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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-022
In the Matter of
) Acct. No. 200832100083
ViewSonic Corporation
) FRN No. 0006636484
)
ORDER
Adopted: September 11, 2008 Released: September 12, 2008
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and ViewSonic Corporation
("ViewSonic"). The Consent Decree terminates an investigation by the
Bureau against ViewSonic for possible violation of sections
15.117(i)(1)(ii) and (iii) of the Commission's Rules ("Rules")
regarding the importation and interstate shipment of broadcast
television receivers without digital television reception capability
after applicable dates set forth in the Rules.
2. The Bureau and ViewSonic have negotiated the terms of the Consent
Decree that resolve this matter. A copy of the Consent Decree is
attached hereto and incorporated by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and terminating the investigation.
4. In the absence of material new evidence relating to this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether ViewSonic possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to section 4(i) of the
Communications Act of 1934, as amended, and sections 0.111 and 0.311
of the Commission's Rules, the Consent Decree attached to this Order
IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Mr. James Chu, CEO, ViewSonic Corporation, 381 Brea
Canyon Road, Walnut, CA and Tom W. Davidson, Esq., Akin Gump Strauss
Hauer & Feld LLP, 1333 New Hampshire Avenue, N.W., Washington, D.C.
20036-1564.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-022
In the Matter of
) Acct. No. 200832100083
ViewSonic Corporation
) FRN No. 0006636484
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and ViewSonic Corporation ("ViewSonic"
or the "Company"), by their authorized representatives, hereby enter into
this Consent Decree for the purpose of terminating the Bureau's
investigation into whether ViewSonic violated sections 15.117(i)(1)(ii)
and (iii) of the Commission's Rules ("Rules"), regarding the importation
and interstate shipment of broadcast television receivers without digital
television reception capability after applicable dates set forth in the
Rules.
I. DEFINITIONS
1. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Act" means the Communications Act of 1934, as amended U.S.C. S: 151
et seq.
b. "Adopting Order" means an Order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
e. "Compliance Plan" means the program described in this Consent Decree
at paragraph 7.
f. "DTV Tuner" means "the capability of receiving the signals of DTV
broadcast stations over-the-air" including "[reception of the digital
signal], an MPEG decoder/formatter, and associated processing
capability and memory."
g. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
h. "Investigation" means the investigation commenced by the Bureau's
February 1, 2007 letter of inquiry ("LOI") and continued in the
Bureau's April 26, 2007 LOI regarding whether ViewSonic violated
section 15.117(i)(1) of the Commission's Rules ("Rules") by importing
and/or shipping interstate TV Broadcast Receivers without DTV Tuners
after applicable dates set forth in the Rules.
i. "Parties" means ViewSonic and the Bureau.
j. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
k. "Television broadcast receiver" or "TV broadcast receiver" means a
"device designed to receive television pictures that are broadcast
simultaneously with sound on the television channels authorized under
part 73" of the Rules.
l. "ViewSonic" means ViewSonic Corporation and its
predecessors-in-interest and successors-in-interest.
II. BACKGROUND
2. Section 15.117(i)(1) of the Commission's Rules requires that all new TV
broadcast receivers imported into the United States or shipped interstate
be equipped with a DTV tuner according to the following schedule: (i)
screen sizes 36" and above - effective July 1, 2005; (ii) screen sizes 25"
to 35" - effective March 1, 2006; and (iii) screen sizes less than 25" -
effective March 1, 2007. On February 1, 2007, the Bureau issued an LOI to
ViewSonic regarding its compliance with the DTV Tuner requirements.
ViewSonic responded to the February 1, 2007 LOI on March 15, 2007. On
April 26, 2007, the Bureau issued a follow-up LOI. ViewSonic submitted
responses to the April 26, 2007 LOI on May 16, 2007, May 31, 2007, and
June 29, 2007.
III. TERMS OF AGREEMENT
3. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by incorporation
of such provisions by reference in the Adopting Order without change,
addition, modification, or deletion.
4. Jurisdiction. ViewSonic agrees that the Bureau has jurisdiction over
it and the matters contained in this Consent Decree and has the authority
to enter into and adopt this Consent Decree.
5. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the date on which the Bureau releases the
Adopting Order. Upon release, the Adopting Order and this Consent Decree
shall have the same force and effect as any other Order of the Bureau. Any
violation of the Adopting Order or of the terms of this Consent Decree
shall constitute a separate violation of a Bureau Order, entitling the
Bureau to exercise any rights and remedies attendant to the enforcement of
a Commission Order.
6. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further expenditure of
public resources, the Bureau agrees to terminate its investigation. In
consideration for the termination of said investigation, ViewSonic agrees
to the terms, conditions, and procedures contained herein. The Bureau
further agrees that in the absence of new material evidence, the Bureau
will not use the facts developed in this investigation through the
Effective Date of the Consent Decree, or the existence of this Consent
Decree, to institute, on its own motion, any new proceeding, formal or
informal, or take any action on its own motion against ViewSonic
concerning the matters that were the subject of the investigation. The
Bureau also agrees that it will not use the facts developed in this
investigation through the Effective Date of this Consent Decree, or the
existence of this Consent Decree, to institute on its own motion any
proceeding, formal or informal, or take any action on its own motion
against ViewSonic with respect to ViewSonic's basic qualifications,
including its character qualifications, to hold Commission authorizations.
7. Compliance Plan. For purposes of settling the matters set forth herein,
ViewSonic agrees to create within 30 days a Compliance Plan related to
future compliance with the Act, the Commission's Rules and the
Commission's Orders. The Plan will include, at a minimum, the following
components:
a. Compliance Officer. ViewSonic will designate a compliance officer
("Compliance Officer") who will be responsible for administering the
Compliance Plan.
b. Compliance Measures. ViewSonic has a corporate compliance program to
insure compliance with Section 15.117 of the Rules. Following its
internal investigation after receiving the April 26, 2007 LOI,
ViewSonic quarantined all television receivers returned from Canada to
its asset recovery team in Walnut, California and either shipped these
units to other countries or retained the units as warranty
replacements and for replacement parts. Concurrently therewith,
ViewSonic changed its policy with its third-party service provider in
Canada, and engaged the services of APL Logistics, Canada, who now is
responsible for handling all future returns to Walnut, California of
products imported into Canada, and who verifies that no products
imported into Canada without tuners are ever shipped back into the
United States. All future returns of products without tuners,
previously imported into Canada are processed in Canada by ViewSonic's
third-party service provider and, if re-sold, are re-sold in countries
other than the United States.
c. Employee Training. ViewSonic has trained its asset recovery team in
Walnut, California concerning the requirements set forth at Section
15.117 of the Rules and will ensure that any new employees who are
involved in the asset recovery process will be trained within 120 days
of being hired.
d. Compliance Reports. ViewSonic will file compliance reports with the
Commission ninety days after the Effective Date and twelve months
after the Effective Date. Each compliance report shall include a
compliance certificate from an officer, as an agent of ViewSonic,
stating that the officer has personal knowledge that ViewSonic has
established operating procedures intended to ensure compliance with
this Consent Decree, together with an accompanying statement
explaining the basis for the officer's compliance certification. All
compliance reports shall be submitted to Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W., Washington, D.C. 20554. All reports shall also be
submitted electronically to Linda.Nagel@fcc.gov and
Kathy.Berthot@fcc.gov.
(e) Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire twelve months after the Effective Date.
8. Voluntary Contribution. ViewSonic agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $25,350. The
payment will be made within 30 days after the Effective Date of the
Adopting Order. The payment must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The payment
must include the Account Number and FRN Number referenced in the caption
to the Adopting Order. 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 Account number in block number 23A
(call sign/other ID), and enter the letters "FORF" in block number 24A
(payment type code). ViewSonic will also send electronic notification on
the date said payment is made to Linda.Nagel@fcc.gov and
Kathy.Berthot@fcc.gov.
9. Waivers. ViewSonic waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or stay, or to
otherwise challenge or contest the validity of this Consent Decree and the
Adopting Order, provided the Bureau issues an Adopting Order adopting the
Consent Decree without change, addition, modification, or deletion.
ViewSonic shall retain the right to challenge Commission interpretation of
the Consent Decree or any terms contained herein. If either Party (or the
United States on behalf of the Commission) brings a judicial action to
enforce the terms of the Adopting Order, neither ViewSonic nor the
Commission shall contest the validity of the Consent Decree or the
Adopting Order, and ViewSonic shall waive any statutory right to a trial
de novo. ViewSonic hereby agrees to waive any claims it may otherwise have
under the Equal Access to Justice Act, 5 U.S.C. S: 504 and 47 C.F.R. S:
1.1501 et seq., relating to the matters addressed in this Consent Decree.
10. Severability. The Parties agree that if any of the provisions of the
Adopting Order or the Consent Decree shall be invalid or unenforceable,
such invalidity or unenforceability shall not invalidate or render
unenforceable the entire Adopting Order or Consent Decree, but rather the
entire Adopting Order or Consent Decree shall be construed as if not
containing the particular invalid or unenforceable provision or
provisions, and the rights and obligations of the Parties shall be
construed and enforced accordingly. In the event that this Consent Decree
in its entirety is rendered invalid by any court of competent
jurisdiction, it shall become null and void and may not be used in any
manner in any legal proceeding.
11. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent rule or Order adopted by
the Commission (except an Order specifically intended to revise the terms
of this Consent Decree to which ViewSonic does not expressly consent) that
provision will be superseded by such Commission rule or Order.
12. Successors and Assigns. ViewSonic agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
13. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further agree that this Consent Decree does not constitute either
an adjudication on the merits or a factual or legal finding or
determination regarding any compliance or noncompliance with the
requirements of the Act or the Commission's Rules and Orders.
14. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
15. Paragraph Headings. The headings of the Paragraphs in this Consent
Decree are inserted for convenience only and are not intended to affect
the meaning or interpretation of this Consent Decree.
16. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
17. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed and
delivered, shall be an original, and all of which counterparts together
shall constitute one and the same fully executed instrument.
_______________________________
Kris Anne Monteith
Chief
Enforcement Bureau
________________________________
Date
________________________________
Theodore R. Sanders
CFO
ViewSonic Corporation
________________________________
Date
47 C.F.R. S: 15.117(i)(1)(ii); 47 C.F.R. S: 15.117(i)(1)(iii).
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S: 15.117(i)(1)(ii); 47 C.F.R. S: 15.117(i)(1)(iii).
See Requirements for Digital Television Receiving Capability, Report and
Order and Further Notice of Proposed Rulemaking, 20 FCC Rcd 11196 and n. 2
(2005) ("DTV Tuner Report and Order").
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, to Mr. James Chu, CEO, ViewSonic Corporation (February
1, 2007) ("February 1, 2007 LOI").
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, to Mr. James Chu, CEO, ViewSonic Corporation (April
26, 2007) ("April 26, 2007 LOI").
47 C.F.R. S: 15.3(w).
47 C.F.R. S: 15.117(i)(1).
See February 1, 2007 LOI.
See Letter from Tom W. Davidson, Esq., to Ms. Kathryn S. Berthot, Chief,
Spectrum Enforcement Division, Enforcement Bureau (March 15, 2007) ("March
LOI Response").
See April 26, 2007 LOI.
Letter from Tom W. Davidson, Esq., to Ms. Kathryn S. Berthot, Chief,
Spectrum Enforcement Division, Enforcement Bureau (May 16, 2007) ("May 16,
2007 LOI Response"); Letter from Tom W. Davidson, Esq., to Ms. Kathryn S.
Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau (May 31,
2007) ("May 31, 2007 LOI Response"); Letter from Tom W. Davidson, Esq., to
Ms. Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau (June 29, 2007) ("June 29, 2007 LOI Response").
A one year Consent Decree term is appropriate in this case, because
ViewSonic did not initially directly import the television receivers that
were the subject of the investigation into the United States and no longer
manufactures them.
Federal Communications Commission DA 08-2055
2
Federal Communications Commission DA 08-2055