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Federal Communications Commission
Washington, D.C. 20554
File No. EB-07-SE-235
In the Matter of )
NAL/Acct. No. 200832100033
Precor Incorporated )
FRN # 0012740635
Notice of apparent Liability for forfeiture
Adopted: April 9, 2008 Released: April 10, 2008
By the Commission:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Precor Incorporated ("Precor") apparently liable for a forfeiture in
the amount of $357,900 for its willful and repeated violations of
Section 15.117(i)(1)(iii) of the Commission's Rules ("Rules"). The
apparent violations involve Precor's importation and interstate
shipment after March 1, 2007 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. In order 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 July 2007, the Enforcement Bureau received a complaint alleging
that Precor, through its Cardio Theater division, was importing and
shipping in interstate commerce television receivers that do not
comply with the DTV tuner requirements. The Enforcement Bureau issued
a letter of inquiry ("LOI") to Precor on September 12, 2007. On
November 9, 2007, Precor filed a response to the LOI. Precor filed
supplemental responses on December 10, 2007, December 21, 2007,
January 15, 2008, and March 31, 2008.
5. Precor is a manufacturer of commercial and consumer exercise equipment
and accessories for the domestic and international market. According
to Precor's LOI Response, the company's commercial fitness equipment
is sold to fitness facilities directly by Precor or by its dealers,
with Precor selling roughly 90% of the commercial products directly.
In addition to health clubs, Precor's commercial customers include
institutions such as resorts, gyms established by major corporations
for their employees, colleges and universities, hospitals and health
spas (collectively, "health clubs"). Precor states that it imports and
ships interstate television receivers, which it refers to as "personal
viewing screen" ("PVS") units, in connection with, and as an accessory
product to, certain of its commercial fitness equipment, including
ellipticals, treadmills and adaptive movement products. The PVS units
are sold either on an integrated basis, attachable directly to the
fitness equipment, or on a standalone basis, with their own
Precor-provided stands that are positioned in front of the fitness
equipment. Precor asserts that the PVS units are not sold in
connection with fitness equipment sold to consumers, nor are the PVS
units sold separately to consumers. Precor further asserts that the
retail prices for the PVS units exceed $1,000, well above the prices
that consumers would pay at retail outlets for televisions providing
similar quality and resolution and the same size viewing screens.
6. Precor explains that Precor-certified technicians install the PVS
units in health clubs as part of the company's integrated closed
circuit video entertainment systems provided to health clubs. Health
clubs utilize a central cable box or satellite receiver that
terminates that cable system feed or satellite feed at the health
clubs. Either device is then connected to a Precor-supplied server
located on the health club's premises, which is attached to a coaxial
cable network extending to the PVS units installed or placed directly
in front of the commercial fitness equipment throughout the facility.
The server, Precor states, allows users to select the channels of
their choice on their PVS units during their workouts. Precor also
states that it operates its own content distribution network that
delivers video content via satellite to health clubs. The server
enables users to select at least eight music video streams provided by
Precor's satellite network, programming and text messages determined
by the health club, and generally available satellite or cable
7. Precor acknowledges that, after March 1, 2007, it imported and shipped
interstate units of one model of a 15" PVS unit that contain an analog
tuner, but do not contain a digital tuner. Precor further admits that
the importation of analog-only reception devices is not permitted
under the Commission's rules. Precor maintains, however, that it may
legally ship PVS units interstate within the U.S. Precor asserts, in
this regard, that in adopting the importation and interstate shipping
restrictions, the Commission stated
[c]onsistent with the DTV transition plan that Congress established in
Section 309(j) of the Communications Act of 1934, and pursuant to our
authority under the ACRA, our objective in establishing a DTV tuner
requirement is [to ensure that television receiving equipment]
manufactured or imported after a specified date be able to receive over
the air signals.
Thus, according to Precor, the Commission clearly intends to exercise its
jurisdiction by regulating interstate shipping only by U.S. manufacturers
of DTV receivers. Precor claims that because it imports the PVS units from
overseas and does not manufacture the units in the U.S., it is subject
only to the Commission's import restrictions and not to any restrictions
on interstate shipments of those imports.
8. Moreover, Precor submits that strict enforcement of the DTV tuner
requirement would not support either the purpose or intent of the DTV
tuner requirement. In support of this argument, it asserts that the
PVS units are not intended for and are not sold to consumers for
personal use; that, although technically capable, the units do not, as
installed, receive over-the-air broadcast signals; that the PVS units
are sold as elements of integrated closed circuit video entertainment
systems designed to meet the needs of the health club industry; and
the PVS units are priced well above the price of similar television
sets that are ubiquitously available in the marketplace.
9. Precor requested confidentiality of certain information in its LOI
response and supplemental responses, including the specific number of
units imported and shipped interstate, and that request remains
pending. Accordingly, portions of Precor's LOI response and
supplemental responses are discussed in an Appendix hereto, and we are
treating the Appendix as confidential at this time.
A. Failure to Comply with DTV Tuner Requirement
10. We conclude that Precor 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)(iii) of the Rules. As set forth in detail in the
confidential Appendix, Precor admits that, after the March 1, 2007
deadline for small-size screen receivers, it repeatedly imported and
shipped interstate non-DTV-compliant small-size screen receivers.
A. Proposed Forfeiture
11. 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. Based on
the analysis set forth below, we conclude that Precor is apparently
liable for a forfeiture in the amount of $357,900 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)(iii) of the Rules.
12. 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."
13. The Commission's Forfeiture Policy Statement and Section 1.80 of the
Rules do not establish a specific base forfeiture for 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.
14. The DTV tuner requirement promotes the important public policy goal of
helping to speed the transition to digital television, and we
therefore have found 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 have concluded 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 the violation.
15. In the Regent NAL and the Syntax-Brillian NAL, we determined that, in
cases involving the interstate shipping or importation of television
receivers that did not comply with the DTV tuner requirements, 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, we noted, "gets to the root of the apparent
violation - non-compliant televisions in the hands of American
consumers." Furthermore, to reflect the increasing seriousness of the
violation as the number of non-compliant units shipped or imported
rises, we concluded that we will propose forfeitures on a tier-by-tier
basis, applying an escalating per-unit forfeiture amount separately to
each successive tier.
16. In Syntax Brillian and Regent, we applied the following tiers and
per-unit penalties for violation of our DTV tuner requirements:
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
Consistent with Syntax-Brillian and Regent, we will use the tier-by-tier,
per-unit methodology articulated in those NALs to assess the forfeiture
17. We reject Precor's claim that since it imports the PVS units from
overseas and does not manufacture the units in the U.S., it is subject
only to the Commission's import restrictions and not to the interstate
shipment restrictions. Section 15.117 makes clear that responsible
parties may not ship in interstate commerce or import television
receivers that do not comply with the DTV tuner requirement. Under
Section 2.909 of our rules, the responsible party for purposes of the
DTV tuner requirement may be a manufacturer or an importer. However,
neither Section 2.909 nor Section 15.117 contains language limiting
our authority to enforce the DTV tuner rules such that we may penalize
only interstate shipments of non-compliant DTV receivers manufactured
in the United States. The language of the DTV Review Second Report and
Order cited by Precor that describes our overarching objective in
enacting the DTV tuner rule cannot be read to impose such a
restriction. Therefore, Precor's interpretation of the DTV tuner rule
is excessively narrow and we reject it.
18. Thus, the rule imposes two distinct prohibitions on responsible
parties: it prohibits both the importing and interstate shipping of
television receivers that do not contain digital tuners. We find,
however, that treating the importation and subsequent interstate
shipment of the same television receiver as two separate violations is
not warranted. Given that the DTV tuner rule is meant to ensure that
all television receiving devices are equipped with a digital tuner, we
conclude that the purpose of the rule will best be served by treating
the importation and subsequent interstate shipment of the same
receiver as a single violation. In future forfeiture actions taken for
violations of the DTV tuner requirement, we will assess the facts of
each case in determining how best to enforce the requirements of
Section 15.117, under the interpretation articulated here. In this
case, there is insufficient information to determine which receivers
may have been imported by Precor, but not subsequently shipped
interstate. Therefore, we will propose a forfeiture only for those
non-DTV-compliant units that Precor shipped in interstate commerce
after the March 1, 2007 deadline.
19. Finally, we disagree with Precor's argument that strict enforcement of
the DTV tuner requirement to the PVS units would not support either
the purpose or intent of the DTV tuner requirement. In a closely
analogous situation, the Commission rejected a request by the
manufacturer of a specialized video system distributed for use in the
health care system that we clarify that the DTV tuner requirement does
not apply to viewing units included in specialized video systems. In
the PDI Order, the manufacturer (PDI) argued that the Commission
should not consider its viewing units to be television receivers
subject to the DTV tuner requirement because the units: (1) received
power through the same coaxial cable that provided the video signal to
the units; (2) had no place to attach an over-the-air antenna, instead
receiving video signals only from a central unit through the
specialized coaxial cable; and (3) could be used only as part of a
larger video system that was designed and sold exclusively for the
health care market. The Commission concluded that the PDI viewing
units could be used to receive off-the-air broadcast signals and
therefore were television broadcast receivers as defined in Section
15.3(w) of the Rules. The Commission also found no merit in PDI's
argument that requiring its viewing units to include digital tuners
would not advance the goals of the DTV tuner requirement. Rather, the
Commission noted that its objective in adopting the DTV tuner
requirement was to maximize the number of television receivers
containing a digital tuner in the market, with a final goal that all
new television receiver products include a digital tuner as quickly as
possible. While the Commission acknowledged that the PDI viewing units
differed from most television receivers in that they were designed to
receive service from a separate antenna connected through a cable,
rather than an attached antenna, this did not alter the fact that the
viewing units would not be able to receive off-the-air television
signals when analog television service ends unless they include a DTV
tuner. The Commission concluded, moreover, that "it would be
inconsistent with [the goals underlying the DTV tuner requirement] to
establish a process that would provide favorable treatment of requests
for waiver of the DTV tuner requirement for TV receivers used in
specialized video systems."
20. Notwithstanding Precor's claims that its customers are commercial
health clubs that will not use the PVS units to view over-the-air
broadcasts, we find that those devices, like the viewing units at
issue in the PDI Order, are capable of receiving over-the-air
broadcast television signals and therefore are television broadcast
receivers subject to the DTV tuner requirement. In the Regent NAL,
Regent claimed that it should not be subject to forfeiture because,
although its devices were subject to the DTV tuner requirement, most
of its customers were commercial or educational organizations that
used the devices as monitors, rather than television receivers, and
the company did not emphasize the devices' analog tuner capabilities
in its marketing efforts. In rejecting these arguments, we noted that
the DTV tuner requirement does not exclude television receivers used
as monitors and, notwithstanding Regent's claims about its customer
base and its marketing efforts, it was likely that Regent's devices
would be used as television receivers at some point. Similarly, no
exception to the DTV tuner requirement exists for units like those at
issue here. As we noted in the Regent NAL, we will not assume that
owners of these devices will never attempt to use them to receive
over-the-air broadcasts, nor will we accept Precor's marketing
strategy as a mitigating factor. In any event, our research found a
thriving consumer market for used commercial-quality exercise
equipment, including Precor's PVS units. Thus, it is probable that
some of these products will find their way to consumers, who may be
unaware that Precor's PVS units will not receive over the air digital
broadcasts. Therefore, for all the reasons stated above, we reject
Precor's arguments and find that a significant forfeiture is
21. Due to Precor's confidentiality request, we will not specify in this
NAL the precise number of non-compliant units that Precor shipped
interstate in apparent violation of our rules. Based on the record in
this case, however, Precor's violations merit a large proposed
forfeiture. The regulatory deadlines at issue have been in place for
some time - manufacturers and importers have known about the DTV tuner
requirement since 2002. Precor nevertheless continued to ship
interstate small-size screen receivers that do not comply with the DTV
tuner requirement until September 18, 2007, more than six months after
the March 1, 2007 deadline. These unlawful interstate shipments were
substantial in terms of the number non-DTV compliant units. For these
reasons, and based on the tiered, per unit approach described above,
we propose a forfeiture of $357,900 for Precor's willful and repeated
interstate shipment of television receivers that do not comply with
the DTV tuner requirement in violation of Section 15.117(i)(1)(iii) of
III. ordering clauses
22. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Section 1.80 of the Rules, Precor Incorporated is NOTIFIED of
its APPARENT LIABILITY FOR A FORFEITURE in the amount of three hundred
fifty-seven thousand, nine hundred dollars ($357,900) for willful and
repeated violations of Section 15.117(i)(1)(iii).
23. 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, Precor Incorporated SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
24. 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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk
at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures.
25. 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.
26. 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
27. 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 counsel for Precor Incorporated, C.
Douglas Jarrett, Esq., Keller and Heckman LLP, 1001 G Street, N.W.,
Suite 500 West, Washington, DC 20001.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
47 C.F.R. S: 15.117(i)(1)(iii).
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.
Id. Although the Commission adopted this requirement for receivers with
screen sizes smaller than 13" through the appropriate notice and comment
procedures, and modified the rules to show March 1, 2007, as the
accelerated deadline, we inadvertently omitted to delete the exception
created by Section 15.117(i)(2) for "units with integrated tuners/displays
that have screen sizes measuring less than 7.8 inches vertically, i.e.,
the vertical measurement of a screen in the 4:3 aspect ratio that measures
13' [sic] diagonally across the picture viewing area." The Commission
recently corrected Section 15.117(i)(2) by striking the inappropriate
language. See Third Periodic Review of the Commission's Rules and Policies
Affecting the Conversion to Digital Television, Report and Order, FCC
07-228 P: 190 (rel. Dec. 31, 2007).
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.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau to Paul J. Byrne, President, Precor, Inc. (September
See Letter from C. Douglas Jarrett, Esq. Counsel for Precor, Inc. to Linda
Nagel, Spectrum Enforcement Division, Enforcement Bureau (November 9,
2007) ("LOI Response").
See Letter from C. Douglas Jarrett, Esq. Counsel for Precor, Inc. to Linda
Nagel, Spectrum Enforcement Division,Enforcement Bureau (December 10,
2007); Letter from C. Douglas Jarrett, Esq. Counsel for Precor, Inc. to
Linda Nagel, Spectrum Enforcement Division, Enforcement Bureau (December
21, 2007); Letter from C. Douglas Jarrett, Esq. Counsel for Precor, Inc.
to Linda Nagel, Spectrum Enforcement Division, Enforcement Bureau (January
15, 2008); Letter from C. Douglas Jarrett, Esq. Counsel for Precor, Inc.
to Linda Nagel, Spectrum Enforcement Division, Enforcement Bureau (March
LOI Response at 1.
Id. at 1-2.
Id. at 1.
Id. at 2.
Id. at 2, 4.
Id. at 4.
Id. (quoting DTV Review Second Report and Order, 17 FCC Rcd at 15994
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,
97th 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)(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, 22 FCC Rcd 8689, 8699 (2007); Globcom, Inc. d/b/a
Globom Global Commun., Order of Forfeiture, 21 FCC Rcd 4710, 4723-24
See 47 C.F.R. S:1.80(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).
Syntax-Brillian Corporation, Notice of Apparent Liability for Forfeiture,
22 FCC Rcd 10530, 10535 (2007), response pending ("Syntax-Brillian NAL");
Regent U.S.A., Inc., Notice of Apparent Liability for Forfeiture, 22 FCC
Rcd 10520, 10525 (2007) (forfeiture paid) ("Regent NAL").
See DTV Tuner Report and Order, 20 FCC Rcd at 11199; DTV Tuner Second
Report and Order, 20 FCC Rcd at 18608.
Syntax-Brillian NAL, 22 FCC Rcd at 10535-36 (concluding that applying a
proposed forfeiture on a per-model basis for shipment of television
receivers that were not compliant with the DTV tuner mandate would result
in forfeiture amounts incommensurate with the seriousness of the
violations); Regent NAL, 22 FCC Rcd at 10525-26 (same).
Syntax-Brillian NAL, 22 FCC Rcd at 10535; Regent NAL, 22 FCC Rcd at 10525.
Syntax-Brillian NAL, 22 FCC Rcd at 10535-36; Regent NAL, 22 FCC Rcd at
Syntax-Brillian NAL, 22 FCC Rcd at 10535; Regent NAL, 22 FCC Rcd at 10525.
See 47 C.F.R. S: 15.117(a).
See 47 C.F.R. S: 2.909(b).
See supra P: 7.
See Requirements for Digital Television Receiving Capability, Order, 21
FCC Rcd 9478, 9479-80 (2006) ("PDI Order").
Id. at 9479.
Id. at 9479-80. See 47 C.F.R. S: 15.3(w) (defining a television broadcast
receiver as "a device designed to receive television pictures that are
broadcast simultaneously with sound on the television channels authorized
under part 73 of this chapter").
Id. at 9480.
Id. We note that the Commission granted PDI a limited waiver of the DTV
tuner requirement to allow it additional time to bring its existing models
into compliance, recognizing that the process for meeting the safety
requirements for equipment used in medical facilities, coupled with PDI's
position as a smaller manufacturer, may pose difficulties for PDI in
meeting the March 1, 2007 deadline. Id. By contrast, Precor never sought
such a waiver, nor does not argue that it encountered particular
difficulties in bringing its PVS units into compliance with the DTV tuner
requirement by the March 1, 2007 deadline. To the contrary, after the
Bureau initiated its investigation, Precor promptly began distributing PVS
units with digital tuners.
Regent NAL, 22 FCC Rcd at 10526. Indeed, we noted that Regent's devices
were sold to consumers by retailers like Costco and Best Buy. Regent NAL,
22 FCC Rcd at 10526.
Although Precor claims that its new PVS units are sold exclusively to
commercial users rather than consumers, we found several used units and
related equipment available for sale online to individuals. See, e.g.,
(offering a "remanufactured" Precor treadmill and 17'' "flat screen tv");
http://www.usedgymequipment.com/precor/precor_966i.htm (offering a used
treadmill with PVS unit);
four merchants selling used treadmills with PVS units);
(offering a used 12'' PVS unit).
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Federal Communications Commission FCC 08-112
Federal Communications Commission FCC 08-112