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.

FCC Dupes Another One

On July 20, 2010 the Federal Communications Commission published a consent agreement entered into with Qomo HiteVision, LLC a manufacturer/distributor of products used for presentations. Qomo  Apparently the FCC began an investigation into the radio response products of Qomo because of the absence of Part 15 labelling on the products.  Part 15 of the FCC's regulations requires that almost all intentional and non-intentional radiators meet certain requirements and have appropriate labelling with respect to potential interference by other radiators.  Qomo's products did not have the appropriate labelling. 

As a result of the investigation, the FCC and Qomo entered into an agreement.  Whether the products met other requirements of the FCC is not disclosed in the Order and Consent Decree entered into with Qomo, however, Qomo did agree to pay $12,000 to the FCC.  Even more onerous is the requirement that Qomo adopt a compliance plan, appoint a compliance officer, give employees involved in the development of products training on FCC regulations, and file reports with the FCC on a regular basis with regarding to compliance with this agreement.

As pointed out in other posts on this blog, the FCC cannot issue a fine to a non-licenses without first issuing a formal written Citation.  A search of the FCC's website shows that no formal Citation was issued.  In short, the FCC strong armed Qomo into paying a fine it did not owe, and in to adopted a compliance program that it was not required to have.  To be sure, any manufacturer should be familiar with the FCC's requirements and comply with them.  The point is, however, that the FCC should know its own rules and follow them.  It had no authority to force Qomo to agree to these terms.  In the future, I would hope Qomo would consult with an attorney to protect its rights.


 

FCC Blows it Again

Today the FCC released Notices of Apparent Liability against Wireless Extenders Inc. Wireless and against Cell-Phone Mate, Inc. Cell-Phone for marking their respective products with the wrong FCC identifiers.  In Wireless' case, it had the correct FCC identifying number but added its product model number at the end.  In Cell-Phone's case it had a typographical error in the number.  The Notices of Apparent Liability were issued after the FCC received a complaint that the numbers on the products were not in the FCC's database.  Enforcement issued Letters of Inquiry to Wireless and Cell-Phone, which then discovered the error.  Upon disclosing the error to the FCC in response to the LOI, the fines were issued for violation of labelling rules.

These Notices raise two interesting points.  First, the FCC cannot issue a Notice of Apparent Liability without first issuing a Citation because a license is not required to manufacture the equipment in question, i.e. cell phone amplifiers.  As was discussed here NAL the FCC can not issue a NAL without first issuing a Citation where the conduct engaged in requires a license or where the alleged rule violator has been issued a license by the FCC.  In this case, the NALs are not enforceable and the recipients should challenge their validity.

The second issue raised is more interesting.  There are currently pending before the FCC Petitions for Rulemaking regarding establishing regulations for the manufacturing of cell phone amplifiers.  The major phone companies, such as ATT and Verizon are opposing regulations which would enable independent companies to manufacture the amplifiers.  The phone companies want to force customers to buy phone company proprietary amplifiers.  The phone companies contend that the rules currently prohibit the manufacture or use of amplifiers that are not proprietary.  My bet is that one or more of the phone companies filed the complaints against Wireless and Cell-Phone.  The interesting point is that the FCC did not issue a Notice of Liability for selling illegal equipment.  It issued the fines for mistakes in labelling.  Is the FCC's choice of reasons for issuance of the NALs a statement that it believes the amplifiers are legal?  Only time will tell.

More FCC Bullying Behavior

In the past month, two of our clients have received verbal warnings from the FCC regarding offering for sale Connex and Galaxy 10 meter Amateur radios.  Some CB users buy Amateur equipment and modify it to work on CB frequencies.  One reason they do this is because CB users may transmit up to about 150 miles within the rules, but even using the maximum power allowed under the rules, CB radios, even under ideal conditions, will not transmit more than about 10 miles.  In some areas, you might not be able to transmit more than 3 miles.  Amateur radios have much more powerful transmitters, and when modified, can allow users to transmit on CB up to the 150 mile limit or even more.

Using a modified Amateur radio to transmit on CB is a violation of the rules.  However, rather than going after those who transmit on CB in violation of the rules, the FCC, back in 1996, decided it was easier just to declare, through the use of a Public Notice, that an Amateur radio which is "easy to modify" to work out of band is illegal.  The problem is that all Amateur radios can be modified to work out of band.  The FCC initiated this major change of the rules without going through the rulemaking process required under the Administrative Procedures Act.  If one reads the FCC's actual rules, you will not find one rule prohibiting the manufacturing or sale of Amateur radios which are easy to modify to work out of band.  Further, you will not find a rule defining what "easy to modify" means.  The FCC has, through an letter from its counsel, subsequently defined the terms as meaning "moving a jumper, throwing a switch or cutting a single wire."  However, the FCC has never incorporated the terms into a formal rule.

Why do I accuse the FCC of bullying these two CB shops?  Because the FCC knows that after the Public Notice was issued, the Connex and Galaxy radios were re-designed so that they are no longer "easy to modify" as defined by the FCC.  Not only that, the FCC knows that it lost litigation over the legality of the Connex radio in the Florida federal courts and it was forced to admit that the Galaxy radio was legal in proceedings brought in Texas.  Indeed, the court in Florida scolded the FCC for bringing the case in the first place, declaring that there was no reasonable justification for the lawsuit.

Instead of stopping with the false accusations of illegality, however, the FCC lower level employees continue to harass CB retail shops.  If the FCC is concerned with Amateur radios being used by non-licensed persons on CB, the remedy is simple.  Amend the rules to require an Amateur license to buy an Amateur radio.  Don't, however, harass dealers who are complying with the law and selling legal equipment.

FCC proposes rulemaking in Part 95

The FCC has proposed to changes the rules in Part 95, which governs the Personal Radio Services.  Proposed Rule Changes  Some of the rule changes are called for, such as those related to licensing of GMRS, since the license requirements are often ignored and the lack of a license really causes no harm.  Others proposed changes are likely to cause severe problems in the future, however.

Let's talk about CB radios.  Under the rules, you are not allowed to talk with stations more than 150 miles away.  Under the best of circumstances, however, one is lucky to be able to transmit more than 10 miles.  This is because CB radios are limited to 4 watts of power.  Most time, CB users cannot transmit more than 5 or 6 miles because of terrain and interference from other radio sources.  To get more distance, many CB users find ways to get more power, including using external amplifiers or more powerful radios intended for other services. 

The problem with an external amplifier is that CB frequencies are not pure.  The frequencies have harmonics or spurs at multiples of the main frequencies.  Some of the harmonic frequencies may be frequencies used by other services.  If the power on the CB is too high, those other services may be interfered with by the CB.  Thirty or forty years ago, it was not uncommon to hear CB discussions on one's TV set, since TV channel 2 was on the same frequency as the second harmonic on CB. 

Of course, nowadays TVs are digital and CBs don't interfere with one's TV.  There is no need to reduce the power on CBs because interference is almost impossible.  Rather, since users are allowed to transmit up to 150 miles, but cannot transmit, in most cases, even one tenth of the allowed distance, the power allowed on CB should be increased.  The rules could be amended to require a purer signal on CB.  Filters could be required which would reduce the power of the second harmonic further, so even if transmit power was increased there would be no interference caused by the harmonics.  If power levels were increased at the manufacturing level, there would be no need for external add on amplifiers, which are the main source of interference to other services.

Another way in which CB users try to talk farther is by using Amateur equipment on CB frequencies.  The CB band is in between two Amateur bands (the ten and twelve meter bands).  Amateur radios can be 200 times more powerful than CB radios.  By modifying Amateur equipment, a relatively easy task for almost all Amateur radios, CB users can talk on CB with hundreds of watts of power.  The main problem with CB users using Amateur radios is that sometimes the CB users try to use the radios on the Amateur bands.  This causes friction with licensed Amateur operators, as they tend to be extremely protective of their service.  By increasing the power of standard CBs there would be less likelihood that the CB users would transmit out of band. 

The FCC has the right idea to amend the rules.  There is no question the rules are disorganized and outdated.  However, the FCC has not proposed adopting rules that are practical or enforceable.  If the rule making proposal goes through, its just going to lead to trouble and more business for attorneys like me who represent clients in trouble with the FCC.

Class Actions Lawsuits Abound

We previously blogged about the conduct of Google logging MAC addresses and SSIDs for its commercial use.  Such conduct violates 47 U.S.C. §605 which prohibits the republication or use of intercepted radio communications.  A wireless router's broadcast is a radio communication under FCC rules, and thus falls within the protection afforded under 47 U.S.C. §605.  Well, the class action lawsuits have been filed.  Reportedly eight are now pending in various parts of the country, and Google is trying to have all transferred to the Northern District of California, which is Google's home base.  Having handled a number of matters in that district, in my opinion it is a good move for all concerned.  The judges there handle a lot of patent litigation and the magistrates are all top notch, especially with respect to technical issues.  I suspect that the ultimate outcome, if plaintiff's attorneys play their cards right, will not be as favorable as Google anticipates.

I previously mentioned that Wigle is violating the statute by posting SSIDs on a map which users can browse to locate SSIDs.  Well, it seems that Skyhook Wireless is also creating a database of logged SSID and MAC addresses.  Skyhook is apparently using it for commercial applications, like Google.  Don't be surprised if the next class action lawsuit includes Wigle and Skyhook.

Is Wigle.net violating FCC rules too?

Is Wigle violating FCC rules too?  We previously posted about Google's admission that its Street View data collecting vehicles were also collecting MAC addresses (the number assigned to the computer's network adapter)  and SSID addresses (basically the name for your wireless router, which you need to know in order to connect your computer to the wireless network) in addition to private information sent over the internet through private wireless routers.  On Wigle, the public can actually browse maps which identify the approximate physical address of the wireless router and the SSID of the wireless router.  For those with unsecured routers, that means anyone can connect their wi-fi enabled device to the non-secured wireless network, if they are within range of the router.

According to 47 U.S.C. §605, it is a violation of the statute for anyone to intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person. It is also a violation for any person who has received any intercepted radio communication or having become acquainted with the contents, substance, purport, effect, or meaning of such intercepted communication knowing that such communication was intercepted, from using the communication or any information therein contained for his own benefit or for the benefit of another.

The FCC, pursuant to the authority granted to it by Congress, has adopted a series of rules relating to radio communications. The FCC has defined "radio communication" as telecommunication by means of radio waves. The FCC has defined "telecommunication" as any transmission, emission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, radio, optical or other electromagnetic systems.

Wireless routers usually transmit on 2.4 or 5.8 gigahertz wavelengths, which is within the radio spectrum.   It is clear that wireless routers fall within the FCC's jurisdiction and that the FCC does have rules relating to router specifications.  FCC rules It seems pretty clear that wireless router transmissions of SSID addresses fails within the statute.

The statute imposes potentially huge fines on its violators.  Potential exposure is up to $100,000 per violation.  Wigle.net looks to have potentially millions of violations.  Just something to keep in mind for Wigle.net owners.

Google grabbing more than just SSIDs

In our April blog entry, we talked about the recent disclosure that Google has been collecting MAD addresses and SSID information as part of its mapping and street view programs. Google violating FCC rules? Now it appears that Google has also collected communication data transmitted through unsecured wireless routers, possibly including emails and passwords.  Google collecting data

47 USC 605 provides in substance that no person who intercepts a radio broadcast shall use it for its own benefit.  FCC regulations define a radio as anything that broadcasts on radio frequencies, which wireless routers clearly do.  Has Google used any of the intercepted data for any purpose?  We don't know for sure, but Google originally denied collecting any information other than MAC addresses and SSIDs. 

Every month we see fines assessed by the FCC for peeling paint on antennas or other technical violations of the rules.  When are we going to read about an investigation by the FCC into the blatant interception, collection and use of private information by Google?  Its time the FCC did something to protect the privacy of the citizens. 

Entone settles with FCC

On May 14, 2010, the FCC announced it had reached a settlement with Entone related to allegations that Entone was marketing equipment in violation of FCC regulations.  Entone settlement  While the settlement documents are vague on the claims, it appears that Entone was marketing video equipment without a Part 15 certification or declaration of conformity.  Part 15 of the FCC's rules deals with harmful interference and requirements that certain equipment not cause interference and that they accept interference from other equipment.  The settlement agreement does not state that Entone equipment failed to comply with technical standards.  It only implies that the equipment failed to display the correct label.

As part of the settlement, Entone agreed to pay $35,000 to the FCC.  The settlement also imposed onerous reporting conditions on Entone, including appointing a compliance officer to make sure violations do not occur in the future.  As mentioned in other blogs entries, the FCC has no power to assess fines against non-licensees for equipment marketing violations without a citation being issued first.  None was issued here.  Again the FCC bullies someone into paying a fine not owned.  It happens over and over again, so it is important that anyone contacted by the FCC consult with an attorney right away.

Is Google violating FCC rules?

In a recent publication, it was disclosed that Google is capturing wi-fi data during its photographing properties as part of its Street View program.  Google capturing wi-fi data  Apparently it intends to use the information collected for commercial use with its geo-location service. That service allows mobile users to access maps based on the captured wi-fi data.   The information being captured is easily obtained by anyone with a computer capable of wireless internet, since you merely need to search for a wireless connection and you can get the SSID information for any wireless router within the range of your computer.

However, is Google acting in compliance with the law?   47 USC 605 provides essentially that no person without authorization of the sender shall intercept any radio communication and divulge or publish the existence or contents to any person.  The FCC has published a fact sheet on the subject,  Interception of Transmissions, which would seem to indicate that the FCC would consider Google to be violating its regulations and the statute.  Further in Cafarelli v. Yates 226 F3d 492 (6th Cir., 2000) the court held that one cab driver could sue another under section 605 for intercepting taxi cab communications and using the stolen communications to steal passengers. Is the broadcast of router information and possibly information about computers connected to that router a radio communication?  Hard to say, but the FCC's rules define a radio as anything that transmits on radio frequencies, so it appears that the router broadcast would be considered a radio broadcast under FCC rules.

Seems like Google is playing with fire.  What do you think?

Violation for Hutton's CB

On February 26, 2010 the FCC issued a Notice of Violation to Hutton's CB for using an amplifier with its CB radio.Hutton's CB  The FCC's rules limit to four watts the amount of power that a CB can transmit with.  The rules allow CBers to transmit up to about 150 miles.  The problem is that a 4 watt CB won't transmit more than about 10 miles except in extraordinary conditions.

Apparently, Hutton's decided that to get its signal out there it needed more power.  So it added an amplifier to boost the power of the CB to about 80 watts.  Problem is that using an amplifier with a CB is strictly forbidden.  There are no loopholes here folks.

Fortunately for Hutton's, the FCC screwed it up by issuing a Notice of Violation.  Perhaps the FCC does not know what its own rules provide, but a NOV cannot be issued unless someone is violating the terms of his license.  No license is required for CB.  The FCC should have issued a Citation instead of a NOV.  As we previously discussed, the FCC cannot issue a fine unless it firsts issues a formal Citation.  Hutton's catches a break here. 

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.