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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of File No. EB-05-SE-334
)
AboCom Systems, Inc. NAL/Acct. No. 200632100017
)
Hsinchu City, Taiwan FRN # 0007031842
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 13, 2006 Released: July 17, 2006
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
AboCom Systems, Inc. ("AboCom") apparently liable for a forfeiture in
the amount of twenty-five thousand dollars ($25,000) 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 apparent violations involve marketing wireless
access points that do not comply with the terms of its equipment
authorization and the requirements of Section 15.247(d) of the Rules.
II. background
2. The equipment involved in this proceeding is the Hawking Technology,
Inc. ("Hawking") Model HWRG54 wireless access point ("HWRG54") and the
identical Phoebe Micro, Inc. ("Phoebe") AR315W wireless access point
("AR315W"). Both Hawking and Phoebe are United States corporations
whose operations are located in the United States. AboCom, a Taiwan
corporation, manufactured this device and holds an equipment
authorization, FCC ID MQ4ARM94, for it.
3. The Enforcement Bureau ("Bureau") received a report from Industry
Canada indicating that the HWRG54 does not comply with Canada's
equipment certification standards. Specifically, the report from
Industry Canada indicated that the device produced a spurious emission
at 2.6 GHz. The Bureau purchased an HWRG54 wireless access point and
sent it to the Commission's Office of Engineering and Technology
("OET") Laboratory for testing. The OET Laboratory tested the HWRG54
and determined that it produced a spurious emission on the frequency
2.6 GHz that substantially exceeded the limit specified by Section
15.247(d) of the Rules.
4. On March 2, 2006, the Bureau issued a letter of inquiry ("LOI") to
AboCom. On April 17, 2006, AboCom responded to the LOI. In its
response, AboCom states that, beginning May 31, 2004, it manufactured
the HWRG54 for Hawking at its factory in Taiwan in accordance with
specifications provided by Hawking. Additionally, AboCom states that,
beginning May 12, 2004, it manufactured the same wireless access point
(designated by the model number AR315W) for Phoebe. AboCom's response
indicates that it shipped a large quantity of HWRG54 devices to
Hawking between May 31, 2004, and October 5, 2005, and a large
quantity of AR315W devices to Phoebe between May 12, 2004, and June
14, 2005. AboCom also provides a copy of a test report dated November
4, 2005, which purportedly shows that the HWRG54 did not produce a
spurious emission exceeding the limit specified by Section 15.247(d)
of the Rules. Notably, however, the report is incomplete because it
does not identify or describe the measurement procedures used.
5. The OET Laboratory subsequently tested a second sample of the HWRG54
and again found that it produced a spurious emission at 2.6 GHz that
substantially exceeded the limit specified by Section 15.247(d) of the
Rules. OET also determined that the HWRG54 is capable of operating on
frequencies beyond the 2.412 - 2.482 GHz range authorized by its
equipment authorization.
III. discussion
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(a)(1) of the Commission's implementing regulations provides
that:
Except as provided elsewhere in this section, no person shall sell or
lease, or offer for sale or lease (including advertising for sale or
lease), or import, ship, or distribute for the purpose of selling or
leasing or offering for sale or lease, any radio frequency device unless
... [i]n the case of a device that is subject to certification, such
device has been authorized by the Commission in accordance with the rules
in this chapter and is properly identified and labeled as required by S
2.925 and other relevant sections in this chapter.
Section 15.247(d) of the Commission's implementing regulations provides
that:
In any 100 kHz bandwidth outside the frequency band in which the spread
spectrum or digitally modulated intentional radiator is operating, the
radio frequency power that is produced by the intentional radiator shall
be at least 20 dB below that in the 100 kHz bandwidth within the band that
contains the highest level of the desired power, based on either an RF
conducted or a radiated measurement, provided the transmitter demonstrates
compliance with the peak conducted power limits. If the transmitter
complies with the conducted power limits based on the use of RMS averaging
over a time interval, as permitted under paragraph (b)(3) of this section,
the attenuation required under this paragraph shall be 30 dB instead of 20
dB. Attenuation below the general limits specified in Sec. 15.209(a) is
not required. In addition, radiated emissions which fall in the restricted
bands, as defined in Sec. 15.205(a), must also comply with the radiated
emission limits specified in Sec. 15.209(a) (see Sec. 15.205(c)).
7. Furthermore, in accepting the grant of an equipment authorization,
AboCom warranted that:
each unit of equipment marketed under such grant and bearing the
identification specified in the grant will conform to the unit that was
measured and that the data (design and rated operational characteristics)
filed with the application for certification continues to be
representative of the equipment being produced under such grant within the
variation that can be expected due to quantity production and testing on a
statistical basis.
8. AboCom admits that it sold and distributed large quantities of the
HWRG54 and AR315W wireless access points to Hawking and Phoebe, but
claims, on the basis of its incomplete November 4, 2005 test report,
that the devices are compliant. The OET Laboratory's tests, however,
demonstrate that these devices produce spurious emissions exceeding
the limit prescribed by Section 15.247(d) of the Rules and, therefore,
are not compliant. The OET Laboratory's tests also show that the
device is capable of operating on frequencies beyond the 2.412 - 2.482
GHz range authorized by AboCom's equipment authorization. We find,
based on a preponderance of the evidence, that AboCom apparently
willfully and repeatedly violated Section 302(b) of the Act and
Section 2.803(a) Rules by marketing equipment that does not comply
with Section 15.247(d) of the Rules and the terms of its equipment
authorization.
9. 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."
10. 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 AboCom'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 AboCom's
conduct has continued over a period that began on May 12, 2004, the
forfeiture amount we propose herein relates only to AboCom's apparent
violations that have occurred within the past year.
11. 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(b)(4) of the Rules,
the base forfeiture amount for the marketing of unauthorized equipment
is $7,000. Section 503(b)(2)(C) of the Act authorizes the Commission
to assess a maximum forfeiture of $11,000 for each violation, or each
day of a continuing violation, up to a statutory maximum forfeiture of
$97,500 for any single continuing violation. Based on the record
before us, and having considered the statutory factors enumerated
above, we believe that an upward adjustment of the $7,000 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 AboCom sold and distributed to Hawking and
Phoebe and the fact that the violations continued over a 17-month
period. Further, we take into account AboCom'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 AboCom, 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 AboCom is apparently liable for a $25,000
forfeiture.
IV. ORDERING CLAUSES
12. 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, AboCom Systems, Inc.,
IS hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty-five thousand dollars ($25,000) for willfully and
repeatedly violating Section 302(b) of the Act and Section 2.803(a) of
the Rules.
13. 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, AboCom Systems, Inc., SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
14. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106.
15. 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.
16. 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.
17. Requests for payment of the full amount of the NAL under an
installment plan should be sent to: Associate Managing Director -
Financial Operations, 445 12^th Street, S.W., Room 1A625, Washington,
D.C. 20554.
18. IT IS FURTHER ORDERED that a copy of this Notice of Apparent
Liability for Forfeiture shall be sent by facsimile and international
registered mail to AboCom Systems, Inc., 1F No. 21 Yanfa, 2^nd Road,
SBIP, Hsinchu City, Taiwan.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
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 15.247(d).
A wireless access point is a transmitter/receiver used to provide wireless
internet access.
Industry Canada is a regulatory agency of the Canadian Government.
Section 2.1(c) of the Rules, 47 C.F.R. S 2.1(c), defines a spurious
emission as "Emission on a frequency or frequencies which are outside the
necessary bandwidth and the level of which may be reduced without
affecting the corresponding transmission of information."
See Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission to AboCom
Systems, Inc. (March 2, 2006).
See Letter from Eric Oh-Yang, Chairman & Chief Executive Officer, AboCom
Systems, Inc., to Brett Greenwalt, Engineer, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission (April 10,
2006) ("LOI Response").
Id., Exhibit B.
47 C.F.R. S 2.947(b) and (c).
47 C.F.R. S 2.801 defines a radiofrequency device as "any device which in
it its operation is capable of emitting radiofrequency energy by
radiation, conduction, or other means."
See 47 C.F.R. S 2.931.
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., 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).
47 U.S.C. S 503(b).
47 U.S.C. S 503(b)(2)(D).
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 1820, 1825, P 20 (2006); Globcom, Inc. d/b/a Globcom
Global Communications, 18 FCC Rcd 19893, 19903 P 23 (2003), forfeiture
ordered, 21 FCC Rcd 4710 (2006); Roadrunner Transportation, Inc., 15 FCC
Rcd 9669, 9671-71 P 8 (2000); Cate Communications Corp., 60 RR 2d 1386,
1388 P 7 (1986); Eastern Broadcasting Corp., 10 FCC 2d 37, 37-38 P 3
(1967), recon. den.,11 FCC 2d 193 (1967); Bureau D'Electronique Appliquee,
Inc., 20 FCC Rcd 3445, 3447-48 PP 8-9 (Enf. Bur., Spectrum Enf. Div.
2005), forfeiture ordered, 20 FCC Rcd 17893 (Enf. Bur., Spectrum Enf. Div.
2005) ("Bureau D'Electronique Appliquee").
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 C.F.R. S 1.80(b)(4).
47 U.S.C. S 503(b)(2)(C). The Commission twice amended Section 1.80(b)(3)
of the Rules, 47 C.F.R. S 1.80(b)(3), 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, 15 FCC Rcd 18221
(2000) (adjusting the maximum statutory amounts from $10,000/$75,000 to
$11,000/$87,500); Amendment of Section 1.80 of the Commission's Rules and
Adjustment of Forfeiture Maxima to Reflect Inflation, 19 FCC Rcd 10945
(2004) (adjusting the maximum statutory amounts from $11,000/$87,500 to
$11,000/$97,500); see also 47 C.F.R. S 1.80(c).
See, e.g., San Jose Navigation, Inc., 21 FCC Rcd 2873, 2876 P 15 (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); Bureau D'Electronique Appliquee, 20 FCC Rcd at
3448 P 9 (upwardly adjusting a proposed forfeiture based on the volume of
unauthorized devices distributed, and the five-year span in which such
devices were marketed).
AboCom had revenues of approximately 4 billion Taiwan dollars in 2005
(approximately $133 million in US dollars). Worldscope-International
Company Profiles, April 21, 2006.
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 U.S.C. S 503(b).
47 C.F.R. S 0.111, 0.311 and 1.80.
See 47 C.F.R. S 1.1914.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 06-1442
6
Federal Communications Commission DA 06-1442