Federal Communications Commission DA 11–135 Before the Federal Communications Commission Washington, D.C. 20554 In the matter of Comtrex Communications Ltd. ) ) ) ) ) File No. EB-09-SE-118 CITATION ILLEGAL MARKETING OF CELL PHONE JAMMERS Adopted: January 26, 2011 Released: January 26, 2011 By the Acting Chief, Spectrum Enforcement Division, Enforcement Bureau: I. INTRODUCTION 1. This is an official CITATION issued pursuant to section 503(b)(5) of the Communications Act of 1934, as amended (“Communications Act”),1 to Comtrex Communications Ltd. (“Comtrex”) for marketing in the United States unauthorized radio frequency devices in violation of section 302(b) of the Communications Act,2 and section 2.803 of the Commission’s rules (“Rules”).3 2. Comtrex should take immediate steps to come into compliance and to avoid any recurrence of this misconduct. As explained below and as provided in the Communications Act, future violations of the Rules in this regard may subject your company to substantial monetary penalties, seizure of equipment, and criminal sanctions. II. BACKGROUND 3. On June 9, 2009, an email advertisement from Comtrex for cell phone jammers was received by the Federal Communications Commission at dtvinfo@fcc.gov. Subsequently, staff from the Spectrum Enforcement Division (“Division”) of the Enforcement Bureau viewed Comtrex's web site, www.comtrexcommunications.com, and observed advertisements for three devices listed as “cell phone jammers,” model numbers COMDZ101F, COMDZ101B, and COMDZ101M.4 On September 29, 2009, the Division issued a letter of inquiry (“LOI”) to Comtrex.5 On December 16, 2009, having not received 1 47 U.S.C. § 503(b)(5). 2 47 U.S.C. § 302a(b). 3 47 C.F.R. § 2.803. 4 On September 14, 2009, Division staff visited Comtrex’s web site and observed that Comtrex was marketing three cell phone jammers, model numbers COMDZ101F, COMDZ101B, and COMDZ101M, at http://www.comtrexcommunications.com/cell-phone-jammer, http://www.comtrexcommunications.com/phone- jammer-with-remote-control, and http://www.comtrexcommunications.com/portable-cell-phone-jammer, respectively. 5 Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal Communications Commission, to Mr. Patrick Armstrong, CEO, Comtrex Communications Ltd. (Sept. 29, 2009). Federal Communications Commission DA 11–135 2 a response to the September 29, 2009 LOI, the Division resent the LOI to Comtrex.6 Comtrex responded to the LOI on December 30, 2009.7 4. In its LOI Response, Comtrex admitted that it marketed the subject cell phone jammers in an email marketing blast on June 9, 2009 and on its web site. Comtrex also stated that it did not receive any inquiries from prospective purchasers as a result of the email blast or web site advertising.8 Comtrex further stated that it “has never sold cell phone jammers to any customer worldwide, never been in possession of a cell phone jammer, [and] never imported or exported cell phone jammers,” and that it does not manufacture jammers. 9 Finally, Comtrex asserted that when it was contacted by the Commission concerning this matter, Comtrex “immediately removed any references for cell phone jammers” from its web site.10 III. APPLICABLE LAW AND VIOLATIONS 5. Federal law prohibits the marketing and operation of cell phone jammers in the United States. Section 333 of the Communications Act states that “[n]o person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this Act or operated by the United States Government.”11 In addition, section 302(b) of the Communications 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.”12 6. The applicable implementing regulations for section 302(b) are set forth in sections 2.803, 15.201, and 15.3(o) of the Rules.13 Section 2.803(a)(1) of the Rules 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 § 2.925 and other relevant sections in this chapter.14 According to the September 29, 2009 Fax Transmission Report, the LOI was successfully sent to the Comtrex fax number. 6 Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal Communications Commission, to Mr. Patrick Armstrong, CEO, Comtrex Communications Ltd. (Dec. 16, 2009). 7 Letter from Richard Myers, President, Comtrex Communications Ltd., to JoAnn Lucanik, Deputy Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal Communications Commission (Dec. 30, 2009) (“LOI Response”). 8 LOI Response at 1. 9 Id. 10 Id. Subsequent observations by FCC Staff of Comtrex’s web site revealed that the company no longer markets cell phone jammers (web site last visited on January 24, 2011). 11 47 U.S.C. § 333. 12 47 U.S.C. § 302a(b). 13 47 C.F.R. §§ 2.803, 15.201, and 15.3(o). 14 47 C.F.R. § 2.803(a)(1). Federal Communications Commission DA 11–135 3 Additionally, section 2.803(g) of the Rules provides in relevant part that: [R]adio frequency devices that could not be authorized or legally operated under the current rules … shall not be operated, advertised, displayed, offered for sale or lease, sold or leased, or otherwise marketed absent a license issued under part 5 of this chapter or a special temporary authorization issued by the Commission.15 7. Pursuant to section 15.201(b) of the Rules,16 before intentional radiators17 like cell phone jammers can be marketed in the United States, they must be authorized in accordance with the Commission’s certification procedures. Section 2.803(e)(4) of the Rules defines “marketing” as the “sale or lease, or offering for sale or lease, including advertising for sale or lease, or importation, shipment or distribution for the purpose of selling or leasing or offering for sale or lease.”18 8. Jamming devices, however, cannot be certified or authorized because the main purpose of a jamming device is to block or interfere with radio communications. As noted above, such use is clearly prohibited by section 333 of the Communications Act. Thus, cell phone jammers, such as those offered by Comtrex, cannot comply with the FCC’s technical standards and therefore cannot be marketed in the United States. 9. While Comtrex claims that it did not actually manufacture, import, or sell cell phone jammers, it admits that it marketed cell phone jammers in the United States. Accordingly, we find that Comtrex has violated section 302(b) of the Communications Act and section 2.803 of the Rules by marketing in the United States radio frequency devices (model numbers COMDZ101F, COMDZ101B, and COMDZ101M) that are not eligible for certification. We therefore issue this Citation to Comtrex for violating the Communications Act and the Rules as discussed above. IV. FUTURE COMPLIANCE 10. If, after receipt of this Citation, Comtrex violates the Communications Act or the Rules by engaging in conduct of the type described herein, the Commission may impose monetary forfeitures of up to $16,000 for each such violation or each day of a continuing violation and up to $112,500 for any single act or failure to act.19 In addition, violations of the Communications Act or the Rules can result in seizure of equipment through in rem forfeiture actions,20 as well as criminal sanctions, including imprisonment.21 11. Comtrex may respond to this Citation within thirty (30) days after the release date of this Citation either through (1) a personal interview at the closest FCC office, or (2) a written statement. Any written statements should specify what actions have been taken by Comtrex to ensure that it does not 15 47 C.F.R. § 2.803(g). 16 47 C.F.R. § 15.201(b). 17 Section 15.3(o) of the Rules defines an “intentional radiator” as a “device that intentionally generates and emits radio frequency energy by radiation or induction.” 47 C.F.R. § 15.3(o). 18 47 C.F.R. § 2.803(e)(4). 19 See 47 U.S.C. § 503; 47 C.F.R. § 1.80(b)(3). These amounts are subject to further adjustment for inflation (see id. § 1.80(b)(5)), and the forfeiture amount applicable to any violation will be determined based on the statutory amount designated at the time of the violation. 20 See 47 U.S.C. § 510. 21 See 47 U.S.C. §§ 401, 501. Federal Communications Commission DA 11–135 4 violate the Communications Act and the Rules prohibiting the marketing of radio frequency jamming devices in the future. Please reference EB file number EB-09-SE-118 when corresponding with the Commission. 12. Under the Privacy Act of 1974, any statement or information provided by you may be used by the Commission to determine if further enforcement action is required.22 Any knowingly or willfully false statement or concealment of any material fact, made in reply to this Citation is punishable by fine or imprisonment.23 Please also note that section 1.17 of the Rules requires that you provide truthful and accurate statements to the Commission.24 V. CONTACT INFORMATION 13. The closest FCC office is the New York District Office, in New York, NY. You may contact Jennifer Burton by telephone, 202-418-1160, to schedule a personal interview, which must take place within thirty (30) days after the release date of this Citation. You should send any written statement within thirty (30) days after the release date of this Citation to: Ricardo M. Durham Acting Chief, Spectrum Enforcement Division Enforcement Bureau Federal Communications Commission 445 12th Street, S.W., Rm. 3-C460 Washington, D.C. 20554 Re: EB File No. EB-09-SE-118 14. Reasonable accommodations for people with disabilities are available upon request. Include a description of the accommodation you will need including as much detail as you can. Also include a way we can contact you if we need more information. Please allow at least five (5) days advance notice; last minute requests will be accepted, but may be impossible to fill. Send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau: For sign language interpreters, CART, and other reasonable accommodations: 202-418-0530 (voice), 202-418-0432 (tty); For accessible format materials (braille, large print, electronic files, and audio format): 202-418-0531 (voice), 202-418-7365 (tty). 22 See Privacy Act of 1974, 5 U.S.C. § 552a(e)(3). 23 See 18 U.S.C. § 1001. 24 47 C.F.R. § 1.17 (“… no person subject to this rule shall; (1) In any written or oral statement of fact, intentionally provide material factual information that is incorrect or intentionally omit material information that is necessary to prevent any material factual statement that is made from being incorrect or misleading; and (2) In any written statement of fact, provide material factual information that is incorrect or omit material information that is necessary to prevent any material factual statement that is made from being incorrect or misleading without a reasonable basis for believing that any such material factual statement is correct and not misleading.”). Federal Communications Commission DA 11–135 5 VI. ORDERING CLAUSE 15. IT IS ORDERED that a copy of this Citation shall be sent both by First Class U.S. Mail and Certified Mail, Return Receipt Requested to Mr. Richard Myers, President, Comtrex Communications Ltd., 714 Gerrard Street East, Toronto, ON M4M 1Y3, Canada. FEDERAL COMMUNICATIONS COMMISSION Ricardo M. Durham Acting Chief Spectrum Enforcement Division Enforcement Bureau