**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | **  | File No. EB-04-SE-218       |
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| Inteligain Corporation, Inc.     |     | NAL/Acct. No. 200532100014  |
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| Calabasas, California            | )** | FRN \# 0009360082           |
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##### NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Adopted: September 8, 2005 Released: September 12, 2005**

By the Chief, Spectrum Enforcement Division, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Inteligain Corporation, Inc. ("Inteligain") has apparently
    willfully and repeatedly violated Section 302(b) of the
    Communications Act of 1934, as amended ("Act"),[^1] and Section
    2.803(a)(1) of the Commission's Rules ("Rules")[^2] by marketing the
    Inteligain model DBA-819 dual band cellular and Personal
    Communications Service ("PCS") amplifier, FCC ID \# RCUDBA819-807,
    in a manner inconsistent with a condition in its equipment
    certification intended to ensure compliance with RF exposure limits.
    We conclude that Inteligain is apparently liable for a forfeiture in
    the amount of seven thousand dollars (\$7,000).

**II.** **BACKGROUND**

2.  In July 2004, the Enforcement Bureau's Spectrum Enforcement Division
    received a complaint alleging that the label on the Inteligain model
    DBA-819 dual band cellular and PCS amplifier ("DBA-819 amplifier")
    did not include any FCC identifier, which suggested that the device
    had not been certified in accordance with the Commission's equipment
    authorization requirements. Under Section 2.925(a)(1) of the
    Rules,[^3] certified equipment must include a label or nameplate
    listing the FCC identifier.

3.  A review of Commission records revealed that an equipment
    authorization for the DBA-819 amplifier was granted in January 2003
    to Arrista Technologies, Inc. under FCC ID \# P35SSG-819-1W2W. This
    authorization included the following condition intended to ensure
    compliance with the RF radiation maximum permissible exposure limits
    set forth in Section 1.1310 of the Rules[^4]:

> The antenna(s) used for this transmitter must be installed to provide
> a separation distance of at least 50 cm from all persons and must not
> be co-located or operating in conjunction with any other antenna or
> transmitter. Users and installers must be provided with antenna
> installation instructions and transmitter operating conditions for
> satisfying RF exposure compliance.

In July 2003, Inteligain filed an application seeking a change in the
FCC identifier for the DBA-819 amplifier.[^5] In its application,
Inteligain noted that the application "is for a change in the FCC
identifier only with no change in the design, circuitry or construction"
of the device and specifically requested that the above condition
regarding RF exposure compliance be placed on the authorization. The
user manual submitted with the application included in the "Warnings"
section the following instruction to users: "Directly wired vehicle
antennas, mounted a [minimum]{.underline} distance of 50 cm (19.5") away
from any person, are recommended." On July 29, 2003, Inteligain was
granted an authorization for the DBA-819 amplifier under FCC ID \#
RCUSG819-807 which included the same condition regarding RF exposure
compliance that was on the original authorization.

4.  On September 7, 2004, the Spectrum Enforcement Division sent
    Inteligain a letter of inquiry ("LOI").[^6] In its response dated
    September 29, 2004, Inteligain stated that after receiving an
    equipment authorization for the DBA-819 amplifier in July 2003 under
    FCC ID \# RCUSG819-707, it delayed bringing the device to market
    first because of technical problems and then because of a potential
    patent infringement problem with the device. Inteligain stated that
    it subsequently entered into an agreement with the patent holder to
    manufacture the device and began manufacturing the device in
    May 2004. Inteligain also stated that it had manufactured 3,602
    units of the DBA-819 amplifier to date and that each device has a
    label with an FCC identifier attached to the back at the time of
    manufacture. Inteligain asserted that "\[t\]hrough a clerical error,
    we changed part of the grant code \[of the FCC identifier\],
    specifically, the letters SG to DBA, so we would know that these
    units were produced under the patent royalty Agreement." Inteligain
    indicated that since May 2004, it had sold and shipped these devices
    to ten retailers.

5.  Inteligain further asserted that after receiving the LOI, it filed
    an application to change the FCC identifier of the DBA-819 amplifier
    from RCUSG819-807 to RCUDBA819-807. Inteligain's application
    indicated that other than the change in FCC identifier, "the
    equipment is electrically and mechanically the same" and requested
    that the same condition regarding RF exposure compliance that was on
    the original authorization under FCC ID \# P35SSG-819-1W2W and the
    authorization under FCC ID \# RCUSG819-807 be placed on the new
    authorization. On September 18, 2004, Inteligain was granted an
    authorization for the DBA-819 amplifier under FCC ID \#
    RCUDBA819-807 which included the condition regarding RF exposure
    compliance.

6.  However, in reviewing Inteligain's response, the Spectrum
    Enforcement Division found that the user manual for the DBA-819
    amplifier submitted with Inteligain's response instructs users in
    the "Warnings" section that "Directly wired vehicle antennas,
    mounted a [minimum]{.underline} distance of *20 cm (7.87 inches)*
    \[emphasis added\] away from any person, are recommended." Thus, the
    user manual currently being distributed by Inteligain with the
    DBA-819 amplifier does not comply with the explicit condition
    regarding RF exposure compliance set forth in the authorization.

**III**. **DISCUSSION**

7.  Section 302(b) of the Act provides that "\[n\]o person shall
    manufacture, import, sell, offer for sale, or ship devices or home
    electronic equipment and systems, or use devices, which fail to
    comply with regulations promulgated pursuant to this section."
    Section 2.803(a)(1) of the Commission's implementing regulations
    provides that:

    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 that is 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.

Pursuant to Section 2.1091 of the Rules,[^7] certain mobile devices,[^8]
such as the DBA-819 amplifier, that operate in the cellular and PCS
services are subject to routine environmental evaluation for RF
radiation exposure prior to equipment authorization or use.[^9]
Applications for equipment authorization of such mobile devices subject
to routine environmental evaluation must contain a statement confirming
compliance with the maximum permissible exposure limits for
occupational/controlled exposure[^10] and general
population/uncontrolled exposure[^11] set forth in Section 1.1310 of the
Rules. Further, Section 2.1091(d)(3) of the Rules provides that if
appropriate, compliance with exposure limits for such mobile devices can
be accomplished by the use of warning labels and by providing users with
information concerning minimum separation distances from transmitting
structures and proper installation of antennas.

8.  The original application for equipment authorization for the DBA-819
    amplifier included an RF exposure analysis which demonstrated that
    the device complies with the maximum permissible exposure limits for
    occupational/controlled exposure and general population/uncontrolled
    exposure set forth in Section 1.1310 when the antenna is mounted a
    minimum distance of 50 cm from all persons. The original equipment
    certification granted for the DBA-819 amplifier under FCC ID \#
    P35SSG-819-1W2W included the following condition:

> The antenna(s) used for this transmitter must be installed to provide
> a separation distance of at least 50 cm from all persons and must not
> be co-located or operating in conjunction with any other antenna or
> transmitter. Users and installers must be provided with antenna
> installation instructions and transmitter operating conditions for
> satisfying RF exposure compliance.

Inteligain subsequently filed two applications seeking to change the FCC
identifier for the DBA-819 amplifier, first, in July 2003, to FCC ID \#
RCUSG819-807 and later, in September 2004, to FCC ID \# RCUDBA819-807.
Both of these applications indicated that there was no change in the
design, circuitry and construction of the device and both applications
requested that the above condition regarding RF exposure compliance be
placed on the authorization. The authorization granted under FCC ID \#
RCUSG819-807 and the current authorization granted under FCC ID \#
RCUDBA819-807 both include this condition. However, the user manual
which Inteligain is currently distributing with the DBA-819 amplifier
instructs users in the "Warnings" section that "Directly wired vehicle
antennas, mounted a [minimum]{.underline} distance of *20 cm (7.87
inches)* \[emphasis added\] away from any person, are recommended."
Based on the RF exposure analysis provided in the original equipment
authorization application for the DBA-819 amplifier, it appears that the
DBA-819 amplifier will not comply with applicable RF radiation exposure
limits when the antenna is installed only 20 cm away from persons. We
conclude that by marketing the DBA-819 amplifier without the proper
warning concerning minimum separation distance required by the condition
in its equipment authorization, Inteligain apparently violated Section
302(b) of the Act and Section 2.803(a)(1) of the Rules.

9.  Section 2.925 of the Rules requires that equipment authorized under
    the certification procedures bear a nameplate or label listing the
    FCC identifier. Inteligain's response indicates that between May
    2004 and September 2004, Inteligain manufactured and distributed
    DBA-819 amplifiers labeled with an incorrect FCC identifier.
    Inteligain failed to correct this error until after receipt of the
    Enforcement Bureau's LOI. We find, therefore, that Inteligain
    apparently marketed an amplifier that was not compliant with the
    labeling requirements of Section 2.925.

10. Accordingly, we find that Inteligain apparently willfully[^12] and
    repeatedly [^13] violated Section 302(b) of the Act and Section
    2.803(a)(1) of the Rules.

11. Section 503(b) of the Act authorizes the Commission to assess a
    forfeiture for each willful or repeated violation of the Act or of
    any rule, regulation, or order issued by the Commission under the
    Act.[^14] In exercising such authority, we are required to 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."[^15]

12. Pursuant to *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines* ("*Forfeiture Policy Statement*")[^16] and Section 1.80
    of the Rules,[^17] the base forfeiture amount for the importation or
    marketing of unauthorized equipment is \$7,000. Here, Inteligain
    marketed, and apparently continues to market, equipment in a manner
    inconsistent with a condition in its equipment authorized intended
    to ensure compliance with RF exposure limits. Given the public
    safety nature of this violation, we believe that a proposed
    forfeiture is warranted.[^18] Accordingly, applying the *Forfeiture
    Policy Statement* and statutory factors to the instant case, we
    conclude that Inteligain is apparently liable for a \$7,000
    forfeiture.

13. Finally, pursuant to Section 403 of the Act, [^19] we direct
    Inteligain to submit an affidavit, signed by an officer or director,
    within 30 days of the release of this *NAL* demonstrating that it
    taken steps to come into compliance with the condition in its
    certification for the DBA-819 amplifier with respect to any new
    DBA-819 amplifiers marketed by Inteligain. We note that failure to
    submit the affidavit may subject Inteligain to further enforcement
    action. In addition, we urge Inteligain to take steps to provide
    existing users of the DBA-819 amplifier with revised manuals
    detailing the correct antenna installation instructions and
    transmitter operating conditions for satisfying RF exposure
    compliance.

**IV. ORDERING CLAUSES**

14. Accordingly, **IT IS ORDERED** that, pursuant to pursuant to Section
    503(b) of the Act and Section 1.80 of the Rules, Inteligain **IS**
    hereby **NOTIFIED** of its **APPARENT LIABILITY FOR A FORFEITURE**
    in the amount of seven thousand dollars (\$7,000) for willfully and
    repeatedly violating Section 302(b) of the Act and Section
    2.803(a)(1) of the Rules.

15. **IT IS FURTHER ORDERED THAT**, pursuant to Section 1.80 of the
    Rules, within thirty days of the release date of this *Notice of
    Apparent Liability for Forfeiture*, Inteligain, **SHALL PAY** the
    full amount of the proposed forfeiture or **SHALL FILE** a written
    statement seeking reduction or cancellation of the proposed
    forfeiture.

16. 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.

17. The response, if any, must be mailed to the Office of the Secretary,
    Federal Communications Commission, 445 12th Street, S.W.,
    Washington, D.C. 20554, ATTN: Enforcement Bureau -- Spectrum
    Enforcement Division, and must include the NAL/Acct. No. referenced
    in the caption.

18. The Commission will not consider reducing or canceling a forfeiture
    in response to a claim of inability to pay unless the petitioner
    submits: (1) federal tax returns for the most recent three-year
    period; (2) financial statements prepared according to generally
    accepted accounting; or (3) some other reliable and objective
    documentation that accurately reflects the petitioner's current
    financial status. Any claim of inability to pay must specifically
    identify the basis for the claim by reference to the financial
    documentation submitted.

19. Requests for payment of the full amount of this *Notice of Apparent
    Liability for Forfeiture* under an installment plan should be sent
    to: Chief, Revenue and Receivable Operations Group, 445 12th Street,
    S.W., Washington, D.C. 20554.[^20]

20. **IT IS FURTHER ORDERED** that, pursuant to Section 403 of the Act,
    Inteligain must submit the affidavit described in paragraph 13
    above, within 30 days from the release of this *NAL,* to: Federal
    Communications Commission, Enforcement Bureau, Spectrum Enforcement
    Division, 445 12th Street, S.W., Room 7-C833, Washington, D.C.
    20554, Attention: Brett Greenwalt.

21. **IT IS FURTHER ORDERED** that a copy of this *Notice of Apparent
    Liability for Forfeiture* shall be sent by first class mail and
    certified mail return receipt requested to Dana Mitchell President,
    Inteligain Corporation, Inc., 26500 Agoura Road Suite 102-656,
    Calabasas, California 91302.

FEDERAL COMMUNICATIONS COMMISSION

Joseph P. Casey

Chief, Spectrum Enforcement Division

Enforcement Bureau

[^1]: 47 U.S.C. § 302a(b).

[^2]: 47 C.F.R. § 2.803(a)(1).

[^3]: 47 C.F.R. § 2.925(a)(1).

[^4]: 47 C.F.R. § 1.1310.

[^5]: It appears that Arrista assigned its rights to this device to
    Inteligain.

[^6]: *See* Letter from Joseph P. Casey, Chief, Spectrum Enforcement
    Division, Enforcement Bureau, to Inteligain Corporation, Inc.
    (September 7, 2004).

[^7]: 47 C.F.R. § 2.1091.

[^8]: Section 2.1091(b) defines a "mobile device" as "a transmitting
    device designed to be used in other than fixed locations and to
    generally be used in such a way that a separation distance of at
    least 20 centimeters is normally maintained between the
    transmitter's radiating structure(s) and the body of the user or
    nearby persons."

[^9]: *See* 47 C.F.R. § 2.1091(c).

[^10]: The occupational/controlled exposure limits apply in situations
    in which persons are exposed as a consequence of their employment
    provided those persons are fully aware of the potential for exposure
    and can exercise control over their exposure. The limits for
    occupational/controlled exposure also apply in situations where an
    individual is transient through a location where the occupational
    limits apply, provided that he or she is made aware of the potential
    for exposure. 47 C.F.R. § 1.1310, Note 1 to Table 1.

[^11]: The general population/uncontrolled exposure limits apply in
    situations in which the general public may be exposed, or in which
    persons that are exposed as a consequence of their employment may
    not be fully aware of the potential for exposure or cannot exercise
    control over their exposure. 47 C.F.R. § 1.1310, Note 1 to Table 1.

[^12]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
    applies to violations for which forfeitures are assessed under
    Section 503(b) of the Act, provides that "\[t\]he term 'willful,'
    ... means the conscious and deliberate commission or omission of
    such act, irrespective of any intent to violate any provision of
    this Act or any rule or regulation of the Commission authorized by
    this Act ...." *See Southern California Broadcasting Co.*, 6 FCC Rcd
    4387 (1991).

[^13]: Section 312(f)(2) of the Act provides that "\[t\]he term
    'repeated,' ... means the commission or omission of such act more
    than once or, if such commission or omission is continuous, for more
    than one day." 47 U.S.C. § 312(f)(2).

[^14]: 47 U.S.C. § 503(b).

[^15]: 47 U.S.C. § 503(b)(2)(D).

[^16]: 12 FCC Rcd 17087 (1997), *recon. denied* 15 FCC Rcd 303 (1999).

[^17]: 47 C.F.R. § 1.80.

[^18]: We are not proposing a separate forfeiture for Inteligain's
    labeling violation.

[^19]: 47 U.S.C. § 403.

[^20]: *See* 47 C.F.R. § 1.1914.