**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. EB-01-TS-040        |
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| ACR Electronics, Inc.            | ) | NAL/Acct. No. 200532100004   |
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| Fort Lauderdale, Miami           | * | FRN No. 0008044232           |
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+----------------------------------+---+------------------------------+

**FORFEITURE ORDER**

**Adopted: March 21, 2006 Released:** **March 23, 2006**

By the Commission:

# introduction

1.  By this Forfeiture Order ("Order"), we find that ACR Electronics,
    Inc. ("ACR") marketed intentional radiating equipment prior to
    obtaining Commission certification in willful and repeated violation
    of the equipment marketing requirements of Section 302(b) of the
    Communications Act of 1934, as amended ("Act")[^1] and Section
    2.803(a) of the Commission's Rules ("Rules").[^2] For these
    violations, we impose a monetary forfeiture in the amount of sixty
    five thousand dollars (\$65,000).

# background

2.  Section 302(b) of the Act provides that "\[n\]o person shall
    manufacture, import, sell, offer for sale, or ship devices of home
    electronic equipment and systems, or use devices, which fail to
    comply with regulations promulgated pursuant to this section."
    Section 2.803(a) of the Commission's implementing regulations
    prohibits manufacturers from selling, leasing, or offering for sale
    or lease (including advertising for sale or lease) radio devices
    subject to certification, unless the Commission certificates that
    such devices are compliant with applicable equipment technical
    standards.[^3] Additionally, Section 15.201(b) of the Commission's
    implementing regulations requires manufacturers to obtain
    certification "prior to marketing" intentional radiating
    devices.[^4] An exception to the above equipment marketing
    restrictions, however, allows manufacturers to display and advertise
    devices that are in the development, design or pre-production stages
    *prior* to certification, *provided* their displays are accompanied
    by and their advertisements contain a conspicuously placed notice,
    which states:

    This device has not been authorized by the rules of the Federal
    Communications Commission. This device is not, and may not be,
    offered for sale or lease, or sold or leased, until authorization is
    obtained.[^5]

    The exception to the equipment marketing restrictions is designed to
    afford manufacturers greater flexibility in marketing their
    developing products,[^6] while preserving the Commission's
    long-standing requirement that trade show displays and
    advertisements be accompanied by a conspicuous notice alerting
    potential business customers and consumers that the devices have not
    been authorized by the Commission and may not be offered for sale or
    lease, or sold or leased, until such authorization is obtained.[^7]

3.  The Notice of Apparent Liability for Forfeiture ("NAL") proposed a
    \$75,000 forfeiture against ACR for its apparent willful and
    repeated violations of the above equipment marketing
    restrictions.[^8] As discussed herein, we find, as the underlying
    NAL found, that ACR unlawfully marketed its personal location beacon
    406 GPS PLB-200 ("PLB-200"),[^9] an intentional radiating
    device,[^10] to the industry and the general public before it
    obtained certification and *without* the conspicuous disclaimer
    notice required by Section 2.803(c) of the Rules ("required
    disclaimer notice").

4.  Specifically, the NAL found that ACR marketed the PLB-200 to the
    industry prior to obtaining certification, by displaying mock-up
    models of the PLB-200 at two industry trade shows, distributing
    related promotional materials before and during the trade shows, and
    making power point presentations to select business customers. The
    NAL found that ACR did not include any disclaimer notice with its
    trade show displays and several of its power point
    presentations.[^11] Moreover, the NAL found that ACR did not include
    any disclaimer notice in the over 700 PLB-200 brochures it
    distributed. To the contrary, one of the brochures distributed by
    ACR included language on the "PLB Specifications" page, under
    "Certification," that proclaimed that the PLB-200 was "FCC
    approved."[^12] The other brochure distributed by ACR stated
    prominently on the front cover "Personal Locator Beacon APPROVED for
    sale in the U.S."[^13] The NAL further found that while ACR included
    language in its own internal price lists that indicated that FCC
    approval was pending, ACR did not include any disclaimer notice in
    the price lists it actually distributed at the trade shows.[^14]
    And, the NAL found that ACR did not include the required disclaimer
    notice in the approximately 25 press kit folio it distributed \--
    but, instead, included language that prominently proclaimed on the
    folder's front cover in bold print "Personal Locator Beacons, New
    and Improved, For Sale in the U.S." and, in contrast, included
    language on the folder's back cover in a black border in small print
    "New Integral GPS PLB Available April \-- pending FCC
    approval."[^15] The NAL concluded that ACR's displays, industry
    presentations, and distributed promotional materials, without any
    disclaimer notice and/or without the requisite disclaimer notice,
    constituted apparent willful and repeated violations of the
    Commission's equipment marketing restrictions.[^16]

5.  Additionally, the NAL found that several retail websites were
    offering the PLB-200 for sale, and that these websites included
    prices, specified delivery dates and allowed customers to place
    orders.[^17] The NAL noted that one website stated that the PLB-200
    was "FCC approved" and another website represented that the PLB-200
    "\[e\]xceeds rigorous testing standards of ... \[the\] FCC."[^18] As
    late as the week of September 7, 2004, the NAL found that the
    PLB-200 was being offered for sale, without the requisite disclaimer
    notice, in a sporting outdoor mail order catalogue sent to
    consumers.[^19]

6.  Moreover, the NAL found that ACR launched a substantial media
    campaign by advertising the PLB-200 "in multiple outdoor and
    sporting magazines and catalogues that were clearly directed and
    targeted to the consuming general public," notwithstanding the
    company's representations that its marketing efforts were "never
    directed at the general public."[^20] Indeed, the NAL found that ACR
    devoted approximately one third of its entire first quarter 2004
    advertising budget (\$100,000 out of \$300,000)[^21] promoting the
    PLB-200 in full-page ads in multiple publications available and
    targeted to consumer end-users.[^22] The NAL further found that ACR
    did not include the required disclaimer notice in its consumer
    advertisements.[^23] Rather, the NAL found that ACR's full-page ads
    described the "***[NEW]{.underline}*** [\[]{.underline}TerraFix or
    AquaFix\] 406 Personal Locator Beacon, the best way to be found
    fast," and depicted the model in terms of actual model size. Only at
    the bottom of the page in black border did the ads include the
    language, "New Integral GPS PLB Available April -- Pending FCC
    Approval."[^24] The NAL concluded that ACR apparently willfully and
    repeatedly violated the Commission's equipment marketing
    restrictions because its consumer advertisements did not comport
    with the requirements of Section 2.803(c).[^25]

7.  In its response to the NAL,[^26] ACR acknowledges that it did not
    include the requisite disclaimer notice in its marketing materials
    for the PLB-200 prior to obtaining certification from the
    Commission's Office of Engineering and Technology on October 5,
    2004.[^27] Nevertheless, ACR seeks cancellation or a substantial
    reduction of the proposed forfeiture. ACR reiterates the arguments
    it made in its response to the Enforcement Bureau's Letter of
    Inquiry ("LOI"), which it claims "have not been properly analyzed by
    the Commission."[^28] ACR also notes that it "has had a long history
    of compliance with Commission rules,"[^29] and further contends that
    the "quantum" of the proposed forfeiture was unreasonable.[^30]

#  discussion

8.  The forfeiture amount proposed in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended ("Act"),[^31] Section 1.80 of the Rules,[^32] and the
    *Commission's Forfeiture Policy Statement and Amendment of Section
    1.80 of the Rules to Incorporate the Forfeiture Guidelines*.[^33] In
    assessing forfeitures, Section 503(b)(2)(D) of the Act requires that
    we take into account the nature, circumstances, extent and gravity
    of the violation and, with respect to the violator, the degree of
    culpability, any history of prior offenses, ability to pay, and such
    other matters as justice may require.[^34] We have considered ACR's
    arguments in light of the above statutory factors, and have
    determined that the proposed forfeiture should be reduced on the
    basis of the company's past history of compliance with the
    Commission's equipment marketing regulations.

9.  In its response, ACR argues that the NAL failed to take into account
    the nature of the trade shows at which it marketed the PLB-200.
    Specifically, ACR asserts that the trade shows "were closed venues
    allowing equipment suppliers to share information with customers,
    and not to negotiate pricing or to inform end user consumers about
    the product."[^35] Since end user consumers do not attend the trade
    shows, ACR maintains that those who did attend "could reasonably
    have been expected to understand that the PLB-200 was not for
    sale."[^36]

10. We find that the NAL properly considered and rejected ACR's
    arguments concerning the nature of the trade shows. As noted in the
    NAL, the Commission recognized in adopting the trade show exception
    that industry trade shows are specialized and limited venues;
    nevertheless, the Commission required that manufacturers displaying
    devices and distributing related materials at trade shows
    conspicuously post the requisite disclaimer notice to alert
    prospective wholesalers and retailers that the devices have not been
    approved by the FCC and may not be legally sold or offered for sale
    until approval is obtained.[^37] Moreover, we find ACR's suggestion
    that its business customers "could reasonably have been expected to
    understand that the PLB-200 was not for sale" unpersuasive.
    Manufacturers may use industry trade shows to display and advertise
    both new equipment that has been FCC-authorized, as well as new
    equipment that is in the development stage or is awaiting FCC
    authorization. In the latter situations, the disclaimer notice
    required by Section 2.803(c) is necessary to ensure that
    distributors and retailers clearly understand that the unauthorized
    device may not be either sold or offered for sale. Absent the
    required disclaimer notice, we are not persuaded that customers
    would understand that the PLB-200 could not be sold or offered for
    sale, particularly given that brochures distributed by ACR at the
    trade shows inaccurately stated that the device was "FCC approved"
    or "APPROVED for sale in the U.S."[^38]

11. ACR also argues that the NAL failed to take into account that "in
    almost every instance," ACR "made it known that the equipment at
    issue was unavailable for sale until such time as the FCC had
    provided its approval," by including disclaimer notices that "at
    least partially complied" with the requirements of Section
    2.803(c).[^39] In this regard, ACR asserts that "the Commission must
    acknowledge that the trade show brochures describing the PLB-200
    were largely enclosed within a press kit folder, the back of which
    included the words 'Pending FCC Approval' in yellow print within a
    black border."[^40]

12. We find ACR's claim that it made it known that the PLB-200 was
    unavailable for sale pending FCC approval "in almost every instance"
    is belied by the record. As set forth in the NAL, ACR acknowledged
    in its response to the LOI that it distributed approximately 700
    brochures to potential distributors and retailers at the trade
    shows. These brochures did not include *any* disclaimer, much less
    the specific disclaimer required by Section 2.803(c), and, in fact,
    incorrectly stated that the device was "FCC approved" or "APPROVED
    for sale in the U.S." Moreover, the NAL found, and ACR does not
    dispute, that its displays of the PLB-200 at the trade shows and the
    price lists[^41] distributed at the trade shows did not include
    *any* disclaimer. The NAL noted, by contrast, that ACR distributed
    only 25 complete press kit folio at the trade shows, which included
    the words "APPROVED for sale in the U.S." on the front cover and
    only included the words "Pending FCC Approval" on the back
    cover.[^42] The vast majority of promotional materials distributed
    by ACR at the trade shows did not include *any* disclaimer notice,
    contrary to ACR's claims.

13. ACR asserts that the NAL "makes a great deal of independent Bureau
    research findings that at least one retailer was accepting purchase
    orders and that 'several retail websites were offering the Terrafix
    and Aquafix PLB-200s for sale." In this regard, ACR submits that it
    "has no control over its customers' websites or advertising
    materials."[^43] ACR also submits that violations attributed to
    retailer websites and catalogues should not be deemed "willful"
    since ACR was not aware of the content included in those
    sources.[^44]

14. As an initial matter, we note that the NAL did not find the
    marketing of the PLB-200 on the retail websites and in retail
    catalogues to constitute "willful" violations by ACR, nor did it
    propose forfeitures against ACR for those violations.[^45] Rather,
    the NAL cited the retail websites and catalogues to refute ACR's
    claim that its retailers are professional buyers who are familiar
    with the equipment authorization requirements and would not offer
    unauthorized devices for sale. Further, while we recognize that ACR
    does not exert control over its customers' websites and catalogues,
    it does control and is responsible for brochures, price lists and
    other promotional materials it distributed to its customers. As
    explained in the NAL and set forth above, not only did these
    promotional materials fail to inform ACR's customers that the
    PLB-200 could not be sold or offered for sale until Commission
    authorization is obtained, some of the brochures incorrectly stated
    that the device was "FCC Approved" or "APPROVED for sale in the
    U.S." Thus, as noted in the NAL, it is hardly surprising that the
    PLB-200s were offered for sale on retail websites and in retail
    catalogues.

15. ACR further asserts that "\[w\]ithout exception, every single ACR
    account knew that the \[PLB-200\] was not \[authorized\] and could
    not be sold until it was."[^46] In support of this claim, ACR
    provides an e-mail dated September 16, 2003 from an ACR sales
    manager to a buyer for one of its retailers, Mountain Gear. In this
    e-mail, the ACR sales manager states, in relevant part:

    We are anticipating having the new model to show at OR winter,
    however, until we get final approval from the FCC we cannot sell or
    ship it. Worst case scenario, this will be the end of March '04 or
    Beginning of April '04. With this in mind, it may not be a good idea
    to show the new model in your Spring book, since it may create some
    back order problems.

    This e-mail does not support ACR's position or demonstrate that ACR
    provided complete and accurate information to its retailers
    regarding the status of the PLB-200. First, we note that the e-mail
    only states that ACR could not sell or ship the PLB-200 until it
    received FCC approval. It does not convey that the device could not
    even be offered for sale or that orders could not be taken for the
    device prior to obtaining FCC approval. To the contrary, the e-mail
    indicates that including the PLB-200 in the Spring book "may create
    some back order problems," which suggests that it would be
    permissible for Mountain Gear to offer the device for sale and take
    orders prior to FCC approval.

16. Second, the e-mail indicates that under the worst case scenario, the
    device would be FCC approved by the end of March or beginning of
    April 2004. The device, however, was approved in October 2004. ACR
    offers no evidence that it subsequently informed Mountain Gear or
    any of its retailers that the PLB-200 was not in fact approved by
    the FCC in March or April. Third, as detailed above, ACR distributed
    over 700 brochures inaccurately promoting the PLB-200 as "FCC
    approved" to its potential distributors and retailers. As Mountain
    Gear was one of ACR's retailers, Mountain Gear might reasonably rely
    upon the false information contained in such brochures and identify
    the PLB-200 as "FCC approved" on its retail website.

17. ACR contends that the proposed \$75,000 forfeiture is unreasonable,
    given that it included "Pending FCC approval" language in its press
    kit folio. While ACR concedes that the language fell short of the
    exact wording required by Section 2.803(c), it contends that the
    language nevertheless "significantly fulfilled the purpose" of
    Section 2.803(c) and "represented a good faith effort" on its
    part.[^47] ACR's contentions notwithstanding, we find that the
    language "Pending FCC approval" not only fell short of Section
    2.803(c)'s exact wording, but that it failed to state that the
    PLB-200 could not be sold, leased or offered for sale or lease until
    FCC approval was obtained and thus failed to include an essential
    and necessary component of the Section 2.803(c) notice
    requirement.[^48]

18. ACR also complains that it was "grossly unfair" and unprecedented
    for the NAL "to pass over the wording that [was]{.underline}
    included on the backside of the folio and dismiss it as
    'nonconspicuous.'"[^49] ACR's complaint is disingenuous. ACR only
    distributed 25 press kit folio, which prominently stated that the
    PLB-200 was for sale on its front cover, and only stated that FCC
    approval was pending in small print in the bottom darkened border on
    its back cover. We find that, consistent with precedent,[^50] the
    NAL correctly found that ACR's inconspicuous placement of the
    language was designed to obscure, not inform, and in any event,
    contrasted with and was negated by the folio's front cover and the
    enclosed brochure, which falsely stated that the PLB-200 was
    FCC-approved. Therefore, we find that ACR's inclusion of the
    language "Pending FCC approval" in its press kit folio did not
    demonstrate a good faith effort to comply with, and did not fulfill
    the objectives and requirements of, Section 2.803(c).

19. Similarly, ACR contends that the NAL erroneously focused on the
    exact wording of the advertisements it placed in consumer
    publications. Again, ACR concedes that this disclaimer "fell short
    of the exact requirements of the rule" but asserts that it
    "nevertheless indicated that the device was not for sale until the
    necessary scrutiny had been given by the Commission."[^51] We agree
    with the NAL's conclusion that the language, "Pending FCC approval,"
    included in ACR's advertisements did not comport with the
    requirements of Section 2.803(c) and certainly did not alert
    consumer end-users "that FCC approval must be obtained prior to any
    sales, leases, or offers to sell and/or lease such equipment."[^52]
    In this connection, we note that the Commission has cautioned
    manufacturers, as the responsible parties,[^53] to "exercise due
    caution in both the selection of the medium and the presentation
    employed" to ensure that consumers are fully apprised and not
    unfairly targeted.[^54] We think consumers are even less likely than
    industry to understand that "Pending FCC approval" means that a
    device cannot be sold or offered for sale. Accordingly, we find that
    ACR's advertisements did not convey the requisite information to
    consumer end-users and thus did not constitute mere technical
    violations of the requirements of Section 2.803(c).

20. ACR also contends that a substantial reduction in the proposed
    forfeiture is warranted because it had "no intent to violate a rule
    in order to profit or gain,"[^55] and it made a "swift commitment"
    to take corrective action and amend its disclaimer with the exact
    words required.[^56] By displaying and distributing promotional
    materials at industry trade shows, by making selective presentations
    to select customers, and by placing advertisements in consumer
    publications, ACR engaged in deliberate acts, which are deemed
    willful violations of the Act and the Rules, irrespective of any
    intent to commit violations, profit or gain.[^57] As for ACR's
    corrective actions, which were not taken until after the Bureau
    issued the LOI to ACR, such actions do not mitigate or excuse
    liability for its past violations and thus do not warrant any
    reduction in the proposed forfeiture amount.[^58]

21. Finally, ACR contends that the proposed \$75,000 forfeiture is
    excessive in light of the recent decision *Pilot Travel Centers,
    LLC,*[^59] and ACR's own "long history of overall compliance with
    the Commission rules and ... leadership position in its
    industry."[^60] ACR's reliance upon *Pilot Travel Centers, LLC* is
    misplaced. In *Pilot Travel Centers, LLC*, the Commission proposed
    an upwardly adjusted \$125,000 forfeiture against a retailer who
    continued to market un-certificated devices after having had
    received nine citation warnings. Although ACR correctly noted that
    there were no prior findings of its non-compliance with the
    equipment marketing restrictions, it ignored the NAL's findings that
    the "degree" of its marketing of the PLB-200 was so "substantial"
    that a "straightforward application of the \[\$7,000\] base
    forfeiture amount for each violation" would have resulted in "a
    significantly higher proposed forfeiture amount."[^61] Given the
    "quantum" of ACR's violations, we find that the \$75,000 proposed
    forfeiture was not excessive and that *Pilot Travel Center, LLC*
    does not support ACR's case for reduction. We do find, however, that
    a reduction of the proposed amount to \$65,000 is warranted based on
    ACR's prior history of overall compliance with the Commission's
    equipment related regulations.[^62]

#  Ordering clauses

22. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Act, and Sections and 1.80 of the Rules,[^63] ACR Electronics,
    Inc. **IS** **LIABLE FOR A MONETARY FORFEITURE** in the amount of
    the sixty five thousand dollars (\$65,000) for willfully and
    repeatedly violating Section 302(b) of the Act and Section 2.803(a)
    of the Rules.

23. Payment of the forfeiture must be made by check or similar
    instrument, payable to the order of the Federal Communications
    Commission.  The payment must include the NAL/Acct. No. and FRN No.
    referenced above.  Payment by check or money order may be mailed to
    Federal Communications Commission, P.O. Box 358340, Pittsburgh, PA
    15251-8340.  Payment by overnight mail may be sent to Mellon
    Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
    15251.   Payment by wire transfer may be made to ABA
    Number 043000261, receiving bank Mellon Bank, and account
    number 911-6106.

24. Requests for payment of the full amount of this NAL under an
    installment plan should be sent to: Chief, Revenue and Receivable
    Operations Group, 445 12th Street, S.W., Washington, D.C.
    20554.[^64]

25. **IT IS FURTHER ORDERED** that a copy of this Forfeiture Order shall
    be sent by first class mail and certified mail return receipt
    requested to Paul Frank, President, ACR Electronics, Inc., 5757
    Ravenswood Road, Ft. Lauderdale, Florida 33312, and Bruce A. Eisen,
    Esq., Kaye Scholer LLP, 901 15^th^ Street, N.W., Suite 1100,
    Washington, D.C. 20005.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: 47 U.S.C. § 302a(b).

[^2]: 47 C.F.R. § 2.803(a).

[^3]: Specifically, Section 2.803(a) provides, in pertinent part:

    Except as provided elsewhere in this section, no person shall sell
    or lease, or offer for sale or lease (including *advertising* for
    sale or lease), or import, ship, or distribute for the purpose of
    selling or leasing or offering for sale or lease, any radio
    frequency device unless ... \[i\]n the case of a device subject to
    certification, such device has been authorized by the Commission in
    accordance with the rules in this chapter and is properly identified
    and labeled as required by § 2.925 and other relevant sections in
    this chapter \[emphasis added\].

[^4]: 47 C.F.R. § 15.201(b). Section 15.3(o) of the Rules, 47 C.F.R. §
    15.3(o), defines an intentional radiating device as a "device that
    intentionally generated and emits radio frequency energy by
    radiation or induction."

[^5]: 47 C.F.R. § 2.803(c) (excepting trade show displays of equipment,
    prior to authorization, from Section 2.803(a)'s general prohibition
    provided such displays are accompanied by the requisite warning
    notice). *See also Revision of Part 2 of the Commission's Rules
    Relating to the Marketing and Authorization of Radio Frequency
    Devices,* 12 FCC Rcd 4533, 4536-37 ¶ 6 (1997), *recon. granted in*
    part, 13 FCC Rcd 12928 (1998) ("*1997 Equipment Marketing Order*")
    (stating that trade show displays and advertisements must be
    "accompanied by a conspicuous notice warning that the product has
    not been authorized and may not be sold or leased until such
    authorization is obtained"); *Interpretation and Amendment of Part
    2, Section 2.803 of the Commission's Rules Relating to the Marketing
    (Advertising) of Radio Frequency Devices,* 62 FCC 2d 728, 729 ¶ 8
    (1976) ("*1976 Equipment Advertising Order*") (interpreting the
    trade show exception to include and permit advertisements of
    equipment, prior to authorization, provided such advertisements are
    accompanied by the requisite disclaimer notice); *Interpretation and
    Amendment of Part 2, Section 2.803 of the Commission's Rules
    Relating to the Marketing of Radio Frequency Devices,* 58 FCC 2d 784
    (1976) ("*1976 Trade Show Order*") (adopting the trade show
    exception to the general prohibition against the marketing of
    devices prior to Commission authorization).

[^6]: *See 1997 Equipment Marketing Order,* 12 FCC Rcd at 4533 ¶ 1, 4545
    ¶ 25.

[^7]: *Id.* at 4539-40 ¶ 12, 4544 ¶ 22. *See also 1976 Equipment
    Advertising Order*, 62 FCC 2d at 729 ¶ 6; *1976 Trade Show Order*,
    58 FCC 2d at 787-88 ¶¶ 16-18.

[^8]: *ACR Electronics, Inc.*, 19 FCC Rcd 22293 (2004).

[^9]: ACR has marketed its PLB-200 under the names TerraFix, AquaFix and
    AeroFix for land, marine and aviation markets, respectively. *See*
    NAL, 19 FCC Rcd at 22293-94 ¶¶ 2, 4.

[^10]: *See* 47 C.F.R. § 2.909(a) (holding manufacturers, such as ACR,
    who are grantees of Commission certifications, responsible for
    compliance with the equipment requirements and standards).

[^11]: *See* NAL, 19 FCC Rcd at 22296 ¶¶ 10-11.

[^12]: *Id.* at 22295-96 ¶¶ 7-8.

[^13]: *Id.*

[^14]: *Id.* at 22296 ¶ 9.

[^15]: *Id.* at 22294-95 ¶ 6.

[^16]: *Id.* at 22299-301 ¶¶ 15-18.

[^17]: *Id.* at 22300-301 ¶ 17.

[^18]: *Id.*

[^19]: *Id.*

[^20]: *Id.* at 22297-98 ¶ 12.

[^21]: *Id.* at 22297 n. 33.

[^22]: Specifically, the NAL noted that according to ACR's media
    schedule, it advertised the PLB-200 in the following consumer
    publications: Outside Magazine's 2004 April Buying Guide
    (circulation 650,000); Backpacker Magazine's 2004 March Buyer's
    Guide, April and Summer issues and Camper Magazine (circulation
    295,000); Alaska's Magazine 2004 May issue (circulation: 185,000);
    Rock 'N Ice Magazine's 2004 June issue (circulation: 34,000); Safari
    Club Magazine's 2004 May/June issue (circulation: 39,500); Rocky
    Mountain Sports Magazine's 2004 April and May issues (circulation:
    60,000); Paddler Magazine's 2004 May/June issue (circulation:
    59,000); Kayak Magazine's 2004 May/June issue (circulation: 59,000);
    Couloir Magazine's 2004 Winter issue (circulation: 41,000);
    Backcountry Magazine's 2004 January and February issues
    (circulation: 14,000); and Adventure Sport Magazine's 2004 April and
    May issues (circulation: 25,000). *See* NAL, 19 FCC Rcd at 22297 ¶
    12 and n. 35.

[^23]: *Id.* at 22298 ¶ 12.

[^24]: *Id.*

[^25]: *Id.* at 22302 ¶ 21.

[^26]: Response of ACR Electronics, Inc. to the Notice of Apparent
    Liability for Forfeiture (filed December 1, 2004) ("Response").

[^27]: *See* FCC Identifier B66ACR-PLB-200; *see also* NAL, 19 FCC Rcd
    at 22303 n. 64.

[^28]: Response at 2.

[^29]: *Id.* at 10.

[^30]: *Id.* at 2. *See also* Letter from Bruce Eisen, Esq., Kaye
    Scholer LLP, to Brian Butler, Spectrum Enforcement Division,
    Enforcement Bureau, Federal Communications Commission (filed April
    28, 2004 and supplemented May 4, 2004).

[^31]: 47 U.S.C. § 503(b).

[^32]: 47 C.F.R. § 1.80.

[^33]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999)
    ("*Forfeiture Policy Statement*").

[^34]: 47 U.S.C. § 503(b)(2)(D).

[^35]: Response at 3.

[^36]: *Id.*

[^37]: *See 1976 Trade Show Order*, 58 FCC 2d at 786-87 ¶¶ 13-16; *see
    also Vortex Computers*, 9 FCC Rcd 255, 255 ¶ 5 (F.O.B. 1994)
    (promoting or displaying equipment at trade shows, "even though
    on-the-spot orders might not be solicited or accepted" is considered
    "active marketing" to potential distributors and retailers). It
    should be noted that although the Commission has further relaxed the
    equipment marketing restrictions to allow manufacturers to offer
    pre-authorized devices for sale to wholesalers, retailers and other
    business entities (but not to end-user consumers), provided they
    give the prospective buyers written notice that the device has not
    been authorized but will be authorized at the time of delivery, the
    Commission did not abandon \-- but rather reaffirmed \-- the trade
    show disclaimer notice requirement. *See 1997 Equipment Marketing
    Order*, 12 FCC Rcd at 4537-39 ¶¶ 8-11.

[^38]: *Cf. Ace Communications Fishers,* 9 FCC Rcd 3084, 3084 ¶ 8
    (F.O.B., Enf. Div. 1994), *forfeiture ordered,* 12 FCC Rcd 1558
    (F.O.B., Compliance Div.1997) (finding that the marketing of an
    unauthorized device, which was falsely labled with a FCC identifier,
    misled "others into believing that the FCC issued an equipment
    authorization" justifying an upwardly adjusted proposed forfeiture).

[^39]: Response at 3, 8.

[^40]: *Id.* at 4.

[^41]: In its response to the LOI, ACR indicated that it 200 price lists
    were prepared for distribution, but that a "significantly less,"
    unspecified number of lists were actually distributed at the trade
    shows. NAL 19 FCC Rcd at 22296 ¶ 9. In its response to the NAL, ACR
    claims, for the first time, that approximately 35-40 price lists
    were distributed to commercial buyers at the trade shows. Response,
    Statement of Paul D. N. Hardin, ACR Vice President of Sales &
    Marketing ("Hardin Statement"), at 3.

[^42]: To the extent that ACR claims that the brochures were "largely
    enclosed" within the press kit folder, it is unclear to us precisely
    how 700 brochures could have been included and distributed in only
    25 press kit folio. Instead, it appears that the majority of the
    brochures were distributed separately from the press kits.

[^43]: Response at 5.

[^44]: *Id.* at 7.

[^45]: On November 1, 2004, citations were issued to five retailers,
    which listed and offered the PLB-200 for sale, prior to the
    Commission's certification of the device. *See Recreational
    Equipment, Inc.,* File No. EB-04-SE-281 (Enf. Bur., Spectrum Enf.
    Div., November 1, 2004); *Boat USA,* File No. EB-04-SE-291 (Enf.
    Bur., Spectrum Enf. Div., November 1, 2004); *West Marine Inc*.,
    File No. EB-04-SE-292 (Enf. Bur., Spectrum Enf. Div., November 1,
    2004); *Mountain Gear,* File No. EB-04-SE-293 (Enf. Bur., Spectrum
    Enf. Div., November 1, 2004); *Sportman's Guide,* File No.
    EB-04-SE-294 (Enf. Bur., Spectrum Enf. Div., November 1, 2004).

[^46]: Response at 3.

[^47]: *Id.* at 9-10.

[^48]: *See e.g., ASLAN Computer Corporation,* 9 FCC Rcd 2030, ¶ 5
    (F.O.B. 1994) (finding that language "DEMO UNIT NOT FOR SALE" did
    not comply, and did not demonstrate a good faith effort to comply,
    with the requirements of Section 2.803(c) \-- because the regulatory
    "disclaimer language ... is very specific and intended to convey to
    the general public or prospective purchasers the fact that a
    particular device needs FCC authorization, does not have it, and
    cannot be sold or offered for sale until such authorization has been
    granted").

[^49]: Response at 4.

[^50]: *See KFC USA, Inc.,* 7 FCC Rcd 2398 ¶ 4 (1992), *proposed
    forfeiture rescinded on other grounds*, *Thomas J. & Nancy A.
    McIlraith et al.,* 12 FCC Rcd 14999 (1997) (finding that the
    disclaimer notice accompanying a trade show's display of an
    unauthorized device was not "conspicuous," because the location was
    not apparent to attendants). Similarly, we find that the location of
    the "Pending FCC approval" at the backside of the press kit folio
    was not apparent to its recipients.

[^51]: Response at 7.

[^52]: NAL, 19 FCC Rcd 22301-02 ¶ 20.

[^53]: *See supra* n. 10.

[^54]: *1997 Equipment Marketing Order,* 12 FCC Rcd at 4540 ¶ 12.

[^55]: Response at 10.

[^56]: *Id.* at 9-10.

[^57]: *See Southern California Broadcasting Co.,* 6 FCC Rcd 4387, 4388
    ¶ 5 (1991), *recon. denied,* 7 FCC Rcd 3454 (1992); *see also Profit
    Enterprises, Inc.,* 8 FCC Rcd 2846, 2846 ¶ 5 (1993).

[^58]: *See AT&T Wireless Services, Inc.*, 17 FCC Rcd 7891 (2002),
    *forfeiture ordered,* 17 FCC RCd 21866, 21875-76 ¶¶ 26-28 (2002);
    *TCI Cablevision of Maryland, Inc.,* 7 FCC Rcd 6013, 6014 ¶ 8
    (1992); *Seawest Yacht Brokers,* 9 FCC Rcd 6099, 6099 ¶ 7 (1994);
    *Ace Communications Fishers*, 12 FCC Rcd 1558, 1560 ¶ 8 (Compliance
    Div. 1997).

[^59]: 19 FCC Rcd 23113 (2004).

[^60]: Response at 10.

[^61]: 19 FCC Rcd at 22303 ¶ 24.

[^62]: *See Johannus Orgelbow B.V. The Netherlands,* 19 FCC Rcd 7196,
    7199 ¶ 10 (Enf. Bur. 2004); *Animation Technologies, Inc.*, 9 FCC
    Rcd 2059, 2059 ¶ 3 (F.O.B. 1994); *see also KGB, Inc.,* 13 FCC Rcd
    16396, 16398 ¶ 8 (1998); *Ad-Venture Media, Inc.*, 19 FCC Rcd 9848,
    9849 ¶ 6 (Enf. Bur. 2004); *Max Media of Montana, LLC,* 18 FCC Rcd
    21375, 21379 ¶ 14 (Enf. Bur. 2003).

[^63]: 47 U.S.C. § 503(b); 47 C.F.R. § 1.80.

[^64]: *See* 47 C.F.R. § 1.1914.