**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

)

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE 

**Adopted: April 14, 2006 Released: April 18, 2006**

By the Chief, Spectrum Enforcement Division, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this *Notice of Apparent Liability for Forfeiture* ("*NAL*"), we
    find Vitec Group Communications Limited ("Vitec") apparently liable
    for a forfeiture in the amount of fourteen thousand dollars
    (\$14,000) for apparent willful and repeated violation of Section
    302(b) of the Communications Act of 1934, as amended ("Act"),[^1]
    and Section 2.803(a)(2) of the Commission's Rules ("Rules").[^2] The
    noted apparent 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 ("Vitec")[^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] The Commission's equipment
    authorization database, however, indicated that Vitec did not hold
    any equipment certifications.

3.  The Bureau subsequently began an investigation of Vitec's marketing
    activities. As part of the investigation, the Bureau 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. Further, according to
    the specifications posted on www.clearcom.com, the CellCom was
    capable of operation in the 1880 -- 1930 MHz frequency range.
    Unlicensed intercom systems, such as the Cell-Com, are authorized to
    operate in the frequency range 1920 -- 1930 MHz [^9] and are not
    authorized to operate on the frequencies between 1880 and 1920 MHz.
    It therefore appeared that the CellCom was ineligible for equipment
    certification and thus could not be advertised before equipment
    authorization even with the disclaimer notice specified by Section
    2.803(c) of the Rules.[^10]

5.  The Bureau sent Vitec a letter of inquiry ("LOI")[^11] on October
    24, 2005. Vitec submitted responses both directly[^12] and through
    its counsel.[^13] In its direct response, Vitec stated that it
    obtained equipment certifications covering its digital wireless
    intercom system on November 2, 2005[^14] 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. Vitec also asserted that the inquiries set forth in the LOI
    were "moot" because they were based on the "incorrect allegation"
    that its digital wireless intercom system was ineligible for
    equipment certification. In support of this assertion, Vitec noted
    that "these devices, which operate in the frequency range 1920.0 --
    1930.0 MHz at a power output of 0.25 watts," were certified on
    November 2, 2005.

6.  On February 13, 2006, the Bureau sent Vitec a follow-up LOI,[^15]
    seeking to clarify whether the CellCom 10 system is the same
    intercom system that was previously advertised on Vitec's website as
    being capable of operation in the 1880 -- 1930 MHz frequency
    range.[^16] In its response,[^17] Vitec indicated that the devices,
    as they are configured to operate in the United States, are
    restricted to a transmit range of 1920 -- 1930 MHz. Vitec
    acknowledged that the system, through password protected software,
    is capable of being programmed to operate outside the United States
    on frequencies outside the 1920 -- 1930 MHz band (for example, in
    Europe where the band 1880 -- 1900 MHz is available for these
    devices). Vitec asserted, however, that it is not possible for users
    in the United States to operate the system on frequencies beyond the
    1920 -- 1930 MHz band because the passwords for the software are
    only provided to authorized dealers.

    **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)(2) 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[^18]
> 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 \[*emphasis added*\].

8.  The record establishes that Vitec advertised its digital wireless
    intercom system in the April 2005 issue of *Broadcast Engineering*
    and displayed it at the 2005 NAB trade show between April 16 and
    21, 2005. The record also establishes that Vitec did not hold any
    grants of equipment certification until November 2, 2005. Vitec
    argues that its advertising or display prior to equipment
    certification was permissible if the disclaimer notice specified by
    Section 2.803(c) was provided. However, Vitec clearly did not
    include a disclaimer notice in the April 2005 *Broadcast
    Engineering* advertisement and it provided no evidence that it
    included a disclaimer notice with its display at the 2005 NAB trade
    show.

9.  In both LOI responses submitted through its attorney, Vitec claims
    that it did not "market" its digital wireless intercom system in the
    United States prior to November 2, 2005. This claim, however, is
    contradicted by Vitec's direct response to the first LOI, which
    stated 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" (emphasis added).
    Moreover, we note that the definition of "marketing" set forth in
    Section 2.803(e)(4) of the Rules specifically includes
    "advertising."[^19]

10. Accordingly, we find that Vitec apparently willfully[^20] and
    repeatedly[^21] 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* and at the
    2005 NAB trade show prior to certification.

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.[^22] 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."[^23]

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*")[^24] and Section 1.80
    of the Rules,[^25] the base forfeiture amount for the marketing of
    unauthorized equipment is \$7,000. In this case, Vitec marketed an
    intercom system that includes two types of uncertified transmitters
    (base station and mobile). Vitec's marketing of each uncertified
    transmitter is a separate violation. We find that a proposed
    forfeiture amount of \$7,000 is apparently warranted for each
    violation for a total proposed forfeiture of \$14,000.[^26]
    Accordingly, applying the *Forfeiture Policy Statement* and
    statutory factors to the instant case, we conclude that Vitec is
    apparently liable for a \$14,000 forfeiture.

#### IV. ORDERING CLAUSES

13. Accordingly, **IT IS ORDERED** that, pursuant to pursuant to Section
    503(b) of the Act and Section 1.80 of the Rules, Vitec Group
    Communications Limited **IS** hereby **NOTIFIED** of its **APPARENT
    LIABILITY FOR A FORFEITURE** in the amount of fourteen thousand
    dollars (\$14,000) for willfully and repeatedly violating Section
    302(b) of the Act and Section 2.803(a)(2) of the Rules.

14. **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*, Vitec Group Communications
    Limited **SHALL PAY** the full amount of the proposed forfeiture or
    **SHALL FILE** a written statement seeking reduction or cancellation
    of the proposed forfeiture.

15. 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.

16. 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.

17. 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.

18. 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 Receivables Operations Group, 445 12th
    Street, S.W., Washington, D.C. 20554.[^27]

19. **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

Joseph P. Casey

Chief, Spectrum Enforcement Division

[^1]: 47 U.S.C. § 302a(b).

[^2]: 47 C.F.R. § 2.803(a)(2).

[^3]: Clear-Com Communications Systems is a trade name that Vitec, a
    British company, uses in the United States. In this *NAL,* 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]: See Part 15, Subpart D of the Rules, 47 C.F.R. §§ 15.301- 15.323.

[^10]: See 47 C.F.R. § 2.803(g).

[^11]: Letter from Kathryn S. Berthot, Deputy Chief, Spectrum
    Enforcement Division, Enforcement Bureau, to Clear-Com
    Communications Systems (October 24, 2005).

[^12]: Letter from Chris Exelby, Managing Director, Vitec Group
    Communications, to Thomas D. Fitz-Gibbon, Spectrum Enforcement
    Division, Enforcement Bureau (November 25, 2005).

[^13]: Letter from Christopher D. Imlay, Esq. to Kathryn S. Berthot and
    Thomas D. Fitz-Gibbon, Spectrum Enforcement Division, Enforcement
    Bureau (December 6, 2005).

[^14]: 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.

[^15]: Letter from Kathryn S. Berthot, Deputy Chief, Spectrum
    Enforcement Division, Enforcement Bureau, to Clear-Com
    Communications Systems (February 13, 2006).

[^16]: *See* paragraph 4 *supra.*

[^17]: Letter from Christopher D. Imlay, Esq. to Kathryn S. Berthot and
    Thomas D. Fitz-Gibbon, Spectrum Enforcement Division, Enforcement
    Bureau (March 2, 2006).

[^18]: 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."

[^19]: *See ACR Electronics, Inc.*, FCC 06-37 (released March 23, 2006)
    (imposing a forfeiture of \$65,000 for advertising and displaying
    radio frequency devices prior to certification without the
    disclaimer notice specified in Section 2.803(c)).

[^20]: 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).

[^21]: 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).

[^22]: 47 U.S.C. § 503(b).

[^23]: 47 U.S.C. § 503(b)(2)(D).

[^24]: 12 FCC Rcd 17087 (1997), *recon. denied* 15 FCC Rcd 303 (1999).

[^25]: 47 C.F.R. § 1.80.

[^26]: *See Samson Technologies, Inc*., 19 FCC Rcd 4221, 4225 (2004).

[^27]: *See* 47 C.F.R. § 1.1914.