Three Years Later, FCC Pursues Unauthorized Marketing of Transmitters

This month, the FCC issued Forfeiture Orders against two companies for marketing unauthorized transmitters, with both orders following up on Notices of Apparent Liability for Forfeiture (NAL) issued in 2009.

In one instance, the FCC issued a Forfeiture Order for $18,000 against a company that marketed an unauthorized FM broadcast transmitter in the U.S. and provided incorrect information to the FCC “without a reasonable basis for believing that the information was correct.” The FCC first issued an NAL against this company in 2009, after an in-depth investigation by the Spectrum Enforcement Division, alleging that the company was marketing several FM transmitters, including one model of transmitter that was not verified to comply with FCC regulations. The FCC’s rules prohibit the manufacturing, importation, and sale of radio frequency devices that do not comply with all applicable FCC requirements, and Section 73.1660 of the FCC’s Rules requires that transmitters be verified for compliance. If a transmitter has not complied with the verification requirements of Section 73.1660, then the transmitter is considered unauthorized and may not be marketed in the United States.

In response to multiple Letters of Inquiry, the company attempted to demonstrate the transmitter’s compliance with FCC regulations by submitting verification information for a component part of the transmitter. The FCC concluded, however, that “[b]ecause transmitters are a combination of several functional components that interact with one another … verification of [one part] incorporated into a transmitter is insufficient to verify the final transmitter.”

The company also claimed that it had stopped marketing the unverified transmitter months before the FCC’s investigation. However, the FCC found evidence that the company was marketing the transmitter on its website under a different name several months after it claimed to have stopped selling the product. Section 1.17 of the FCC’s Rules states that no one may provide the FCC with material factual information that is incorrect or omit material information that is necessary to prevent a statement made to the FCC from being incorrect. In the NAL, the FCC found that, “even in the absence of an intent to deceive, a false statement provided without a reasonable basis for believing that the statement is correct and not misleading constitutes an actionable violation of Section 1.17 of the Rules.”

The $18,000 NAL was comprised of a fine of $7,000 for the marketing of the transmitter and an additional $11,000 for providing incorrect factual information to the FCC.

The FCC issued a Forfeiture Order for $14,000 against a different company for marketing unauthorized radio frequency devices over several years. In 2009, the FCC issued an NAL against the company because the FCC found that the company manufactured and marketed two models of wireless video transmitters in the U.S. without first obtaining FCC certifications for them. In response to a Letter of Inquiry from the FCC, the company admitted to having sold the uncertified video transmitters for a year prior to the issuance of the NAL.

The company responded to the NAL in late 2009, requesting that the proposed fine be reduced or cancelled because it was taking remedial measures to come into compliance (such as discontinuing production of the uncertified models and posting a notice on its website and to all distributors that the devices may not be marketed in the U.S.). The FCC held that these after-the-fact measures did not warrant any reduction in the forfeiture amount.

The company also argued that the forfeiture should be reduced because of its past history of compliance. The FCC concluded that the evidence did not support this claim and again refused to cancel or reduce the fine. As a result, the FCC determined that the proposed fine amount was appropriate, and issued the Forfeiture Order for $14,000.