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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
VIA Technologies, Inc. ) File No. EB-02-TS-701
) NAL/Acct. No. 200532100001
) FRN # 0011606399
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 4, 2004 Released: October 6,
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find VIA Technologies, Inc. (``VIA'') apparently
liable for a forfeiture in the amount of fourteen thousand
dollars ($14,000) for importing and marketing in the United
States unauthorized radio frequency devices, specifically, its
model EPIA-M and EPIA-CL computer central processing unit
(``CPU'') boards, in willful and 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
2. The FCC's Office of Engineering and Technology referred
to the Spectrum Enforcement Division of the Enforcement Bureau a
complaint alleging that VIA was importing and marketing in the
U.S. CPU boards which include a setup option to disable the
board's spread spectrum clocking (``SSC'') function. The
complainant alleged that VIA was importing the boards with the
SSC function in the disabled mode, leaving it up to the user to
enable the SSC function. The complainant further alleged that
its tests demonstrated that the CPU boards do not meet the
Commission's Part 15 emission limits unless the SSC option is
enabled. Spectrum Enforcement Division staff subsequently found
copies of several VIA CPU board user manuals on VIA's website
which discussed the SSC function3 and recommended that the end
user ``leave the [SSC] setting at Disabled for optimal system
stability and performance.''
3. On November 7, 2003, the Spectrum Enforcement Division
issued a letter of inquiry to VIA.4 VIA submitted a response to
the letter of inquiry on December 17, 2003.5 In its response,
VIA acknowledges that two of its EPIA model CPU boards, the model
EPIA-M and EPIA-CL CPU boards, were shipped to the U.S. with the
SSC function disabled.6 VIA states that it began importing model
EPIA-M boards in November 2002 and model EPIA-CL boards in
August/September 2003.7 VIA asserts that prior to importing and
marketing these EPIA models, it authorized the devices in
accordance with the Commission's Declaration of Conformity
(``DOC'') procedures.8 VIA further asserts that all models of
its EPIA CPU boards, including the EPIA-M and EPIA-CL boards,
were tested for compliance with the conducted and radiated
emission limits for Class B digital devices set forth in Sections
15.107(a) and 15.109(a) of the Rules9 with the SSC function
enabled and that each EPIA model was found to be compliant with
the emission limits. VIA concedes that the EPIA CPU boards were
not tested for compliance with the Part 15 emission limits with
the SSC function disabled.
4. VIA explains that it purchases the EPIA-M and EPIA-CL
CPU boards' BIOS10 from third-party suppliers. These suppliers
provide a standard template that includes an option for the
manufacturer to manually set the default configuration of the SSC
function either as enabled or disabled during production and
includes an option for the end user to change the function
setting. VIA claims that it manufactured the model EPIA-M and
EPIA-CL boards with the SSC function disabled as the default
configuration due to an erroneous production procedure at its
facility in Taiwan. VIA states that its personnel in the United
States were unaware of the disabling of the SSC function when the
EPIA-M and EPIA-CL models were shipped to the United States. VIA
also acknowledges that the EPIA-M and EPIA-CL models' BIOS
permitted the end user to enable or disable the SSC function.
5. Additionally, VIA admits that both the online and paper
versions of its user manuals for the EPIA-M and EPIA-CL boards
included language instructing end users to leave the SSC function
disabled. In this regard, VIA claims that there is a common
misperception in the computer industry that is perpetuated by
many well-respected websites that disabling the SSC function
improves the performance of CPU boards. According to VIA, the
tech writer responsible for its user manuals mistakenly made the
same assumption. VIA states that it has never been its official
or unofficial position that end users disable the SSC function.
6. VIA indicates that following receipt of the Spectrum
Enforcement Division's LOI, it took a number of corrective
actions. Specifically, VIA states that it initiated an immediate
update of the BIOS of all EPIA-M and EPIA-CL models currently in
production or still in its control to change their default
settings to enable the SSC function and to remove the option in
the BIOS for end users to change the default setting. VIA states
that this step eliminates the production procedure whereby VIA
had to enable the SSC function as the default configuration,
which was the cause of the error in the EPIA-M and EPIA-CL
models. In addition, VIA asserts that all non-compliant EPIA-M
and EPIA-CL models have been pulled from distribution in the U.S.
to be updated so that the SSC function is enabled before shipment
to end users and to remove the option for end users to change
this setting. Moreover, VIA asserts that it will notify its
registered users to update their devices' BIOS from a free
download from VIA's website, which will enable the SSC function
as the default function and remove the option in the BIOS to
change the default. VIA also states that it has taken steps to
correct both its online and paper user manuals to remove any text
describing how to change the SSC function from enabled to
disabled. Finally, VIA asserts that it is initiating a company-
wide, comprehensive program to ensure future compliance with Part
15 regulations. VIA states that it will distribute an internal
policy to all appropriate personnel advising that no EPIA device
may be shipped to the U.S. with the SSC function disabled or that
otherwise does not meet Part 15 requirements.
7. 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)(2) of the Rules provides 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 radio
frequency device unless ... [i]n the case of a device
that is not required to have a grant of equipment
authorization issued by the Commission, but which must
comply with the specified technical standards prior to
use, such device also complies with all applicable
administrative (including verification of the equipment
or authorization under a Declaration of Conformity,
where required), technical, labeling and identification
requirements specified in this chapter.
Pursuant to Section 15.101(a) of the Rules,11 CPU boards used
with Class B personal computers must be authorized prior to
marketing in accordance with DOC or certification procedures.
VIA asserts in its response to our LOI that it authorized its
model EPIA-M and EPIA-CL CPU boards in accordance with the DOC
procedures. However, VIA admits that it only tested these CPU
boards for compliance with the Part 15 emission limits with the
SSC function enabled. Under Section 2.906(b) of the Rules,12 a
DOC attaches only to items subsequently marketed by the
responsible party which are identical13 to the sample tested and
found acceptable by the responsible party. Furthermore, under
Section 2.1073 of the Rules,14 the responsible party must warrant
that each unit of equipment marketed under a DOC is identical to
the unit tested and found acceptable with the standards and that
the records maintained by the responsible party continue to
reflect the equipment being produced under the DOC within the
variation that can be expected due to quantity production and
testing on a statistical basis. Thus, VIA's DOC did not attach
to the model EPIA-M and EPIA-CL CPU boards which were
manufactured with the SSC function disabled. VIA admits that it
imported and marketed in the U.S. model EPIA-M CPU boards that
had the SSC function disabled between November 2002 and November
2003 and model EPIA-CL CPU boards that had the SSC function
disabled between August/September 2003 and November 2003.
Accordingly, based on the evidence before us, we conclude that
VIA apparently willfully15 and repeatedly16 violated Section
302(b) of the Act and Section 2.803(a)(2) of the Rules by
importing and marketing model EPIA-M and EPIA-CL CPU boards that
were not authorized in accordance with the Commission's equipment
8. VIA claims that it manufactured the model EPIA-M and
EPIA-CL boards with the SSC function disabled as the default
configuration due to an error at its production facility in
Taiwan. However, it is well-settled that Commission licensees
and regulatees are responsible for the acts or omissions of their
agents and employees.17 VIA clearly knew that the EPIA boards
had been tested for the DOC with the SSC function enabled and it
was incumbent upon VIA to ensure that the manufactured boards
were identical to the units tested. Likewise, while VIA asserts
that the tech writer responsible for its user manuals mistakenly
included the language in the user manuals which recommended that
end users leave the SSC function disabled, VIA is responsible for
the acts of its tech writer. Further, to the extent that VIA
claims that its personnel in the U.S. were unaware that the model
EPIA-M and EPIA-CL boards were shipped with the SSC function
disabled, we think that the language in the user manuals
instructing end users to ``leave the [SSC] setting at Disabled
for optimal system stability and performance'' should have put
VIA personnel on notice that the SSC function had been set at
9. VIA also notes that it took a number of corrective
actions following receipt of our LOI to ensure its future
compliance with the Commission's rules. Such remedial actions,
while commendable, do not lessen, mitigate, or excuse VIA's
violations.18 Indeed, corrective action taken to come into
compliance with Commission rules is expected.19
10. 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.20 In exercising such authority, we are 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.''21
11. We note that under Section 503(b)(6) of the Act, we may
only propose forfeitures for apparent violations that accrued
within one year of the date of this NAL. 22 Nevertheless,
Section 503 does not prohibit us from assessing whether VIA's
conduct prior to that date apparently violated the Act or our
rules, and we may consider VIA's violations prior to that date in
determining the appropriate forfeiture amount for those
violations within the statute of limitations.23 VIA imported
and marketed the model EPIA-M CPU board between November 2002 and
November 2003 and the model EPIA-CL CPU board between
August/September 2003 and November 2003. Therefore, although we
find that some of VIA's apparent violations occurred outside the
one-year statute of limitations, we propose forfeitures here only
for the violations which occurred within the last year.
12. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines24 and Section 1.80 of the
Rules,25 the base forfeiture amount for importation or marketing
of unauthorized or non-compliant equipment is $7,000. In this
case, VIA imported and marketed two unauthorized models of CPU
boards. We find that a forfeiture amount of $7,000 is warranted
for each unauthorized model.26 Accordingly, we are proposing a
total forfeiture in the amount of $14,000.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to pursuant
to Section 503(b) of the Act and Sections 0.111, 0.311 and 1.80
of the Rules,27 VIA Technologies, Inc. IS hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of fourteen
thousand dollars ($14,000) for willfully and repeatedly violating
Section 302(b) of the Act and Section 2.803(a) of the Rules.
14. 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, VIA Technologies,
Inc. SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation
of the proposed forfeiture.
15. 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/Acct. No. and FCC Registration Number (FRN) referenced above.
Payment by check or money order may be mailed to Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, IL 60673-7482. Payment by
overnight mail may be sent to Bank One/LB 73482, 525 West Monroe,
8th Floor Mailroom, Chicago, IL 60661. Payment by wire transfer
may be made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259.
16. 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.
17. 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; 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.
18. Requests for payment of the full amount of this NAL
under an installment plan should be sent to: Chief, Revenue and
Receivable Operations Group, 445 12th Street, S.W., Washington,
19. 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 VIA
Technologies, Inc., 940 Mission Court, Fremont, CA 94539, and to
its counsel, Douglas L. Povich, Esq., Squire, Sanders & Dempsey
L.L.P., 14th Floor, 8000 Towers Crescent Drive, Tysons Corner, VA
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Spectrum Enforcement Division
1 47 U.S.C. § 302a(b).
2 47 C.F.R. § 2.803(a).
3 The user manuals indicated that the SSC function reduces
electromagnetic emissions from the CPU board.
4 Letter to VIA Technologies, Inc. from Joseph P. Casey, Chief,
Spectrum Enforcement Division, Enforcement Bureau (November 7,
5 Letter to Brian Butler, Assistant Chief, Spectrum Enforcement
Division, Enforcement Bureau, from Douglas L. Povich, Esq.
(December 17, 2003).
6 VIA states that it manufactures eight EPIA CPU boards, but only
imports four of these boards into the U.S. Of these four EPIA
boards, VIA claims that only the EPIA-M and EPIA-CL were shipped
with the SSC function disabled.
7 Pursuant to Sections 0.457 and 0.459 of the Rules, 47 C.F.R. §§
0.457 and 0.459, VIA requested confidential treatment of certain
information submitted in response to its LOI, including the
specific number of EPIA boards shipped to the U.S. VIA asserts
that the shipment figures represent market size information and
potential sales figures for its EPIA boards, information that
would customarily be guarded from competitors, and that
disclosure of these figures would result in substantial
competitive harm. We agree and will accord confidential
treatment of VIA's shipment figures. For purposes of this NAL,
we need not address VIA's request for confidential treatment of
certain other information included in its LOI response.
8 A Declaration of Conformity is an equipment authorization
procedure where the responsible party makes measurements or takes
other necessary steps to ensure that the equipment complies with
applicable technical standards. 47 C.F.R. § 2.906. See 47
C.F.R. §§ 2.1071 to 2.1077.
9 47 C.F.R. §§ 15.107(a) and 15.109(a).
10 VIA stated that BIOS is the firmware that controls the basic
functions of the board.
11 47 C.F.R. § 15.101(a).
12 47 C.F.R. § 2.906(b).
13 Under Section 2.907 of the Rules, the term ``identical'' means
identical within the variation that can be expected to arise as a
result of quantity production techniques. 47 C.F.R. § 2.907.
14 47 C.F.R. § 2.1073.
15Section 312(f)(1) of the Act, 47 U.S.C. 312(f)(1), which
applies to Section 503(b) of the Act, provides that ``[t]he term
`willful,' ... means the conscious and deliberate commission or
omission of such act, irrespective of any intent to violate any
provision of this Act ....'' See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
16 Section 312(f)(2) of the Act provides that ``[t]he term
`repeated,' ... means the commission or omission of such act more
than once or, if such commission or omission is continuous, for
more than one day.'' 47 U.S.C. § 312(f)(2).
17See Eure Family Limited Partnership., 17 FCC Rcd 21861, 21863-
64 (2002); MTD, Inc., 6 FCC Rcd 34, 35 (1991); Wagenvoord
Broadcasting Co., 35 FCC 2d 361, 361-362 (1972).
18See AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871
(2002); KGVL, Inc., 42 FCC 2d 258, 259 (1973).
19See Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994).
20 47 U.S.C. § 503(b).
21 47 U.S.C. § 503(b)(2)(D).
22 47 U.S.C. § 503(b)(6). See also 47 C.F.R. § 1.80(c)(3).
23 47 C.F.R. § 1.80(b)(4). See also Globcom, Inc. d/b/a Globcom
Global Communications, 18 FCC Rcd 19893, 19903 (2003).
24 12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999).
25 47 C.F.R. § 1.80.
26 See e.g., Samson Technologies, Inc., 19 FCC Rcd 4221, 4225
27 47 C.F.R. § 0.111, 0.311 and 1.80.
28 See 47 C.F.R. § 1.1914.