures
against ACR for those violations. Rather, the NAL cited the retail
websites and catalogues to refute ACR's claim that its retailers are
professional buyers who are familiar with the equipment authorization
requirements and would not offer unauthorized devices for sale.
Further, while we recognize that ACR does not exert control over its
customers' websites and catalogues, it does control and is responsible
for brochures, price lists and other promotional materials it
distributed to its customers. As explained in the NAL and set forth
above, not only did these promotional materials fail to inform ACR's
customers that the PLB-200 could not be sold or offered for sale until
Commission authorization is obtained, some of the brochures
incorrectly stated that the device was "FCC Approved" or "APPROVED for
sale in the U.S." Thus, as noted in the NAL, it is hardly surprising
that the PLB-200s were offered for sale on retail websites and in
retail catalogues.
15. ACR further asserts that "[w]ithout exception, every single ACR
account knew that the [PLB-200] was not [authorized] and could not be
sold until it was." In support of this claim, ACR provides an e-mail
dated September 16, 2003 from an ACR sales manager to a buyer for one
of its retailers, Mountain Gear. In this e-mail, the ACR sales manager
states, in relevant part:
We are anticipating having the new model to show at OR winter, however,
until we get final approval from the FCC we cannot sell or ship it. Worst
case scenario, this will be the end of March '04 or Beginning of April
'04. With this in mind, it may not be a good idea to show the new model in
your Spring book, since it may create some back order problems.
This e-mail does not support ACR's position or demonstrate that ACR
provided complete and accurate information to its retailers regarding the
status of the PLB-200. First, we note that the e-mail only states that ACR
could not sell or ship the PLB-200 until it received FCC approval. It does
not convey that the device could not even be offered for sale or that
orders could not be taken for the device prior to obtaining FCC approval.
To the contrary, the e-mail indicates that including the PLB-200 in the
Spring book "may create some back order problems," which suggests that it
would be permissible for Mountain Gear to offer the device for sale and
take orders prior to FCC approval.
16. Second, the e-mail indicates that under the worst case scenario, the
device would be FCC approved by the end of March or beginning of April
2004. The device, however, was approved in October 2004. ACR offers no
evidence that it subsequently informed Mountain Gear or any of its
retailers that the PLB-200 was not in fact approved by the FCC in
March or April. Third, as detailed above, ACR distributed over 700
brochures inaccurately promoting the PLB-200 as "FCC approved" to its
potential distributors and retailers. As Mountain Gear was one of
ACR's retailers, Mountain Gear might reasonably rely upon the false
information contained in such brochures and identify the PLB-200 as
"FCC approved" on its retail website.
17. ACR contends that the proposed $75,000 forfeiture is unreasonable,
given that it included "Pending FCC approval" language in its press
kit folio. While ACR concedes that the language fell short of the
exact wording required by Section 2.803(c), it contends that the
language nevertheless "significantly fulfilled the purpose" of Section
2.803(c) and "represented a good faith effort" on its part. ACR's
contentions notwithstanding, we find that the language "Pending FCC
approval" not only fell short of Section 2.803(c)'s exact wording, but
that it failed to state that the PLB-200 could not be sold, leased or
offered for sale or lease until FCC approval was obtained and thus
failed to include an essential and necessary component of the Section
2.803(c) notice requirement.
18. ACR also complains that it was "grossly unfair" and unprecedented for
the NAL "to pass over the wording that was included on the backside of
the folio and dismiss it as `nonconspicuous.'" ACR's complaint is
disingenuous. ACR only distributed 25 press kit folio, which
prominently stated that the PLB-200 was for sale on its front cover,
and only stated that FCC approval was pending in small print in the
bottom darkened border on its back cover. We find that, consistent
with precedent, the NAL correctly found that ACR's inconspicuous
placement of the language was designed to obscure, not inform, and in
any event, contrasted with and was negated by the folio's front cover
and the enclosed brochure, which falsely stated that the PLB-200 was
FCC-approved. Therefore, we find that ACR's inclusion of the language
"Pending FCC approval" in its press kit folio did not demonstrate a
good faith effort to comply with, and did not fulfill the objectives
and requirements of, Section 2.803(c).
19. Similarly, ACR contends that the NAL erroneously focused on the exact
wording of the advertisements it placed in consumer publications.
Again, ACR concedes that this disclaimer "fell short of the exact
requirements of the rule" but asserts that it "nevertheless indicated
that the device was not for sale until the necessary scrutiny had been
given by the Commission." We agree with the NAL's conclusion that the
language, "Pending FCC approval," included in ACR's advertisements did
not comport with the requirements of Section 2.803(c) and certainly
did not alert consumer end-users "that FCC approval must be obtained
prior to any sales, leases, or offers to sell and/or lease such
equipment." In this connection, we note that the Commission has
cautioned manufacturers, as the responsible parties, to "exercise due
caution in both the selection of the medium and the presentation
employed" to ensure that consumers are fully apprised and not unfairly
targeted. We think consumers are even less likely than industry to
understand that "Pending FCC approval" means that a device cannot be
sold or offered for sale. Accordingly, we find that ACR's
advertisements did not convey the requisite information to consumer
end-users and thus did not constitute mere technical violations of the
requirements of Section 2.803(c).
20. ACR also contends that a substantial reduction in the proposed
forfeiture is warranted because it had "no intent to violate a rule in
order to profit or gain," and it made a "swift commitment" to take
corrective action and amend its disclaimer with the exact words
required. By displaying and distributing promotional materials at
industry trade shows, by making selective presentations to select
customers, and by placing advertisements in consumer publications, ACR
engaged in deliberate acts, which are deemed willful violations of the
Act and the Rules, irrespective of any intent to commit violations,
profit or gain. As for ACR's corrective actions, which were not taken
until after the Bureau issued the LOI to ACR, such actions do not
mitigate or excuse liability for its past violations and thus do not
warrant any reduction in the proposed forfeiture amount.
21. Finally, ACR contends that the proposed $75,000 forfeiture is
excessive in light of the recent decision Pilot Travel Centers, LLC,
and ACR's own "long history of overall compliance with the Commission
rules and ... leadership position in its industry." ACR's reliance
upon Pilot Travel Centers, LLC is misplaced. In Pilot Travel Centers,
LLC, the Commission proposed an upwardly adjusted $125,000 forfeiture
against a retailer who continued to market un-certificated devices
after having had received nine citation warnings. Although ACR
correctly noted that there were no prior findings of its
non-compliance with the equipment marketing restrictions, it ignored
the NAL's findings that the "degree" of its marketing of the PLB-200
was so "substantial" that a "straightforward application of the
[$7,000] base forfeiture amount for each violation" would have
resulted in "a significantly higher proposed forfeiture amount." Given
the "quantum" of ACR's violations, we find that the $75,000 proposed
forfeiture was not excessive and that Pilot Travel Center, LLC does
not support ACR's case for reduction. We do find, however, that a
reduction of the proposed amount to $65,000 is warranted based on
ACR's prior history of overall compliance with the Commission's
equipment related regulations.
I. Ordering clauses
22. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Sections and 1.80 of the Rules, ACR Electronics, Inc. IS
LIABLE FOR A MONETARY FORFEITURE in the amount of the sixty five
thousand dollars ($65,000) for willfully and repeatedly violating
Section 302(b) of the Act and Section 2.803(a) of the Rules.
23. 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 FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106.
24. 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.
25. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by first class mail and certified mail return receipt requested
to Paul Frank, President, ACR Electronics, Inc., 5757 Ravenswood Road,
Ft. Lauderdale, Florida 33312, and Bruce A. Eisen, Esq., Kaye Scholer
LLP, 901 15^th Street, N.W., Suite 1100, Washington, D.C. 20005.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
47 U.S.C. S 302a(b).
47 C.F.R. S 2.803(a).
Specifically, Section 2.803(a) provides, in pertinent part:
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
... [i]n the case of a device 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 S 2.925 and
other relevant sections in this chapter [emphasis added].
47 C.F.R. S 15.201(b). Section 15.3(o) of the Rules, 47 C.F.R. S 15.3(o),
defines an intentional radiating device as a "device that intentionally
generated and emits radio frequency energy by radiation or induction."
47 C.F.R. S 2.803(c) (excepting trade show displays of equipment, prior to
authorization, from Section 2.803(a)'s general prohibition provided such
displays are accompanied by the requisite warning notice). See also
Revision of Part 2 of the Commission's Rules Relating to the Marketing and
Authorization of Radio Frequency Devices, 12 FCC Rcd 4533, 4536-37 P 6
(1997), recon. granted in part, 13 FCC Rcd 12928 (1998) ("1997 Equipment
Marketing Order") (stating that trade show displays and advertisements
must be "accompanied by a conspicuous notice warning that the product has
not been authorized and may not be sold or leased until such authorization
is obtained"); Interpretation and Amendment of Part 2, Section 2.803 of
the Commission's Rules Relating to the Marketing (Advertising) of Radio
Frequency Devices, 62 FCC 2d 728, 729 P 8 (1976) ("1976 Equipment
Advertising Order") (interpreting the trade show exception to include and
permit advertisements of equipment, prior to authorization, provided such
advertisements are accompanied by the requisite disclaimer notice);
Interpretation and Amendment of Part 2, Section 2.803 of the Commission's
Rules Relating to the Marketing of Radio Frequency Devices, 58 FCC 2d 784
(1976) ("1976 Trade Show Order") (adopting the trade show exception to
the general prohibition against the marketing of devices prior to
Commission authorization).
See 1997 Equipment Marketing Order, 12 FCC Rcd at 4533 P 1, 4545 P 25.
Id. at 4539-40 P 12, 4544 P 22. See also 1976 Equipment Advertising Order,
62 FCC 2d at 729 P 6; 1976 Trade Show Order, 58 FCC 2d at 787-88 PP 16-18.
ACR Electronics, Inc., 19 FCC Rcd 22293 (2004).
ACR has marketed its PLB-200 under the names TerraFix, AquaFix and AeroFix
for land, marine and aviation markets, respectively. See NAL, 19 FCC Rcd
at 22293-94 PP 2, 4.
See 47 C.F.R. S 2.909(a) (holding manufacturers, such as ACR, who are
grantees of Commission certifications, responsible for compliance with the
equipment requirements and standards).
See NAL, 19 FCC Rcd at 22296 PP 10-11.
Id. at 22295-96 PP 7-8.
Id.
Id. at 22296 P 9.
Id. at 22294-95 P 6.
Id. at 22299-301 PP 15-18.
Id. at 22300-301 P 17.
Id.
Id.
Id. at 22297-98 P 12.
Id. at 22297 n. 33.
Specifically, the NAL noted that according to ACR's media schedule, it
advertised the PLB-200 in the following consumer publications: Outside
Magazine's 2004 April Buying Guide (circulation 650,000); Backpacker
Magazine's 2004 March Buyer's Guide, April and Summer issues and Camper
Magazine (circulation 295,000); Alaska's Magazine 2004 May issue
(circulation: 185,000); Rock `N Ice Magazine's 2004 June issue
(circulation: 34,000); Safari Club Magazine's 2004 May/June issue
(circulation: 39,500); Rocky Mountain Sports Magazine's 2004 April and May
issues (circulation: 60,000); Paddler Magazine's 2004 May/June issue
(circulation: 59,000); Kayak Magazine's 2004 May/June issue (circulation:
59,000); Couloir Magazine's 2004 Winter issue (circulation: 41,000);
Backcountry Magazine's 2004 January and February issues (circulation:
14,000); and Adventure Sport Magazine's 2004 April and May issues
(circulation: 25,000). See NAL, 19 FCC Rcd at 22297 P 12 and n. 35.
Id. at 22298 P 12.
Id.
Id. at 22302 P 21.
Response of ACR Electronics, Inc. to the Notice of Apparent Liability for
Forfeiture (filed December 1, 2004) ("Response").
See FCC Identifier B66ACR-PLB-200; see also NAL, 19 FCC Rcd at 22303 n.
64.
Response at 2.
Id. at 10.
Id. at 2. See also Letter from Bruce Eisen, Esq., Kaye Scholer LLP, to
Brian Butler, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission (filed April 28, 2004 and supplemented May 4,
2004).
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
Policy Statement").
47 U.S.C. S 503(b)(2)(D).
Response at 3.
Id.
See 1976 Trade Show Order, 58 FCC 2d at 786-87 PP 13-16; see also Vortex
Computers, 9 FCC Rcd 255, 255 P 5 (F.O.B. 1994) (promoting or displaying
equipment at trade shows, "even though on-the-spot orders might not be
solicited or accepted" is considered "active marketing" to potential
distributors and retailers). It should be noted that although the
Commission has further relaxed the equipment marketing restrictions to
allow manufacturers to offer pre-authorized devices for sale to
wholesalers, retailers and other business entities (but not to end-user
consumers), provided they give the prospective buyers written notice that
the device has not been authorized but will be authorized at the time of
delivery, the Commission did not abandon -- but rather reaffirmed -- the
trade show disclaimer notice requirement. See 1997 Equipment Marketing
Order, 12 FCC Rcd at 4537-39 PP 8-11.
Cf. Ace Communications Fishers, 9 FCC Rcd 3084, 3084 P 8 (F.O.B., Enf.
Div. 1994), forfeiture ordered, 12 FCC Rcd 1558 (F.O.B., Compliance
Div.1997) (finding that the marketing of an unauthorized device, which was
falsely labled with a FCC identifier, misled "others into believing that
the FCC issued an equipment authorization" justifying an upwardly adjusted
proposed forfeiture).
Response at 3, 8.
Id. at 4.
In its response to the LOI, ACR indicated that it 200 price lists were
prepared for distribution, but that a "significantly less," unspecified
number of lists were actually distributed at the trade shows. NAL 19 FCC
Rcd at 22296 P 9. In its response to the NAL, ACR claims, for the first
time, that approximately 35-40 price lists were distributed to commercial
buyers at the trade shows. Response, Statement of Paul D. N. Hardin, ACR
Vice President of Sales & Marketing ("Hardin Statement"), at 3.
To the extent that ACR claims that the brochures were "largely enclosed"
within the press kit folder, it is unclear to us precisely how 700
brochures could have been included and distributed in only 25 press kit
folio. Instead, it appears that the majority of the brochures were
distributed separately from the press kits.
Response at 5.
Id. at 7.
On November 1, 2004, citations were issued to five retailers, which listed
and offered the PLB-200 for sale, prior to the Commission's certification
of the device. See Recreational Equipment, Inc., File No. EB-04-SE-281
(Enf. Bur., Spectrum Enf. Div., November 1, 2004); Boat USA, File No.
EB-04-SE-291 (Enf. Bur., Spectrum Enf. Div., November 1, 2004); West
Marine Inc., File No. EB-04-SE-292 (Enf. Bur., Spectrum Enf. Div.,
November 1, 2004); Mountain Gear, File No. EB-04-SE-293 (Enf. Bur.,
Spectrum Enf. Div., November 1, 2004); Sportman's Guide, File No.
EB-04-SE-294 (Enf. Bur., Spectrum Enf. Div., November 1, 2004).
Response at 3.
Id. at 9-10.
See e.g., ASLAN Computer Corporation, 9 FCC Rcd 2030, P 5 (F.O.B. 1994)
(finding that language "DEMO UNIT NOT FOR SALE" did not comply, and did
not demonstrate a good faith effort to comply, with the requirements of
Section 2.803(c) -- because the regulatory "disclaimer language ... is
very specific and intended to convey to the general public or prospective
purchasers the fact that a particular device needs FCC authorization, does
not have it, and cannot be sold or offered for sale until such
authorization has been granted").
Response at 4.
See KFC USA, Inc., 7 FCC Rcd 2398 P 4 (1992), proposed forfeiture
rescinded on other grounds, Thomas J. & Nancy A. McIlraith et al., 12 FCC
Rcd 14999 (1997) (finding that the disclaimer notice accompanying a trade
show's display of an unauthorized device was not "conspicuous," because
the location was not apparent to attendants). Similarly, we find that the
location of the "Pending FCC approval" at the backside of the press kit
folio was not apparent to its recipients.
Response at 7.
NAL, 19 FCC Rcd 22301-02 P 20.
See supra n. 10.
1997 Equipment Marketing Order, 12 FCC Rcd at 4540 P 12.
Response at 10.
Id. at 9-10.
See Southern California Broadcasting Co., 6 FCC Rcd 4387, 4388 P 5 (1991),
recon. denied, 7 FCC Rcd 3454 (1992); see also Profit Enterprises, Inc., 8
FCC Rcd 2846, 2846 P 5 (1993).
See AT&T Wireless Services, Inc., 17 FCC Rcd 7891 (2002), forfeiture
ordered, 17 FCC RCd 21866, 21875-76 PP 26-28 (2002); TCI Cablevision of
Maryland, Inc., 7 FCC Rcd 6013, 6014 P 8 (1992); Seawest Yacht Brokers, 9
FCC Rcd 6099, 6099 P 7 (1994); Ace Communications Fishers, 12 FCC Rcd
1558, 1560 P 8 (Compliance Div. 1997).
19 FCC Rcd 23113 (2004).
Response at 10.
19 FCC Rcd at 22303 P 24.
See Johannus Orgelbow B.V. The Netherlands, 19 FCC Rcd 7196, 7199 P 10
(Enf. Bur. 2004); Animation Technologies, Inc., 9 FCC Rcd 2059, 2059 P 3
(F.O.B. 1994); see also KGB, Inc., 13 FCC Rcd 16396, 16398 P 8 (1998);
Ad-Venture Media, Inc., 19 FCC Rcd 9848, 9849 P 6 (Enf. Bur. 2004); Max
Media of Montana, LLC, 18 FCC Rcd 21375, 21379 P 14 (Enf. Bur. 2003).
47 U.S.C. S 503(b); 47 C.F.R. S 1.80.
See 47 C.F.R. S 1.1914.
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Federal Communications Commission FCC 06-37
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Federal Communications Commission FCC 06-37