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Before the
Federal Communications Commission
Washington, D.C. 20554
)
File No. EB-08-SE-052
In the Matter of )
NAL/Acct. No. 200932100041
Inter Tech FM )
FRN # 0018458026
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 29, 2009 Released: February 2, 2009
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Inter Tech FM ("Inter Tech") apparently liable for a forfeiture in the
amount of seven thousand dollars ($7,000) for willful and repeated
violation of Section 302(b) of the Communications Act of 1934, as
amended ("Act"), and Section 2.803(a) of the Commission's Rules
("Rules"). The noted apparent violation involves Inter Tech's
marketing of an unauthorized FM broadcast transmitter. In addition, we
propose a forfeiture in the amount of eleven thousand dollars
($11,000) against Inter Tech for providing to the Commission, during
the course of this investigation, material factual information that is
incorrect without a reasonable basis for believing the material
factual information was correct, in willful violation of Section
1.17(a)(2) of the Rules. We accordingly propose a total forfeiture of
eighteen thousand dollars ($18,000).
II. background
2. In response to complaints alleging that Inter Tech was marketing
unauthorized FM broadcast transmitters in the United States, the
Spectrum Enforcement Division of the Enforcement Bureau ("Division")
began an investigation. As part of this investigation, Division Staff
reviewed Inter Tech's website on February 7, 2008, noting that Inter
Tech was marketing a broad array of FM broadcast equipment. Because it
appeared that Inter Tech may have been using this website to market
unauthorized broadcast equipment, the Division sent Inter Tech a
letter of inquiry on March 28, 2008 to further investigate whether
Inter Tech was marketing unauthorized FM broadcast equipment.
3. In its April 23, 2008 response to the First LOI, Inter Tech stated
that it manufactured and marketed fifteen different transmitter
models. Of the fifteen transmitter models, Inter Tech stated that it
currently markets fourteen of these models in the United States, and
that it only recently discontinued marketing the remaining model, the
Cybermax FM TX1 (also sold as the Cybermax FM TXV-1 and TXV-2, and
Cyclone TX1, TXV-1 and TXV-2) ("Cybermax FM TX1"), in the United
States in November of 2007. Inter Tech states that all of these models
were marketed to full power FM stations operating in the broadcast
services under Part 73 of the Rules, and verified in accordance with
the requirements set forth in Section 73.1660(a)(1) of the Rules. As
proof of verification, Inter Tech provided verification records for an
exciter that Inter Tech claims is incorporated into each of the
fifteen models.
4. Because Inter Tech did not provide the requested verification
paperwork for the transmitters, including the Cybermax FM TX1
transmitter, the Division issued follow-up LOIs on July 10, 2008 and
November 24, 2008. In its July 23, 2008 Response to the Second LOI,
Inter Tech stated that it believed that by verifying the exciter, it
had complied with Section 73.1660(a)(1) of the Rules. In the
Division's Third LOI, the Division sought an explanation for Inter
Tech's statement in its First LOI Response that it had discontinued
marketing the Cybermax FM TX1 Transmitter in November of 2007, despite
evidence that the Cybermax FM Transmitter TX1 was marketed on the
website as late as February 7, 2008 under the name Cyclone TXV-2.
Inter Tech claimed that it had accidentally uploaded a previous
version of its website on that date, and that Inter Tech had removed
the marketing material associated with the Cyclone TXV-2 "as soon as
[the marketing material] was discovered."
III. discussion
A. Marketing of Unauthorized Equipment
5. Section 302 of the Act authorizes the Commission to make reasonable
regulations, consistent with the public interest, governing the
interference potential of equipment that emits radio frequency energy,
and prohibits, among other things, the offering for sale of radio
frequency devices to the extent that such activity does not comply
with these regulations. Specifically, 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)(2) of the Rules prohibits the sale or
lease, offer of sale or lease, importation, or shipment of radio
frequency devices, as well as the distribution of such devices for the
purpose of selling such devices, unless the device complies with
applicable administrative, technical, labeling and identification
requirements of the Rules.
6. Section 73.1660(a)(1) of the Rules requires verification of AM, FM, or
TV transmitters used in the broadcast services, in accordance with the
procedures described in Part 2 of the Rules. Under Section 2.811 of
the Rules, the requirements of Section 2.803(a) through (d) of the
Rules are not applicable to transmitters operated in any of the Part
73 radio broadcast services, provided that the conditions set forth in
Part 73 for the acceptability of such transmitter for using under
licensing are met. Therefore, absent compliance with the verification
requirement set forth in Section 73.1660 of the Rules, Part 73
transmitters are considered to be "unauthorized" and may not be
marketed in the United States.
7. Inter Tech states that the Cybermax FM TX1 Transmitter has been
verified in accordance with Section 73.1660(a)(1) of the Rules for use
in the broadcast service. Section 73.1660(a)(1) of the Rules, however,
requires verification of transmitters, not component parts thereof. As
proof of verification, Inter Tech submitted partial verification
records for the Max 15 DSP FM exciter, an exciter that Inter Tech
claims is incorporated into the Cybermax FM TX1 Transmitter. Because
transmitters are a combination of several functional components that
interact with one another to produce unique emanating characteristics
and power levels, verification of an exciter incorporated into a
transmitter is insufficient to verify the final transmitter.
Therefore, we conclude that the Cybermax FM TX1 transmitter has not
been verified. Accordingly, we find that Inter Tech apparently
marketed the Cybermax FM TX1 Transmitter in the United States, in
willful and repeated violation of Section 302(b) of the Act and
Section 2.803(a) of the Rules.
B. Providing Incorrect Material Information to the Commission
8. Section 1.17 of the Rules states that no person may provide, in any
written statement of fact, "material factual information that is
incorrect or omit material information that is necessary to prevent
any material factual statement that is made from being incorrect or
misleading without a reasonable basis for believing that any such
material factual statement is correct and not misleading." Any person
who has received a letter of inquiry from the Commission or its staff
or is otherwise the subject of a Commission investigation is subject
to the Rule. In expanding the scope of Section 1.17 of the Rules in
2003 to include written statements that are made without a reasonable
basis for believing the statement is correct and not misleading, the
Commission explained that this requirement was intended to more
clearly articulate the obligations of persons dealing with the
Commission, ensure that they exercise due diligence in preparing
written submissions, and enhance the effectiveness of the Commission's
enforcement efforts. Thus, even in the absence of an intent to
deceive, a false statement provided without a reasonable basis for
believing that the statement is correct and not misleading constitutes
an actionable violation of Section 1.17 of the Rules.
9. As the Commission has stated, parties must "use due diligence in
providing information that is correct and not misleading to the
Commission, including taking appropriate affirmative steps to
determine the truthfulness of what is being submitted. A failure to
exercise such reasonable diligence would mean that the party did not
have a reasonable basis for believing in the truthfulness of the
information." In its First Response, Inter Tech stated that in
November of 2007, it ceased marketing the Cybermax FM TXI (also
marketed under the trade name Cyclone TXV-2). As of February 7, 2008,
however, Inter Tech's website listed this transmitter for sale under
the name Cyclone TXV-2. Had Inter Tech exercised even minimal
diligence prior to the submission of its First LOI Response, it would
not have submitted incorrect and misleading material factual
information in its LOI response. Although there is insufficient
information to conclude that Inter Tech's provision of incorrect
material factual information was intentional in violation of Section
1.17(a)(1) of the Rules, we find that Inter Tech apparently willfully
violated Section 1.17(a)(2) of the Rules by providing material factual
information that was incorrect without a reasonable basis for
believing that the information was correct and not misleading.
C. Proposed Forfeiture
10. Under Section 503(b)(1)(B) of the Act, any person who is determined by
the Commission to have willfully or repeatedly failed to comply with
any provision of the Act or any Rule, regulation, or order issued by
the Commission shall be liable to the United States for a forfeiture
penalty. To impose such a forfeiture penalty, the Commission must
issue a notice of apparent liability and the person against whom such
notice has been issued must have an opportunity to show, in writing,
why no such forfeiture penalty should be imposed. The Commission will
then issue a forfeiture if it finds by a preponderance of the evidence
that the person has violated the Act or Rule. As set forth below, we
conclude under this standard that Inter Tech is apparently liable for
a forfeiture in the amount of seven thousand dollars ($7,000) for its
apparent willful and repeated violations of Section 302(b) of the Act
and Section 2.803(a) of the Rules, and a forfeiture in the amount of
eleven thousand dollars ($11,000) for its willful violation of Section
1.17(a)(2) of the Rules, for a total proposed forfeiture of eighteen
thousand dollars ($18,000).
11. At the time of Inter Tech's apparent violations, under Section
503(b)(2)(B) of the Act, we were authorized to assess a forfeiture
penalty against certain entities, such as Inter Tech, who are not
common carriers, broadcast licensees, or cable operators, of eleven
thousand dollars ($11,000) for each violation, or for each day of a
continuing violation, up to a total of ninety seven thousand five
hundred dollars ($97,500) for any single act or failure to act. 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."
12. 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 Inter 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 Inter
Tech's conduct has continued since 2006 or earlier, the forfeiture
amount we propose herein relates only to Inter Tech's apparent
violations that have occurred within the past year.
13. Under the Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to incorporate the Forfeiture Guidelines
("Forfeiture Policy Statement") and Section 1.80 of the Rules, the
base forfeiture amount for the marketing of unauthorized equipment is
seven thousand dollars ($7,000). We conclude that Inter Tech marketed
the unauthorized Cybermax FM TX1 transmitter. Accordingly, we find
that a proposed forfeiture in the amount of seven thousand dollars
($7,000) is warranted for the willful and repeated marketing of an
unauthorized transmitter in violation of Section 302(b) of the Act and
Section 2.803(a) of the Rules.
14. Pursuant to the Forfeiture Policy Statement and Section 1.80(b)(4) of
the Rules, the base forfeiture amount for misrepresentation or lack of
candor is the statutory maximum, or, in this case as based on the date
of the violation, eleven thousand dollars ($11,000). In determining
the appropriate forfeiture amount, we may adjust the base amount
upward or downward by considering the factors enumerated in Section
503(b)(2)(E) of the Act, including "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."
15. Considering all of the enumerated factors and the particular
circumstances of this case, we find that Inter Tech in responding to
our First LOI apparently willfully violated Section 1.17(a)(2) of the
Rules by providing incorrect or misleading material factual
information to Commission staff without a reasonable basis for
believing the information was correct and not misleading. The
Commission has stated that it relies "heavily on the truthfulness and
accuracy of the information provided to us. If information submitted
to us is incorrect, we cannot properly carry out our statutory
responsibilities." Inter Tech's failure to exercise due diligence to
ensure that the information provided in its LOI Response was correct
and not misleading hampered our ability to properly carry out our
statutory responsibilities and consumed scarce Commission resources.
Although Inter Tech ultimately provided the correct information, it
did so only after the Division sent Inter Tech a Third LOI that
specifically directed Inter Tech to explain why, if Inter Tech ceased
marketing the Cybermax TX1 transmitter in November of 2007, Inter
Tech's website offered this transmitter for sale on February 7, 2008.
Accordingly, we find that a proposed forfeiture of eleven thousand
dollars ($11,000) is warranted for Inter Tech's violation of Section
1.17(a)(2) of the Rules.
iV. ORDERING CLAUSES
16. Accordingly, IT IS ORDERED that, pursuant to pursuant to Section
503(b) of the Act and Sections 0.111, 0.311 and 1.80 of the Rules,
Inter Tech FM IS hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of seven thousand dollars ($7,000) for
willfully and repeatedly violating Section 302(b) of the Act and
Section 2.803(a) of the Rules, and eleven thousand dollars ($11,000)
for willfully violating Section 1.17(a)(2) of the Rules, for a total
proposed forfeiture of fifteen thousand dollars ($18,000).
17. 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 and Order, Inter Tech FM SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
18. 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. Inter Tech FM will also send electronic
notification on the date said payment is made to Neal.McNeal@fcc.gov
and Nissa.Laughner@fcc.gov.
19. 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.
20. 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.
21. 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 Chris Rea, Inter Tech FM, 8725 W. Sunset
Road, Suite 200, Niles, Illinois 60714.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a).
47 C.F.R. S: 1.17(a)(2).
"Marketing" includes the sale or lease, offer for sale or lease (including
advertising for sale or lease), importing, shipping, and/or distribution
for the purpose of selling or leasing or offering for sale or lease. 47
C.F.R. S: 2.803(e)(4).
www.intertechfm.com (accessed February 7, 2008).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Chris Rea, Inter
Tech FM (March 28, 2008) ("First LOI").
See Letter from Chris Rea, Inter Tech FM to Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (April 23, 2008)
("First Response").
Id. at 6.
Id. at 1 (stating that InterTech discontinued marketing the Cybermax FM
TX1 or TXV-1 or TXV-2 in November 2007). See also id. at 4 (identifying
the Cybermax TX1 or TXV-1 or TXV-2 under the names Cyclone TX1, Cyclone
TXV-1, and Cyclone TXV-2). We note that our findings in this NAL pertain
only to the marketing of the Cybermax FM TX1 transmitter. Our
investigation into Inter Tech's marketing of several other FM broadcast
equipment models is ongoing, and therefore is not addressed in this NAL.
Id. at 4. See also 47 C.F.R. S: 73.1660(a)(1). Verification is a
self-authorization procedure where the manufacturer or the importer, in
the case of imported equipment, makes measurements or takes the necessary
steps to insure that the equipment complies with the appropriate technical
standards. See 47 C.F.R. S:S: 2.902 and 2.909(b).
Id. See also 47 C.F.R. S: 2.955 (describing those verification records
required to be maintained by the manufacturer).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Chris Rea, Inter
Tech FM (July 10, 2008) ("Second LOI").
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Chris Rea, Inter
Tech FM (November 24, 2008) ("Third LOI").
See Letter from Chris Rea, Inter Tech FM to Kathryn S. Berthot, Chief,
Spectrum Enforcement Division, Enforcement Bureau, Federal Communications
Commission (July 23, 2008) ("Second Response").
Id. at 2.
See Third LOI at 2. See also supra para. 2.
See Third Response at 1.
47 U.S.C. S: 302a(a).
Section 2.801(a)(1) of the Rules defines a radio frequency device as "any
device which in its operation is capable of emitting radio frequency
energy... ." Radio frequency devices subject to the Rules include, among
other items, radio communication transmitting devices and "any part or
component thereof which in use emits radiofrequency energy." 47 C.F.R. S:
S: 2.801(a)(1) and (d).
47 C.F.R. S: 73.1660(a)(1).
See 47 C.F.R. S: 2.811.
47 C.F.R. S: 2.955 (listing records required to be maintained as proof of
verification). Under the verification procedures, the manufacturer of
radio frequency devices, or the importer in the case of imported devices,
must make measurements or take the necessary steps to obtain measurements
to ensure that the subject devices comply with the Commission's technical
standards. See 47 C.F.R. S: 2.902(a).
Section 312(f)(1) of the Act defines "willful" as "the conscious and
deliberate commission or omission of [any] act, irrespective of any intent
to violate" the law. 47 U.S.C. S: 312(f)(1). The legislative history of
Section 312(f)(1) of the Act clarifies that this definition of willful
applies to both Sections 312 and 503(b) of the Act, H.R. Rep. No. 97-765,
97th Cong. 2d Sess. 51 (1982), and the Commission has so interpreted the
term in the Section 503(b) context. See Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recon.
denied, 7 FCC Rcd 3454 (1992) ("Southern California").
Section 312(f)(2) of the Act, which also applies to forfeitures assessed
pursuant to Section 503(b) 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 Callais Cablevision, Inc., Notice of Apparent
Liability for Forfeiture, 16 FCC Rcd 1359, 1362 (2001); Southern
California, 6 FCC Rcd at 4388.
See Syntax-Brillian Corporation, Forfeiture Order and Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 6323, 6327 (2008) (emphasizing that
equipment subject to verification but noncompliant with our technical and
administrative Rules is considered to be "unauthorized" under 503(b)(5) of
the Act and may not be marketed in the United States) ("Syntax-Brillian
Forfeiture Order"). See also Behringer USA, Inc., Notice of Apparent
Liability for Forfeiture, 21 FCC Rcd 1820, 1825 (2006) (imposing liability
for the marketing of non-verified equipment), forfeiture ordered, 22 FCC
Rcd 10451 (2007) (forfeiture paid) ("Behringer USA, Inc.").
47 C.F.R. S: 1.17(a)(2).
47 C.F.R. S: 1.17(b)(4).
See Amendment of Section 1.17 of the Commission's Rules Concerning
Truthful Statements to the Commission, Report and Order, 18 FCC Rcd 4016,
4021 (2003), recon. denied, Memorandum Opinion and Order, 19 FCC Rcd 5790,
further recon. denied, Memorandum Opinion and Order, 20 FCC Rcd 1250
(2004)("Amendment of Section 1.17").
See id. at 4017 (stating that the revision to Section 1.17 of the Rules is
intended to "prohibit incorrect statements of omissions that are the
results of negligence, as well as an intent to deceive").
Amendment of Section 1.17, 18 FCC Rcd at 4021.
See First Response at 1.
See para. 2 supra.
See Invision Industries, Inc., Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 13095, 13103-04 (2008) (finding that a television
importer's failure to exercise due diligence to ensure that the
information provided in its LOI Response was correct and not misleading
constituted a violation of Section 1.17(a)(2) of the Rules) ("Invision");
Syntax-Brillian Forfeiture Order, 23 FCC Rcd at 6342 (finding that a
television manufacturer apparently provided incorrect material information
concerning its importation and interstate shipment of non-DTV-compliant
televisions without a reasonable basis for believing that the information
was correct and not misleading, in violation of Section 1.17(a)(2) of the
Rules); Citicasters License, L.P., et al., Memorandum Opinion and Order
and Notice of Apparent Liability, 22 FCC Rcd 19324, 19338 (2007)
(forfeiture paid) (finding that a licensee's false certification that it
had not violated the Act or any Commission Rules during the preceding
license term had no reasonable basis and was not made with the intent to
deceive the Commission but nonetheless, violated Section 1.17(a)(2) of the
Rules) ("Citicasters"). See also Cardinal Broadband LLC, aka Sovereign
Telecommunications, Notice of Apparent Liability for Forfeiture, 23 FCC
Rcd 12233, 12237 (Enf. Bur. 2008) ("Cardinal Broadband LLC"), response
pending (finding that the failure to provide information requested in an
LOI prior to receipt of the Division's follow-up LOI constituted a
violation of Section 1.17(a)(2) of the Rules).
47 C.F.R. 1.17(a)(1).
See, e.g., Cardinal Broadband LLC, 23 FCC Rcd at 12237.
47 U.S.C. S: 503(b).
47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591 (2002) (forfeiture paid).
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 non- licensees from
$11,000/$97,500 to $16,000/$112,500); 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 non-licensees from $11,000/$87,500 to $11,000/$97,500);
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 non-licensees from
$10,000/$75,000 to $11,000/$87,500). 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.
47 U.S.C. S: 503(b)(2)(E). See also 47 C.F.R. S: 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
Forfeitures.
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., 21 FCC Rcd at 1825; 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, 9671-72 (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. denied, 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).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 C.F.R. S: 1.80.
See, e.g., San Jose Navigation,Inc., Notice of Apparent Liability for
Forfeiture, 21 FCC Rcd 2873, 2877 (2006) (proposing a $28,000 base
forfeiture amount for the marketing of four unauthorized devices),
forfeiture ordered, Forfeiture Order, 22 FCC Rcd 1040 (2007); CoachComm,
LLC, Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 13278, 13282
(Enf. Bur., Spectrum Enf. Div. 2008) (proposing a $7,000 forfeiture amount
for the marketing of one unauthorized device); Ramsey Electronics, Inc.,
Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 458, 462 (Enf.
Bur., Spectrum Enf. Div., 2006) (proposing a $28,000 base forfeiture
amount for the marketing of four unauthorized devices), forfeiture
ordered, Forfeiture Order, 23 FCC Rcd 8652 (Enf. Bur., Spectrum Enf.
Div.2008).
See Forfeiture Policy Statement, 12 FCC Rcd at 17113; 47 C.F.R. S:
1.80(b)(4), Note to Paragraph (b)(4): Section I. Base Amounts for Section
503 Forfeitures. See also Syntax-Brillian Forfeiture Order, 23 FCC Rcd at
6343; Citicasters, 22 FCC Rcd at 19339 (using the base forfeiture amount
for misrepresentation/lack of candor as the base forfeiture for violations
of Section 1.17 of the Rules).
See 47 U.S.C. S: 503(b)(2)(D) (setting forth the statutory maximum
forfeiture for entities other than broadcasters and common carriers). See
also 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 non- licensees from $11,000/$87,500 to
$16,000/$112,500). 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. Because this violation occurred on April 23,
2008, the statutory maximum prior to this adjustment applies.
See Forfeiture Policy Statement, 12 FCC Rcd at 17100; 47 C.F.R. S:
1.80(b)(4).
See Amendment of Section 1.17, 18 FCC Rcd 3293, 3297 (2002).
See Cardinal Broadband LLC, 23 FCC Rcd at 12237 (proposing a forfeiture of
$25,000 when an interconnected Voice over Internet Protocol ("VoIP")
service provider provided correct information only after the Bureau sent a
follow-up LOI directing it to provide substantially the same information
requested in the First LOI); Invision, 23 FCC Rcd at 13103-04 proposing a
forfeiture of $4,000 for failure to exercise due diligence to ensure that
the information provided in a letter of inquiry response was correct and
not misleading where corrective information was provided in a timely
manner without a specific request). See also cf. Hauppauge Computer Works,
Inc, Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 3684, 3686-87
(Enf. Bur., Spectrum Enf. Div. 2008) (proposing an $11,000 forfeiture for
failure to provide a complete response to letter of inquiry) (forfeiture
paid).
47 U.S.C. S: 503(b).
47 C.F.R. S: S: 0.111, 0.311 and 1.80.
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Federal Communications Commission DA 09-147
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Federal Communications Commission DA 09-147