The FCC has reprised a 2011 Show Cause order, but with a difference

Whoa, déjà vu!

An Order to Show Cause and Notice of Opportunity for Hearing (Show Cause/HDO)issued last month may look eerily familiar to you. And it should, because it’s nearly a duplicate of an order issued more than four years ago. (We reported on the earlier order here.) Could there be a glitch in the Matrix?

No. Rather, it appears that there may have been a glitch in the way the FCC sent the 2011 order out to its intended target. Now, perhaps motivated by a suggestion included in one of our posts last year (we can dream, can’t we?), the Enforcement Bureau is trying a different approach to tag the culprit here.

That culprit is a manufacturer, Shenzhen Tangreat Technology Co., LTD. (STTC), located in Shenzhen, China. As we reported back in 2011, STTC manufactures and markets a device – dubbed the “TxT Stopper” – that is little more than a cellphone jammer. As we all know, jammers are illegal in the U.S., so the fact that STTC was apparently happy to ship TxT Stoppers to U.S. buyers got the FCC’s attention.

Upon further investigation, it turned out that STTC actually had an FCC authorization for the TxT Stopper BUT, in order to get that authorization, Shenzhen had inaccurately described the device as a “computer peripheral”. Once the Commission had figured out in 2011 that Shenzhen had, in effect, lied to get its device approved, STTC was directed to show cause why that authorization should not be revoked.

So why are we seeing a nearly identical Show Cause/HDO more than four years later?

One obvious answer is that the Chinese manufacturer apparently never responded to the 2011 order. This shouldn’t be surprising, given that the manufacturer also hadn’t bothered to respond to FCC inquiries leading up to that order. But so what? A malfeasor ordinarily can’t get itself off the hook simply by ignoring the authorities when they come calling, can it?

Well, maybe, if that malfeasor is a foreign entity. Comparison of the fine print in the 2011 and 2015 orders – the penultimate paragraph of each, to be specific – reveals what may be the crucial difference between the two. According to Paragraph 25 of the 2011 order, a copy was served upon STTC “by first class mail, overnight mail, facsimile and email…” But Paragraph 27 of the more recent Show Cause/HDO reflects that, this time around, the official copy was sent to STTC

pursuant to the “Hague Convention on Service Abroad of Judicial and Extrajudicial Documents” to the Central Authority of the People’s Republic of China, Ministry of Justice, International Legal Cooperation Center (ILCC), No. 6, Chaoyangmen Nandajie, Chaoyang District, Beijing, 100020, People’s Republic of China, to effect service on Shenzhen Tangreat Technology Co., Ltd. … .

The Hague Service Convention? Who’s ever heard of that? Why, YOU would have heard of that, if only you’d read this 2014 post by our colleague Mitchell Lazarus. As Mitchell pointed out, making an FCC enforcement action stick against a foreign company isn’t necessarily easy. (In the 2014 case, the FCC had fined another company working out of Shenzhen a whopping $35 million for marketing illegal signal jamming devices.) Since the latest order to STTC has been shipped pursuant to the Convention, it’s a reasonable guess that the FCC concluded that its earlier reliance on more prosaic delivery methods may have relieved STTC of any enforceable obligation to respond.

It remains to be seen whether this latest resort to internationally negotiated convention will bring STTC to justice, FCC-style. Check back here for updates.