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.