FCC drops the ball again

On August 20, 2011, the FCC issued a Notice of Apparent Liability ("NAL") to Marshall Amplification PLC in connection with Marshall's amplifier model MG2FX.  Marshall  The MG2FX apparently is a digital musical amplifier, and therefore is subject to the provisions of Part 15 of the FCC's rules.  Part 15 deals with interference, and specifies certain requirements for products subject to Part 15 and also requires certain disclosures on the products.

Apparently, Marshall's product did meet the technical specifications in Part 15, but did not meet the disclosure requirements.  The manual did not inform buyers of the product that the amplifiers must not cause harmful interference and must accept any interference from other electronic equipment.  This apparently was inadvertent on Marshall's part since other products did have the required disclosure.

The FCC proceeded by way of a Letter of Inquiry.  The FCC does have the power to investigate suspected violations of the rules and often begins with a Letter of Inquiry.  The problem for the FCC is that there is no requirement under the rules or statutes mandating that any person or entity respond to a Letter of Inquiry.  Marshall's did respond, apparently admitting its mistake.

The FCC then issued this NAL.  As disclosed in the NAL, the typical fine for a first time failure to comply with the FCC's rules respecting Part 15 is $7,000.  Where the conduct is a failure to disclose rather than a failure to meet technical specifications, the fine is generally reduced to $4,000.  Further, if there is a showing of inability to pay, the FCC can reduce the fine further or even cancel the fine.  Here, however, the FCC turned the inability to pay exception upside down and increased the fine from the usual $4,000 to $7,200 because it decided Marshall's had the ability to pay more!!!

Luckily for Marshall, the FCC screwed up royally again.  Perhaps it is because the fine was issued by the Spectrum bureau and not the Enforcement bureau.  In any event, as we have repeatedly and exhaustively discussed in prior posts, the FCC cannot issue a NAL without first issuing a formal Citation.  A Letter of Inquiry is not a Citation and does not usually contain the statutorily mandated disclosures of a Citation.  Marshall does not have to pay the fine, in our opinion.

Isn't it ironic that the FCC fines Marshall's for not meeting the disclosure requirements of the FCC's rules, when the FCC fails to meet the disclosure requirements governing the FCC's authority?   

ReconRobotics Screwed by FCC

On July 13, 2011, the  FCC published its consent judgment entered into with ReconRobotics.  Recon The agreement provides that ReconRobotics will pay a "voluntary contribution" of $17,500 to the FCC.  Also, ReconRobotics will have to adopt a compliance plan and appoint a compliance officer whose duties will include confirming that all ReconRobotics' products meet FCC regulations.  Further, periodic reports will have to be made to the FCC detailing compliance with the regulations. 

The investigation started with a Letter of Inquiry by the FCC as to whether ReconRobotics video surveillance robotic cameras were certified as meeting FCC standards.  Apparently, the products had been offered for sale before certification.  ReconRobotics responded to the LOI apparently admitting to marketing the products before receiving certification.  We assume that the products are now certified as the FCC emphasizes in the consent decree the marketing before certification and because ReconRobotics is still advertising the products on its website.

Setting aside the issue of whether the FCC has authority to issue a LOI and require a response, the FCC had no authority to fine ReconRobotics without first issuing a formal Citation to ReconRobotics and then observing further violations of the regulations.  We repeatedly see the FCC try to extort money from people without following proper procedures.  Perhaps because ReconRobotics sells products to various governmental entities it decided not to fight the FCC but instead fold like a house of cards. 

Had Recon Robotics stood up to the FCC, it undoubtedly would not have had to pay a fine (which we note is about double the amount we normally see in this type of case).  It certainly would not have had to adopt a compliance plan or appoint a compliance officer.  The FCC has no authority to extract such a concession from anyone.  We would hope others cited by the FCC would stand up for their rights, especially since prevailing against the FCC entitles the victor to reimbursement of his attorney fees.

FCC fines CB operator

On June 7, 2011 the FCC issued a Notice of Apparent Liability to John Hays.  Hays The fine was in the amount of $15,000 for using an external power amplifier with his CB.  Normally, a CB has very low power levels (4 watts).  Using the external amplifier, Mr. Hays was able to get about 750 watts of transmitting power out of his CB.  Apparently, this caused interference to other electronic equipment in the area.  Mr. Hays was first given a written letter warning him to stop, and later a verbal warning.  When he was discovered to be using an amplifier on a third occasion, he was given the NAL.

The FCC rules are clear that an external amplifier cannot be used to increase the power of your CB.  In fact, most amplifiers are of poor quality and often cause interference to other equipment.  That is one reason we filed a response to the FCC's request for proposals on modifying the FCC's rules regarding CB equipment. CBs are not longer as popular as they were in the 70's.  With only 4 watts of power, it is often difficult to find others to talk to without using an amplifier to increase power.  If the FCC raised the power limits of CBs, there would be little need for the use of an external amplifier and less likelihood of interference.

The NAL reports that a "letter" was sent to Mr. Hays warning him against the use of power amplifiers.  As has been repeatedly pointed out on this site, no NAL may be issued unless the FCC first issues a formal written Citation to a non-licensee who violates the rules.  No license is required to operate a CB, and Mr. Hays does not appear to have a license.  Unless the "letter" meets the formal requirements of a Citation, which is unlikely otherwise it would be posted on the FCC's website, Mr. Hays should be able to beat the NAL.  Let's hope he is smart enough to hire an attorney experienced in these matters.

Another Failure by the FCC to Follow the Law

On June 1, 2011 the FCC issued a Notice of Apparent Liability ("NAL") to SmartLabs, Inc.  SmartLabs for marketing equipment which had not been certified as meeting FCC regulations.  The fine imposed was $10,000 which is an upward departure from the standard $7,000 fine we usually see in this type of case.  Apparently SmartLabs had had its product tested by an FCC approved lab, which certified that the equipment met FCC standards.  However, the paperwork was never finalized and transmitted to the FCC until after the FCC sent out a Letter of Inquiry ("LOI") about the product. 

SmartLabs would be smart not to worry about the NAL, however, because it does not appear from the FCC's records that a formal Citation was ever issued to SmartLabs.  As pointed out on numerous occasions on this Blog, the FCC cannot issue a NAL to anyone without first issuing a Citation.  The only exception to this rule is if the conduct being engaged in requires an FCC license.  Manufacturing and selling equipment does not require a license from the FCC.  Accordingly, any NAL issued to SmartLabs without SmartLabs having first been issued a Citation is unenforceable.  Why the FCC continues to ignore its own rules is beyond comprehension.

SmartLabs would be smart to fight any attempt to enforce the NAL because if the NAL is paid that fact can be used against SmartLabs in the future.  Further, if the NAL is paid the FCC may be excused from having to issue a Citation for any future violations.  If SmartLabs successfully fights the NAL, the FCC may be forced to pay SmartLabs' attorney fees.  Attorney fee awards are something that get the attention of those in higher positions at the FCC and might make it a little easier for SmartLabs and others in the future.

FCC Gets Another One

On May 19, 2011 the FCC entered into a consent decree with Luxul Wireless, Inc. Luxul  Under the terms of the agreement, Luxul has to pay a "voluntary contribution" of $18,200.  This fine is a little higher than normally seen for a first offense.  More importantly, Luxul was suckered into agreeing to adopt a FCC compliance plan, appoint a  compliance officer, provide compliance training and report to the FCC on a periodic basis.  Further, Luxul was ordered to allow prior customers to trade in the alleged "non-compliant" equipment for compliant systems.

The investigation started with a Letter of Inquiry from the FCC.  The LOI sought information on whether Luxul was violating the rules by, among other things, selling wireless external amplifiers as a separate unit and not as a part of a system.  Whether Luxul was or was not violating technical rules is irrelevant to the punishment.  As pointed out in numerous articles written on this Blog, the FCC cannot issue a Notice of Apparent Liability unless it first issues a formal Citation that complies with the statutory requirements.  None of the LOI's we have seen meet the statutory requirements to be considered the equivalent of a Citation. 

Further, even if the LOI was the equivalent of a Citation, the FCC has no authority to issue a NAL unless Luxul had continued to violate the rules after receiving the Citation.  All that Luxul need to do was stop selling the product and the FCC could not have imposed any punishment on Luxul.  It appears that Luxul was bullied into agreeing to the terms of the Consent Judgment.

If anyone receives any communication from the FCC, they should immediately contact a lawyer experienced in dealing with the FCC's Enforcement arm.  In many cases, not only can any punishment be avoided but the FCC can be forced to pay the attorney's fees.

Wow, Talk About Onerous

On April 28, 2011 the FCC issued a notice that it had entered into a settlement with PreSonus Audio Electronics, Inc.  PreSonus It appears from the Consent Decree that PreSonus' receivers exceeded the maximum radiated limits allowed under 47 CFR section 15.109.  Because the equipment did not met specifications, it was improperly labelled under Part 15 labelling requirements.  Also, because it did not meet FCC standards, PreSonus would have violated 47 CFR section 2.1203 which relates to declarations of conformity when goods are imported.  We are not told the specifics of the violation.

Apparently the investigation started on July 12, 2010 when the FCC issued a Letter of Inquiry to PreSonus.  A LOI is basically a letter from the FCC asking specification questions about a company's products and possibly sales information.  While there is some question about the FCC's authority to proceed by way of a LOI, we will leave discussion of that for a future time.  After responding to the LOI, PreSonus worked out a settlement with the FCC.

As part of the settlement, PreSonus will pay a "voluntary contribution" of $125,000.  This is an extraordinarily high fine for a first offense.  Especially since a search of the FCC website did not show any prior investigations of Presonus.  We have seen repeat violators fined much less than this.  More surprising is that PreSonus agreed to conditions regarding compliance, that include preparing a compliance manual, appointing a compliance officer, training of employees and periodic reporting to the FCC.  There is no authority for this under the FCC's rules.

As we have posted numerous times, the FCC cannot impose any punishment on a non-licensee without first issuing a formal Citation.  A LOI does not meet the statutory requirements of a Citation, and even if it did there must be a violation of the rules after the Citation has been issued before a Notice of Apparent Liability may be issued.  The FCC often acts like a bully and tries to force companies to agree to things not required under the FCC's rules.  The only way to stop this is to fight back.  While fighting is more expensive than settling, there is a possibility of recovering attorney fees back at the conclusion of the case. 

FCC issues NAL to CB operator

On March 10, 2011 the FCC issued a Notice of Apparent Liability to Ira Jones for failing to allow inspection of his Citizen Band station, which the FCC alleges was causing harmful interference to the radios used by the local fire department.  Ira Jones 

Prior to issuing the NAL, the FCC had visited Jones' residence on two prior occasions. On each visit, the FCC requested permission to inspect Jones' station.  Jones refused to allow inspection without a search warrant.  On each occasion Jones was given a Notice of Unlicensed Operation.  This is the fatal flaw in the FCC's case, and a mistake the FCC often makes.

 Jones was fined for violating 47 CFR 95.426(a) which requires that an operator allow the FCC to inspect his station if requested.  He was also fined for violating 47 USC 303(n) which is the statute authorizing the FCC to conduct inspections.  Why the FCC would fine Jones for violating this section of the statute is confusing since this statute does not require anyone to allow an inspection.  Operators can only be fined for violating rules that regulate their conduct, not rules relating to the FCC's authority for its actions.

As noted in other posts, the forfeiture statutes require that a Citation be given to an operator before a NAL may be issued.   Citation  There are stringent requirements for a valid Citation, including providing the offender with an opportunity for a personal interview with the FCC or to submit arguments or documents in response to the Citation.  A Citation is required whenever the offender engages in conduct for which no license is required.  No license is required to operate a CB radio.  47 USC 307(e) 

Again, the FCC blows it by issuing a NOUL rather than a Citation.  Fortunately for Mr. Jones, the FCC's mistake should allow him to avoid the fine.