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Yet another one gets nailed... too bad the pirates don't get fined!
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Before the
Federal Communications Commission
Washington, D.C. 20554
)
File No. EB-09-SE-098
In the Matter of )
NAL/Acct. No. 201032100003
Uniden America Corporation )
FRN 0001657303
)
Notice of apparent Liability for forfeiture
Adopted: November 3, 2009 Released: November 5, 2009
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Uniden America Corporation ("Uniden") apparently liable for a
forfeiture in the amount of twenty-three thousand dollars ($23,000)
for willful and repeated violation of Section 302(b) of the
Communications Act of 1934, as amended ("Act") and Section 2.803(g) of
the Commission's Rules ("Rules"). The noted apparent violations
involve Uniden's marketing of non-compliant General Mobile Radio
Service ("GMRS") transmitters.
II. BACKGROUND
2. Section 95.183(a)(4) of the Rules prohibits GMRS operators from
transmitting coded messages and messages with hidden meanings. The
Enforcement Bureau's Spectrum Enforcement Division ("Division")
received information indicating that Uniden was marketing GMRS
transmitters equipped with voice scrambling technology. After its
receipt of this information, the Division began an investigation. In
pursuance of the investigation, the Division conducted internet
research on April 8, May 5 and May 6, 2009, on Uniden's website,
http://www.uniden.com. During the internet research, Division staff observed
that Uniden was offering for sale the following GMRS transmitter
models described as having a "Voice Scramble Security" feature: the
Uniden GMR1048-2CK, GMR1448-2CK, GMR1558-2CK, GMR1588-2CK,
GMR-1595-2CK, GMR2059-CK, GMR-2089-2CK and GMR2099-2CK. All of those
transmitters operate both on frequencies assigned to the GMRS and on
frequencies assigned to the Family Radio Service ("FRS"). The
Division's examination of the user manuals for these models indicated
that, for four models (GMR1448-2CK, GMR2059-CK, GMR-2089-2CK and
GMR2099-2CK), voice scrambling operates only on FRS frequencies.
However, for the other four models (GMR1048-2CK, GMR1558-2CK,
GMR1588-2CK and GMR-1595-2CK), the user manuals did not indicate that
voice scrambling is limited to FRS frequencies.
3. The Division directed a letter of inquiry ("LOI") to Uniden on June
25, 2009. Uniden responded on August 24, 2009. In its response, Uniden
stated that its voice scrambling feature is commonly called voice
inversion, which is "a process that interchanges high and low speech
frequencies by removing the carrier frequency and [transmitting] only
one sideband in a communications link. This renders the speech
unintelligible unless received by a device capable of replacing the
carrier frequency exactly."
4. Uniden's LOI response indicates that it began marketing the following
transmitter models on or before November 1, 2005: GMR1048-2CK,
GMR1558-2CK, GMR1588-2CK and GMR-1595-2CK (collectively designated by
Uniden as "UAC Products"), which were manufactured at its factory in
China. The GMR1048-2CK appears to be certified under the FCC ID
AMUOT016; the GMR1558-2CK under the FCC ID AMWUT017; and the
GMR1588-2CK and GMR-1595-2CK under the FCC ID AMUOT018. All of
Uniden's UAC Products were equipped with a voice scrambling feature
which was available on GMRS frequencies. Uniden's Personal Telephone
Communications ("PTC") Division, which sells to major retailers and
distributors, sold and distributed large quantities of UAC Products
during 2006 and 2007. Uniden states that initially it believed its UAC
Products were compliant with the Commission's Rules but it revisited
the issue after one of the Telecommunications Certification Bodies
("TCBs") it used for testing its devices expressed concern in mid-2006
about the voice scrambling feature. On August 24, 2006, Uniden
consulted Commission staff and received a "verbal clarification that
voice inversion scrambling on GMRS channels" is not permitted by the
Commission's Rules. Uniden states that Commission staff requested that
it make an official inquiry through the FCC's Knowledge Database
("KDB") system. On October 1, 2006, Uniden states that it received a
newsletter from another of the TCBs that it used for testing which
included a clarification consistent with the staff opinion. On April
16, 2007, the Commission's staff published an interpretation of its
rules advising that voice scrambling constitutes coded messaging and,
therefore, is not allowed for GMRS devices. Uniden states that, by
this date, it had discontinued the manufacture of the UAC Products and
replaced them with models that did not have the voice inversion
feature of the UAC products. Uniden acknowledges, however, that its
PTC Division "continued to sell through [its] inventory of UAC
Products until it was depleted in December 2007." Uniden also
indicates that its Product Service and Support (PSS) Division, which
sells exclusively to online customers, did not receive notice that the
UAC Products were being discontinued and continued to sell small
quantities of those devices during 2008 and 2009.
5. Uniden filed supplementary LOI responses on September 22 and October
7, 2009. Uniden argues in the latter response that that the following
factors mitigate its violations: its efforts to comply with the Rules
"in the face of strong competitive pressures"; its resulting loss of
market share; the small quantities of UAC devices marketed during 2008
and 2009; Uniden's efforts to obtain a rule clarification; and its
history of compliance. Uniden contends that $7,000 would be the
appropriate base forfeiture amount in this case and that this amount
should be reduced to $3,500.
III. Discussion
A. Uniden Apparently Marketed Noncompliant Devices
6. 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(g) provides in pertinent part:
The provisions in paragraphs (b) through (f) of this section do not apply
to radio frequency devices that could not be authorized or legally
operated under the current rules. Such devices shall not be operated,
advertised, displayed, offered for sale or lease, sold or leased, or
otherwise marketed absent a license issued under part 5 of this chapter or
a special temporary authorization issued by the Commission.
Additionally, Section 95.183(a)(4) of the Rules provides in pertinent part
that "[a] station operator must not communicate ... coded messages or
messages with hidden meanings."
7. Uniden admits that it marketed three models of transmitters equipped
with voice scrambling technology that functioned on GMRS frequencies
and, therefore, were not compliant with Section 183(a)(4) of the
Rules. We, accordingly, find that Uniden apparently marketed
non-compliant radio frequency devices, in willful and repeated
violation of Section 302(b) of the Act and Section 2.803(g) of the
Rules.
B. Proposed Forfeiture
8. 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. 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."
9. 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 Uniden'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.
10. Under the Forfeiture Policy Statement and Section 1.80 of the Rules,
the base forfeiture amount for the marketing of unauthorized equipment
is $7,000. Uniden apparently marketed three distinct models of GMRS
transmitters that were equipped with the voice scrambling feature: the
model certified under FCC ID AMWUT018 (designated by Uniden as models
GMR1588-2CK and GMR1595-2CK); the model certified under FCC ID
AMWUT017 (designated by Uniden as model GMR1558-2CK);and the model
certified under FCC ID AMUOT016 (designated by Uniden as model
GMR1048-2CK). Uniden argues that mitigating circumstances warrant
limiting the base forfeiture amount to $7,000. The Commission has
found, however, that the marketing of each separate unauthorized or
non-compliant model constitutes a separate violation subject to the
$7,000 base forfeiture amount. We find no basis for departing from
this precedent in this case. We accordingly conclude that the base
forfeiture amount of $7,000 is apparently warranted for each of
Uniden's three models for a total proposed forfeiture of $21,000.
11. Based on the record before us, and having considered the statutory
factors enumerated above, we believe that an upward adjustment of the
$21,000 base forfeiture amount is warranted here. First, we believe
that an upward adjustment is warranted in view of the substantial
number of non-compliant devices Uniden imported, sold and distributed
in the United States and the fact that the violations continued over a
significant period. Although Uniden argues that that it marketed only
a small number of UAC Products in 2008 and 2009, as noted above, we
can also consider Uniden's earlier conduct in determining the
appropriate forfeiture amount. Uniden sold a very substantial number
of UAC Products during 2006 and 2007, which warrants an upward
adjustment. Further, we take into account Uniden's ability to pay a
forfeiture in determining the appropriate forfeiture amount. As the
Commission made clear in the Forfeiture Policy Statement, large or
highly profitable entities, such as Uniden could expect forfeitures
higher than those reflected in the base amounts. Finally, we find that
Uniden's continued marketing of significant quantities of UAC Products
through the end of 2007, well after Uniden received guidance from
Commission staff that voice scrambling is prohibited in the GMRS, is
egregious. Accordingly, applying the Forfeiture Policy Statement and
statutory factors to the instant case, we conclude that Uniden's
proposed forfeiture should be upwardly adjusted from the base amount
by $10,000 to $31,000.
12. Based on the record before us, and having considered the statutory
factors enumerated above, we also believe that downward adjustment is
also warranted. First, Uniden argues that it has a record of overall
compliance. We agree and find that a downward adjustment of $5,000 is
warranted on this basis. Uniden also argues that its conduct is
mitigated by its efforts to comply with the Rules "in the face of
strong competitive pressures," its resulting loss of market share, and
its efforts to obtain a rule clarification. We find that this
corrective action before the Commission notified Uniden of its
violations warrants a downward adjustment. However, we must also take
into account Uniden's continued marketing, via its PTC Division, of
significant quantities of UAC Products through the end of 2007, well
after Uniden received guidance from Commission staff that voice
scrambling is prohibited in the GMRS, and the continued marketing by
its PSS Division of smaller quantities during 2008 and 2009. Taking
these facts into account, we find that Uniden's corrective action
warrants a downward adjustment of $3,000. Accordingly, applying the
Forfeiture Policy Statement and statutory factors to the instant case,
we conclude that Uniden's proposed forfeiture should be adjusted
downward by a total of $8,000.
13. On the basis of the foregoing, we find that Uniden is apparently
liable for a proposed forfeiture of $23,000.
iV. ordering clauses
14. 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, Uniden, IS
NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount of
twenty-three thousand dollars ($23,000) for marketing non-compliant
GMRS transmitters in willful and repeated violation of Section 302(a)
of the Act and Section 2.803(g) of the Rules.
15. 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, Uniden SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
16. 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. Uniden will also send electronic
notification on the date said payment is made to
Thomas.Fitz-Gibbon@fcc.gov.
17. 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.
18. 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.
19. 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 Uniden America Corporation, 4700 Amon
Carter Boulevard, Fort Worth, TX 76155, and to its attorney, Gregg P.
Skall, Womble, Carlyle, Sandridge & Rice, LLC, Seventh Floor, 1401 I
Street, NW, Washington, DC 20005.
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(g).
47 C.F.R. S: 95.183(a)(4).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Uniden America
Corporation. (June 25, 2009).
Letter from Gregg P. Skall, Counsel for Uniden America Corporation., to
Thomas D. Fitz-Gibbon, Esq., Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (August 24, 2009) ("LOI
Response").
LOI Response at 4.
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."
LOI Response at 1-2, 5.
Id. at 1-2.
Id. at 5, Attachment 2. Uniden requested confidential treatment of the
attachments to its LOI Response, including the exact number of GMRS
devices sold and distributed in the United States. Id. at 1. Accordingly,
this information is discussed in an Appendix, which we are treating as
confidential at this time. The request for confidentiality remains
pending.
Id. at 2.
Id. at 1-2.
Id. at 3.
Id.
Id. See Office of Engineering and Technology KDB Publication number 791760
at http://www.fcc.gov/labhelp.
Id.
LOI Response at 3.
Id. at 3, Attachment 2.
Letter from Gregg P. Skall, Counsel for Uniden America Corporation, to
Thomas D. Fitz-Gibbon, Esq., Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission (September 2s, 2009) ("Second
LOI Response").
Letter from Gregg P. Skall, Counsel for Uniden America Corporation, to
Marlene H. Dortch Secretary,, Federal Communications Commission (October
7, 2009) ("Third LOI Response"), at 2-3
Id. at 2-3
Id. at 3.
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 Notice of Apparent
Liability 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)(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)
(forfeiture paid); 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, 20 FCC Rcd 17893 (Enf. Bur., Spectrum Enf. Div. 2005)
("B.E.A.").
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.
Third LOI Response at 3.
See, e.g., San Jose Navigation, Inc., Notice of Apparent Liability for
Forfeiture, 21 FCC Rcd 2873 (2006), forfeiture ordered, Forfeiture Order,
22 FCC Rcd 1040 (2007) ("San Jose"); Behringer, 21 FCC Rcd at 1827; ACR
Electronics, Inc., Notice of Apparent Liability for Forfeiture, 19 FCC Rcd
22293, 22302 (2004), forfeiture ordered, 21 FCC Rcd 3698 (2006); Samson
Technologies, Inc., Notice of Apparent Liability for Forfeiture, 19 FCC
Rcd 4221, 4225 (2004), consent decree ordered, 19 FCC Rcd 24509 (2004).
See, e.g., San Jose, 21 FCC Rcd at 2876 (upwardly adjusting a proposed
forfeiture based on the volume of non-compliant devices distributed, and
the three-year span in which such devices were marketed); B.E.A., 20 FCC
Rcd at 3448 (upwardly adjusting a proposed forfeiture based on the volume
of unauthorized devices distributed, and the five-year span in which such
devices were marketed).
The reported revenues for the year ending March 31, 2008, of Uniden's
parent, Uniden Corporation, a Japanese company, were YEN 6,300,000,000
(approximately $710,000,000). Stock Quote and Company Profile,
Businessweek.com.
Specifically, the Commission stated:
[O]n the other end of the spectrum of potential violations, we recognize
that for large or highly profitable communication entities, the base
forfeiture amounts ... are generally low. In this regard, we are mindful
that, as Congress has stated, for a forfeiture to be an effective
deterrent against these entities, the forfeiture must be issued at a high
level .... For this reason, we caution all entities and individuals that,
independent from the uniform base forfeiture amounts ..., we intend to
take into account the subsequent violator's ability to pay in determining
the amount of a forfeiture to guarantee that forfeitures issued against
large or highly profitable entities are not considered merely an
affordable cost of doing business. Such large or highly profitable
entities should expect in this regard that the forfeiture amount set out
in a Notice of Apparent Liability against them may in many cases be above,
or even well above, the relevant base amount.
Forfeiture Policy Statement, 12 FCC Rcd at 17099-100.
47 C.F.R. S: 0.111, 0.311 and 1.80.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 09-2374
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Federal Communications Commission DA 09-2374
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Before the
Federal Communications Commission
Washington, D.C. 20554
)
File No. EB-08-SE-819
In the Matter of )
NAL/Acct. No. 200932100066
Midland Radio Corporation )
FRN 0005867551
)
Notice of apparent Liability for forfeiture
Adopted: June 23, 2009 Released: June 25, 2009
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Midland Radio Corporation. ("Midland") apparently liable for a
forfeiture in the amount of twenty-one thousand dollars ($21,000) for
willful and repeated violation of Section 302(b) of the Communications
Act of 1934, as amended ("Act") and Section 2.803(g) of the
Commission's Rules ("Rules"). The noted apparent violations involve
Midland's marketing of noncompliant General Mobile Radio Service
("GMRS") transmitters.
II. BACKGROUND
2. Section 95.183(a)(4) of the Rules prohibits GMRS operators from
transmitting coded messages and messages with hidden meanings. The
Enforcement Bureau's Spectrum Enforcement Division ("Division")
received information indicating that Midland was marketing GMRS
transmitters that have a voice scrambling feature. After its receipt
of this information, the Division began an investigation. In pursuance
of the investigation, the Division conducted internet research on
February 24, 2009, on the website http://www.midlandradio.com. During the
internet research, Division personnel observed that Midland was
offering for sale the following GMRS transmitter models described as
having a "Voice Privacy Scramble" feature: GXT900VP4 and GXT950VP4.
3. The Division directed a letter of inquiry ("LOI") to Midland on March
3, 2009. Midland responded on April 2, 2009. In its response, Midland
states that its scrambling feature "utilizes voice inversion, an
encoding/decoding circuit technology that mixes the voice signal with
a high frequency tone, resulting in upper and lower sidebands added to
the voice signal and tone. One of the sidebands is removed when the
transmission is sent. In a receiver equipped with the appropriate
descrambling capability, the missing sideband is restored, recovering
the full voice transmission."
4. Additionally, Midland's response indicates that Midland has imported
and marketed a large quantity of the following GMRS transmitter models
that have the scrambling feature: GXT900VP4, GXT950VP4, GXT800VP4,
GXT808VP3, GXT850VP4B and GXT900VP4K. The GXT900VP4, GXT900VP4K and
GXT950VP4 are apparently certified under the FCC ID MMAGXT950, while
the GXT800VP4, GXT808VP3 and GXT850VP4B appear to be certified under
the FCC ID MMAGXT850Z. Midland contends the use of its scrambling
feature is not prohibited by Section 95.183(a)(4) of the Rules.
III. Discussion
A. Midland Apparently Marketed Noncompliant Devices
5. 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(g) provides in pertinent part:
The provisions in paragraphs (b) through (f) of this section do not apply
to radio frequency devices that could not be authorized or legally
operated under the current rules. Such devices shall not be operated,
advertised, displayed, offered for sale or lease, sold or leased, or
otherwise marketed absent a license issued under part 5 of this chapter or
a special temporary authorization issued by the Commission.
Additionally, Section 95.183(a)(4) of the Rules provides in pertinent part
that "[a] station operator must not communicate ... coded messages or
messages with hidden meanings."
6. Midland admits that it imported and marketed a large quantity of GMRS
transmitters that have a voice scrambling feature but contends that
the use of the voice scrambling feature does not violate Section
95.183(a)(4) of the Rules. Specifically, Midland argues that, while
its "voice privacy scramble" feature makes voice communications
unintelligible to users of radios without this feature, all users of
radios that have the scrambling feature can decipher scrambled
communications. Additionally, Midland claims its voice scrambling
feature does not fit the dictionary definition of a coded message.
Midland further argues that it made a full disclosure of the
scrambling feature when it applied for the certification FCC ID
MMAGXT950, that the scrambling feature is available on a wide variety
of GMRS devices marketed by its competitors and that it must offer a
similar feature to remain competitive. Finally, Midland asserts that
during 2006 it discussed the permissibility of GMRS voice scrambling
with a member of the Commission's Wireless Telecommunications Bureau
staff; that during this discussion it pointed out that a number of
competing GMRS products had the voice scrambling feature; and that,
because no enforcement action was taken and one of these products
remained certified, it was "justified in assuming" that "the
Commission had decided not to require the products to come off the
market."
7. Midland's arguments are unconvincing. It was not justified in its
assumption that the Commission decided not to require the removal from
the market of GMRS devices with voice scrambling. In 2007, the
Commission staff publicly interpreted its rules to advise that voice
scrambling constitutes coded messaging and, therefore, is not allowed
for GMRS devices. Additionally, in 2004 the former Public Safety and
Critical Infrastructure Division of the Wireless Telecommunications
Bureau granted Garmin International, Inc. ("Garmin") a waiver of
Section 95.183(a)(4) of the Rules to permit the manufacture and
marketing of GMRS devices capable of transmitting and receiving Global
Position System (GPS) location information. In the absence of a
waiver, the transmission of GPS location information over the radios
marketed by Garmin would have been prohibited by Section 95.183(a)(4)
of the Rules. Although Midland's voice scrambling technology differs
from Garmin's technology, it has an analogous effect - the
transmission of messages that are undecipherable to many GMRS users.
In both circumstances, the undecipherable messages are coded messages
within the meaning of Section 95.183(a)(4) of the Rules.
8. A device equipped with a prohibited capability must be classified as
noncompliant notwithstanding any approval by a Telecommunication
Certification Body (TCB). We find that the GMRS devices authorized by
the equipment authorizations FCC ID MMAGXT950 and FCC ID MMAGXT850Z
are noncompliant with the requirements of Section 95.183(a)(4) of the
Rules.
9. Midland requests that, if the Commission decides that voice scrambling
is prohibited in GMRS devices, this should be done "prospectively,
with time allowed to update product design and to dispose of existing
inventories." We will not rule prospectively. Section 95.183(a)(4) of
the Rules has been previously construed to prohibit voice scrambling
in the GMRS.
10. We, accordingly, find that Midland apparently marketed noncompliant
radio frequency devices, in willful and repeated violation of Section
302(b) of the Act and Section 2.803(g) of the Rules.
B. Proposed Forfeiture
11. 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. 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 Midland'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 Midland's
conduct has continued over a period that began during 2007, the
forfeiture amount we propose herein relates only to Midland's's
apparent violations that have occurred within the past year.
13. Under the Forfeiture Policy Statement and Section 1.80 of the Rules,
the base forfeiture amount for the marketing of unauthorized equipment
is $7,000. Midland apparently marketed two distinct models of GMRS
transmitters that were equipped with the voice scrambling feature: the
model certified under FCC ID MMAGXT950 (designated by Midland as
models GXT900VP4, GXT900VP4K and GXT950VP4) and the model certified
under FCC ID MMAGXT850Z (designated by Midland as models GXT800VP4,
GXT808VP3 and GXT850VP4B). We find that the base forfeiture amount of
$7,000 is apparently warranted for each of these two models for total
of $14,000. Based on the record before us, and having considered the
statutory factors enumerated above, we believe that an upward
adjustment of the $14,000 base forfeiture amount is warranted here.
First, we believe that an upward adjustment is warranted in view of
the substantial number of non-compliant devices Midland imported, sold
and distributed in the United States and the fact that the violations
continued over a significant period. Further, we take into account
Midland's ability to pay a forfeiture in determining the appropriate
forfeiture amount. As the Commission made clear in the Forfeiture
Policy Statement, large or highly profitable entities, such as Midland
could expect forfeitures higher than those reflected in the base
amounts. Accordingly, applying the Forfeiture Policy Statement and
statutory factors to the instant case, we conclude that Midland is
apparently liable for a monetary forfeiture of $21,000.
iV. ordering clauses
14. 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, Midland, IS
NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount of
twenty-one thousand dollars ($21,000) for marketing noncompliant GMRS
transmitters, in willful and repeated violation of Section 302(a) of
the Act and Section 2.803(g) of the Rules.
15. 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, Midland SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
16. 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. Midland will also send electronic
notification on the date said payment is made to
Thomas.Fitz-Gibbon@fcc.gov.
17. 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.
18. 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.
19. 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 Midland Radio Corporation, 5900 Parretta
Drive, Kansas City, MO 64120, and to its attorneys, Peter Tannenwald
and Davina Sashkin, Fletcher, Heald & Hildreth, PLC, 1300 North 17th
Street, 11th Floor, Arlington, VA22209.
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(g).
47 C.F.R. S: 95.183(a)(4).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Midland Radio
Corporation. (March 3, 2009).
Letter from Peter Tannenwald and Davina Sashkin, Counsel for Midland Radio
Corporation., to Thomas D. Fitz-Gibbon, Esq., Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission (April 3,
2009) ("LOI Response").
"Response of Midland Radio Corporation to FCC Letter of Inquiry"
(Attachment to LOI Response, hereinafter referred to as "First
Attachment") at 1-2.
Midland requested confidential treatment of portions of its LOI response,
including the exact number of GMRS devices imported and the dates of
importation. Accordingly, this information is discussed in an Appendix,
which we are treating as confidential at this time. The request for
confidentiality remains pending.
Id. at 2.
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."
LOI Response at 2.
Id. at 2.
Id. at 2-4.
Id. at 3.
Office of Engineering and Technology KDB Publication number 791760 at
http://www.fcc.gov/labhelp.
Garmin International, Inc., Request for Waiver of Sections 95.29(f),
95.119(a)(1), 95.181(a), 95.13(a)(4) and 95.631(a) and (f) of the
Commission's Rules to Authorize the Manufacture, Sale and Use of GPS
Transmission Enhanced GMRS Units, Order, 20 FCC Rcd. 982 (WTB, Public
Safety and Critical Infrastructure Division 2004) (waiver granted); waiver
extended, Order, 21 FCC Rcd. 15072 (WTB, Public Safety and Critical
Infrastructure Division 2006): waiver extended, Order, 23 FCC Rcd 18325
(WTB, Public Safety and Critical Infrastructure Division 2008).
Since GPS location information cannot be deciphered by GMRS users who
don't have the necessary equipment, it is considered to be a coded
message.
See 47 C.F.R. S: 2.939(a)(2), which authorizes the Commission to revoke an
equipment authorization if it is determined that the equipment does not
conform to the pertinent technical requirements.
Id. at 4.
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 Notice of Apparent
Liability 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)(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)
(forfeiture paid); 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.
See e.g., Samson Technologies, Inc., Notice of Apparent Liability for
forfeiture, 19 FCC Rcd 4221, 4225 (2004); Consent Decree, 19 FCC Rcd 24542
(2004).
See, e.g., San Jose Navigation, Inc., 21 FCC Rcd 2873, 2876 (2006)
(upwardly adjusting a proposed forfeiture based on the volume of
non-compliant devices distributed, and the three-year span in which such
devices were marketed), forfeiture ordered, Forfeiture Order, 22 FCC Rcd
1040 (2007); Bureau D'Electronique Appliquee, 20 FCC Rcd at 3448 (2005)
(upwardly adjusting a proposed forfeiture based on the volume of
unauthorized devices distributed, and the five-year span in which such
devices were marketed), forfeiture ordered, Forfeiture Order, 20 FCC Rcd
17893 (2005).
Midland's estimated annual revenues are $9,900,000. Company profile,
Manta.com.
Specifically, the Commission stated:
[O]n the other end of the spectrum of potential violations, we recognize
that for large or highly profitable communication entities, the base
forfeiture amounts ... are generally low. In this regard, we are mindful
that, as Congress has stated, for a forfeiture to be an effective
deterrent against these entities, the forfeiture must be issued at a high
level .... For this reason, we caution all entities and individuals that,
independent from the uniform base forfeiture amounts ..., we intend to
take into account the subsequent violator's ability to pay in determining
the amount of a forfeiture to guarantee that forfeitures issued against
large or highly profitable entities are not considered merely an
affordable cost of doing business. Such large or highly profitable
entities should expect in this regard that the forfeiture amount set out
in a Notice of Apparent Liability against them may in many cases be above,
or even well above, the relevant base amount.
Forfeiture Policy Statement, 12 FCC Rcd at 17099-100.
47 C.F.R. S: 0.111, 0.311 and 1.80.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 09-1390
2
2
Federal Communications Commission DA 09-1390
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http://www.fcc.gov/eb/FieldNotices/2003/DOC-290813A1.html
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 14, 2009
By the District Director Los Angeles Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Kevin W. Bondy ("Bondy"), licensee of GMRS station WQGX752, in
Encino, California, apparently willfully and repeatedly violated
Sections 301 and 333 of the Communications Act of 1934, as amended
("Act"), and Section 95.183(a)(5) of the Commission's Rules
("Rules"), by engaging in unlicensed radio operation and intentional
interference to licensed radio operations; and apparently willfully
violated Section 303(n) of the Act and Section 95.115 of the Rules by
failing to allow an inspection of his radio equipment by Commission
personnel. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Mr. Bondy is
apparently liable for a forfeiture in the amount of twenty-four
thousand dollars ($24,000).
II. BACKGROUND
2. On February 25, 2009, the Los Angeles Office received a complaint from
the security manager for The Oaks Shopping Center ("The Oaks"),
located at 350 West Hillcrest Drive, Thousand Oaks, California. The
Oaks is the licensee of land mobile radio station KOA995, with
authority to operate on 461.375 MHz, 462.525 MHz, and 467.525 MHz. The
Oaks is also the licensee of land mobile radio station KG9712, with
authority to operate on 466.375 MHz.
3. On February 26, 2009, an agent from the Enforcement Bureau's Los
Angeles Office contacted the security manager regarding the complaint.
The security manager stated that someone was intentionally interfering
with their maintenance operations on 462.525/467.525 MHz and their
security operations on 461.375/466.375 MHz. The security manager also
stated that this person was harassing stores in The Oaks. According to
the security manager, the person in question had told The Oaks to stop
using 461.375MHz, their security repeater input frequency.
4. On March 5, 2009, the Los Angeles agent, using a mobile direction
finding ("MDF") vehicle, located the source of pulsating signals on
461.375/466.375 MHz, apparently intended to interfere with normal
transmissions on those frequencies, to a repeater located within a
secured radio communications facility on Oat Mountain in the Santa
Susana Mountains. The agent observed that the radio equipment which
was the source of the pulsating signals, included a beam antenna
pointed in the direction of Thousand Oaks.
5. On March 6, 2009, the agent monitored 461.375/466.375 MHz in the
vicinity of The Oaks and observed pulsating signals apparently
designed to interfere with normal transmissions on those frequencies.
Later that day, in consultation with personnel from The Oaks and the
Ventura County Sherriff's Department, the Los Angeles agent attempted
to locate the originating subject source of the transmissions while
personnel from The Oaks spoke to the unknown operator on 464.7125 MHz
and 462.8375 MHz. The Los Angeles agent instructed The Oaks personnel
to keep the subject talking for as long as possible so that the agent
could locate the origin of the transmissions.
6. While the Los Angeles agent attempted to locate the source of the
transmissions on 464.7125 MHz and 462.8375 MHz, The Oaks personnel
spoke to the subject. During this time, the subject told The Oaks
personnel that they had "plenty of warning." The subject then
effectively shut down all operations on The Oaks frequencies by
transmitting NOAA weather radio over every channel. The subject then
told Oaks personnel that he had been "jamming" the 461.375/466.375
frequencies by "pulsing" them to shut down the repeater. The subject
also said that The Oaks now had no repeaters, that the Oaks had to
stop using the 461.375/466.375 MHz repeater pair and that The Oaks had
to apply to the FCC to cancel the 461.375/466.375 MHz repeater pair
and request a new frequency pair because "we need the channel." The
subject said that he gave The Oaks three weeks to vacate the
frequencies but The Oaks did not, so "this is what we've come to." The
subject then explained in detail to the Oaks personnel how to work
with the FCC and frequency coordinators to apply for a new frequency
for their license.
7. Later on March 6, 2009, at approximately 7:30 p.m., the Los Angeles
agent, using a MDF vehicle, located the originating source of the
transmissions on 464.7125 MHz and 462.8375 MHz to a vehicle located on
the National Park Service parking structure across the street from The
Oaks. The Ventura County Sheriff's Department then secured the area
and identified the subject as Kevin Bondy. The Los Angeles agent
identified himself to Bondy and explained that a refusal to allow an
inspection could result in a fine. Then the agent asked Bondy if he
could perform an inspection of all radios in his vehicle. Initially,
Bondy refused to allow an inspection, then later agreed to allow an
inspection, then refused again. Bondy's refusal was witnessed by
Ventura County Sheriff's Department deputies.
8. On March 9, 2009, the Los Angeles agent revisited the radio
communications facility on Oat Mountain and observed that the beam
antenna had been removed and the interference to The Oaks radio
systems had ceased.
III. DISCUSSION
9. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
10. Section 301 of the Act states that "[n]o person shall use or operate
any apparatus for the transmission of energy or communications or
signals by radio ... except under and in accordance with this Act and
with a license in that behalf granted under the provisions of this
Act." Although Bondy is a General Mobile Radio Service (GMRS) licensee
under Part 95 of the Rules, he has no authorization to operate on
461.375 MHz, 466.375 MHz, 464.7125 MHz or 462.8375 MHz. On March 6,
2009, Bondy admitted during his transmissions that he was aware of
which frequencies he was operating on, therefore, his violation was
willful. The violation occurred on more than one day, therefore, it
was repeated. Based on the evidence before us, we find that Bondy
apparently willfully and repeatedly violated Section 301 of the Act.
11. Section 333 of the Act states that "[n]o person shall willfully or
maliciously interfere with or cause interference to any radio
communications of any station licensed or authorized by or under the
Act or operated by the United States government." Section 95.183(a)(5)
of the Rules states that a GMRS station operator must not communicate
intentional interference. On March 6, 2009, Bondy acknowledged in his
transmissions that he was causing intentional interference to The
Oaks' authorized operations on 461.375 MHz and 466.375 MHz, in a
successful effort to render The Oaks' repeater unusable and to force
The Oaks off their licensed channels. Bondy admitted to causing the
intentional interference, therefore, the violation was willful. The
violation occurred on more than one day, therefore, it was repeated.
Based on the evidence before us, we find that Bondy apparently
willfully and repeatedly violated Section 333 of the Act and Section
95.183(a)(5) of the Rules.
12. Section 303(n) of the Act states "the Commission . . . shall have
authority to inspect all radio installations . . . ." Section 95.115
of the Rules states that "[i]f an authorized FCC representative
requests to inspect any station in a GMRS system, the licensee or
station operator must make the station available." On March 6, 2009,
an agent from the Commission's Los Angeles Office requested an
inspection of Bondy's radio equipment. Bondy initially agreed to the
inspection but then refused. Bondy was aware of the requirement to
make his radio equipment available to the agent, as the agent
explained the requirement to Bondy. Consequently, we find that Bondy
apparently willfully violated Section 303(n) of the Act and Section
95.183(a)(5) of the Rules.
13. Pursuant to 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 unlicensed operation is $10,000; the base
forfeiture for interference is $7,000; and the base forfeiture for
failing to permit inspection is $7,000. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in Section 503(b)(2)(E) of the Act, which include
the nature, circumstances, extent, and gravity of the violations, and
with respect to the violator, the degree of culpability, and history
of prior offenses, ability to pay, and other such matters as justice
may require. Applying the Forfeiture Policy Statement, Section 1.80,
and the statutory factors to the instant case, we conclude that Bondy
is apparently liable for a $24,000 forfeiture.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Kevin W. Bondy is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
twenty-four thousand dollars ($24,000) for violations of Sections
301, 303(n), and 333 of the Communications Act of 1934, as amended,
and Sections 95.115 and 95.183(a)(5) of the Rules.
15. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Kevin W. Bondy SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
16. 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. Kevin W. Bondy will also send
electronic notification on the date said payment is made to
WR-Response@fcc.gov.
17. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Los Angeles Office,
18000 Studebaker Rd., Suite 660, Cerritos, California, 90703 and must
include the NAL/Acct. No. referenced in the caption. An electronic
copy shall be sent to WR-Response@fcc.gov.
18. 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 ("GAAP"); 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.
19. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Kevin W. Bondy at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Nader Haghighat
District Director
Los Angeles Office
Western Region
Enforcement Bureau
47 U.S.C. S:S: 301, 333.
47 C.F.R. S: 95.183(a)(5).
47 U.S.C. S: 303(n).
47 C.F.R. S: 95.115.
47 U.S.C. S: 503(b).
We note that The Oats had no authorization to operate on 464.7125 MHz and
462.8375 MHz, however, they used those frequencies to communicate with the
subject, and other personnel, because of the continual jamming of their
authorized frequencies.
The agent observed that the vehicle contained a console mount radio, a
hand handle radio, and a mobile radio unit in the back seat. The agent was
not able to inspect any of these devices because of Bondy's refusal.
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', 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 or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term 'repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
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Forgot to add this one when it came out....
FEDERAL COMMUNICATIONS COMMISSION
ENFORCEMENT BUREAU
NORTHEAST REGION
New York Office
201Varick Street, Suite 1151
New York, New York 10014
January 15, 2008
(Sent via Certified Return Receipt Requested and First Class U.S. Mail)
Steven Riddle
Bohemia, New York
NOTICE OF UNLICENSED OPERATION
Case Number: EB-07-NY-408
Document Number: W20083238021
The New York Office received a complaint of interference to FCC licensees
authorized to operate on various frequencies assigned to public safety
entities in Suffolk County of New York. The New York Office also
received information that on or about August 26, 2007, you operated
portable radio transmitting equipment on various frequencies in Bohemia,
NY. The Commission's records show that no license was issued for operation
on those frequencies at this location.
Radio stations must be licensed by the FCC pursuant to 47 U.S.C. S: 301.
You are hereby warned that operation of radio transmitting equipment
without a valid radio station authorization constitutes a violation of 47
U.S.C. S: 301 and could subject the operator to severe penalties,
including, but not limited to, substantial monetary fines, in rem arrest
action against the offending radio equipment, and criminal sanctions
including imprisonment. (see 47 U.S.C. S:S: 401, 501, 503 and 510).
UNLICENSED OPERATION OF THIS RADIO STATION MUST BE DISCONTINUED
IMMEDIATELY.
You have ten (10) days from the date of this notice to respond with any
evidence that you have authority to operate granted by the FCC. Your
response should be sent to the address in the letterhead and reference the
listed case and document number. Under the Privacy Act of 1974, 5 U.S.C.
S: 552a(e)(3), we are informing you that the Commission's staff will use
all relevant material information before it to determine what, if any,
enforcement action is required to ensure your compliance with FCC Rules.
This will include any information that you disclose in your reply.
You may contact this office if you have any questions.
Daniel W. Noel
District Director
New York Office
Attachments:
Excerpts from the Communications Act of 1934, As Amended
Enforcement Bureau, "Inspection Fact Sheet", July 2003
http://www.fcc.gov/eb/FieldNotices/2003/DOC-279732A1.html
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This morning I am hearing a foreign ship on 467.600 MHz. This frequency is NOT and NEVER HAS BEEN authorized for use by foreign ships in US waters.
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I work in Oakland near the Port of Oakland. I recently scanned all the GMRS inputs after experincing strong and repeated input interference on our 600 and 625 repeater inputs for over nine months (we had been unable to locate the sources).
Over 49 separate FSI incidents were identified on the GMRS inputs (except 700 and 725) over a three month period. And I was only monitoring 6-8 AM and 5-7 PM while commuting.
Several other companies have setup shop (voice and telemetry) on the 12.5 kHz channels adjacent to 550 and 725 (outside the GMRS/FRS band; 462/467.5375, 462/467.7375). I believe these are guard-band channels and not allocated to any specific service.
If you are a repeater owner in this area, or know one of the many absentee owners, please have them contact me at crossmod at comcast dot net. We hope to contact FCC field enforcement (as a group) to get some help.
intermod
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I'm not sure what has happened but ships going to and fro on the Chesapeake have been very quiet on GMRS channels of late. What about the rest of the country folks? What are you hearing in port cities on GMRS inputs and outputs?
Respond in the GMRS Intruder forum.
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This was sent to Riley Hollingsworth this morning 6/20/08 after a US registered vessel was heard using a Part 95/Part 90 hybrid repeater on the Chesapeake Bay. Yes, a US registered vessel:
Riley,
This morning the United States registered cargo ship Liberty, aka/FAUST in MMSI, went north to Baltimore past my home at Plum Point operating a ship-based repeater station using 467.575 MHz (GMRS) as an input and 457.575 MHz (Part 90) as an output frequency. It greatly disturbs me that a vessel registered in our country where the radio regulations we observe have traditionally been honored on the water is using a Part 95 repeater input frequency. In my view, there really is no valid excuse for a US registered vessel to be operating out of band. The captain of that ship and radio officer should both know better. That equipment should have controls to change frequencies when inside the United States territorial waters so that interference is not possible. There is a local 462.575/467.575 repeater in St. Mary’s county that can be interfered with by ships transiting the Bay.
I know you are about to close and lock the door up there, but please feel free to pass this on to whomever can perhaps write a letter to the company that owns the Liberty. Whatever you think is appropriate. Address from the FCC record is below. I can also put this on a PRA complaint form if that would help.
The ship’s information obtained from AIS at the time of the broadcast follows:
Liberty WRYX
IMO 8320779
Destination: Baltimore
38deg 37.393N
76 deg 25.528W
17.6kts
heading 011
draught 8.78m
beam 32m port 11 m
length 199m
cargo ship
From the ITU mmsi record:
Admin.Geo.Area : United States of America
Ship Name : FAUST
Call Sign : WRYX
Selcal No.(s) :
MMSI No. : 367338000
Inmarsat No.(s) : 761836820-23
NTLX No.(s) :
Boats :
EPIRBs : C1E1
Ship class : MM CA
Corresp. : CP Terr. Serv. :
Hours : HX
RTG Band : SXYZ RTF Band : STUV
AAIC : US03 AAIC SAT :
AA info. : US01 TER 10/02/2001
Owner : INTERNATIONAL MARINE CARR
Ex Ship Name :
Ex Call Sign :
EPIRB Id. Code :
EPIRB Hex ID code :
Vessel Id. No. :
Gross Tonnage :
Person Capacity :
Radio Installation :
EMERGENCY CONTACT
Last Update : 22/03/2001
The FCC callsign record:
INTEROCEAN AMERICAN SHIPPING
221 LAUREL RD SUITE 300
VOORHEES, NJ 08043-2349
ATTN CAPT HARRY ROGERS
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This morning tropo is in. On the AIS map I can see ships at Norfolk, VA, and in the Atlantic ocean and the Delaware Bay.
I'm listening to what sounds like an American training vessel of some type using a ship-board repeater with an output on 462.550 MHz. Young people are referred to as "cadet." There are references to Captain, Chief Mate etc.
The antenna used at the moment is a vertical. No bearing. CTCSS detected is 136.5
The more I listened to this morning the more I think it was actually FSI to a GMRS repeater input. The repeater had no control operator and was repeating input traffic.
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