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FCC Issues Citation to Part 15 Marketer

07/30/2009

On July 28, the FCC issued a Citation to Hobby Lobby International (HLI) for marketing non-compliant radio frequency devices. According to the Commission, these devices were in violation of the Communications Act of 1934, As Amended and the Commission's Rules, as well as United States Customs and Border Patrol regulations.

Background

On March 5, the Spectrum Enforcement Division of the Commission's Enforcement Bureau sent HLI a Letter of Inquiry, initiating an investigation. The FCC wanted to know if the Tennessee-based company was marketing an unauthorized radio frequency device, specifically, the Pilot View FPV 2400 video transmitter. According to the Citation, the FCC observed that the device was marketed on the retailer's Web site.

HLI responded to the Letter of Inquiry on May 7, telling the FCC that they began selling the Pilot View FPV 2400 video transmitter on May 12, 2008; they have sold 109 units of the device in the United States. In its reply, the company told the FCC that the manufacturer of the transmitter, Intelligent Flight, an Australian company, represented to them that the device was FCC compliant. HLI admitted they imported the transmitters, but did not file any FCC Form 740s for the imported units (before radio frequency devices may be imported to the United States, an FCC Form 740 [or the electronic equivalent] must be filed with the United States Customs and Border Patrol). According to the Citation, HLI stated that the last date that a transmitter was received was November 17, 2008, which is around the time that HLI's contact at Intelligent Flight stopped responding to their requests for further information concerning the device.

The FCC noted that HLI sent a unit to a test lab prior to receiving the Letter of Inquiry. "After receiving the Letter of Inquiry, HLI contacted the test lab to inquire about the test results and learned, for the first time, that the device is not FCC compliant," the Citation said. "HLI provide[d] a copy of the test results, which indicate that the device substantially exceeds FCC radiated emission limits. HLI state[d] that [they] discontinued selling this device as soon as it became aware that the device was not FCC compliant."

Violations

The FCC said "it appears that HLI violated Section 302(b) of the Act and Sections 2.803 and 15.209 of the Rules by marketing in the United States the Pilot View FPV 2400 transmitter. It also appears that HLI violated Section 2.1203 of the Rules by importing the Pilot View FPV 2400 transmitter without making the required import declaration."

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 "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 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 Section 2.925 and other relevant sections in this chapter."

Pursuant to Section 15.201(b) of the Rules, 47 C.F.R. Section 15.201(b), intentional radiators, such as the Pilot View FPV 2400, must be authorized in accordance with the Commission's certification procedures prior to the initiation of marketing in the United States. Moreover, intentional radiators must comply with all applicable FCC technical standards, including the radiated emission limits set forth in Section 15.209 of the Rules. HLI admitted that it marketed the Pilot View FPV 2400 video transmitter in the United States and that this device does not comply with the FCC's radiated emission limits.

Under Section 2.1203 of the Rules, no radio frequency device may be imported into the Customs territory of the United States unless the importer declares that the device meets one of the conditions for entry set forth in Section 2.1204 of the Rules. Pursuant to Section 2.1205, this declaration must be filed electronically, where electronic filing with Customs is available, or using FCC Form 740, where electronic filing with Customs has not been implemented. HLI admitted that it imported units of the Pilot View FPV 2400 without making the required import declaration either electronically or on FCC Form 740.

HLI was warned that "if, after receipt of this citation, you violate the Communications Act or the Commission's Rules in any manner described herein, the Commission may impose monetary forfeitures not to exceed $16,000 for each such violation or each day of a continuing violation." The company was given 30 days to respond to the Citation either through a personal interview at the Commission's Field Office nearest to your place of business or a written statement. HLI was advised that any response should specify the actions that they are taking to ensure that they do not violate the Commission's Rules governing the marketing and importing of radio frequency equipment in the future.



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