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.