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                           Before the
                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, 
2004

By the Chief, Spectrum Enforcement Division, Enforcement Bureau:

I.  INTRODUCTION

     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  
II.  BACKGROUND

     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.  
III.  DISCUSSION

     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 
authorization procedures.

     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 
disabled.  
     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, 
D.C. 20554.28
     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 
22182-2700.
  

                         FEDERAL COMMUNICATIONS COMMISSION
                         



                         Joseph P. Casey
                         Chief, Spectrum Enforcement Division
                         Enforcement Bureau


 

_________________________

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, 
2003).

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 
(2004).

27 47 C.F.R.  0.111, 0.311 and 1.80.

28 See 47 C.F.R.  1.1914.