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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-035
In the Matter of
) NAL/Acct. No. 200932100017
Multi-Tech Systems, Inc.
) FRN No. 0009336579
)
Notice of apparent Liability for forfeiture
Adopted: December 8, 2008 Released: December 10, 2008
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Multi-Tech Systems, Inc. ("Multi-Tech") apparently liable for a
forfeiture in the amount of four thousand dollars ($4,000) for willful
and repeated violation of Section 302(b) of the Communications Act of
1934, as amended ("Act"), and Sections 2.803(a) and 15.105(a) of the
Commission's Rules ("Rules"). The noted apparent violations involve
Multi-Tech's marketing of a radio frequency device without including
the required consumer disclosure in the user manual.
II. BACKGROUND
2. Multi-Tech is a manufacturer of communications and device networking
products that provide voice and data services over internet protocol
networks. One of its products, the CallFinder(R) Global System for
Mobile Communications ("GSM") ("CallFinder"), a radio frequency
transmitting device, is a cellular gateway that enables users to
connect to a private branch exchange ("PBX") trunk line, PBX extension
line, or a single public switched telephone network ("PSTN") line and
route incoming and outgoing calls through a GSM wireless network.
Because the CallFinder is a Class A digital device, Multi-Tech must
verify that it complies with the requirements contained in Part 15 of
the Rules and must distribute it with a customer notice informing
users of the potential for harmful interference. Further, the modem
contained in the CallFinder device must be certified under Parts 22
and 24 of the Rules.
3. The Enforcement Bureau's Spectrum Enforcement Division ("Division")
received a complaint alleging that Multi-Tech is marketing a radio
frequency transmitting device, the CallFinder, which causes high
levels of radio frequency interference to electronic devices, such as
speakers and other telephone landlines, being used in the vicinity of
the CallFinder, thus rendering the devices unusable. After its receipt
of the complaint, the Division began an investigation. In pursuance of
the investigation, the Division, on June 16, 2008, directed a letter
of inquiry ("LOI") to Multi-Tech. Multi-Tech responded on July 8,
2008. Multi-Tech states that it holds grants of equipment
authorization for the cellular socket modem contained in the
CallFinder (Model CF100FX2) and that the modem has been tested and
certified in accordance with Parts 22 and 24. Multi-Tech states that
it first started marketing the equipment in October, 2006 and that it
has distributed 732 units across the United States since then.
Further, Multi-Tech states that it has verified that the CallFinder
device complies with Part 15 of the Rules and that the CallFinder
device has been found to be compatible with the AT&T Wireless network.
Finally, Multi-Tech admits that the CallFinder device's manual does
not contain the language regarding potential interference that is
required by Section 15.105(a) of the Rules.
III. Discussion
A. Multi-Tech Apparently Marketed Devices That Lacked the Required
Consumer Disclosure
4. 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." For a device
subject to verification, Section 2.803(a)(2) of the Commission's
implementing regulations provides in pertinent part 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
... [i]n the case of a device ... which must comply with specific
technical standards prior to use, such device also complies with all
applicable administrative ... technical, labeling and identification
requirements ....
5. In addition to the verification and labeling requirements for the
device itself, Section 15.105(a) requires that
For a Class A digital device or peripheral, the instructions furnished the
user shall include the following or similar statement, placed in a
prominent location in the text of the manual:
NOTE: This equipment has been tested and found to comply with the limits
for a Class A digital device, pursuant to part 15 of the FCC Rules. These
limits are designed to provide reasonable protection against harmful
interference when the equipment is operated in a commercial environment.
This equipment generates, uses, and can radiate radio frequency energy
and, if not installed and used in accordance with the instruction manual,
may cause harmful interference to radio communications. Operation of this
equipment in a residential area is likely to cause harmful interference in
which case the user will be required to correct the interference at his
own expense.
Multi-Tech indicates that AT&T tested the CallFinder device with its
wireless network and found it to be compatible. Thus, we find it unlikely
that the CallFinder device is the cause of the interference noted in the
complaint that formed the basis for the investigation. Multi-Tech admits,
however, that the user manual did not contain this language prior to its
receipt of the LOI. Multi-Tech states that it is updating the manual to
include the language required by Section 15.105(a). We find, accordingly,
that Multi-Tech apparently marketed radio frequency devices without the
required consumer disclosure in the user manual in willful and repeated
violation of Section 302(b) of the Act and Sections 2.803(a)(2) and
15.105(a) of the Rules.
A. Proposed Forfeiture
6. Section 503(b) of the Act authorizes the Commission to assess a
forfeiture for each willful or repeated violation of the Act or of any
rule, regulation, or order issued by the Commission under the Act.
Under Section 503(b)(2)(D) of the Act, we may assess an entity that is
neither a common carrier, broadcast licensee or cable operator a
forfeiture of up to $11,000 for each violation or each day of a
continuing violation, up to a statutory maximum forfeiture of $97,500
for any single continuing violation. In exercising such authority, we
are required to 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."
7. Section 503(b)(6) of the Act bars the Commission from proposing a
forfeiture for violations that occurred more than a year prior to the
issuance of an NAL. Section 503(b)(6) does not, however, bar the
Commission from assessing whether Multi-Tech's conduct prior to that
time period apparently violated the provisions of the Act and Rules
and from considering such conduct in determining the appropriate
forfeiture amount for violations that occurred within the one-year
statutory period. Thus, while we may consider the fact that
Multi-Tech's conduct has continued over a period that began during
2006 or earlier, the forfeiture amount we propose herein relates only
to Multi-Tech's apparent violations that have occurred within the past
year.
8. Under the Commission's Forfeiture Policy Statement and Section 1.80
of the Rules, the base forfeiture amount for the marketing of
unauthorized equipment is $7,000. Multi-Tech apparently marketed the
CallFinder device without including in the user manual the consumer
information regarding radio frequency interference required by Section
15.105(a) of the Rules. We note that a $7,000 forfeiture amount is
typically imposed for marketing devices that are not in compliance
with applicable technical requirements or are not authorized by an
equipment authorization. Because marketing a device without the
required consumer disclosure is not as significant a violation as
marketing an unauthorized or technically non-compliant device, we find
that a downward adjustment from the base forfeiture amount to $4,000,
an amount commensurate with the forfeiture imposed in similar cases,
is warranted.
IV. ordering clauses
9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Sections 0.111, 0.311 and 1.80 of the Rules, Multi-Tech
Systems, Inc. IS NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE
in the amount of four thousand dollars ($4,000) for marketing a radio
frequency device without including in the user manual the required
consumer disclosure in willful and repeated violation of Section
302(a) of the Act and Sections 2.803(a)(2) and 15.105(a) of the Rules.
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture, Multi-Tech Systems, 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. 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 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. Multi-Tech will also send electronic
notification on the date said payment is made to Linda.Nagel@fcc.gov
and Neal.McNeil@fcc.gov.
12. 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. The
response should also be e-mailed to Neal McNeil, Spectrum Enforcement
Division, Enforcement Bureau, FCC, at Neal.McNeil@fcc.gov and Linda M.
Nagel, Esq., Spectrum Enforcement Division, FCC, at
Linda.Nagel@fcc.gov.
13. 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; 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.
14. 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 Ms. Patricia Sharma, President, Multi-Tech
Systems, Inc., 2205 Woodale Drive, Mounds View, MN 55112.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803(a) and 15.105(a).
See http://www.multitech.com/COMPANY/company_profile/ (last visited Sept.
12, 2008).
A Class A digital device is one that is "marketed for use in a commercial,
industrial or business environment, exclusive of a device which is
marketed for use by the general public or is intended to be used in the
home." See 47 C.F.R. S: 15.3(h). Thus, because the CallFinder device is
marketed for use in a commercial, industrial or business environment and
not for residential use, it is a Class A digital device.
See 47 C.F.R. S:S: 15.107 and 15.109. See also the equipment authorization
obtained for the modem module contained in the CallFinder device under FCC
ID AU792U05E06800 on August 18, 2005.
See 47 C.F.R. S: 15.105(a).
A modem is a device which converts an analog signal to a digital signal
and vice versa. Modems are used to transmit data over the PSTN. See Harry
Newton, Newton's Telecom Dictionary, 446 (CMP Books, 17th ed., 2001).
See FCC ID AU792U05E06800 (granted August 18, 2005).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Patricia Sharma,
President, Multi-Tech Systems, Inc. (June 16, 2008) ("LOI").
See Letter from Jeff Davis, Vice-President of Engineering, Multi-Tech
Systems, Inc., to Neal McNeil, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (July 8, 2008) ("LOI Response").
See LOI Response at 1.
See LOI Response at 1.
See id.
See id.; see also 47 C.F.R. S: 15.105(a).
47 C.F.R. S: 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."
LOI Response at 1.
Id.
Id.
Marketing, as defined in 47 C.F.R. S: 2.803(e)(4), "includes 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."
Section 312(f)(1) of the Act, 47 U.S.C. S: 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., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991).
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. S:
312(f)(2). See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana,
Notice of Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359,
1362 P: 10 (2001) ("Callais Cablevision") (issuing a NAL for, inter alia,
a cable television operator's repeated signal leakage).
47 U.S.C. S: 503(b).
47 U.S.C. S: 503(b)(2)(A). The Commission has amended Section 1.80(b)(3)
of the Rules, 47 C.F.R. S: 1.80(b)(3), three times to increase the maximum
forfeiture amounts, in accordance with the inflation adjustment
requirements contained in the Debt Collection Improvement Act of 1996, 28
U.S.C. S: 2461. See Amendment of Section 1.80 of the Commission's Rules
and Adjustment of Forfeiture Maxima to Reflect Inflation, 23 FCC Rcd 9845
(2008) (adjusting the maximum statutory amounts for broadcasters from
$32,500/$325,000 to $37,500/$375,000); Amendment of Section 1.80 of the
Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
Inflation, Order, 19 FCC Rcd 10945 (2004) (adjusting the maximum statutory
amounts for broadcasters from $27,500/$300,000 to $32,500/$325,000);
Amendment of Section 1.80 of the Commission's Rules and Adjustment of
Forfeiture Maxima to Reflect Inflation, Order, 15 FCC Rcd 18221 (2000)
(adjusting the maximum statutory amounts for broadcasters from
$25,000/$250,000 to $27,500/$300,000). The most recent inflation
adjustment took effect September 2, 2008 and applies to violations that
occur after that date. See 73 Fed. Reg. 44663-5. Multi-Tech's apparent
violations occurred before September 2, 2008 and therefore are not subject
to the higher forfeiture limits.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b)(6).
See 47 U.S.C. S: 503(b)(2)(D), 47 C.F.R. S: 1.80(b)(4); see also Behringer
USA, Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 1820,
1825 (2006), forfeiture ordered, Forfeiture Order, 22 FCC Rcd. 1051
(2007); Globcom, Inc. d/b/a Globcom Global Communications, Notice of
Apparent Liability for Forfeiture, 18 FCC Rcd 19893, 19903 (2003),
forfeiture ordered, Forfeiture Order, 21 FCC Rcd 4710 (2006); Roadrunner
Transportation, Inc., Forfeiture Order, 15 FCC Rcd 9669, 9671-71 (2000);
Cate Communications Corp., Memorandum Opinion and Order, 60 RR 2d 1386,
1388 (1986); Eastern Broadcasting Corp., Memorandum Opinion and Order, 10
FCC 2d 37 (1967), recon. den.,11 FCC 2d 193 (1967); Bureau D'Electronique
Appliquee, Inc., Notice of Apparent Liability for Forfeiture, 20 FCC Rcd
3445, 3447-48 (Enf. Bur., Spectrum Enf. Div. 2005), forfeiture ordered,
Forfeiture Order, 20 FCC Rcd 17893 (Enf. Bur., Spectrum Enf. Div. 2005).
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087,
17113 (1997) ("Forfeiture Policy Statement"), recon. denied, 15 FCC Rcd
303 (1999).
47 C.F.R. S: 1.80(b)(4) Note to Paragraph (b)(4): Section I. Base Amounts
for Section 503 Forfeitures.
See, e.g., LeeTek America, Inc., Notice of Apparent Liability for
Forfeiture, DA 08-1951 (Enf. Bur., Spectrum Enf. Div. 2008) ("Leetek")
(issuing a NAL for marketing pager transmitter systems without proper
authorization).
See Ryzex, 23 FCC Rcd at 884; DBK, 23 FCC Rcd at 2875.
47 C.F.R. S: 0.111, 0.311 and 1.80.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 08-2673
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Federal Communications Commission DA 08-2673