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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-255
In the Matter of
) Acct. No. 200832100031
Vizio, Inc
) FRN No. 0017646886
)
ORDER
Adopted: April 9, 2008 Released: April 10, 2008
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Vizio, Inc. ("Vizio").
The Consent Decree terminates an investigation by the Bureau against
Vizio for possible violations of section 330(c) of the Communications
Act of 1934, as amended (the "Act"), and section 15.120(d)(2) of the
Commission's rules, regarding the interstate shipment, after March 15,
2006, of digital television receivers that do not comply with the
V-Chip technology requirements because they lack the ability to adapt
to new rating systems.
2. The Bureau and Vizio 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 Vizio 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 all third-party complaints against Vizio
before the Bureau related to the above-captioned-investigation as of
the date of this Consent Decree ARE DISMISSED.
8. IT IS FURTHER ORDERED that Vizio shall make its voluntary contribution
to the United States Treasury, as specified in the Consent Decree, by
credit card through the Commission's Revenue and Receivables
Operations Group at (202) 418-1995, or by mailing a check or similar
instrument payable to the order of the Federal Communications
Commission, 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).
9. IT IS FURTHER ORDERED that Vizio will file reports with the Commission
ninety days after the Effective Date, twelve months after the
Effective Date, and twenty four months after the Effective Date. Each
report shall include a compliance certificate from an officer, as an
agent of Vizio, stating that the officer has personal knowledge that
Vizio 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 reports shall be submitted to the Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street, S.W., Washington, D.C. 20554.
10. 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 Michael Hurey, Kleinberg & Lerner, LLP, 2049 Century
Park East, Suite 1080, Los Angeles, California 90067-3112 and Rob
Brinkman, Vice President, Vizio, 39 Tesla, Irvine, CA 92618.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-255
In the Matter of
) Acct. No. 200832100031
Vizio, Inc.
) FRN No. 0017646886
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Vizio, Inc. ("Vizio"), by their
authorized representatives, hereby enter into this Consent Decree for the
purpose of terminating the Bureau's investigation into whether Vizio
violated section 330(c) of the Communications Act of 1934, as amended (the
"Act"), and section 15.120(d)(2) of the Commission's rules, regarding the
interstate shipment, after March 15, 2006, of digital television receivers
that do not comply with the V-Chip technology requirements because they
lack the ability to adapt to new rating systems.
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, 47 U.S.C.
S: 151 et seq.
b. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
c. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
d. "Complaints" means third-party complaints that may have been received
by, or are in the possession of, the Commission or Bureau alleging
violations of V-Chip technology requirements.
e. "Compliance Plan" means the program described in this Consent Decree
at paragraph 8.
f. "Digital Television Receivers" or "DTV Receivers" means (i) digital
television broadcast receivers with display screens in the 4:3 aspect
ratio measuring 13 inches or larger diagonally, (ii) digital
television broadcast receivers with display screens in the 16:9 aspect
ratio measuring 7.8 inches or larger vertically, and (iii) devices
with digital television broadcast tuners sold without an accompanying
display device, such as DVR recorders.
g. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
h. "Investigation" means the investigation commenced by the Bureau's
August 7, 2007 Letter of Inquiry regarding whether Vizio violated
section 330(c) of the Act, and section 15.120(d)(2) of the Rules, by
shipping interstate television receivers that do not comply with the
V-Chip technology requirements because they lack the ability to adapt
to new rating systems.
i. "Vizio" means Vizio, Inc. and its predecessors-in-interest and
successors-in-interest.
j. "Order" or "Adopting Order" means an Order of the Bureau adopting the
terms of this Consent Decree without change, addition, deletion, or
modification.
k. "Parties" means Vizio and the Bureau.
l. "Rules" means the Commission's regulations found in Title 47 of the
Federal Regulations.
II. BACKGROUND
2. Section 303(x) of the Act directs the Commission to prescribe rules
requiring that television receivers shipped in interstate commerce or
manufactured in the United States be equipped with a feature designed
to enable viewers to block the display of all programs with a common
rating. Section 330(c) of the Act provides that no person shall ship
in interstate commerce or manufacture in the United States television
receivers that do not comply with rules prescribed by the Commission
pursuant to section 303(x). The Commission adopted program blocking
capability requirements for both analog and digital television ("DTV")
receivers in 1998. In 2004, the Commission adopted specific technical
standards to implement V-Chip functionality for DTV receivers ("V-Chip
technology requirements"). The DTV V-Chip technology requirements
provide that, effective March 15, 2006, digital television receivers
with picture screens 13 inches or greater that are shipped in
interstate commerce must be equipped with V-Chip technology to allow
blocking of the display of programming based on its content and be
able to respond to changes in the content advisory rating system.
3. On August 9, 2007, the Bureau issued a letter of inquiry (LOI) to
Vizio. The August 9, 2007 LOI directed Vizio, among other things, to
submit a sworn written response to a series of questions relating to
the interstate shipment of television receivers that did not comply
with the Commission's requirements that they be able to respond to
changes in the content advisory rating system. Vizio initially
responded to the August 9, 2007 LOI on September 11, 2007 and
provided supplemental responses on November 19, 2007 and January 18,
2008.
III. TERMS OF AGREEMENT
4. 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.
5. Jurisdiction. Vizio 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.
6. 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.
7. 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 and dismiss the Complaint. In consideration for the
termination of said investigation and dismissal of the Complaint,
Vizio 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 Vizio 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 Vizio with respect to
Vizio's basic qualifications, including its character qualifications,
to be a Commission licensee or hold Commission authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, Vizio agrees to create within 60 days and maintain 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. Customer Notification. Vizio will notify all customers who have
registered their purchase of Vizio brand digital television receivers
that do not comply with section 15.120(d)(2) that the receivers can be
upgraded to respond to changes in the content advisory rating system.
Vizio also will post this information on its website.
b. Receiver Upgrades. Vizio will provide on its website an on-line, or
downloadable form whereby customers may request a software upgrade
that permits V-Chip technology to respond to changes in the content
advisory ratings system, and will make such form available for a
period of five years. In the alternative, Vizio will make such
software upgrades available for download directly from its website,
and provide instructions to its customers for the process of
downloading the appropriate software and installing it on the
receiver. In the event Vizio makes the software available for download
and a customer is not able to download the software, Vizio will offer
to provide a device (such as a compact disc) at no charge that the
customer can use to install the upgrade. For a period of 90 days from
the Effective Date, on request from a customer, Vizio will provide an
appropriate hardware dongle which permits the software upgrade to be
installed on the receiver without charge to the customer. After 90
days from the effective date, on request from a customer Vizio will
provide an appropriate hardware dongle which permits the software
upgrade to be installed on the receiver at Vizio's cost, plus actual
shipping and handling charge. Vizio will make the hardware dongle
available for a period of five years.
c. Compliance Officer. Vizio will appoint its Vice President of Product
Development as the Compliance Officer who will oversee the Compliance
Plan and enforce the applicable FCC requirements within Vizio.
d. Compliance Measures. To ensure future compliance, Vizio will implement
compliance policies and procedures which will: (1) require
specifications for the purchase of products and components to include
specific reference to applicable FCC standards; (2) include compliance
with FCC requirements in the company's internal and external product
design review process; (3) conduct training for key personnel,
including its chief operations officer and engineering management at
least semi-annually regarding FCC statues, regulations and rules that
relate to the design, manufacture and sale of television receivers;
(4) prepare a compliance manual regarding FCC statues, regulations and
rules that relate to the design, manufacture and sale of television
receivers to be distributed to the personnel described in (3) above;
(5) establish procedures for and conduct periodic product testing with
respect to compliance with applicable FCC standards; (4) and identify,
segregate, and track to resolution design and product issues
specifically affecting the ability of a product to comply with FCC
standards.
e. Compliance Reports. Vizio will file compliance reports with the
Commission ninety days after the Effective Date, twelve months after
the Effective Date, and twenty-four months after the Effective Date.
Each compliance report shall include a compliance certificate from an
officer, as an agent of Vizio, stating that the officer has personal
knowledge that Vizio 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.
f. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire twenty-four months after the Effective
Date.
9. Voluntary Contribution. Vizio agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $370,000.
Vizio shall make such contribution in the form of 18 equal payments in
the amount of $20,555.56, paid monthly, commencing with the execution
of this Consent Decrees. 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).
10. Waivers. Vizio 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 Order adopting this Consent Decree, provided the Bureau issues
an Order adopting the Consent Decree without change, addition,
modification, or deletion. Vizio 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 Vizio nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and Vizio shall
waive any statutory right to a trial de novo. Vizio 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.
11. 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.
12. 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 Vizio does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
13. Successors and Assigns. Vizio agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
14. 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.
15. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
16. 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.
17. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
18. 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
________________________________
Rob Brinkman
Vice President
Vizio, Inc.
________________________________
Date
47 U.S.C. S: 330(c).
47 C.F.R. S: 15.120(d)(2).
47 U.S.C. S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S: 330(c).
47 C.F.R. S: 15.120(d)(2).
See Letter from Kathryn S. Berthot, Chief Spectrum Enforcement Division,
Enforcement Bureau to Vizio ("August 7, 2007 LOI").
47 U.S.C. S: 330(c); 47 C.F.R. S: 15.201(d)(2).
47 U.S.C. S: 303(x).
47 U.S.C. S: 330(c).
In the Matter of Technical Requirements to Enable Blocking of Video
Programming Based on Program Rating, Implementation of Sections 551(c),
(d), and (e) of the Telecommunications Act of 1996, Report and Order, 13
FCC Rcd 11248 (1998).
In the Matter of Second Periodic Review of the Commission's Rules and
Policies Affecting the Conversion to Digital Television, Report and Order,
19 FCC Rcd 18279 (2004). The V-Chip technology requirements also apply to
devices sold without an accompanying display device. Id. at 18348.
47 C.F.R. S: 15.120(d)(2).
See August 7, 2007 LOI.
See Letter from Michael Hurey, Kleinberg & Lerner, LLP, to Neal McNeil,
Spectrum Enforcement Division, Enforcement Bureau (September 11, 2007);
Letter from Michael Hurey, Kleinberg & Lerner, LLP, to Neal McNeil,
Spectrum Enforcement Division, Enforcement Bureau (November 19, 2007); and
Letter from Michael Hurey, Keinberg & Lerner, LLP, to Neal McNeil,
Spectrum Enforcement Division, Enforcement Bureau (January 18, 2008).
Federal Communications Commission DA 08-846
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