Click here for Adobe Acrobat version
Click here for Microsoft Word version
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.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-04-SE-069
Behringer USA, Inc. ) NAL/Acct. No. 200632100005
) FRN # 0014638803
Adopted: May 23, 2007 Released: June 1, 2007
By the Commission:
1. By this Forfeiture Order ("Order"), we find that Behringer USA, Inc.
("Behringer") marketed 50 models of unauthorized radio frequency
equipment, specifically digital audio music devices, in willful and
repeated violation of Section 302(b) of the Communications Act of
1934, as amended ("Act"), and Section 2.803(a) of the Commission's
Rules ("Rules"). We further find that Behringer's violations warrant,
and the record before us supports, the imposition of a forfeiture in
the amount of one million dollars ($1,000,000).
2. Section 302(b) of the Act provides that "[n]o person shall
manufacture, import, sell, offer for sale, or ship devices of home
electronic equipment and systems, or use devices, which fail to comply
with regulations promulgated pursuant to this section." Under Sections
2.803(a) and 15.101 of the Commission's implementing regulations,
Class B digital devices may not be marketed prior to authorization in
accordance with the Commission's verification procedures and related
requirements. "Marketing" includes the sale or lease, offer for sale
or lease (including advertising for sale or lease), importing
shipping, and/or distribution for the purpose of selling or leasing or
offering for sale or lease equipment.
3. Digital audio music devices are considered Class B digital devices,
and, as such, must be authorized in accordance with the Commission's
verification procedures prior to marketing. Specifically, under the
Commission's equipment verification procedure, Class B digital devices
must be tested and verified as compliant with the Commission's
conducted emission and radiated emission limits set forth in Sections
15.107 and 15.109 of the Rules. Additionally, Class B digital devices
must be labeled as specified in Section 15.19(a)(3) of the Rules, and
its user instruction manuals must include the information detailed in
Section 15.105(b) of the Rules. Finally, imported Class B digital
devices are subject to mandatory Custom declaration (FCC Form 740)
4. On February 16, 2006, the Commission issued a Notice of Apparent
Liability for Forfeiture ("NAL") proposing a $1,000,000 forfeiture
against Behringer for its apparent willful and repeated violation of
the equipment marketing restrictions and related requirements.
5. Specifically, the NAL found that since January 2000, Behringer has
imported and marketed in the United States 66 models of unauthorized
digital audio music devices. Between January 2000 and March 2004,
Behringer imported and distributed approximately 1.17 million such
devices for sale in the United States. The NAL further found that
between April 2004 and February 2005 Behringer continued to import and
market unauthorized devices, even though it had previously represented
to the Enforcement Bureau in response to the first letter of inquiry
("LOI") that it had initiated compliance measures. In this regard,
during the one-year period after the Enforcement Bureau initially
launched its investigation, Behringer imported 93,620 unauthorized
units and sold 100,304 unauthorized units with a retail value of
approximately $28.5 million. The NAL concluded that the circumstances
warranted a substantial upward adjustment from the aggregate base
forfeiture of $350,000 ($7,000 base forfeiture x 50 unauthorized
models) and accordingly proposed a $1,000,000 forfeiture.
6. In its response to the NAL, Behringer acknowledges that it "failed to
comply with applicable rules governing testing, labeling, and the
filing of Form 740 for certain of its products." Nevertheless,
Behringer seeks a reduction in forfeiture liability, claiming that
that the NAL erroneously included 28 models of its devices as
non-compliant and that the forfeiture proposed in the NAL is
excessive. Behringer also claims that it has implemented affirmative
measures to ensure compliance with the FCC equipment authorization and
7. The proposed forfeiture set forth in the NAL was assessed in
accordance with Section 503(b) of the Act and Section 1.80 of the
Rules, and the guidelines enunciated in the Commission's Forfeiture
Policy Statement. In assessing forfeiture liability, Section
503(b)(2)(E) of the Act directs the Commission to take into account
the violator's degree of culpability, history of prior offenses and
ability to pay; the nature, circumstances, extent and gravity of the
violation, and such other matters as justice may require. We have
considered Behringer's claims in light of the above statutory factors,
and have determined that there is no basis for reduction of the
A. The NAL Properly Considered the 28 Challenged Models
8. Behringer challenges the NAL's inclusion of 28 models in determining
the proposed forfeiture amount. As discussed below, we find that the
NAL appropriately considered these 28 challenged models in determining
the proposed forfeiture amount.
9. First, Behringer claims that the NAL erred by including the SRC2000
BLM- 420. Behringer asserts, for the first time, that it discontinued
the SRC2000 in October 2004, more than a year prior to the date the
NAL was issued, and it never shipped or sold the BLM420 in the United
States. As an initial matter, we note that an internal email submitted
by Behringer in support of its claim that the SRC2000 was discontinued
more than a year prior to the NAL, which is dated October 16, 2004,
states "We have identified the products listed below as discontinued
items. The sales force have been tasked with aggressively selling them
at a discount to clear inventory." A subsequent internal email
submitted by Behringer, dated October 26, 2005, states with respect to
the same list of "discontinued" products "please let me have the
inventory position on the products listed below and where significant
inventory exists let me have the expected depletion time based on
current consumption." Thus, the documentation submitted by Behringer
does not support its claim that it discontinued sales of the SCR2000
in October 2004. Moreover, as noted previously, Section 2.803(a)'s
prohibition is not limited to the shipment, sale or lease of
unauthorized equipment. Rather, Section 2.803(a)'s prohibition
explicitly covers the offering (including the advertising) for sale or
lease of unauthorized equipment. The record established, and Behringer
does not dispute, that both the SRC2000 and BLM420 were advertised on
its website and included in its price lists. Consistent with
precedent, we find that the inclusion of the SRC2000 and BLM420 on
Behringer's website and its price lists constituted marketing and as
such were prohibited under Section 2.803(a). We accordingly find that
Behringer unlawfully marketed the SRC2000 and BLM420 models in the
United States, and that the NAL's inclusion of these two models was
10. Second, Behringer claims that the NAL erred by including the following
five models: the AES/EBU9024, AES/EBU 8024, ADT1616, TDF1616 and
AES808/ACB808P. Behringer claims, for the first time, that these five
models contain simple conversion circuits, and, as such, are not
subject to the authorization procedures. Behringer also claims, and
provides documentation to show, that after the NAL was issued, it
tested and verified that the devices were compliant with the
Commission's technical standards. Section 15.103(g) of the Rules
Joystick controllers or similar devices, such as a mouse, used with
digital devices but which contain only non-digital circuitry or a simple
circuitry to convert the signal to the format required (e.g., an
integrated circuit for analog to digital conversion) are viewed as passive
add-on devices, not themselves directly subject to the technical standards
or the equipment authorization requirements.
It is well established that parties bear responsibility for providing
sufficient evidence to support their own factual assertions. Accordingly,
it was incumbent upon Behringer to provide supporting documentation to
substantiate its claim that these five models are not subject to the
equipment authorization procedures. Behringer, however, failed to do so.
Specifically, Behringer's technical documentation, which purports to show
that these five models contained simple conversion circuits, does not
diagram in detail the devices' circuit layouts or identify the component
parts. Behringer's technical documentation thus is insufficient to permit
a determination as to whether these five devices qualify as passive add-on
devices under Section 15.103(g). Because Behringer failed to present
detailed technical documentation, we cannot assess its claim that these
devices are not subject to the technical standards or equipment
authorization requirements. Further, the fact that these models were
tested and verified as compliant with the FCC's technical standards after
issuance of the NAL is irrelevant.
11. Third, Behringer claims that the NAL erred by including the following
17 models: the AC112, CT100, DJX400, DX052, FCB1010, LC2412, V Amp
Pro, MX3242X, Bass V-Amp, ACX1000, DFX69, DSP9024, DX626, GX112,
VMX200, DSP110 and LD6230. Behringer claims that all 17 models were
found to be compliant with European technical standards, as evidenced
by the "CE" markings and the CE test reports submitted in response to
the Enforcement Bureau's Letters of Inquiry. According to Behringer,
demonstrated compliance with the technical requirements of the CE
should satisfy those of the FCC, because the standards for these
products "are equivalent." In support of this assertion, Behringer
submits a comparative analysis report prepared by its engineering
staff to show that 17 models were tested and found to comply under the
"technically equivalent" CE and FCC standards.
12. We disagree. Although the CE and the FCC standards share some common
elements, as the NAL noted, "[CE] testing neither is the equivalent of
nor demonstrates compliance with the Commission's technical
standards." FCC compliance testing must be done in accordance with the
FCC's measurement procedures. Moreover, while Behringer correctly
notes that the European test lab that conducted the CE tests is an
accredited test laboratory under the Agreement on Mutual Recognition
("MRA") between the U.S. and the EC signed in 1998, test laboratories
accredited under the MRA are still required to apply the FCC's test
procedures and rules. Behringer has not presented any evidence, or
even asserted, that the European test laboratory conducted the
compliance testing in accordance with the FCC's measurement
procedures. In light of Behringer's failure to provide such evidence,
we must reject Behringer's contention that the 17 models comply with
FCC technical standards. Additionally, we are not persuaded by
Behringer's claim that it "reasonably believed that the CE tests it
conducted for a number of its products ... would be sufficient to
comply with the applicable FCC regulations." Behringer's professed
reliance on CE tests to establish compliance with the FCC standards is
belied by the fact that it only tested 17 of the 50 models for
compliance with CE standards. The record establishes, and Behringer
does not dispute, that these 17 models were marketed in the United
States prior to verifying compliance with the applicable FCC technical
standards. We thus find that Behringer unlawfully marketed these 17
models, and that their inclusion in the NAL was appropriate.
13. Finally, Behringer claims that the NAL erred by including four models
that are "marketed and sold separately" but are "identical" in
"electronic design and topology" to other products. Specifically,
Behringer claims that: the V-AMP 2 is identical to the Bass V-AMP; the
GMX212 is identical to the GMX1200H; the V-Amp Pro is identical to the
BASS V-AMP PRO; and the LX112 is identical to the LX1200H. In support,
Behringer provides a comparative analysis of the models. Under Section
2.902(b) of the Rules, a device's equipment verification attaches to
all devices the manufacturer or importer subsequently markets that are
"identical" to the sample tested and verified as compliant with the
Commission's applicable technical standards. Under Section 2.908 of
the Rules, "identical" is defined as "identical within the variation
that can be expected to arise as a result of quantity production
techniques." Behringer, however, failed to provide sufficient
documentation to support its argument that the devices are identical.
The comparative analysis submitted by Behringer, which purports to
establish that these devices were identical, neither diagrams in
detail the eight models' circuit layouts, nor identifies their
component parts. Accordingly, given Behringer's failure to present
such detailed documentation, we must reject its claim that the four
devices were identical to other products marketed separately.
B. The Proposed Forfeiture Is Not Excessive
14. Behringer claims that the NAL's proposed forfeiture amount is
"excessive" when compared with the conduct of other companies whose
actions resulted in fines in excess of $1,000,000. Behringer claims
that fines in excess of $1,000,000 have generally been reserved for
violations that directly and deliberately harmed consumers,
jeopardized public safety, and resulted in the exposure of children to
programming that violate standards of decency. Compared to such cases,
Behringer characterizes its "failure to comply with the applicable
Part 15 unintentional radiator standards and labeling requirements" as
15. As the cases cited by Behringer reflect, the Commission has assessed
fines of $1 million and more for violations involving harm to
consumers and public safety in accordance with the directives of
Section 503(b)(2)(D) of the Act and the upward adjustment factors of
Section 1.80 of the Commission's implementing regulations. The
Commission has also applied these statutory directives and upward
adjustment factors and assessed forfeitures of $1 million or more in
cases involving violations that did not directly affect consumer well
being or public safety where, as here, the violator's misconduct was
egregious, its economic gains were substantial, its revenues have
demonstrated an ability to pay, and its violations were continuous and
repeated over a period of time.
16. Given the nature and extent of Behringer's violations and its
resources, we find, as the NAL found, that the proposed upwardly
adjusted $1 million forfeiture was consistent with precedent, as well
as the directives of Section 503(b)(2)(D) and the upward adjustment
factors of Section 1.80. Indeed, we find that four of the seven upward
adjustment factors specified in Section 1.80 were present in this
case. As set forth in the NAL, Behringer's violations were egregious,
given that it continued to import and sell a significant number of
unauthorized devices for approximately one year after the Enforcement
Bureau launched its investigation and after Behringer represented that
it would implement measures to come into compliance with the equipment
authorization and related requirements. We further note that Behringer
ceased importing and selling the unauthorized units only after
receiving a second LOI from the Enforcement Bureau. Behringer's
failure to take steps to bring its unauthorized devices into
compliance, contrary to its representations to the Bureau,
demonstrates a deliberate disregard for the Commission's rules,
justifying a substantial upward adjustment of the base forfeiture
amount. As noted in the NAL, Behringer also realized substantial
economic gains from the sale of its unauthorized units. Additionally,
based on the record before us, Behringer, an international company
with a reported $130 million in revenues, has the ability to pay a
forfeiture (relative disincentive to comply with the Commission's
regulations). Finally, Behringer's violations involved an
unprecedented volume of unauthorized units, spanning a period of over
five years, and thus were continuous and repeated. These factors,
taken together, warranted the substantial upward adjustment of the
base forfeiture amount proposed in the NAL.
17. In sum, given the record, we find that the NAL's proposed forfeiture
amount was reasonable and consistent with the case precedent, the
statutory directives and the upward adjustment factors.
C. Behringer's Corrective Measures Do Not Warrant Reduction of the
18. Behringer seeks a reduction in the total forfeiture amount based on
the "affirmative measures" it implemented after issuance of the
Enforcement Bureau's March 29, 2004 LOI in order "to bring all of its
products sold in the United States into compliance with the FCC's
rules." Behringer further states that after the issuance of the NAL,
it tested and verified 34 models as compliant with the Commission's
applicable technical standards. Finally, Behringer states that since
issuance of the NAL, it has begun implementing new procedures to
ensure its compliance with the FCC's rules on a going-forward basis.
Among other things, Behringer states that it has consolidated its
research, development and manufacturing operations to ensure that all
of its products are tested and verified in compliance with applicable
standards; appointed a compliance officer to ensure that the
requirements are met for each of the jurisdictions in which it markets
its products; and is developing an in-house approval tracking and
regulatory review process.
19. First, as noted in the NAL and set forth above, Behringer continued to
market unauthorized devices for almost a year after receiving the
Enforcement Bureau's first LOI in March 2004 and representing to the
Commission that it would initiate measures to ensure that all of its
devices comply with the verification and related requirements. Even
after receiving the Enforcement Bureau's second LOI in December 2004,
Behringer failed to implement measures to ensure all of its devices
were in compliance with the Commission's requirements. We note, in
this connection, that Behringer tested and verified 34 models for
compliance only after the Commission issued the NAL. Moreover, the
Commission has repeatedly found that corrective measures implemented
after Commission has initiated an investigation or taken enforcement
action do not nullify or mitigate past violations. Accordingly, we
find that Behringer's remedial measures do not warrant any reduction
in the forfeiture.
20. We find that Behringer willfully and repeatedly violated Section
302(b) of the Act and Section 2.803(a) of the Rules by marketing 50
models of unauthorized Class B digital devices. We further find that
the proposed $1 million forfeiture was reasonable and consistent with
precedent and that the record does not support any reduction of the
proposed forfeiture amount.
V. ORDERING CLAUSES
21. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Sections and 1.80 of the Rules, Behringer USA, Inc. IS LIABLE
FOR A MONETARY FORFEITURE in the amount of one million dollars
($1,000,000) for willfully and repeatedly violating Section 302(b) of
the Act and Section 2.803(a) of the Rules.
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. A request for full payment under an installment plan should be sent
to: Associate Managing Director-Financial Operations, 445 12^th
Street, S.W., Room 1-A625, Washington, D.C. 20554.
24. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by first class mail and certified mail return receipt requested
to counsel to Behringer USA, Inc., Delbert D. Smith, Esq., Jones Day,
51 Louisiana Avenue, N.W., Washington, D.C. 20001-2113.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
47 U.S.C. S 302a(b).
47 C.F.R. S 2.803(a).
47 C.F.R. S 15.101.
A Class B digital device is "a device marketed for use in residential
environment notwithstanding use in commercial, business and industrial
environments." 47 C.F.R. S 15.3(i).
Under the verification procedures, the manufacturer of radio frequency
devices, or the importer in the case of imported devices, must make
measurements or take the necessary steps to obtain measurements to ensure
that the subject devices comply with the Commission's technical standards.
See 47 C.F.R. S 2.902(a).
See 47 C.F.R. SS 15.19(a)(3), 15.105(b), 2.1203-05; see also supra n. 10,
11, 12 and accompanying text.
See 47 C.F.R. S 2.803(e).
See supra n. 5.
47 C.F.R. SS 15.107 and 109.
47 C.F.R. S 15.19(a)(3).
47 C.F.R. S 15.105(b).
47 C.F.R. SS 2.1203-2.1205.
See Behringer USA, Inc., Notice of Apparent Liability for Forfeiture, 21
FCC Rcd 1820 (2006).
Id. at 1824 P 11 and 1825-26 P 15. As of the date the NAL was issued,
Behringer had tested and verified only 28 of the 66 models. Out of those
28 models, 16 models were tested and verified more than one year prior to
the NAL, and thus were beyond the one year statute of limitations under
Section 503(b)(6)(B) of the Act, 47 U.S.C. S 503(b)(6)(B). Thus, only 50
unauthorized models were subject to the NAL. See NAL, 21 FCC Rcd at 1827
PP 20-21; see also infra n.69.
Id. at 1822 P 5 and 1825-26 P 15.
Id. at 1825-26 P 15 and 1827-28 P 22.
Id. at 1827-28 P 22.
Id. at 1828 P 23.
See Response to Notice of Apparent Liability for Forfeiture and Order of
the Federal Communications Commission (March 20, 2006) ("Response").
Id. at 8.
Id. at 2-8.
Id. at 13-14.
Id. at 8.
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
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 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
47 U.S.C. S 503(b)(2)(E).
In its Response, Behringer submits that the "forfeiture proposed by the
FCC should not have included these 27 products," but the company is
actually challenging the NAL's inclusion of 28 models. Response at 1.
Id. at 2-3.
Id. at Exhibit 1.
See ACR Electronics, Inc., Notice of Apparent Liability for Forfeiture, 19
FCC Rcd 22293, 22299 P 15 (2004), forfeiture ordered, 21 FCC Rcd 3698
(2006) (finding that the manufacturer violated Section 2.803(a) by
distributing promotional materials and price lists for unauthorized
devices) ("ACR Electronics"); Gibson Tech Ed, Inc., Notice of Apparent
Liability for Forfeiture, 20 FCC Rcd 14438, 14438-39, 14440 PP 3-4, 7
(Enf. Bur., Spectrum Enf. Div. 2005), forfeiture ordered, 21 FCC Rcd 2915
(Enf. Bur., Spectrum Enf. Div. 2006) (finding that the retailer violated
Section 2.803(a) by advertising unauthorized devices on its website).
See Response 3-4.
Id. at 3.
See Fourth Partial NAL Response (March 9, 2006); Sixth Partial Response
(March 13, 2006).
See Response at 3-4.
47 C.F.R. S 15.103(g).
See, e.g., Webnet Communications, Inc., Order of Forfeiture, 18 FCC Rcd
6870, 6878 P 16 (2003) (rejecting inability to pay argument because
licensee failed to provide detailed and relevant financial information);
All American Telephone, Inc., Order of Forfeiture, 16 FCC Rcd 16601, 16610
P 21 (2001) (rejecting carrier's claim that it was unable to pay proposed
forfeiture because carrier failed to provide supporting evidence of its
revenues); Amer-I-Net Services Corp., Order of Forfeiture, 15 FCC Rcd
3118, 3123 P 16 (2000) (rejecting carrier's unsubstantiated factual claims
about its compliance plan).
"CE" is an abbreviation for Conformite Europeenne, and it represents that
equipment meets European technical standards. See NAL, 21 FCC Rcd 1820 at
See Response at 4-5.
Id. at 6.
See Exhibits 2-3.
Response at 5. Behringer tested the 17 models for compliance with FCC
requirements after issuance of the NAL.
NAL, 21 FCC Rcd 1826 P 16.
See 47 C.F.R. S 15.109(g)(1) which indicates that FCC measurement
procedures must be followed even where testing to the relevant
international emissions limits; see also 47 C.F.R. S 15.31 Note to
Paragraph (a)(3) (stating "[d]igital devices tested to show compliance
with the provisions of SS 15.107(e) and 15.109(g) must be tested following
the ANSI C63.4 procedure described in paragraph (a)(3) of this section").
See FCC Accepts Accreditation of European Laboratories for Declaration of
Conformity Testing, Public Notice, 13 FCC Rcd 16626 (OET 1998).
See supra note 39.
Response at 9.
Id. at 6.
Id. at Exhibit 4. Pursuant to Sections 0.457 and 0.459 of the Rules, 47
C.F.R. SS 0.457 and 0.459, Behringer requested confidential treatment of
the "Comparative Analysis of Identical Behringer Products," asserting that
the material contains "commercially sensitive information ... the
disclosure of which could result in substantial competitive harm."
Response at Exhibit 5. Having reviewed the material, we agree with
Behringer and will accord the material confidential treatment.
47 C.F.R. S 2.902(b).
47 C.F.R. S 2.908.
See supra note 39.
Response at 13.
Behringer cites the following as illustrative examples of cases in which
fines in excess of $1,000,000 have been proposed or assessed for
violations involving direct and deliberate harm to consumers: ACS Telecom,
Inc. d.b/a Alternatel, Notice of Apparent Liability for Forfeiture, 17 FCC
Rcd 18654, 18656-57 PP 8-9 (2002) (proposing a $1,440,000 forfeiture
against an operator service provider for engaging in a widespread and
deliberate scheme to mislead and overcharge consumers), consent decree
ordered, 19 FCC Rcd 5160 (2004); NOS Communications, Inc. and Affinity
Network Inc., Notice of Apparent Liability for Forfeiture, 16 FCC Rcd
8133, 8141-42 PP 18-19 (2001) (proposing a $1,000,000 forfeiture against a
telecommunications carrier for deceptive marketing practices), consent
decree ordered, 17 FCC Rcd 25853 (2002); and Webnet Communications, Inc.,
Notice of Apparent Liability for Forfeiture, 17 FCC Rcd 11603, 11608-09 PP
14-15 (2002), forfeiture ordered, 18 FCC Rcd 6870 (2003) (imposing a
$1,200,000 forfeiture against a long distance provider for repeated
Behringer cites Centel Cellular Company of North Carolina Ltd.
Partnership, Notice of Apparent Liability for Forfeiture, 10 FCC Rcd 915
(1994), forfeiture ordered, 11 FCC Rcd 10800 (1996) (imposing a $2,000,000
forfeiture against a wireless carrier for constructing and operating an
antenna structure that constituted a hazard to air navigation), as an
example of a case in which a fine in excess of $1,000,000 was assessed for
violations involving public safety.
Behringer cites Clear Channel Broadcasting Licensees et al, Notice of
Apparent Liability for Forfeiture, 19 FCC Rcd 1768, 1779 PP 20-21 (2004)
(proposing a $755,000 forfeiture against a broadcast licensee for
repeatedly broadcasting indecent material), as an example of a case in
which a substantial forfeiture was proposed for violations involving
exposure of children to indecent programming.
Response at 14.
See supra nn. 57-59. We note that the indecency case cited by Behringer
did not propose a forfeiture in excess of $1 million. See supra n. 59.
See supra n. 27 and accompanying text.
See, e.g., SBC Communications, Inc., 373 F.3d 140, 152 (D.C. Cir. 2004)
(upholding the $6 million forfeiture assessed against a carrier, based in
part on the fact that the carrier's violations were egregious, the carrier
"stood to gain" by forcing its competitors to litigate to enforce merger
conditions, and the carrier's ability to pay); Liberty Cable Co.,
Memorandum Opinion and Order, 16 FCC Rcd 16105, 16113 P 24 (affirming the
$1,425,000 forfeiture issued against a cable system operator for
initiating service at multiple locations before obtaining Commission
authorization, based in part on the fact that the company's violations
were egregious, repeated and continuous, and the company "stood to gain
economically by providing service to subscribers even though it was not
yet authorized to do so").
Section 1.80 of the Rules lists the following seven upward adjustment
factors: (1) egregious misconduct; (2) ability to pay/relative
disincentive; (3) intentional violation; (4) substantial harm; (5) prior
violations of any FCC requirements; (6) substantial economic gain; and (7)
repeated or continuous violation. See 47 C.F.R. S 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
See supra n. 16, 17 and accompanying text.
The retail value of the unauthorized units imported and sold by Behringer
during the one-year period after the Enforcement Bureau initially launched
its investigation was approximately $28.5 million. See supra n. 17 and
NAL, 21 FCC Rcd at 1828 n. 49 and accompanying text.
As the NAL pointed out, under Section 503(b)(6) of the Act, 47 U.S.C. S
503(b)(6), the Commission is barred from proposing a forfeiture for
misconduct that occurred more than one year prior to the issuance of the
NAL, but is not barred from considering such misconduct in determining the
appropriate forfeiture amount for violations within the one-year statutory
period. See NAL, 21 FCC Rcd at 1827 P 20; see also Enserch Corp.,
Forfeiture Order, 15 FCC Rcd 13551, 13554 P 11 (2000); Cate Communications
Corp., Memorandum Opinion and Order, 60 RR 2d 1386, 1388 P 7 (1986);
Eastern Broadcasting Corp., Memorandum Opinion and Order, 10 FCC 2d 37,
37-38 P 3 (1967). Thus, the NAL's proposed forfeiture amount took into
account the fact that Behringer's violations occurred for more than a
five-year period, but related only to its apparent violations within the
statutory period. See supra n. 14.
Id. at 8, 10 (noting that it will only ship and make available for the
U.S. market verified and fully compliant equipment).
See Behringer's Partial Response to the NAL (March 1, 2006) (submitting
reports indicating that the following six models were tested and verified
between February 26 and 28, 2006: ACX1000, CT100, DX626, VMX200, DX052 and
DJX400) (March 1, 2006); Behringer's Second Partial Response to the NAL
(March 3, 2006) (submitting reports indicating that the following three
models were tested and verified between February 28 and March 3, 2006:
GX112, AC112 and LC412); Behringer's Third Partial Response to the NAL
(March 7, 2006) (submitting reports indicating that the following two
models were tested and verified on February 3, 2006: GMX1200H and
LX1200H); Behringer's Fourth Partial Response to the NAL (March 9, 2006)
(submitting reports indicating that the following seven models were tested
and verified between February 28 and March 8, 2006: DFX69, MX3242X,
V-AmpPro(LXI Pro), DSP110, Bass-Amp(LX1-B), DSP9024, and FCB1010);
Behringer's Fifth Partial Response to the NAL (March 10, 2006) (submitting
the report indicating that the model PMH880 was tested and verified on
March 1, 2006); Behringer's Sixth Partial Response to the NAL (March 13,
2006) (submitting reports indicating that the following sixteen models
were tested and verified between March 2 and 7, 2006: ADT1616,
AES/EBU8024, AES808/ACB808P, TDF1616, DDX3216, ADA8000, BCF2000, BCR2000,
DEQ1024, LD6230, SL2442FX, SL3242FX, SRC2406, VX2496 and V-AMP/LX1-X).
Behringer notes that the BCA2000 failed FCC compliance testing and
therefore the import, marketing and sale of this model "remains on
indefinite hold." Response at 9 and Exhibit 6.
Id. at 11-13.
As noted above, an additional model, the BCA2000, failed FCC compliance
testing. See supra n. 66.
See ACR Electronics, 19 FCC Rcd at 22303 P 25; AT&T Wireless Services,
Inc., Notice of Apparent Liability for Forfeiture, 17 FCC Rcd 7891 (2002),
forfeiture ordered, 17 FCC Rcd 21866, 21875 PP 26-28 (2002); Seawest Yacht
Brokers, Notice of Forfeiture, 9 FCC Rcd 6099, 6099 P 7 (1994); TCI
Cablevision of Maryland, Inc., Memorandum Opinion and Order, 7 FCC Rcd
6013, 6014 P 8 (1992); Miami Radio, Inc., Memorandum Opinion and Order, 45
FCC 2d 612 P 4 (1974); Executive Broadcasting Corp., Memorandum Opinion
and Order, 3 FCC 2d 699 P 6 (1966); see also Johannus Orgebouw B.V. The
Netherlands, Forfeiture Order, 19 FCC Rcd 7196, 7198-99 P 9 (Enf. Bur.
Cf. Oleumtech Corporation, Notice of Apparent Liability for Forfeiture, 21
FCC Rcd 2421, 2423 P 10 (downwardly adjusting the proposed forfeiture
based on a finding that the manufacturer "made a good faith effort to
bring the transmitter into compliance with the Rules by submitting its
device for certification testing prior to receiving the Spectrum
Enforcement Division's LOI") (emphasis added); Bureau D'Electronique
Appliquee, Inc., Notice of Apparent Liability for Forfeiture, 20 FCC Rcd
3445, 3448 P 9 (Enf. Bur., Spectrum Enf. Div. 2005), forfeiture ordered,
20 FCC Rcd 17893 (Enf. Bur., Spectrum Enf. Div. 2005) (downwardly
adjusting the proposed forfeiture based on a finding that the manufacturer
"made a good faith effort to bring [its equipment] ... into compliance
with the Rules by identifying the need to obtain separate certification
for the devices and submitting a purchase order for final testing and
certification prior to the Enforcement Bureau's issuance of the letter of
inquiry") (emphasis added).
47 U.S.C. S 503(b); 47 C.F.R. S 1.80.
See 47 C.F.R. S 1.1914.
(Continued from previous page)
Federal Communications Commission FCC 07-100
Federal Communications Commission FCC 07-100