FCC Bullies its way to $50,000

On February 16, 2010 the FCC published a consent agreement entered into with San Jose Navigation, Inc. where San Jose paid $50,000 to settle a fine issued to it by the FCC. San Jose Navigation 

It appears that San Jose was manufacturing and selling a GPS re-radiator.  Basically, this device can be mounted outside your vehicle and it will transmit a GPS signal to your portable unit.  If anyone has had the privilege of driving in a poor reception area, such as a big city, you will have experienced areas where the GPS loses satellite reception.  Using a re-radiator solves the problem because it is located outside the vehicle and also has a longer antenna.  No more lost satellite reception error messages.

Unfortunately, San Jose's equipement was apparently not certified as meeting FCC's standards (and apparently cannot be certified since the FCC does not approve this type of equipment for use).  Anyway, several federal agencies complained that the equipment might cause interference to normal GPS operations (which seems unlikely since the range of re-broadcast of the GPS signal is a matter of a meter or so).  As a result the FCC issued a Letter of Inquiry to San Jose.  In response, San Jose admitted selling the units, but immediately stopped on receipt of the LOI and recalled all unsold units.

The FCC was not impressed by the cessation of sale and the recall.  It issued a fine in  the amount of' $75,000 to San Jose and later settled for the $50,000.  Noteworthy, the FCC's records do not show that a formal Citation was ever issued to San Jose.  Folks, the FCC rules and the US Code are very explicit that a Citation must be issued before a NAL and fine can be issued to someone, if they do not have a license.  The typical LOI is not the equivalent of a Citation, because the rules and the statute have specific requirements that must be met by all Citations (such as affording the opportunity for a personal interview at the nearest FCC office).  I have taken the depositions of a number of FCC officials in various cases and they uniformally admit that no license is required by the FCC for the manufacture or sale of transmission equipment. 

This fine should not have been imposed in my opinion.  There was no Citation issued and one was required before issuance of the Notice of Apparent Liability.  Remember, the FCC cannot force anyone to pay the fine issued pursuant to an NAL without going to court and proving the case.  Routinely the FCC loses this type of case because of the failure to follow the proper procedures.  If you receive any contact from the FCC, contact your lawyer at once.  It is the only way to protect your rights.

FCC stretching it

On February 5, 2010 the FCC issued an order ( http://www.fcc.gov/eb/Orders/2010/FCC-10-28A1.html) after reviewing a petition filed by Tidewater Communications, LLC to cancel or reduce a forfeiture order. It seems that Tidewater owns an antenna structure. FCC regulations require that an antenna be painted and lighted. If the lights are out, the FAA has to be notified and the burned out lights replaced ASAP. Recently the FCC has been fining licensees for failing to maintain lights or failing to keep the structures painted.

In any event, the FCC fined Tidewater back in 2006 (which shows how slow things work through the FCC's system). Part of the rationale for the amount of the fine was that Tidewater had been fined back in 2001 for an unlit antenna. In that case, Tidewater was able to successful challenge the fine because it was able to show that it regularly inspected the antenna, but that an alarm PC board had suddenly failed and Tidewater was not alerted to the unlit antenna. http://www.fcc.gov/eb/Orders/2003/DA-03-870A1.html

Tidewater properly argued that the 2001 conduct could not be used against it in determining the amount of the fine. 47 USC 504(c) states that a Notice of Apparent Liability (NAL) cannot be used against someone unless the fine is paid or a court upholds the NAL. The FCC attempts to limit the application of the statute by arguing it only holds that the fact a fine was issued cannot be used against the party fined. The FCC argues that the underlying facts that gave rise to the NAL can be used to increase the fine, even though the NAL was not upheld, and in fact was cancelled by the FCC itself! The FCC tries to support its argument by claiming that even though the NAL was cancelled, the Notice of Violation was not cancelled.

Let's get real here. The FCC totally blew this call and its decision has no logic.

It is a basic tenant of law that one cannot appeal if the party's position will not be changed if he is successful with his arguments. Courts generally will not grant advisory opinions and will dismiss any appeal as moot. Having succeeded in cancelling the forfeiture (but not the Notice of Violation) Tidewater had no basis to appeal the FCC's ruling on the 2001 fine. It was impossible for Tidewater to challenge the Notice of Violation.

The intent of the legislature in enacting subdivision (c) of section 504 was to prohibit someone being punished based on conduct which is not admitted (payment of the NAL) or confirmed (court's upholding the NAL). The FCC's use of prior unchallengeable charges against Tidewater is unconscionable. It is now, more so than every, that anyone who receives a Citation, a Notice of Violation, a Notice of Unlicensed Operation or any other similar type notice to immediately consult a lawyer and proceed against the FCC to obtain a court ruling cancelling the notice. Failure to do so may, in the long run, be extremely costly.

FCC Does it Again

On January 27, 2010 the FCC issued a formal Citation to Kevin Whitfield http://www.fcc.gov/eb/FieldNotices/2003/DOC-296094A1.html in connection with his use of a Hawkins Technologies HSB1 Wireless Wi-Fi amplifier. This type of device must comply with Part 15 of the FCC rules, which generally requires that certain devices may not cause harmful interference to other equipment and must accept interference from other devices. It appears that the Hawkins device may have had a problem as it was alleged that Mr. Whitfield's equipment was causing interference to the equipment of a licensed user.

As I have mentioned previously, a NAL (fine) cannot be issued without first issuing someone a Citation. In this case, it appears that the Citation was improperly issued to Mr. Whitfield. A Citation may only be issued if someone has violated one of the regulations of the FCC. Part 15 requires that someone stop using equipment that is causing harmful interference, once the user is notified of the problem. Obviously, a Citation cannot be issued unless Mr. Whitfield was first told about the interference and after receiving notice continued using the equipment. Only then has he violated the rules by using the equipment after being notified it was causing harmful interference.

Once again the FCC has jumped the gun and has improperly issued a Citation. We see this type of conduct often in our practice. What is the big deal and why should Mr. Whitfield fight the Citation? Well, because in our experience once the FCC has issued a Citation it is quick to issue a fine for the next violation, even if the conduct is unrelated to the first violation. Should Mr. Whitfield buy a TV which is defective and causes harmful interference or if he should buy a radio which causes interference he will be subject to a fine by the FCC. Anyone who receives a Citation needs to consult with a lawyer and timely respond to any Citation or official complaint from the FCC.