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Statement of Commissioner Jonathan S. Adelstein
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Federal Communications Commission
Washington, D.C. 20554
File No. EB-06-SE-320
In the Matter of )
NAL/Acct. No. 200732100035
Regent U.S.A., Inc. )
FRN # 0016535528
Notice of apparent Liability for forfeiture
Adopted: May 30, 2007 Released: May 30, 2007
By the Commission: Commissioner Adelstein issuing a statement.
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Regent U.S.A., Inc. ("Regent") apparently liable in the amount of
$63,650 for its willful and repeated violations of Section
15.117(i)(1)(i) of the Commission's Rules ("Rules"). The apparent
violations involve Regent's importation and interstate shipment of
television receivers that do not comply with the Commission's rules
regarding digital television ("DTV") reception capability.
2. The Commission adopted the DTV reception capability requirement in
2002. The DTV reception requirement, which also is often termed the
"DTV tuner requirement," requires that all new television broadcast
receivers that are imported into the United States or shipped in
interstate commerce be capable of receiving the signals of DTV
broadcast stations over-the-air. The DTV tuner requirement was
intended to facilitate the transition to digital television by
promoting the availability of DTV reception equipment and to protect
consumers by ensuring that their television receivers will provide
off-the-air television reception of digital signals just as they have
provided off-the-air television reception of analog signals.
3. To minimize the impact of the DTV tuner requirement on both
manufacturers and consumers, the Commission adopted a phase-in
schedule that applied the requirement first to receivers with the
largest screens and then to progressively smaller screen receivers and
other television receiving devices that do not include a viewing
screen, i.e., VCRs and DVD players. This phase-in plan was intended to
allow increasing economies of scale with production volume to be
realized so that DTV tuner costs would be lower when they are required
to be included in smaller sets and other television receiving devices.
As modified by the Commission in 2005, this phase-in schedule is as
Receivers with screen sizes 36" and above -- 50% of units imported or
shipped interstate by responsible parties were required to include DTV
tuners effective July 1, 2004; 100% of such units were required to include
DTV tuners effective July 1, 2005;
Receivers with screen sizes 25" to 35" -- 50% of units imported or shipped
interstate by responsible parties were required to include DTV tuners
effective July 1, 2005; 100% of such units were required to include DTV
tuners effective March 1, 2006;
Receivers with screen sizes less than 25" - 100% of units imported or
shipped interstate by responsible parties were required to include DTV
tuners effective March 1, 2007; and
Other video devices (videocassette recorders (VCRs), digital video
recorders such as hard drive and DVD recorders, etc.) that receive
television signals - 100% of units imported or shipped interstate by
responsible parties were required to include DTV tuners effective March 1,
4. In August 2006, the Enforcement Bureau received a complaint alleging
that Regent was marketing, and thus apparently shipping interstate,
television receivers with screen sizes larger than 25" that did not
include a DTV tuner. Review of Customs importation data by Enforcement
Bureau staff confirmed that Regent had apparently imported quantities
of large (36" and above) screen size television receivers that did not
include DTV tuners after the July 1, 2005 deadline applicable to large
screen receivers. On September 5, 2006, the Enforcement Bureau issued
a letter of inquiry ("LOI") to Regent. Regent filed a response to the
LOI on October 17, 2006.
5. In its LOI Response, Regent admits that it imported and shipped
interstate four models of large screen television receivers that do
not include DTV tuners after July 1, 2005. Specifically, Regent
imported and shipped interstate the following four models of large
screen television receivers: Model LME-37X8, described as a 37"
HD-ready liquid crystal display ("LCD") screen television; Model
PME-42X10, described as a 42" HDTV-ready plasma screen television;
Model LME-42X8, described as a 42" HD-ready LCD screen television; and
Model PME-50X10, described as a 50" HDTV-ready plasma screen
television. Regent admits that on five dates between March 24, 2006
and July 11, 2006, it imported a total of 891 non-DTV-compliant large
screen televisions. Regent also admits that it made 368 interstate
shipments comprising a total of 1,288 non-DTV-compliant large screen
televisions between February 6, 2006 and October 3, 2006.
6. Regent states in its LOI Response that it is a small company that
imports monitors and televisions for commercial/educational customers
and for wholesale to retailers and that the receivers at issue were
part of its commercial/educational line of products. Regent claims
that most of its commercial/educational customers use its products as
monitors, not as televisions. According to Regent, on products sold to
those customers, the tuner is a secondary feature and not the focus of
Regent's marketing efforts. Regent also maintains that it complied at
all times with the DTV tuner requirement for wholesale products sold
A. Failure to Comply with DTV Tuner Requirement
7. We conclude that Regent apparently willfully and repeatedly imported
and shipped in interstate commerce television receivers that do not
comply with the DTV tuner requirement in violation of Section
15.117(i)(1)(i) of the Rules. Regent admits that, after July 1, 2005,
it imported on five dates a total of 891 non-DTV-compliant television
receivers. Regent also admits that, after July 1, 2005, it made 368
interstate shipments of a total of 1,288 non-DTV-compliant television
receivers. In all, Regent imported and shipped interstate on 373
occasions a total of 2,179 non-DTV-compliant television receivers. All
of these television receivers are large (36" and above) screen
receivers and therefore were subject to the July 1, 2005 deadline for
compliance with the DTV tuner requirement.
A. Proposed Forfeiture
8. Based on the analysis set forth below, we conclude that Regent is
apparently liable for a forfeiture in the amount of $63,650 for
willfully and repeatedly importing and shipping in interstate commerce
television receivers that do not comply with the DTV tuner requirement
in violation of Section 15.117(i)(1)(i) of the Rules.
9. Under Section 503(b)(1)(B) of the Act, any person who is determined by
the Commission to have willfully or repeatedly failed to comply with
any provision of the Act or any rule, regulation, or order issued by
the Commission shall be liable to the United States for a forfeiture
penalty. To impose such a forfeiture penalty, the Commission must
issue a notice of apparent liability and the person against whom such
notice has been issued must have an opportunity to show, in writing,
why no such forfeiture penalty should be imposed. The Commission will
then issue a forfeiture if it finds by a preponderance of the evidence
that the person has violated the Act or a Commission rule. We conclude
under this standard that Regent is apparently liable for forfeiture
for its apparent willful and repeated violations of Section
15.117(i)(1)(i) of the Rules.
10. Section 503(b)(6) of the Act bars the Commission from proposing a
forfeiture for violations that occurred more than a year prior to the
issuance of an NAL. Section 503(b)(6) does not, however, bar the
Commission from assessing whether Regent's conduct prior to that time
period apparently violated the rules and from considering such conduct
in determining the appropriate forfeiture amount for violations that
occurred within the one-year statutory period. Thus, while we may
consider the fact that Regent's prior conduct violated the rules, the
forfeiture amount we propose herein relates only to Regent's apparent
violations that have occurred within the statute of limitations.
Regent imported 603 non-DTV-compliant televisions and shipped
interstate 394 non-DTV-compliant televisions more than one year prior
to the date of this NAL. The non-compliant receivers represented by
these importations and interstate shipments are therefore beyond the
applicable one-year statute of limitations and are not subject to
forfeiture. Accordingly, the forfeiture we propose relates only to the
288 non-DTV-compliant televisions imported, and the 894
non-DTV-compliant televisions shipped interstate, within the statute
11. Under Section 503(b)(2)(D) of the Act, we may assess an entity that is
neither a common carrier, broadcast licensee or cable operator a
forfeiture of up to $11,000 for each violation or each day of a
continuing violation, up to a statutory maximum forfeiture of $97,500
for any single continuing violation. In exercising such authority, we
are required 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."
12. The Commission's Forfeiture Policy Statement and Section 1.80 of the
Rules do not establish a specific base forfeiture for the violation of
the DTV tuner requirement. The Commission has substantial discretion,
however, in proposing forfeitures. We may apply the base forfeiture
amounts described in the Forfeiture Policy Statement and our rules, or
we may depart from them altogether as the circumstances demand.
13. The DTV tuner requirement promotes an important public policy goal of
helping to speed the transition to digital television, and we
therefore find violations of this requirement to be more egregious, in
general, than many other types of equipment marketing cases that come
before us. DTV receivers are a necessary element of digital broadcast
television service. Consumers must have the capability to receive DTV
signals for the DTV transition to move forward to successful
completion. The DTV tuner requirement is intended to protect consumers
by ensuring that their TV receivers will provide off-the-air TV
reception of digital signals when analog TV operation ceases. Thus, we
find that applying a proposed forfeiture on a per model basis, as we
have in other more routine equipment marketing cases, would result in
forfeiture amounts that are not commensurate with the seriousness of
14. Accordingly, in cases involving the shipping or importation of
non-compliant DTV tuners, we will propose a forfeiture based on each
unit shipped or imported within the statute of limitations, regardless
of the number of models shipped or imported. This approach, in our
view, gets to the root of the apparent violation - non-compliant
televisions in the hands of American consumers. Moreover, to reflect
the increasing seriousness of the violation as the number of
non-compliant units shipped or imported rises, we will propose
forfeitures on a tier-by-tier basis, applying an increased per-unit
forfeiture separately to each successive tier.
15. We will base these tiers and per-unit penalties on our reasonable
judgment of the egregiousness of the number of units involved. For
example, for the first 1000 non-compliant units shipped or imported by
Regent, we propose a forfeiture of $50 per unit. For the next 1500
such units, we propose a forfeiture of $75 per unit. We set forth
below the precise tiers and per-unit penalties we will apply in this
and other DTV tuner requirement cases:
0-1000 units: $50 per unit
1001-2500 units: $75 per unit
2501-5000 units: $100 per unit
5001-10,000 units: $125 per unit
10,001-20,000 units: $150 per unit
20,001-30,000 units: $175 per unit
30,001-40,000 units: $200 per unit
40,001-50,000 units: $225 per unit
50,001+ units: $250 per unit
Application of this tiered, per unit approach clearly demonstrates the
gravity with which we view this violation and our desire that the proposed
forfeitures have a strong deterrent effect. We may revisit and change our
approach if this forfeiture calculation methodology does not adequately
deter future violations or as other circumstances require. Additionally,
consistent with the Act and precedent, we may impose more severe sanctions
and/or utilize different forfeiture calculation methodologies against
companies that have a history of non-compliance with the DTV tuner
16. Based on the record in this case, Regent's violations merit a
significant proposed forfeiture. Importers have known of the DTV tuner
requirement since 2002. Regent's violations involved large screen
television receivers, for which the deadline was July 1, 2005. Regent,
however, continued to import large screen receivers that do not comply
with the DTV tuner requirement until July 11, 2006, more than twelve
months after the July 1, 2005 deadline, and to ship such receivers
interstate until October 3, 2006, more than fourteen months after the
17. In addition, a significant proposed forfeiture is warranted given the
large number of non-DTV compliant receivers imported and shipped
interstate -- more than 1,000 -- and the substantial number of
importations and interstate shipments made by Regent -- a total of 286
importations and interstate shipments.
18. Regent asserts in its LOI Reponse that most of its
commercial/educational customers use its products as monitors, not as
televisions, and therefore it should not be subject to a substantial
forfeiture. We reject that argument. The DTV tuner requirement does
not include any exception for television receivers that are used as
monitors. Moreover, even assuming that Regent's commercial/educational
customers do purchase the receivers primarily for use as monitors, it
is likely that these or future owners will at least occasionally use
these products as television receivers. Regent also claims that the
tuner is a secondary feature and not the focus of Regent's marketing
efforts with respect to products sold to its commercial/education
customers, and that it complied at all times with the DTV tuner
requirement for wholesale products sold to retailers. Regent's claims
regarding its marketing efforts are irrelevant and do not warrant any
mitigation of the proposed forfeiture amount. Furthermore, the sales
data provided by Regent in its LOI Response indicated that significant
quantities of the receivers were in fact sold to retailers, such as
Costco and Best Buy.
19. Regent imported or shipped 1,182 non-compliant DTV tuners within the
statute of limitations. Applying the approach outlined above results
in a proposed forfeiture of $63,650 for Regent's willful and repeated
importation and interstate shipments of television receivers that do
not comply with the DTV tuner requirement in violation of Section
15.117(i)(1)(i) of the Rules. We believe that the proposed forfeiture
reflects the gravity of Regent's apparent violations and will
sufficiently deter Regent and other companies from future violations
of the Act and the Rules.
IV. ordering clauses
20. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Section 1.80 of the Rules, Regent U.S.A., Inc. is NOTIFIED of
its APPARENT LIABILITY FOR A FORFEITURE in the amount of sixty three
thousand six hundred fifty dollars ($63,650) for willful and repeated
violation of Section 15.117(i)(1)(i) of the Rules.
21. 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, Regent U.S.A., Inc. SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
22. 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 FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon Bank/LB 358340, 500
Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire
transfer may be made to ABA Number 043000261, receiving bank Mellon
Bank, and account number 911-6106.
23. 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.
24. 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 practices; 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
25. Requests for payment of the full amount of the NAL under an
installment plan should be sent to: Associate Managing Director -
Financial Operations, 445 12^th Street, S.W., Room 1-A625, Washington,
26. 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 Regent U.S.A., Inc., 1208
John Reed Court, City of Industry, CA 91745 and to Lisa Case, Esq.,
Law Offices of S. J. Christine Yang, 17220 Newhope Street, Suites 101
& 102, Fountain Valley, CA 92708.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
COMMISSIONER JONATHAN S. ADELSTEIN
Re: In the Matter of Regent U.S.A., Inc., Notice of Apparent Liability for
Re: In the Matter of Syntax-Brillian Corporation, Notice of Apparent
Liability for Forfeiture, EB-07-SE-023
I strongly support these two Notices of Apparent Liability for Forfeiture.
It is my hope that the forfeitures proposed today, as well as the notice
of our tiered, per unit forfeiture scale, will serve as a deterrent to
future potential violators. We need to send a message that the FCC takes
this matter seriously and will strongly enforce our rules.
When the Commission adopted the DTV tuner compliance deadlines in June and
November 2005, we did so in consultation with the consumer electronics
industry, attempting to limit any undue impact on production cycles and
shipping schedules. We promulgated rules to protect consumers, ease the
burden on manufacturers and retailers, and foster a smooth transition to
digital broadcasting. That is why today I am appalled at the actions of
Regent U.S.A. and Syntax-Brillian for their willful and repeated
violations of Commission rules. The American people deserve better than to
be sold non-DTV-compliant television receivers.
Today's action demonstrates that, while the Commission will punish
violators after unsuspecting customers have been harmed, our enforcement
tools are a poor and inadequate substitute for proactive consumer outreach
and education. We have not done nearly enough to inform the public of the
differences between, for example, HD-ready, DTV, or even HD-TV. We owe it
to our citizens, those that will be harmed by buying a television set that
cannot receive digital signals, to help them make the right purchases. If
more citizens had known the differences, and had been aware that the
televisions in question did not have the capabilities they needed, perhaps
they would not have purchased the sets. We simply cannot fix the problem
on the back end. We need to address the problem head on. Education and
outreach are key to solving this problem.
47 C.F.R. S 15.117(i)(1)(i).
Review of the Commission's Rules and Policies Affecting the Conversion to
Digital Television, Second Report and Order and Second Memorandum Opinion
and Order, 17 FCC Rcd 15978, 15996 (2002) ("DTV Review Second Report and
DTV reception capability involves more circuitry than just a tuner. To
provide this capability requires a tuner to receive the digital signal, an
MPEG decoder/formatter, and associated processing capability and memory.
See Requirements for Digital Television Receiving Capability, Report and
Order and Further Notice of Proposed Rulemaking, 20 FCC Rcd 11196 n. 2
(2005) ("DTV Tuner Report and Order").
DTV Review Second Report and Order, 17 FCC Rcd at 15996. The DTV tuner
requirement also applies to other devices such as television interface
devices that do not include a viewing screen, e.g., devices such as VCRs
and DVD players that are intended to provide audio-video signals to a
video monitor with an antenna or antenna terminals that can be used for
off-the-air television reception. See 47 C.F.R. S 15.117(i)(1)(i).
Id. at 15979. In this latter regard, the DTV tuner requirement ensures
that the intent of the All Channel Receiver Act of 1962 ("ACRA"), P.L. No.
87-529, 76 Stat. 150, is fulfilled. The ACRA, which is codified at 47
U.S.C. S 303(s), states that the Commission shall "[h]ave authority to
require that apparatus designed to receive television pictures broadcast
simultaneously with sound be capable of adequately receiving all
frequencies allocated by the Commission to television broadcasting ...."
See DTV Review Second Report and Order, 17 FCC Rcd at 15589-91.
Id. at 15998-99.
In June 2005, the Commission modified the rules to advance the date on
which 100% of new television receivers with screen sizes 25-36" that are
imported or shipped interstate must include DTV tuners from July 1, 2006
to March 1, 2006. DTV Tuner Report and Order, 20 FCC Rcd at 11203.
Subsequently, in November 2005, the Commission modified the rules to
advance the date on which 100% of new television receivers with screen
sizes 13-24" and certain other television receiving devices such as VCRs
and digital video recorders that are imported or shipped interstate must
include DTV tuners from July 1, 2007 to March 1, 2007. See Requirements
for Digital Television Receiving Capability, Second Report and Order, 20
FCC Rcd 18607, 18614-16 (2005) ("DTV Tuner Second Report and Order"). The
Commission also amended the rules to apply the DTV tuner requirement to
new receivers with screen sizes smaller than 13" on this same schedule.
The DTV tuner requirement applies to "responsible parties," as defined in
Section 2.909 of the Rules, 47 C.F.R. S 2.909. Under Section 2.909, the
party responsible for equipment such as television receivers that are
subject to our "verification" equipment authorization procedure is the
manufacturer or, in the case of imported equipment, the importer. If
subsequent to manufacture and importation, the equipment is modified by
any party not working under the authority of the responsible party, the
party performing the modification becomes the new responsible party.
No radio frequency device may be imported into the Customs territory of
the United States unless the importer or ultimate consignee declares that
the device meets one of the conditions for entry specified in Section
2.1204 of the Rules, 47 C.F.R. S 2.1204. See 47 C.F.R. S 2.1203. Such
import declarations are filed with the U.S. Customs and Border Patrol on
FCC Form 740, or electronically where electronic filing is available. 47
C.F.R. S 2.1205. The Enforcement Bureau, in turn, receives this
importation data from Customs and uses it to monitor compliance with the
DTV tuner requirements and other requirements applicable to radio
Letter from Kathryn S. Berthot, Deputy Chief, Spectrum Enforcement
Division, Enforcement Bureau to James Chen, President, Regent U.S.A., Inc.
(September 5, 2006).
Letter from Lisa Case, Esq. Counsel for Regent U.S.A., Inc. to Kathryn
Berthot, Spectrum Enforcement Division, Enforcement Bureau (September 5,
2006) ("LOI Response").
LOI Response, Declaration of Doris Chia, Comptroller of Regent.
High Definition Television or "HDTV" is one of many DTV formats that
provides the best quality digital picture, widescreen (16 x 9) display
with at least 720 progressively scanned lines (720p) or 1080 interlaced
lines (1080i) and Dolby digital surround sound. "HDTV-ready" or
"HD-ready" generally refers to television monitors or receivers that can
display HDTV programming if you have a separate HDTV tuner, HD cable
set-top box or HD satellite set-top-box receiver.
Id. at Appendix 1, Import Information.
Id. at Appendix 2, Sales Information
Id. at 1.
Section 312(f)(1) of the Act defines "willful" as "the conscious and
deliberate commission or omission of [any] act, irrespective of any intent
to violate" the law. 47 U.S.C. S 312(f)(1). The legislative history of
Section 312(f)(1) of the Act clarifies that this definition of willful
applies to both Sections 312 and 503(b) of the Act, H.R. Rep. No. 97-765,
97^th Cong. 2d Sess. 51 (1982), and the Commission has so interpreted the
term in the Section 503(b) context. See Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recon.
denied, 7 FCC Rcd 3454 (1992) ("Southern California").
Section 312(f)(2) of the Act, which also applies to forfeitures assessed
pursuant to Section 503(b) 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. S 312(f)(2). See Callais Cablevision, Inc., Notice of
Apparent Liability for Forfeiture,16 FCC Rcd 1359, 1362 (2001); Southern
California, 6 FCC Rcd at 4388.
47 U.S.C. S 503(b)(1)(B); 47 C.F.R. S 1.80(a)(1).
47 U.S.C. S 503(b); 47 C.F.R. S 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
47 U.S.C. S 503(b)(6).
See 47 U.S.C. S 503(b)(2)(E), 47 C.F.R. S 1.80(b)(4); see also Behringer
USA, Inc., Notice of Apparent Liability for Forfeiture and Order, 21 FCC
Rcd 1820, 1828 (2006), response pending; Globcom, Inc. d/b/a Globcom
Global Communications, Notice of Apparent Liability for Forfeiture, 18 FCC
Rcd 19893, 19903 (2003), forfeiture ordered, 21 FCC Rcd 4710 (2006);
Roadrunner Transportation, Inc., Forfeiture Order, 15 FCC Rcd 9669,
9671-71 (2000); Cate Communications Corp., Memorandum Opinion and Order,
60 RR 2d 1386, 1388 (1986); Eastern Broadcasting Corp., Memorandum Opinion
and Order, 10 FCC 2d 37, 37-38 (1967) recon. denied, 11 FCC 2d 193, 195
This NAL also includes a number of violations that occurred more than a
year ago, but remain subject to enforcement action pursuant to a tolling
agreement. See Tolling Agreement between Regent USA, Inc. and Enforcement
Bureau, Federal Communications Commission, dated April 30, 2007. For
purposes of this NAL, references to violations that occurred "within the
last year" include violations subject to this tolling agreement.
47 U.S.C. S 503(b)(6)(B).
47 U.S.C. S 503(b)(2)(D). The Commission twice amended Section 1.80(b)(3)
of the Rules, 47 C.F.R. S 1.80(b)(3), to increase the maximum forfeiture
amounts, in accordance with the inflation adjustment requirements
contained in the Debt Collection Improvement Act of 1996, 28 U.S.C. S
2461. See Amendment of Section 1.80 of the Commission's Rules and
Adjustment of Forfeiture Maxima to Reflect Inflation, Order, 15 FCC Rcd
18221 (2000) (adjusting the maximum statutory amounts from $10,000/$75,000
to $11,000/$87,500); Amendment of Section 1.80 of the Commission's Rules
and Adjustment of Forfeiture Maxima to Reflect Inflation, Order, 19 FCC
Rcd 10945 (2004) (adjusting the maximum statutory amounts from
$11,000/$87,500 to $11,000/$97,500).
47 U.S.C. S 503(b)(2)(E). See also 47 C.F.R. S 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
See The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087, 17115 (1997), recon. denied, 15 FCC Rcd 303
(1999) ("Forfeiture Policy Statement").
See, e.g., InPhonic, Inc., Order of Forfeiture and Further Notice of
Apparent Liability, FCC 07-58 at P 24 (rel. May 3, 2007); Globcom, Inc.
d/b/a Globom Global Commun., Order of Forfeiture, 21 FCC Rcd 4710, 4723-24
(2006). We may use the base forfeiture amounts described in the Forfeiture
Policy Statement and our rules, or we may depart from them altogether if
the circumstances demand it. See 47 C.F.R. S1.80(b)(4) ("The Commission
and its staff may use these guidelines in particular cases [, and] retain
the discretion to issue a higher or lower forfeiture than provided in the
guidelines, to issue no forfeiture at all, or to apply alternative or
additional sanctions as permitted by the statute.") (emphasis added). We
find that calculating forfeitures for violations of the DTV tuner
requirement using a per-unit, tiered approach is reasonable because it
results in forfeiture amounts that reflect the egregiousness of the
violations, and that will effectively deter future misconduct. Moreover,
this forfeiture calculation methodology is consistent and predictable when
applied to different factual scenarios.
See DTV Tuner Report and Order, 20 FCC Rcd at 11199; DTV Tuner Second
Report and Order, 20 FCC Rcd at 18608.
As noted above, Regent shipped or imported a total of four large-screen
television receivers that did not include DTV tuners after the applicable
deadlines. See supra P 5. Application of the statutory maximum forfeiture
($11,000) for each model would result in a proposed forfeiture of $44,000,
an amount that fails to reflect the true scope of Regent's apparent
violations or the public harm of importing and shipping more than 1000
non-compliant television receivers.
See Globcom, 21 FCC Rcd at 4723-24 PP 35-38 (finding that the Commission
had authority to change its forfeiture calculation methodology for
carriers' failure to meet their universal service contribution
obligations; Commission found that previous forfeiture calculation
approach did not sufficiently deter violations). As noted above, we have
authority to propose forfeitures of up to $11,000 per violation against
any entity that is not a common carrier, broadcast licensee or cable
operator. For continuing violations, we may propose forfeitures of $11,000
per day, up to a maximum of $97,500 per violation.
See 47 U.S.C. S 503(b)(2)(E) (listing "history of prior offenses" as a
factor in forfeiture calculation). See also, Ramko Distributors, Inc.,
Notice of Apparent Liability for Forfeiture, FCC 07-49 at P 23 (rel. March
30, 2007); AT&T Wireless Services, Notice of Apparent Liability for
Forfeiture, 17 FCC Rcd 7891, 7896 P 20 (2002), forfeiture ordered,
Forfeiture Order, 17 FCC Rcd 21866, 21874-75 P 25 (2002).
LOI Response at 1. Regent did not provide any factual support for this
LOI Response at Appendix 2, Sales Information.
We derived this amount as follows: (1000 units * $50/unit) + (182 units *
$75/unit) = $63,650.
See 47 C.F.R. S 1.1914.
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Federal Communications Commission FCC 07-105
Federal Communications Commission FCC 07-105