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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No. EB-07-SE-132
)
Leetek America, Inc., a subsidiary of NAL/Acct. No. 200832100072
)
Lee Technology Korea., Co., Ltd. FRN No. 0017761271
)
)
Notice of apparent Liability for forfeiture
Adopted: August 21, 2008 Released: August 25, 2008
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Leetek America, Inc. ("Leetek") apparently liable for a forfeiture in
the amount of fourteen thousand dollars ($14,000) for willful and
repeated violations of Section 302(b) of the Communications Act of
1934, as amended ("Act"), and Section 2.803(a) of the Commission's
Rules ("Rules"). The noted apparent violations involve Leetek's
marketing of two unauthorized pager transmitter systems.
II. BACKGROUND
2. Leetek is the United States subsidiary of Lee Technology Korea Co.,
Ltd. ("LTK"). LTK manufactures pager transmitter systems, which are
devices used for communicating in, for example, restaurants and
hospitals. LTK established Leetek as its United States subsidiary in
September, 2007. Since then, Leetek has marketed and sold LTK's pager
transmitter systems in the United States via a website,
http://www.leetekorea.com. The pager transmitter systems involved in
this matter must be authorized by the Commission via the certification
process prior to being marketed in, or imported into, the United
States. Further, users of these systems must obtain licenses from the
Commission under Part 90 of the Rules to use them on a secondary
basis. Finally, users of these systems may not cause harmful
interference to operations authorized on a primary basis and are not
protected from interference from those primary operations.
3. In April 2007, the Enforcement Bureau's Spectrum Enforcement Division
("Division") received a complaint alleging that a pager transmitter
system manufactured by LTK, model LTK-1100, does not conform to the
Commission's rules regarding out of band emissions attenuation,
causing interference to primary licensed operators. On November 5,
2007, Division personnel observed that the leetek.org website
advertised the sale of pager transmitter systems, including models
identified on the website as LTK-1400S and LTK-1700CT, which did not
appear to hold grants of equipment authorization from the Commission.
The Division issued a Letter of Inquiry ("LOI") to Leetek on January
25, 2008, requesting, inter alia, the following information regarding
each model of pager transmitter system marketed by Leetek: a copy of
the grant of equipment authorization, the date on which Leetek began
marketing each model, the number of units distributed, the dates of
distribution, test information, and other information regarding the
certification and labeling of these units.
4. In its LOI Response, Leetek states that it has been in the business of
marketing, importing, and selling LTK's pager transmitter systems
since it was established as a subsidiary of LTK in September, 2007.
Leetek states that it imported three units of model LTK1700-CT on
September 22, 2007, but acknowledges that the Commission authorization
was not received until January 3, 2008. However, Leetek stated that it
has neither imported nor distributed the model LTK-1100 pager
transmitter system that formed the basis for the complaint. In
addition, Leetek states that it has imported the following quantities
of LTK's pager transmitter systems between September 4, 2007 and
January 21, 2008: model LTK-1100H (2); model LTK-1100L (1); model
LTK-1300H (9); model LTK-1400AH (30); model LTK-1600T (79); and model
LTK-SCT (3). Further, Leetek has distributed 20 model LTK-1400AH and
13 model LTK-1600T pager transmitter systems in the United States.
Finally, Leetek states that LTK has not produced the model LTK-1400S
pager transmitter system. Leetek states that it has, since September,
2007, informed its customers that a license under Part 90 of the Rules
is required to operate LTK's pager transmitter systems.
III. Discussion
A. Marketing of Unauthorized Devices
5. 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 in pertinent part 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 radiofrequency 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 S:
2.925 and other relevant sections in this chapter.
6. Under Section 2.803(c) of the Rules, a manufacturer is allowed, in
limited circumstances, to market devices prior to receiving equipment
authorization from the Commission. Specifically, devices may be
advertised or displayed, e.g., at a trade show or exhibition, prior to
equipment authorization . . . provided that the advertising contains, and
the display is accompanied by, a conspicuous [disclaimer] notice worded as
follows: 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.
Under this exception, a manufacturer may also advertise radio frequency
devices on the internet, prior to authorization, provided the website
includes the required disclaimer notice.
7. In addition, radio frequency devices may be operated, but not
marketed, prior to authorization under the following conditions: (i)
compliance testing; (ii) demonstration at trade show, at a business,
commercial, industrial, scientific, or medical location; or (iii)
evaluation of product performance and determination of customer
acceptability at a business, commercial, industrial, scientific, or
medical user's location. The required disclaimer notice must be
included in all cases, except compliance testing.
8. Leetek has marketed for sale, via advertising on its website, the
pager transmitter systems model LTK-1400S and model LTK-1700CT since
at least November 5, 2007. Leetek indicates that it imported three
units of the model LTK-1700CT for "display in office and test
market[ing]" purposes. However, its website did not contain the
disclaimer notice required by Section 2.803(c). Therefore, Leetek's
marketing of these units prior to authorization is not permitted under
either Section 2.803(c) or 2.803(e) of the Rules. In addition, Leetek
states that it has not imported the model LTK-1400S pager transmitter
system and that LTK has not manufactured any units of this model.
Nonetheless, this uncertified model of pager transmitter system was
marketed in the United States via the company's website within the
past year in violation of the Rules. We conclude, therefore, that the
model LTK-1700CT pager transmitter system was improperly marketed
prior to its authorization by the Commission on January 3, 2008 and
that the model LTK-1400S pager transmitter system was marketed without
being properly authorized by the Commission.
A. Proposed Forfeiture
9. 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. 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."
10. Section 503(b)(6) of the Act bars the Commission from proposing a
forfeiture for violations that occurred more than a year prior to the
issuance of an NAL. Section 503(b)(6) does not, however, bar the
Commission from assessing whether Leetek's conduct prior to that time
period apparently violated the provisions of the Act and Rules and
from considering such conduct in determining the appropriate
forfeiture amount for violations that occurred within the one-year
statutory period. Thus, while we may consider the fact that Leetek's
conduct has continued over a period that began during 2007, the
forfeiture amount we propose herein relates only to Leetek's apparent
violations that have occurred within the past year.
11. Section 1.80(b) of the Rules sets a base forfeiture amount of $7,000
for marketing unauthorized equipment. In this case, Leetek marketed
two models of unauthorized pager transmitter systems. Leetek's
marketing of each of these unauthorized models is a separate,
continuing violation. Based on the record of this proceeding and
application of the statutory factors listed above, we propose a
forfeiture of $14,000 for Leetek's unauthorized marketing of the model
LTK-1400S and the model LTK-1700CT pager transmitter systems.
iV. ordering clauses
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Sections 0.111, 0.311 and 1.80 of the Rules, Leetek America,
Inc. IS NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the
amount of fourteen thousand dollars ($14,000) for marketing two pager
transmitter systems that were unauthorized, in willful violation of
Section 302(a) of the Act and Section 2.803(a) of the Rules.
13. 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, Leetek America, Inc. SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
14. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. Leetek will also send electronic
notification on the date said payment is made to Linda.Nagel@fcc.gov
and Ricardo.Durham@fcc.gov.
15. 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.
16. 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 practices; 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.
17. 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 Mr. Sungsoo Lee, Chief Executive Officer,
Leetek America, Inc., 6040 Unity Drive, Suite L, Norcross, GA 30071.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a).
A pager transmitter system is a system licensed under Part 90 of the Rules
for low power, secondary use, including paging, in the frequency range
450-470 MHz. See 47 C.F.R. S:S: 90.35, 90.261, and 90.267.
See http://www.leetekorea.com/contact/contact.php (last visited July 29,
2008).
See http://www.leetekorea.com/index.php (last visited July 29, 2008).
See http://www.leetekorea.com/company/history.php (last visited July 29,
2008).
Although the website http://www.leetek.org is listed on Leetek's
correspondence with the Commission as Leetek's website, this site links
directly to the website for LTK, http://www.leetekorea.com/.
47 C.F.R. S: 2.803(a)(1).
See 47 C.F.R. S: 90.267. See also supra note 3.
47 C.F.R. S:S: 90.261(a), 90.7.
See 47 C.F.R. S: 90.210.
See http://www.leetekorea.com/shopping/product.php?Ct_1=transmitter (last
visited July 29, 2008). We note that the model 1400S is no longer
displayed on LTK's website.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission to Sungsoo Lee,
Chief Executive Officer, Leetek America, Inc., Jan. 25, 2008 ("LOI").
See Letter from Sungsoo Lee, Chief Executive Officer, Leetek America, Inc.
to Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission, Jan. 30, 2008 at 1-2 ("LOI
Response").
Id.
Id. We note that the model LTK-1100 pager transmitter system that formed
the basis of the complaint in this case had been taken out of service by
March 31, 2007. Thus, any violation of Section 90.210 (emission masking)
of the Rules occurred outside the applicable statute of limitations, i.e.,
one year prior to the release of this NAL.
Id. at 2-3. See also supra note 12.
Id.
Id. at 3.
Id.
47 U.S.C. S: 302(b).
47 C.F.R. S: 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."
47 C.F.R. S: 2.803(c).
See ACR Electronics, Inc., Notice of Apparent Liability for Forfeiture, 19
FCC Rcd 22293, 22299 (2004); forfeiture ordered, 21 FCC Rcd 3698 (2006).
See 47 C.F.R. S: 2.803(e).
Id.
See http://www.leetekorea.com/shopping/product.php?Ct_1=transmitter (last
visited July 29, 2008).
See LOI Response at 2.
See http://www.leetekorea.com/shopping/product.php?Ct_1=transmitter (last
visited July 29, 2008). See also 47 C.F.R. S: 2.803(c).
See LOI Response at 3.
See supra paragraph 3.
47 U.S.C. S: 503(b).
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b)(6).
See 47 U.S.C. S: 503(b)(2)(D), 47 C.F.R. S: 1.80(b)(4); see also Behringer
USA, Inc., Notice of Apparent Liability, 21 FCC Rcd 1820, 1825(2006),
forfeiture ordered, Forfeiture Order, 22 FCC Rcd. 1051 (2007); Globcom,
Inc. d/b/a Globcom Global Communications, Notice of Apparent Liability, 18
FCC Rcd 19893, 19903 (2003), forfeiture ordered, Forfeiture Order, 21 FCC
Rcd 4710 (2006); Roadrunner Transportation, Inc., Forfeiture Order, 15
FCC Rcd 9669, 9671-71 (2000); Cate Communications Corp., Memorandum
Opinion and Order, 60 RR 2d 1386, 1388 (1986); Eastern Broadcasting
Corp., Memorandum Opinion and Order, 10 FCC 2d 37 (1967), recon. den., 11
FCC 2d 193 (1967); Bureau D'Electronique Appliquee, Inc., Notice of
Apparent Liability, 20 FCC Rcd 3445, 3447-48 (Enf. Bur., Spectrum Enf.
Div. 2005), forfeiture ordered, Forfeiture Order, 20 FCC Rcd 17893 (Enf.
Bur., Spectrum Enf. Div. 2005) ("Bureau D'Electronique Appliquee").
Section 503(b)(6) of the Act, 47 U.S.C. S: 503(b)(6) prohibits the
assessment of a forfeiture for violations that occurred more than a year
prior to the issuance of the NAL, but does not bar us from taking into
account the continuous nature of violations in determining the appropriate
enforcement action and/or forfeiture amount. See, e.g., Globcom, Inc.
d/b/a Globcom Global Communications, Notice of Apparent Liability for
Forfeiture and Order, 18 FCC Rcd 19893, 19903 (2003), forfeiture ordered,
21 FCC Rcd 4710 (2006); Roadrunner Transportation, Inc., Forfeiture Order,
15 FCC Rcd 9669, 9671-72 (2000); Cate Communications Corp., Memorandum
Opinion and Order, 60 RR 2d 1386, 1388 (1986); Eastern Broadcasting Corp.,
Memorandum Opinion and Order, 10 FCC 2d 37, 37-38 (1967), recon. denied,
11 FCC 2d 193, 195 (1967); Bureau D'Electronique Appliquee, Inc., Notice
of Apparent Liability for Forfeiture, 20 FCC Rcd 3445, 3447-48 (Enf. Bur.,
Spectrum Enf. Div. 2005), forfeiture ordered, 20 FCC Rcd 17893 (Enf. Bur.,
Spectrum Enf. Div. 2005).
47 C.F.R. S: 1.80(b).
See Samson Technologies, Inc., Notice of Apparent Liability for
Forfeiture, 19 FCC Rcd 4221, 4225 (2004), consent decree ordered, 19 FCC
Rcd 24542 (2004).
47 C.F.R. S: 0.111, 0.311 and 1.80.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 08-1951
2
Federal Communications Commission DA 08-1951