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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-261
In the Matter of
) Acct. No. 200832100028
Westinghouse Digital Electronics, LLC
) FRN No. 0017020017
)
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 Westinghouse Digital
Electronics, LLC ("Westinghouse Digital Electronics"). The Consent
Decree terminates an investigation by the Bureau against Westinghouse
Digital 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 Westinghouse Digital Electronics 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 Westinghouse Digital Electronics
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
Westinghouse Digital Electronics 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 Westinghouse Digital Electronics 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 Westinghouse Digital Electronics 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 Westinghouse Digital Electronics,
stating that the officer has personal knowledge that Westinghouse
Digital Electronics 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 Darwin Chang, Chief Technology Office, Westinghouse
Digital Electronics, LLC, 12150 Mora Drive, Santa Fe Springs, CA
90670, and to its counsel, Gunnar D. Halley, Esq., Lawler, Metzger,
Milkman & Keeney, LLC, 2001 K Street, NW, Suite 802, Washington, DC
20006, and Christopher J. Wright, Esq., Harris, Wiltshire & Grannis,
LLP, 1200 18th St., N.W. Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-261
In the Matter of
) Acct. No. 200832100028
Westinghouse Digital Electronics, LLC
) FRN No. 0017020017
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Westinghouse Digital Electronics,
LLC ("Westinghouse Digital Electronics"), by their authorized
representatives, hereby enter into this Consent Decree for the purpose of
terminating the Bureau's investigation into whether Westinghouse Digital
Electronics 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 9, 2007 Letter of Inquiry regarding whether Westinghouse
Digital Electronics 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. "Westinghouse Digital Electronics" means Westinghouse Digital
Electronics, LLC 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 Westinghouse Digital Electronics 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
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
Westinghouse Digital Electronics. The August 9, 2007 LOI directed
Westinghouse Digital Electronics, 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. Westinghouse Digital
Electronics responded to the August 9, 2007 LOI on October 9, 2007.
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. Westinghouse Digital Electronics 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,
Westinghouse Digital Electronics 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 Westinghouse Digital Electronics
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 Westinghouse Digital Electronics with respect to
Westinghouse Digital Electronics' 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, Westinghouse Digital Electronics 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. Westinghouse Digital Electronics will notify
all customers in its data base who purchased digital television
receivers that do not comply with section 15.120(d)(2) that the
receivers need to be upgraded to respond to changes in the content
advisory rating system. Westinghouse Digital Electronics also will
post this information on its website and will provide this information
to customers who are on hold while calling its service and call
centers.
b. Receiver Upgrades. Westinghouse Digital Electronics will assist
customers who purchased models with a USB connector in downloading
appropriate firmware from its website and installing it on the
receiver through the USB connector. Westinghouse Digital will make the
firmware available on its website for a period of five years. If a
customer is not able to download the firmware, Westinghouse Digital
Electronics will offer to provide a device (such as a thumb drive or a
compact disc) at no charge that the customer can use to install the
upgrade. For customers who purchased models without a USB connector or
firmware solution, Westinghouse Digital Electronics will permit the
customer to bring the receiver to the store where it was purchased or
to a Westinghouse Digital Electronics service center, where the
receiver will be upgraded or replaced, at Westinghouse Digital
Electronics' discretion, without charge to the customer.
c. Compliance Officer. Westinghouse Digital Electronics will appoint its
Chief Technology Officer as the Compliance Officer who will oversee
the Compliance Plan and enforce the applicable FCC requirements within
Westinghouse Digital Electronics.
d. Compliance Measures. To ensure future compliance, Westinghouse Digital
Electronics 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) 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. Westinghouse Digital Electronics 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 Westinghouse
Digital Electronics, stating that the officer has personal knowledge
that Westinghouse Digital Electronics 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. Westinghouse Digital Electronics agrees that
it will make a voluntary contribution to the United States Treasury in
the amount of $210,000. 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. Westinghouse Digital Electronics 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. Westinghouse
Digital Electronics 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
Westinghouse Digital Electronics nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and Westinghouse
Digital Electronics shall waive any statutory right to a trial de
novo. Westinghouse Digital Electronics 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 Westinghouse Digital Electronics
does not expressly consent) that provision will be superseded by such
Commission rule or Order.
13. Successors and Assigns. Westinghouse Digital Electronics 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
________________________________
Darwin Chang
Chief Technology Officer
Westinghouse Digital Electronics, LLC
________________________________
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 Richard Huong, Chief Executive
Officer, Westinghouse Digital Electronics, LLC ("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 Darwin Chang, Chief Technology Officer, Westinghouse
Digital Electronics, LLC, to Kathryn Berthot, Chief, Spectrum
Enforcement Division, Enforcement Bureau (October 9, 2007).
Federal Communications Commission DA 08-848
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Federal Communications Commission DA 08-848
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Federal Communications Commission DA 08-848