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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
)
FORFEITURE ORDER
Adopted: April 23, 2004 Released:
April 27, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we
issue a monetary forfeiture in the amount of five thousand,
six hundred dollars ($5,600) to Johannus Orgelbouw b.v.
(``Johannus''), for 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.
2. On November 6, 2003, the Enforcement Bureau
issued a Notice of Apparent Liability for Forfeiture
(``NAL'') 3 in the amount of seven thousand dollars ($7,000)
to Johannus. Johannus filed a response to the NAL
(``Response'') on December 19, 2003.
II. BACKGROUND
3. On March 27, 2003, the Enforcement Bureau
received a complaint alleging that Johannus imported digital
electronic organs that did not comply with the Commission's
rules.4 The complainant asserted that other digital
electronic organ companies suffered competitive harm because
Johannus, through its failure to comply with the
Commission's rules, was able to produce digital electronic
organs less expensively.
4. On June 18, 2003, the Enforcement Bureau
issued a letter of inquiry to Johannus (``LOI'').5 In its
answer to the LOI, Johannus stated that it imports about 13
organs a month into the U.S. and Canada, and that, after
receiving the Commission's letter, it found that some of its
organs radiated signals in excess of the radiated emission
limits for Class A digital devices6 in the Commission's
rules. Johannus claimed that the organs only began to
radiate such signals after a design change in the CPU board
that affected organs manufactured from July to October of
2002. Johannus admitted that it imported and marketed some
of those organs into the U.S.
5. On November 6, 2003, the Enforcement Bureau
issued an NAL to Johannus for importing and marketing in the
U.S. digital electronic organs which did not comply with the
Commission's radiated emission limits in repeated violation
of Section 302(b) of the Act and Section 2.803(a) of the
Rules. We found in the NAL that Johannus had apparently
imported and marketed organs that did not comply with the
radiated emission limits for Class A digital devices.
However, based on information found on Johannus's website
which clearly indicated that Johannus was marketing its
organs for use in a residential environment,7 we concluded
that Johannus's organs are actually Class B digital devices8
and therefore must comply with the more stringent emission
limits applicable to such devices. In its response to the
NAL, Johannus claims that it did not willfully violate the
Commission's rules because it was not aware that any of its
electronic organs fell under the requirements for Class B
digital devices. Johannus also claims in the response that
it has a history of overall compliance, that it had already
planned to modify its organs to meet the Class B
requirements before receiving the NAL, and that it stopped
importing organs into the U.S. after receiving the NAL.
III. DISCUSSION
6. The proposed forfeiture amount in this case
was assessed in accordance with Section 503(b) of the Act,9
Section 1.80 of the Rules,10 and The Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules
to Incorporate the Forfeiture Guidelines (``Policy
Statement'').11 In examining Johannus' response, Section
503(b) of the Act requires that the Commission 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
7. Section 302(b) of the Act states that no one
shall import, ship, sell, or offer for sale devices that
fail to comply with regulations promulgated pursuant to this
section.13 Section 2.803(a) of the Rules states that no
person shall sell, offer for sale, import, ship, or
distribute a device that does not comply with technical,
labeling and identification requirements specified in this
chapter.14 It is undisputed that Johannus's organs are
digital devices and, therefore, must comply with Part 15 of
the Rules, including the radiated emission limits. In its
NAL response, Johannus argues that its violation was not
willful because it mistakenly believed that its organs fell
under the technical requirements for Class A digital
devices, and a small modification and improvement in the
CPU/Voice Board of the organs unintentionally caused the
devices to exceed the Class A emission limits.
8. We need not address Johannus's argument that
the violation was not willful. The NAL cited Johannus for
repeated, not willful, violation of Section 302(b) of the
Act and Section 2.803(a) of the Rules. In this regard,
Section 503(b)(1) of the Act provides that a forfeiture
penalty may be imposed if the violation is either willful or
repeated.15 Johannus previously admitted that, as recently
as July 2003, it imported into the U.S. and marketed in the
U.S. at least one model of organ (involving more than one
organ) that did not comply with the Commission's radiated
emission limits.16 Further, Johannus does not dispute in
its response to the NAL that the violation was repeated.
Accordingly, based on the evidence before us, we conclude
that Johannus repeatedly17 violated Section 302(b) of the
Act and Section 2.803(a) of the Rules. In any event, we
find Johannus's claim that it mistakenly believed that its
organs were Class A digital devices unpersuasive. As noted
in the NAL and as set forth above, Johannus's website
indicated that it was marketing the devices for use in a
residential environment. Since Johannus clearly knew that
it was marketing its organs for residential use, it knew or
should have known that the organs were Class B devices and
therefore had to comply with the more stringent technical
standards for Class B devices.
9. Johannus also asserts that, before receiving
the NAL on November 6, 2003, it had already begun planning
to modify all of its organs to meet Class B standards. We
do not believe that any reduction of the forfeiture amount
on this basis is warranted. In this regard, Johannus does
not present evidence that it took steps to modify its organs
to correct the violation prior to our investigation of this
matter.18 Moreover, while Johannus indicates that it is
taking remedial actions, the Commission has repeatedly held
that remedial actions taken to come into compliance with
Commission rules are not mitigating factors warranting
reduction of a forfeiture.19
10. Finally, Johannus requests cancellation or
reduction of the forfeiture because it has ``sold
electronic organs for decades without a violation.'' We
find that Johannus has a history of overall compliance.
Pursuant to Section 1.80(b)(4) of the Rules,20 we reduce
the forfeiture amount to $5,600.
11. We have examined Johannus's Response pursuant
to the statutory factors above, and in conjunction with the
Policy Statement as well. As a result of our review, we
conclude that Johannus repeatedly violated Section 302(b) of
the Act and Section 2.803(a) of the Rules. Due to
Johannus's history of overall compliance, we find that a
reduction of the forfeiture to the amount indicated above is
in order.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,21 and Sections 0.111, 0.311 and
1.80(f)(4) of the Rules,22 Johannus Orgelbouw, b.v. IS
LIABLE FOR A MONETARY FORFEITURE in the amount of five
thousand, six hundred dollars ($5,600) for repeatedly
violating Section 302(b) of the Act and Section 2.803(a) of
the Rules.
13. Payment of the forfeiture shall be made in
the manner provided for in Section 1.80 of the Rules23
within 30 days of the release of this Order. If the
forfeiture is not paid within the period specified, the case
may be referred to the Department of Justice for collection
pursuant to Section 504(a) of the Act.24 Payment shall be
made by mailing a check or similar instrument, payable to
the order of the Federal Communications Commission, to the
Federal Communications Commission, P.O. Box 73482, Chicago,
Illinois 60673-7482. The payment must include the FCC
Registration Number (FRN) referenced above, and also should
note the NAL/Acct. No. 200432100006. Requests for full
payment under an installment plan should be sent to: Chief,
Revenue and Receivables Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.25
14. IT IS FURTHER ORDERED that a copy of this
Order shall be sent by Certified Mail Return Receipt
Requested to Johannus Orgelbouw b.v., Keplerlann 2, 6717 BS
Ede, The Netherlands, and to Johannus's counsel, Lewis H.
Goldman, Esq., 45 Dudley Court, Bethesda, MD 20814.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
11. 47 U.S.C. § 302a(b).
21. 47 C.F.R. § 2.803(a).
31. Johannus Orgelbouw b.v., 18 FCC Rcd 23078
(Enf. Bur. 2003).
41. 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 emissions limits for Class B digital devices.
51. Letter to Johannus Orgelbouw b.v. from
Joseph P. Casey, Chief, Technical and Public Safety
Division, Enforcement Bureau (June 18, 2003).
61. Section 15.3(h) of the Rules defines a Class
A digital device as ``a digital device marketed for use in a
commercial, industrial or business environment, exclusive of
a device that is marketed for use by the general public or
is intended to be used in the home.'' 47 U.S.C. § 15.3(h).
71. As noted in the NAL, 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).''
81. Section 15.3(i) of the Rules defines a Class
B digital device as ``a digital device marketed for use in a
residential environment notwithstanding use in commercial,
business and industrial environments.'' 47 C.F.R. §
15.3(i).
91. 47 U.S.C. § 503(b).
101. 47 C.F.R. § 1.80.
111. 12 FCC Rcd 17087 (1997), recon.
denied, 15 FCC Rcd 303 (1999).
121. 47 U.S.C. § 503(b)(2)(D).
131. See 47 U.S.C. § 302(b).
141. See 47 U.S.C. § 2.803(a)(2).
151. 47 U.S.C. § 503(b)(1).
161. Letter to the Enforcement Bureau,
Technical and Public Safety Division, from Gert A. Van de
Weerd, President, Johannus Orgelbouw b.v. (July 10, 2003).
171. As provided by 47 U.S.C. § 312(f)(2), a
violation is ``repeated'' if it occurs more than once or
continues for more than one day. The Conference Report for
Section 312(f)(2) indicates that Congress intended to apply
this definition to Section 503 of the Act as well as Section
312. See H.R. Rep. 97th Cong. 2d Sess. 51 (1982). See
Southern California Broadcasting Company, 6 FCC Rcd 4387,
4388 (1991).
181. Cf. Radio One Licenses, Inc., 18 FCC
Rcd 15964, 15965 (2003) (reducing a forfeiture based on good
faith where the licensee took steps to correct the violation
prior to the FCC inspection).
191. See e.g., AT&T Wireless Services, Inc.,
17 FCC Rcd 21866, 21871 (2002); Seawest Yacht Brokers, 9 FCC
Rcd 6099 (1994); Station KGVL, Inc., 42 FCC 2d 258, 259
(1973).
201. See Section 1.80(b)(4) of the Rules, 47
C.F.R. § 1.80(b)(4).
211. 47 U.S.C. § 503(b).
221. 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
231. 47 C.F.R. § 1.80.
241. 47 U.S.C. § 504(a).
251. See 47 C.F.R. § 1.1914.