Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Johannus Orgelbouw b.v. ) File No. EB-03-TS-089
The Netherlands ) NAL/Acct. No. 200432100006
) FRN # 0009-7508-60
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: November 4, 2003 Released: November 6,
2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture and Order (``NAL''), we find Johannus Orgelbouw b.v.
(``Johannus'') apparently liable for a forfeiture in the amount
of seven thousand dollars ($7,000) for importing and marketing
radio frequency devices which do not comply with the Commission's
technical standards in repeated violation of Section 302(b) of
the Communications Act of 1934, as amended (``Act''),1 and
Section 2.803(a) of the Commission's Rules (``Rules'').2 The
noted violations involve Johannus's importing and marketing
digital electronic organs that do not comply with the technical
requirements set forth in Part 15 of the Rules. In addition, we
order Johannus, pursuant to Section 2.956(a)(1) of the Rules,3 to
submit to the Enforcement Bureau a copy of the verification
records for each model of organ which it imports into the United
States in the next two years.
II. BACKGROUND
2. On March 27, 2003, the Enforcement Bureau received
a complaint alleging that Johannus was importing digital
electronic organs that were not in compliance with the
Commission's rules.4 The complainant asserted that other digital
electronic organ companies were suffering competitive harm
because Johannus, through its failure to comply with the
Commission's rules, was able to produce digital electronic organs
less expensively.
3. On June 18, 2003, the Enforcement Bureau issued a
letter of inquiry to Johannus.5 Johannus submitted a response to
the letter of inquiry on June 26, 2003,6 and submitted follow-up
responses on July 10,7 July 30,8 and September 2, 2003.9 In its
responses, Johannus stated that it imports about three to 13
organs a month into the U.S. and Canada.10 Johannus stated that
it investigated as a result of the FCC inquiry and found that
some of its organs were radiating signals in excess of the
radiated emission limits in the Commission's rules due to a
design change.11 According to Johannus, this change was
installed in organs manufactured between July and October,
2002,12 and some of those organs have been recently imported and
marketed in the United States.13 Johannus further indicated that
this design change was a temporary one forced by a shortage of
certain parts and that it no longer manufactures organs with this
design change.14 Along with its September 2, 2003, letter,
Johannus provided a copy of a partial report from a testing
laboratory which indicates that, based on measurements made on
August 19, 2003, the Johannus ``Rembrandt 3900'' digital organ is
in conformance with the radiated and conducted emission limits
for Class A digital devices set forth in the FCC rules.15
Johannus stated that this organ is one of its largest models and
asserted that its other organs, which use fewer interference
causing components, must be in compliance as well.16
III. DISCUSSION
4. 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.
It is undisputed that Johannus imports, and markets in the U.S.,
the Johannus organs at issue here. It is also undisputed that
these devices are digital devices and therefore must comply with
the technical requirements set forth in Part 15 of the Rules,
including the radiated emission limits. Johannus admitted that
it imported and marketed in the U.S. at least one model of organ
(involving more than one organ) that did not comply with the
FCC's radiated emission limits as recently as July 2003.17
Accordingly, based on the evidence before us, we conclude that
Johannus apparently repeatedly18 violated Section 302(b) of the
Act and Section 2.803(a)(2) of the Rules by importing and
marketing digital electronic organs which do not comply with the
radiated emission limits set forth in Section 15.109 of the
Rules.19
5. 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
6. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines (``Forfeiture Policy
Statement'')22 and Section 1.80 of the Rules,23 the base
forfeiture amount for importation or marketing of unauthorized or
non-compliant equipment is $7,000. Accordingly, we are proposing
a forfeiture in the amount of $7,000. We caution Johannus that
any subsequent importing and marketing of non-compliant digital
electronic organs will result in further sanctions, including
substantially higher forfeiture penalties.
7. Additionally, while Johannus suggested in its LOI
responses that its digital electronic organs are Class A digital
devices, we disagree. Rather, we believe that the devices are
appropriately classified as Class B digital devices and therefore
must comply with the more stringent emission limits applicable to
Class B digital devices. Section 15.3(h) of the Rules defines a
Class A digital device as ``[a] digital device that is marketed
for use in a commercial, industrial, or business environment,
exclusive of a device which is marketed for use by the general
public or is intended to be used in the home.''24 Section
15.3(i) defines a Class B digital device as ``[a] digital device
that is marketed for use in a residential environment
notwithstanding use in commercial, business and industrial
environments. Examples of such devices include, but are not
limited to, personal computers, calculators, and similar
electronic devices that are marketed for use by the general
public.''25 Among other places, Johannus markets its organs on a
web site, www.johannus.com. This web site contains information
for eight series of organs. These series are named the Opus,
Sweelinck, Rembrandt, Monarke, American Classic-V, Majestic,
Sovereign, and Chamber organ. The Johannus web site states that
the Opus series organs ``are designed for living room and
chapel''; the Monarch series organs ``find a place in both living
rooms and churches''; the Majestic and Sovereign series organs
are ``designed for both home practice purposes and church''; and
the Chamber organ ``has been designed for both small and medium
sized churches (and home use).'' Thus, Johannus is clearly
marketing these devices for use in a residential environment.
Accordingly, these devices are Class B digital devices and must
comply with the more stringent Class B technical requirements.
8. Furthermore, we note that compliance with the FCC
rules is not simply a matter of importing equipment that meets
the applicable technical standards. The rules also contain,
among other things, requirements concerning labeling of
radiofrequency devices26 and requirements that certain
information concerning radiofrequency devices be provided to the
users in the user manual or instruction manual.27 The
complainant alleged that Johannus has not been in compliance with
the labeling and user manual requirements. Our review of the
user manual posted on Johannus' website confirms that Johannus is
not in compliance with the user manual requirements. We caution
Johannus that, before importing or marketing any of its digital
electronic organs in the U.S., it must ensure that it complies
with these requirements as well. Failure to do so may result in
separate enforcement action.
9. Finally, pursuant to Section 2.956(a)(1) of the
Rules, we order Johannus to submit to the Enforcement Bureau a
copy of the verification records required to be maintained under
Section 2.955 of the Rules28 for each separate model of digital
electronic organ, including both existing models and any new
models, which it imports into the United States within the next
two years following the release of this NAL. Such records must
be submitted no later than fifteen (15) days from the date of
importation of each model of digital electronic organ into the
U.S. Each unit of equipment imported must be identical to the
unit tested, within the variation which can be expected due to
quantity production and testing on a statistical basis. Any
modification or change that adversely affects the emanation
characteristics of the modified equipment will require a new
verification and the submission of that new verification to the
Enforcement Bureau. Failure to submit these required
verification records may result in further enforcement action.
IV. ORDERING CLAUSES
10. 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,29 Johannus Orgelbouw b.v. IS hereby
NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount
of seven thousand dollars ($7,000) for repeatedly violating
Section 302(b) of the Act and Section 2.803(a) of the Rules.
11. 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 and Order, Johannus
Orgelbouw b.v. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
12. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment must include
the FCC Registration Number (FRN) and the NAL/Acct. No.
referenced in the caption.
13. 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.
14. 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.
15. 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. 20554.30
16. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC
is engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Enforcement Bureau - Spectrum
Enforcement Division. Your certification should indicate whether
you, including your parent entity and its subsidiaries, meet one
of the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (``OCBO'') set
forth in Attachment A of this NAL. This information will be used
for tracking purposes only. Your response or failure to respond
to this question will have no effect on your rights and
responsibilities pursuant to Section 503(b) of the Act. If you
have questions regarding any of the information contained in
Attachment A, please contact OCBO at (202) 418-0990.
17. IT IS FURTHER ORDERED that, for two years from the
date of release of this Notice of Apparent Liability for
Forfeiture and Order, Johannus Orgelbouw b.v. must submit the
records described in paragraph 9 no later than fifteen (15) days
from the date of importation of each model of digital electronic
organ into the U.S. These records must be submitted to: Federal
Communications Commission, Enforcement Bureau, Spectrum
Enforcement Division, 445 12th Street, S.W., Washington, D.C.
20554, Attention: Kathryn Berthot, Room 7-C802.
18. IT IS FURTHER ORDERED that a copy of this Notice
of Apparent Liability for Forfeiture and Order shall be sent by
first class mail and certified mail return receipt requested to
Gert A. Van de Weerd, President, Johannus Orgelbouw b.v.,
Keplerlaan 2, 6726 BS EDE, The Netherlands.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
Attachment A
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 CFR 121.104 and 13 CFR 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
_________________________
1 47 U.S.C. § 302a(b).
2 47 C.F.R. § 2.803(a).
3 47 C.F.R. § 2.956(a)(1).
4 Specifically, the complainant stated that it purchased a
Johannus Rembrandt Model 370 organ, tested the device, and
concluded that it did not comply with the radiated emission
limits for Class B digital devices. The complainant also alleged
that the Johannus organs do not comply with the Part 15 labeling
and user manual requirements.
5 Letter to Johannus Orgelbouw b.v. from Joseph P. Casey,
Chief, Technical and Public Safety Division, Enforcement Bureau
(June 18, 2003).
6 Letter to Enforcement Bureau, Technical and Public Safety
Division, from Gert A. Van de Weerd, President, Johannus
Orgelbouw b.v. (June 26, 2003).
7 Letter to Enforcement Bureau, Technical and Public Safety
Division, from Gert A. Van de Weerd, President, Johannus
Orgelbouw b.v. (July 10, 2003) (``July 10 Letter'').
8 Letter to Enforcement Bureau, Technical and Public Safety
Division, from Gert A. Van de Weerd, President, Johannus
Orgelbouw b.v. (July 30, 2003) (``July 30 Letter'').
9 Letter to Enforcement Bureau, Technical and Public Safety
Division, from Gert A. Van de Weerd, President, Johannus
Orgelbouw b.v. (September 2, 2003) (``September 2 Letter'').
10 September 2 Letter (``We sell and install about 3-13 organs
a month in the USA and Canada, mainly to churches, but also to
concert halls and cemeteries.'').
11 July 30 Letter (``As far as we know today, the source of
the violation is a modification on the CPU board. We added an
extra track of 3,4 volt power supply. Unfortunately this track
became an antenna. Neutral and Line Disturbance tests remained
ok, while the test of the Horizontal Polarization showed only a
small violation on 229,4 MHz of -1.54 dB. The Vertical
Polarization test however showed the bad results.'').
12 July 10 Letter (``We believe that the modifications which
are the reason, that some of our organs were violating FCC rules,
have been done between July and October 2002. The modifications
have been built in limited numbers of organs. Some of them have
been shipped to the US and probably you have seen a test of one
of them.''). In its July 10 Letter, Johannus also provided test
results for one of its organs which showed that the organ was not
in compliance with the radiated emission limits for Class A
digital devices. Johannus did not specify which organ model it
tested, but it appears that the non-compliant organ was one of
its Rembrandt model organs, which Johannus states is one of its
best selling organs in the U.S.
13 July 30 Letter (``If necessary we will be able to modify
the suspected organs by exchanging the CPU boards. Also the few
organs (About 7-10 pieces are far I can find out at the moment.
However, some of them must be ok.) who are on the way - on the
ocean or in the USA -, can easily be modified when they arrive
and we also have discovered, which of them are faulty.'').
14 July 10 Letter.
15 September 2 Letter.
16 Id.
17 See footnotes 11-12, supra.
18 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).
19 47 C.F.R. § 15.109. Based on Johannus's responses to our
LOI, it appears that Johannus imported and marketed organs that
did not comply with the radiated emission limits for Class A
digital devices. However, as explained in paragraph 7, we find
that Johannus's organs are actually Class B digital devices and
therefore must comply with the more stringent emission limits
applicable to such devices.
20 47 U.S.C. § 503(b).
21 47 U.S.C. § 503(b)(2)(D).
22 12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303
(1999).
23 47 C.F.R. § 1.80.
24 47 C.F.R. § 15.3(h).
25 47 C.F.R. § 15(i).
26 See 47 C.F.R. § 15.19.
27 See 47 C.F.R. § 15.105.
28 47 C.F.R. § 2.955.
29 47 C.F.R. § 0.111, 0.311 and 1.80.
30 See 47 C.F.R. § 1.1914.