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.