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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-262
In the Matter of
) Acct. No. 200832100027
Audiovox Corporation
) FRN No. 0017363979
)
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 Audiovox Corporation
("Audiovox"). The Consent Decree terminates an investigation by the
Bureau against Audiovox 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 ("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 Audiovox 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 Audiovox 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 Act,
and sections 0.111 and 0.311 of the 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 Audiovox
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 Audiovox 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 Federal Reserve Bank of
New York, 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 Audiovox 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 Audiovox, stating that the officer has personal knowledge
that Audiovox 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 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 Mr. Patrick M. Lavelle, President and Chief Executive
Officer, Audiovox Corporation, 180 Marcus Blvd., Hauppauge, New York
11788, and to its counsel, Allan C. Hubbard, Esq., Dickstein Shapiro
LLP, 1825 Eye Street NW, Washington DC 20006-5403.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-262
In the Matter of
) Acct. No. 200832100027
Audiovox Corporation
) FRN No. 0017363979
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Audiovox Corporation ("Audiovox"),
by their authorized representatives, hereby enter into this Consent Decree
for the purpose of terminating the Bureau's investigation into whether
Audiovox 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 the 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 9, 2007 Letter of Inquiry regarding whether Audiovox 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. "Audiovox" means Audiovox Corporation 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 Audiovox and the Bureau.
l. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
2. Section 303(x) of the Act directs the Commission to prescribe rules
that require television receivers with picture screens 13 inches or
greater shipped in interstate commerce or manufactured in the United
States to 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
Audiovox. The August 9, 2007 LOI directed Audiovox, among other
things, to submit a sworn written response to a series of questions
relating to the interstate shipment of television receivers in
potential violation of the requirement of Section 15.120 of the
Commission's Rules. that they be able to respond to changes in the
content advisory rating system. Audiovox responded to the August 9,
2007 LOI on September 10, 2007. Audiovox's response indicated a small
number of potentially non-compliant units.
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. Audiovox 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,
Audiovox 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 Audiovox 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 Audiovox with respect to
Audiovox'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, Audiovox agrees to create within 30 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. Compliance Officer. Audiovox will designate a Compliance Officer who
will be responsible for implementing and administering the Compliance
Plan.
b. Compliance Measures. Audiovox will include in its purchase orders for
DTV receivers a provision that requires the manufacturer to warrant
that it is familiar with the requirements of section 15.120(d)(2) and
that the DTV receivers it manufactures for Audiovox are capable of
responding to changes in the content advisory rating system. For each
shipment of DTV receivers, Audiovox shall require a certificate of
compliance from the manufacturer that the receivers in the shipment
comply with the requirement for responding to changes in the content
advisory rating system.
c. Remedial Measures. Audiovox will notify customers who registered
certain models of DTV receivers that it will provide, depending on the
model, (i) a software patch for the receiver, with the costs of
shipping the receiver to and from Audiovox covered by Audiovox; (ii) a
comparable DTV receiver that is capable of responding to changes in
the content advisory rating system, as long as Audiovox has such
comparable receivers in stock; or (iii) a coupon that can be applied
to the purchase from Audiovox of a new Audiovox DTV receiver that is
capable of responding to changes in the content advisory rating
system. Audiovox will also post this notification on its website.
Audiovox will make the software patch available for a period of two
years from the Effective Date and will make the comparable DTV
receiver and coupon available for a period of 90 days from the date of
the notification.
d. Compliance Reports. Audiovox 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 Audiovox, stating that the officer has
personal knowledge that Audiovox 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.
e. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire twenty-four months after the Effective
Date.
9. Voluntary Contribution. Audiovox agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $20,000
(twenty thousand dollars). 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).
10. Waivers. Audiovox 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. Audiovox 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 Audiovox nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and Audiovox
shall waive any statutory right to a trial de novo. Audiovox 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 Audiovox does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
13. Successors and Assigns. Audiovox 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. 19. 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
________________________________
Thomas C. Malone
Senior Vice President
Audiovox Corporation
________________________________
Date
47 U.S.C. S: 330(c).
47 C.F.R. S: 15.120(d)(2).
47 U.S.C. S: 154(i).
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 Mr. Patrick M. Lavelle, President and Chief
Executive Officer, Audiovox Corporation ("August 9, 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 9, 2007 LOI.
See Letter from Allan C. Hubbard, Esq., Dickstein Shapiro LLP, to Kathryn
Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau
(September 10, 2007).
Federal Communications Commission DA 08-847
Federal Communications Commission DA 08-847
Federal Communications Commission DA 08-847
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Federal Communications Commission DA 08-847