**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Vitec Group Communications Limited ) File No. EB-05-SE-172

Cambridge, United Kingdom ) NAL/Acct. No. 200632100009

) FRN 0012947594

)

## FORFEITURE ORDER 

**Adopted Date: October 31, 2006 Released Date: November 2, 2006**

By the Chief, Spectrum Enforcement Division, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of eleven thousand two hundred dollars
    (\$11,200) to Vitec Group Communications Limited ("Vitec") for
    willful and repeated violation of 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] The noted
    violations involve Vitec's marketing of unauthorized radio frequency
    devices in the United States.

#### II. BACKGROUND

2.  In May 2005, the Enforcement Bureau ("Bureau") received a complaint
    alleging that Clear-Com Communication Systems[^3] was marketing
    unapproved radiofrequency devices in the United States in violation
    of Section 302(b) of the Act and Section 2.803(a) of the Rules.
    Specifically, the complaint indicated that Vitec advertised an
    unapproved digital wireless intercom system called the "CellCom
    Digital Wireless Intercom" ("CellCom") in the April 2005 issue of
    *Broadcast Engineering* and also displayed it at the 2005 National
    Association of Broadcasters ("NAB") trade show in Las Vegas, NV.
    Digital wireless intercom systems, such as the CellCom, are
    classified as intentional radiators[^4] and are required by Section
    15.201 of the Rules[^5] to be approved prior to marketing through
    the equipment certification[^6] procedures described in Sections
    2.1031 -- 2.1060 of the Rules.[^7]

3.  The Bureau's Spectrum Enforcement Division (Division") subsequently
    began an investigation of Vitec's marketing activities. As part of
    the investigation, the Division obtained a copy of the April 2005
    issue of *Broadcast Engineering* and confirmed that it contains an
    advertisement for the CellCom. Section 2.803(c) of the Rules[^8]
    allows the advertising or display of radio frequency devices prior
    to equipment authorization only if the following disclaimer notice
    is provided:

    This device has not been authorized as required 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.

    The *Broadcast Engineering* advertisement does not contain this
    notice.

4.  The Bureau determined through internet research that the website
    www.clearcom.com contained photographs of Vitec's display of the
    CellCom at the 2005 National Association of Broadcasters ("NAB")
    trade show, which took place April 16-21, 2005. The disclaimer
    notice specified by Section 2.803(c) of the Rules is not visible in
    the photographs of Vitec's NAB display. The Bureau's internet
    research also established that Vitec was advertising the CellCom on
    the website and that this advertising did include the notice
    specified by Section 2.803(c) of the Rules.

5.  The Bureau sent Vitec a letter of inquiry ("LOI")[^9] on October
    24, 2005. Vitec submitted responses both directly[^10] and through
    its counsel.[^11] In its direct response, Vitec stated that it
    obtained equipment certifications covering its digital wireless
    intercom system on November 2, 2005[^12] and that it did not sell or
    distribute the product in the United States prior to the grant of
    the certifications. Vitec acknowledged, however, that "the
    advertising in *Broadcast Engineering* and display at NAB did take
    place as you note during April 2005, the object being to market this
    product prior to launch." In the subsequent response submitted
    through its counsel, Vitec denied any violation of the Act or the
    Rules. Vitec stated that it manufactures its "CellCom 10" digital
    wireless intercom system in England and imports it into the United
    States. Vitec further stated that it displayed the system at the
    2005 NAB trade show and advertised it on its website and in "at
    least" *Broadcast Engineering* magazine. Vitec asserted, however,
    that it did not "market or sell" the system in the United States
    prior to receipt of the equipment certifications on November 2,
    2005.

6.  On April 14, 2006, the Bureau's Spectrum Enforcement Division issued
    a *Notice of Apparent Liability for Forfeiture* ("*NAL*") to Vitec
    in the amount of fourteen thousand dollars (\$14,000) for apparent
    willful and repeated violation of Section 302(b) of the Act and
    Sections 2.803(a)(2) of the Rules.[^13] In its response, Vitec
    argues that the proposed forfeiture should be cancelled because its
    pre-certification advertising of the Cellcom 10 digital wireless
    system did not violate the Section 302(b) of the Act or Section
    2.803(a)(2) of the Rules, and that, if there is basis for a monetary
    forfeiture, the amount proposed by the *NAL* is excessive.[^14]

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III. **DISCUSSION**

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7.  The forfeiture amount proposed in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended ("Act"), [^15] Section 1.80 of the Rules,[^16] and the
    *Commission's Forfeiture Policy Statement and Amendment of Section
    1.80 of the Rules to Incorporate the Forfeiture Guidelines*.[^17] 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.[^18]

8.  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 Rules 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[^19]
> 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 \[*emphasis added*\].

9.  Vitec provides a "Statement Under Penalty of Perjury" indicating
    that it did provide the disclaimer notice specified by Section
    2.803(c) of the Rules when it displayed the CellCom 10 at the NAB
    convention between April 16 and 21, 2005.[^20] On the basis of that
    information, we find the display of the CellCom at the NAB
    convention did not violate Section 302(b) of the Act or Section
    2.803(a)(1) of the Rules.

10. Vitec admits that it advertised its digital wireless intercom system
    in the April 2005 issue of *Broadcast Engineering* before the grant
    of an equipment authorization and furnishes a copy of the
    advertisement, which does not include the disclaimer notice
    specified by Section 2.803(c) of the Rules.[^21] Vitec, however,
    argues that it was not required to include the disclaimer notice
    because the *Broadcast Engineering* advertisement did not offer or
    advertise the CellCom 10 for "sale or lease."[^22] We reject this
    argument. The purpose of Vitec's *Broadcast Engineering*
    advertisement was to generate future sales by advertising the
    CellCom 10 prior to certification. This is illustrated by Vitec's
    statement in its direct response to the first LOI that "the
    advertising in *Broadcast Engineering* . . . did take place as you
    note during April 2005, the object being to *market* this product
    prior to launch" (emphasis added).

11. Vitec also argues that the one year statute of limitations contained
    in Section 503(b)(6)(B) of the Act[^23] bars imposing a forfeiture
    on the basis of Vitec's *Broadcast Engineering* advertisement.
    Specifically, Vitec claims that the statute of limitations date
    passed before the issuance of the *NAL* because the *Broadcast
    Engineering* issue in which Vitec's advertisement appeared, April
    2005, was distributed to subscribers during March 2005, which is
    more than one year before the April 14, 2006, issuance of the
    *NAL*.[^24] We reject this argument. The April issue of *Broadcast
    Engineering* was current until the end of that month and, therefore,
    Vitec's violation continued through the end of April 2005, which is
    within the one year statute of limitations period.

12. We, accordingly, find that Vitec willfully[^25] and repeatedly[^26]
    violated Section 302(b) of the Act and Section 2.803(a)(2) of the
    Rules by marketing its digital wireless intercom system in the April
    2005 issue of *Broadcast Engineering* prior to certification.

13. Vitec also argues that, if there is basis for a monetary forfeiture,
    the amount proposed by the *NAL* is excessive.[^27] First, Vitec
    contends that the calculation of the proposed base forfeiture amount
    \-- \$14,000 \-- is erroneous. The base forfeiture amount for the
    marketing of unauthorized equipment is \$7,000.[^28] We proposed a
    \$14,000 forfeiture because the CellCom system included two types of
    uncertified transmitters \-- base station and mobile \-- whose
    marketing constituted separate offenses. Vitec argues that the base
    forfeiture amount should be \$7,000 because CellCom 10 is a single
    device. We reject that argument. The base and mobile transmitters
    constituting the CellCom 10 are covered by separate equipment
    authorizations[^29] and must, therefore, be considered distinct
    devices.

14. In addition, Vitec contends that the Spectrum Enforcement Division's
    holding in *Schumacher Electronic Corporation,* 19 FCC Rcd 6344
    (Enf. Bur. 2004), *consent decree issued,* 19 FCC Rcd. 8825 (Enf.
    Bur. 2004), requires a reduction of the forfeiture amount in this
    case. In *Schumacher,* the Spectrum Enforcement Division proposed a
    forfeiture of \$7,000 for willful and repeated violation of Section
    302(b) of the Act and Section 2.803(a)(2) of the Rules where
    Schumacher had displayed three unauthorized battery charger models
    at a trade show without providing the disclaimer specified by
    Section 2.803(c) of the Rules. *Schumacher* is not consistent with
    the Commission's decision in *Samson Technologies, Inc.,* 19 FCC Rcd
    4221 (2004), *consent decree issued,* 19 FCC Rcd 24542 (2004). In
    that case, the Commission determined that a base forfeiture amount
    of \$7,000 is warranted for each kind of unauthorized device that is
    marketed (a total of \$35,000 for five devices). *Samson* has been
    followed in numerous cases[^30] and we will follow it here.
    Accordingly, we find that our calculation of the proposed base
    forfeiture amount \-- \$14,000 \-- was correct.

15. Vitec also argues that none of the upward adjustment criteria[^31]
    set forth in the *Forfeiture Policy Statement* and 47 C.F.R. §
    1.80(b)(4) apply.[^32] This argument has no merit because the
    forfeiture amount proposed by the *NAL* does not include an upward
    adjustment.

16. In addition, Vitec argues that the proposed forfeiture amount should
    be reduced on the basis of the following downward adjustment
    criteria[^33]: minor violation, good faith and history of overall
    compliance.[^34] The Commission has held that a violation of a
    provision of the Communications Act cannot be classified as a
    "minor" violation.[^35] Therefore, we do not find that Vitec's
    violation of the Communications Act was minor. Further, Vitec has
    not identified any specific action that would constitute good faith
    \-- nor are we aware of any. Accordingly, we do not find that Vitec
    acted in good faith. We do, however, find that Vitec has a history
    of overall compliance which warrants reduction of the forfeiture
    amount to \$11,200.

17. We have examined Vitec's response to the *NAL* pursuant to the
    statutory factors set forth in Paragraph 7 above, and in conjunction
    with the *Policy Statement* as well. As a result of our review, we
    conclude that cancellation of the forfeiture is not warranted but
    that the forfeiture amount should be reduced from \$14,000 to
    \$11,200.

#### IV. ORDERING CLAUSES

18. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,
    [^36] Vitec Group Communications, Ltd.., **IS LIABLE FOR A MONETARY
    FORFEITURE** in the amount of eleven thousand two hundred dollars
    (\$11,200) for willful and repeated violation of Section 302(b) of
    the Act and Section 2.803(a)(1) of the Rules.

19. 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. Requests for full payment under an installment plan
    should be sent to: Associate Managing Director -- Financial
    Operations, 445 12^th^ Street, S.W., Room 1A625, Washington, D.C.
    20554.[^37]

20. **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 Vitec Group
    Communications Limited, 4065 Hollis Street, Emeryville, CA 94608,
    and to its attorney, Christopher D. Imlay, Esq., Booth, Freret,
    Imlay & Tepper, P.C., 14356 Cape May Road, Silver Spring, MD
    20904-6011.

FEDERAL COMMUNICATIONS COMMISSION

Kathryn S. Berthot

Chief, Spectrum Enforcement Division

[^1]: 47 U.S.C. § 302a(b).

[^2]: 47 C.F.R. § 2.803(a)(1).

[^3]: Clear-Com Communications Systems is a trade name that Vitec, a
    British company, uses in the United States. In this *Forfeiture
    Order,* we will refer to the company as Vitec throughout.

[^4]: An intentional radiator is "A device that intentionally generates
    and emits radio frequency energy by radiation or induction." 47
    C.F.R. § 15.3 (o).

[^5]: 47 C.F.R. § 15.201.

[^6]: A certification is an equipment authorization issued by the
    Commission, based on representations and test data submitted by the
    applicant. *See* 47 C.F.R. § 2.907(a).

[^7]: 47 C.F.R. §§ 2.1031 -- 2.1060

[^8]: 47 C.F.R. § 2.803(c).

[^9]: Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
    Division, Enforcement Bureau, to Clear-Com Communications Systems
    (October 24, 2005).

[^10]: Letter from Chris Exelby, Managing Director, Vitec Group
    Communications, to Thomas D. Fitz-Gibbon, Spectrum Enforcement
    Division, Enforcement Bureau (November 25, 2005).

[^11]: Letter from Christopher D. Imlay, Esq. to Kathryn S. Berthot and
    Thomas D. Fitz-Gibbon, Spectrum Enforcement Division, Enforcement
    Bureau (December 6, 2005).

[^12]: The Commission's equipment authorization data base indicates
    that, November 2, 2005, Vitec was granted equipment certifications
    FCC ID \# S30-CEL-BP (portable two-way radios) and FCC ID \#
    S30-CEL-TA (base station) for the Vitec CellCom 10 Digital Wireless
    Intercom.

[^13]: *Vitec Group Communications, Ltd.*, 21 FCC Rcd 4025 (Enf. Bur.,
    Spectrum Enf. Div., 2006).

[^14]: Letter from Christopher D. Imlay, Esq. to Chief, Spectrum
    Enforcement Division, Enforcement Bureau (May 18, 2006) ("*NAL*
    response").

[^15]: 47 U.S.C. § 503(b).

[^16]: 47 C.F.R. § 1.80.

[^17]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999)
    ("*Forfeiture Policy Statement*").

[^18]: 47 U.S.C. § 503(b)(2)(D).

[^19]: 47 C.F.R. § 2.801 defines a radiofrequency device as "any device
    which in it its operation is capable of emitting radiofrequency
    energy by radiation, conduction, or other means."

[^20]: *NAL* response, Exhibit B.

[^21]: *Id.* at pp. 6-7, Exhibit A.

[^22]: *Id.* at pp. 6-7.

[^23]: 47 U.S.C. § 503(b)(6)(B), which provides that "No forfeiture
    penalty shall be determined or imposed against any person under this
    subsection if such person does not hold a broadcast station license
    issued under subchapter III of this chapter and if the violation
    charged occurred more than 1 year prior to the date of issuance of
    the required notice or notice of apparent liability."

[^24]: *NAL* response at p. 6.

[^25]: 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).

[^26]: 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).

[^27]: *NAL* response at p. 11.

[^28]: *Forfeiture Policy Statement* and 47 C.F.R. § 1.80.

[^29]: FCC ID S30-CEL-BP and FCC ID S30-CEL-TA.

[^30]: E.g., *Pilot Travel Centers, LLC,* 19 FCC Rcd 23113, 23117 (2004)
    (proposing \$91,000 base forfeiture amount for 13 devices), *consent
    decree issued*, 21 FCC Rcd 5308 (2006); *Behringer USA, Inc.,* 21
    FCC Rcd. 1820, 1827 (2006) (proposing \$350,000 base forfeiture
    amount for 50 devices), *response pending*; *San Jose Navigation,
    Inc.,* 21 FCC Rcd 2873, 2877 (2006) (proposing \$28,000 base
    forfeiture amount for four devices), *response pending*; *Via
    Technologies,* 19 FCC Rcd 19556 (Enf. Bur., Spectrum Enf. Div.,
    2004) (proposing \$14,000 base forfeiture amount for two devices),
    *forfeiture ordered,* 19 FCC Rcd 24341 (2004); *Ramsey Electronics,
    Inc.,* 21 FCC Rcd 458, 462 (Enf. Bur., Spectrum Enf. Div., 2006)
    (proposing \$28,000 base forfeiture amount for four devices);
    *Gibson Tech Ed, Inc.,* 20 FCC Rcd 14438, 14441 (Enf. Bur., Spectrum
    Enf. Div., 2005) (proposing \$14,000 base forfeiture amount for two
    devices), *forfeiture ordered,* 21 FCC Rcd 2915 (Enf. Bur., Spectrum
    Enf. Div., 2006), *recon. den.,* 21 FCC Rcd 9642 (Enf. Bur. 2006);
    and *Bureau D'Electronique Appliquee, Inc.,* 20 FCC Rcd 3445, 3448
    (Enf. Bur., Spectrum Enf. Div., 2005) (proposing \$14,000 base
    forfeiture amount for two devices), *forfeiture ordered,* 20 FCC Rcd
    17893 (Enf., Bur., Spectrum Enf. Div., 2005).

[^31]: *See* *Forfeiture Policy* Statement, 12 FCC Rcd at 17100; 47
    C.F.R. § 1.80(b)(4), Note to paragraph (b)(4): Section II.
    Adjustment Criteria for Section 503 Forfeitures.

[^32]: *NAL* response at p. 11.

[^33]: *See* *Forfeiture Policy* Statement, 12 FCC Rcd at 17100; 47
    C.F.R. § 1.80(b)(4), Note to paragraph (b)(4): Section II.
    Adjustment Criteria for Section 503 Forfeitures.

[^34]: *NAL* response at p. 11.

[^35]: *Catherine R. Waddill,* 13 FCC Rcd 23861, 23866 (1998); *Paging
    Network of Los Angeles, Inc.,* 8 FCC Rcd 1702, 1703 (1993).

[^36]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^37]: *See* 47 C.F.R. § 1.1914.