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                         Before the
                Federal Communications Commission
                      Washington, D.C. 20554


In the Matter of                )
                                )
Johannus Orgelbouw b.v.         )     File No. EB-03-TS-089
The Netherlands                 )     NAL/Acct.          No. 
200432100006
                                )     FRN # 0009-7508-60
                                )     

                      FORFEITURE ORDER 

Adopted:  April 23, 2004                     Released:  
April 27, 2004

By the Chief, Enforcement Bureau:

                         I.  INTRODUCTION

     1.        In  this  Forfeiture  Order  (``Order''),  we 
issue a monetary forfeiture in  the amount of five thousand, 
six  hundred dollars  ($5,600)  to  Johannus Orgelbouw  b.v. 
(``Johannus''), for repeated violation  of Section 302(b) of 
the Communications  Act of 1934, as  amended (``Act''),1 and 
Section  2.803(a) of  the  Commission's Rules  (``Rules'').2  
The  noted  violations   involve  Johannus's  importing  and 
marketing digital electronic organs  that do not comply with 
the  technical requirements  set  forth in  Part  15 of  the 
Rules.  

     2.        On November  6, 2003, the  Enforcement Bureau 
issued  a  Notice  of   Apparent  Liability  for  Forfeiture 
(``NAL'') 3 in the amount of seven thousand dollars ($7,000) 
to  Johannus.    Johannus  filed  a  response   to  the  NAL 
(``Response'') on December 19, 2003.

                         II.  BACKGROUND

     3.        On  March 27,  2003,  the Enforcement  Bureau 
received a complaint alleging that Johannus imported digital 
electronic organs that did  not comply with the Commission's 
rules.4   The   complainant  asserted  that   other  digital 
electronic organ companies suffered competitive harm because 
Johannus,   through  its   failure   to   comply  with   the 
Commission's rules,  was able to produce  digital electronic 
organs less expensively.  

     4.        On  June  18,  2003, the  Enforcement  Bureau 
issued a letter  of inquiry to Johannus  (``LOI'').5  In its 
answer to the LOI, Johannus  stated that it imports about 13 
organs a  month into  the U.S. and  Canada, and  that, after 
receiving the Commission's letter, it found that some of its 
organs radiated  signals in excess of  the radiated emission 
limits  for Class  A  digital devices6  in the  Commission's 
rules.   Johannus  claimed that  the  organs  only began  to 
radiate such signals after a  design change in the CPU board 
that affected  organs manufactured  from July to  October of 
2002.  Johannus admitted that  it imported and marketed some 
of those organs into the U.S.      

     5.        On November  6, 2003, the  Enforcement Bureau 
issued an NAL to Johannus for importing and marketing in the 
U.S. digital electronic organs which did not comply with the 
Commission's radiated emission  limits in repeated violation 
of Section  302(b) of  the Act and  Section 2.803(a)  of the 
Rules.  We  found in  the NAL  that Johannus  had apparently 
imported and  marketed organs that  did not comply  with the 
radiated  emission  limits  for  Class  A  digital  devices.  
However, based  on information  found on  Johannus's website 
which  clearly indicated  that  Johannus  was marketing  its 
organs for  use in a residential  environment,7 we concluded 
that Johannus's organs are actually Class B digital devices8 
and therefore  must comply with the  more stringent emission 
limits applicable to  such devices.  In its  response to the 
NAL, Johannus claims  that it did not  willfully violate the 
Commission's rules because it was  not aware that any of its 
electronic organs  fell under  the requirements for  Class B 
digital devices.  Johannus also  claims in the response that  
it has a history of  overall compliance, that it had already 
planned  to   modify  its  organs   to  meet  the   Class  B 
requirements before receiving the  NAL, and that  it stopped 
importing organs into the U.S. after receiving the NAL.    

                      III.  DISCUSSION

     6.        The proposed  forfeiture amount in  this case 
was assessed in accordance with  Section 503(b) of the Act,9 
Section 1.80 of the Rules,10 and The Commission's Forfeiture 
Policy Statement and Amendment of  Section 1.80 of the Rules 
to   Incorporate   the   Forfeiture   Guidelines   (``Policy 
Statement'').11  In  examining Johannus'  response,  Section 
503(b) of  the Act  requires that  the Commission  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.12    

     7.        Section 302(b) of the  Act states that no one 
shall import,  ship, sell,  or offer  for sale  devices that 
fail to comply with regulations promulgated pursuant to this 
section.13   Section 2.803(a)  of the  Rules states  that no 
person  shall  sell,  offer   for  sale,  import,  ship,  or 
distribute  a device  that does  not comply  with technical, 
labeling and  identification requirements specified  in this 
chapter.14   It is  undisputed  that  Johannus's organs  are 
digital devices and, therefore, must  comply with Part 15 of 
the Rules,  including the radiated emission  limits.  In its 
NAL  response, Johannus  argues that  its violation  was not 
willful because it mistakenly  believed that its organs fell 
under  the  technical  requirements   for  Class  A  digital 
devices,  and a  small modification  and improvement  in the 
CPU/Voice  Board of  the organs  unintentionally caused  the 
devices to exceed the Class A emission limits.  

     8.        We need not  address Johannus's argument that 
the violation was not willful.   The NAL  cited Johannus for 
repeated, not  willful, violation  of Section 302(b)  of the 
Act  and Section  2.803(a) of  the Rules.   In this  regard, 
Section  503(b)(1) of  the  Act provides  that a  forfeiture 
penalty may be imposed if the violation is either willful or 
repeated.15  Johannus previously  admitted that, as recently 
as July 2003, it imported into  the U.S. and marketed in the 
U.S. at  least one model  of organ (involving more  than one 
organ) that  did not  comply with the  Commission's radiated 
emission limits.16   Further, Johannus  does not  dispute in 
its response  to the  NAL that  the violation  was repeated.  
Accordingly, based  on the  evidence before us,  we conclude 
that Johannus  repeatedly17 violated  Section 302(b)  of the 
Act and  Section 2.803(a)  of the Rules.   In any  event, we 
find Johannus's  claim that it mistakenly  believed that its 
organs were Class A  digital devices unpersuasive.  As noted 
in  the  NAL and  as  set  forth above,  Johannus's  website 
indicated that  it was  marketing the devices  for use  in a 
residential environment.   Since Johannus clearly  knew that 
it was marketing its organs  for residential use, it knew or 
should have known  that the organs were Class  B devices and 
therefore had  to comply  with the more  stringent technical 
standards for Class B devices.  

     9.        Johannus also asserts  that, before receiving 
the NAL on  November 6, 2003, it had  already begun planning 
to modify all  of its organs to meet Class  B standards.  We 
do not believe  that any reduction of  the forfeiture amount 
on this basis is warranted.   In this regard,  Johannus does 
not present evidence that it took steps to modify its organs 
to correct the violation prior  to our investigation of this 
matter.18   Moreover, while  Johannus indicates  that it  is 
taking remedial actions, the  Commission has repeatedly held 
that  remedial actions  taken to  come into  compliance with 
Commission  rules  are  not  mitigating  factors  warranting 
reduction of a forfeiture.19    

     10.       Finally,  Johannus  requests cancellation  or 
reduction  of   the   forfeiture   because  it   has  ``sold 
electronic  organs for  decades without  a violation.''   We 
find  that Johannus  has  a history  of overall  compliance.  
Pursuant to  Section 1.80(b)(4)  of the Rules,20   we reduce 
the forfeiture amount to $5,600. 

     11.       We have examined Johannus's Response pursuant 
to the statutory factors above,  and in conjunction with the 
Policy Statement  as well.   As a result  of our  review, we 
conclude that Johannus repeatedly violated Section 302(b) of 
the  Act  and  Section  2.803(a)   of  the  Rules.   Due  to 
Johannus's  history of  overall compliance,  we find  that a 
reduction of the forfeiture to the amount indicated above is 
in order.  
     
                      IV.  ORDERING CLAUSES

     12.       Accordingly, IT IS  ORDERED THAT, pursuant to 
Section 503(b) of  the Act,21 and Sections  0.111, 0.311 and 
1.80(f)(4)  of the  Rules,22  Johannus  Orgelbouw, b.v.   IS 
LIABLE  FOR A  MONETARY  FORFEITURE in  the  amount of  five 
thousand,  six  hundred   dollars  ($5,600)  for  repeatedly 
violating Section 302(b) of the  Act and Section 2.803(a) of 
the Rules.    

     13.       Payment of  the forfeiture  shall be  made in 
the  manner provided  for  in Section  1.80  of the  Rules23 
within  30  days of  the  release  of  this Order.   If  the 
forfeiture is not paid within the period specified, the case 
may be referred to the  Department of Justice for collection 
pursuant to Section  504(a) of the Act.24   Payment shall be 
made by  mailing a check  or similar instrument,  payable to 
the order  of the Federal Communications  Commission, to the 
Federal Communications Commission,  P.O. Box 73482, Chicago, 
Illinois  60673-7482.   The  payment must  include  the  FCC 
Registration Number (FRN) referenced  above, and also should 
note  the NAL/Acct.  No.  200432100006.   Requests for  full 
payment under an installment plan  should be sent to: Chief, 
Revenue and  Receivables Operations Group, 445  12th Street, 
S.W., Washington, D.C. 20554.25






     14.       IT  IS FURTHER  ORDERED that  a copy  of this 
Order  shall  be  sent  by  Certified  Mail  Return  Receipt 
Requested to Johannus Orgelbouw  b.v., Keplerlann 2, 6717 BS 
Ede, The  Netherlands, and  to Johannus's counsel,  Lewis H. 
Goldman, Esq., 45 Dudley Court, Bethesda, MD 20814. 


                         FEDERAL COMMUNICATIONS COMMISSION
                         



                         David H. Solomon
                         Chief, Enforcement Bureau


_________________________

     11.        47 U.S.C.  302a(b). 

     21.        47 C.F.R.  2.803(a).  

     31.        Johannus  Orgelbouw b.v.,  18 FCC  Rcd 23078 
(Enf. Bur. 2003).

     41.        Specifically, the complainant stated that it 
purchased a  Johannus Rembrandt Model 370  organ, tested the 
device,  and  concluded that  it  did  not comply  with  the 
radiated emissions limits for Class B digital devices.

     51.         Letter  to  Johannus  Orgelbouw  b.v.  from 
Joseph  P.   Casey,  Chief,  Technical  and   Public  Safety 
Division, Enforcement Bureau (June 18, 2003). 

     61.        Section 15.3(h) of the Rules defines a Class 
A digital device as ``a digital device marketed for use in a 
commercial, industrial or business environment, exclusive of 
a device that  is marketed for use by the  general public or 
is intended to be used in the home.''  47 U.S.C.  15.3(h). 

     71.        As noted  in the NAL, the  Johannus web site 
states that the Opus series organs ``are designed for living 
room and chapel''; the Monarch  series organs ``find a place 
in  both  living  rooms  and churches'';  the  Majestic  and 
Sovereign  series  organs  are   ``designed  for  both  home 
practice purposes and church'';  and the Chamber organ ``has 
been designed for both small  and medium sized churches (and 
home use).''  

     81.        Section 15.3(i) of the Rules defines a Class 
B digital device as ``a digital device marketed for use in a 
residential environment  notwithstanding use  in commercial, 
business  and   industrial  environments.''   47   C.F.R.   
15.3(i).

     91.        47 U.S.C.  503(b).

     101.            47 C.F.R.  1.80.

     111.             12  FCC   Rcd  17087  (1997),   recon. 
denied, 15 FCC Rcd 303 (1999).  

     121.            47 U.S.C.  503(b)(2)(D).

     131.            See 47 U.S.C.  302(b).

     141.            See 47 U.S.C.  2.803(a)(2). 

     151.            47 U.S.C.  503(b)(1).

     161.             Letter  to   the  Enforcement  Bureau, 
Technical and  Public Safety Division,  from Gert A.  Van de 
Weerd, President, Johannus Orgelbouw b.v. (July 10, 2003). 

     171.            As provided by 47 U.S.C.  312(f)(2), a 
violation is  ``repeated'' if  it occurs  more than  once or 
continues for more than one day.   The Conference Report for 
Section 312(f)(2) indicates that  Congress intended to apply 
this definition to Section 503 of the Act as well as Section 
312.   See H.R.  Rep. 97th  Cong. 2d  Sess. 51  (1982).  See 
Southern California  Broadcasting Company,  6 FCC  Rcd 4387, 
4388 (1991).

     181.            Cf.  Radio One  Licenses, Inc.,  18 FCC 
Rcd 15964, 15965 (2003) (reducing a forfeiture based on good 
faith where the licensee took steps to correct the violation 
prior to the FCC inspection).  

     191.            See e.g., AT&T Wireless Services, Inc., 
17 FCC Rcd 21866, 21871 (2002); Seawest Yacht Brokers, 9 FCC 
Rcd  6099 (1994);  Station KGVL,  Inc., 42  FCC 2d  258, 259 
(1973).

     201.            See Section 1.80(b)(4) of the Rules, 47 
C.F.R.  1.80(b)(4). 

     211.            47 U.S.C.  503(b).

     221.            47 C.F.R.  0.111, 0.311, 1.80(f)(4).

     231.            47 C.F.R.  1.80.

     241.            47 U.S.C.  504(a).

     251.            See 47 C.F.R.  1.1914.