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Before the
Federal Communications Commission
washington, D.C. 20554
)
) File No. EB-07-SE-257
In the Matter of
) NAL/Acct. No. 200832100038
Polaroid Corporation
) FRN No. 0004902185
)
notice of apparent liability for forfeiture
Adopted: April 9, 2008 Released: April 10, 2008
By the Commission:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Polaroid Corporation ("Polaroid") apparently liable for a forfeiture
in the amount of seven hundred seventy five thousand dollars
($775,000) for its willful and repeated violations of Section 330(c)
of the Communications Act of 1934, as amended, ("Act"), and Section
15.120(d)(2) of the Commission's Rules ("Rules"). The apparent
violations involve Polaroid's interstate shipment, after March 15,
2006, of digital television receivers that do not comply with the
Commission's rules requiring that such receivers have the capability
to respond to changes in the content advisory rating system.
II. background
2. Sections 303(x) and 330(c) of the Act were added by the
Telecommunications Act of 1996. Section 303(x) directs the Commission
to prescribe rules that require that 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) 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 ("DTV") television
receivers in 1998. In 2004, the Commission adopted specific technical
standards to implement V-Chip functionality for DTV receivers ("V-Chip
technology requirement"). 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.
Specifically, Section 15.120(d)(2) provides that:
Digital television receivers shall react in a similar manner as analog
televisions when programmed to block specific rating categories. Effective
March 15, 2006, digital television receivers will receive program rating
descriptors transmitted pursuant to industry standard EIA/CEA-766-A "U.S.
and Canadian Region Rating Tables (RRT) and Content Advisory Descriptors
for Transport of Content Advisory Information using ATSC A/65-A Program
and System Information Protocol (PSIP)," 2001 (incorporated by reference,
see S: 15.38). Blocking of programs shall occur when a program rating is
received that meets the pre-determined user requirements. Digital
television receivers shall be able to respond to changes in the content
advisory rating system.
To account for manufacturers' product development cycles, the Commission
allowed an 18-month transition period for implementation of the DTV V-Chip
technology requirements.
3. The V-Chip technology requirements implement Congress's determination,
in the Telecommunications Act of 1996, that parents should be provided
with "timely information about the nature of upcoming video
programming and with the technological tools that allow them easily to
block violent, sexual, or other programming that they consider harmful
to their children." This determination was based on Congress's finding
that television broadcast and cable programming have established a
"uniquely pervasive presence in the lives of American children."
Further, Congress found that empowering parents to control the
presence and influence of television in their children's lives was a
compelling government interest. Finally, Congress concluded that
requiring television receiver manufacturers to include V-Chip
technology in their products is a nonintrusive and narrowly tailored
means of achieving that compelling government interest.
4. In July 2007, the Enforcement Bureau ("Bureau") received a complaint
alleging that Polaroid was shipping in interstate commerce digital
television receivers that did not include the required V-Chip
technology. On August 6, 2007, the Bureau issued a letter of inquiry
("LOI") to Polaroid. Polaroid filed a response to the LOI on October
9, 2007. Polaroid requested confidentiality of its LOI Response and
that request remains pending. Accordingly, Polaroid's LOI Response is
discussed in an Appendix hereto, and we are treating the Appendix as
confidential at this time.
III. discussion
A. Polaroid Apparently Shipped Interstate Digital Television
Receivers In Violation of Section 330(c) of the Act and Section
15.120(d)(2) of the Rules
5. As noted above, under Section 330(c) of the Act and Section
15.120(d)(2) of our rules, digital television receivers that are
shipped in interstate commerce and/or manufactured in the United
States shall be "able to respond to changes in the content advisory
rating system." Based on our review of Polaroid's LOI Response and
Supplemental Response, we find that the company apparently willfully
and repeatedly shipped in interstate commerce digital television
receivers that did not comply with this requirement. Polaroid does not
dispute this finding.
A. Proposed Forfeiture
6. Based on the analysis set forth below, we conclude that Polaroid is
apparently liable for a forfeiture in the amount of $775,000 for
willfully and repeatedly shipping in interstate commerce television
receivers that do not comply with the DTV V-Chip technology
requirements because they lack the ability to adapt to new rating
systems in violation of Section 330(c) of the Act and Section
15.120(d)(2) of the Rules.
7. Under Section 503(b)(1)(B) of the Act, any person who is determined by
the Commission to have willfully or repeatedly failed to comply with
any provision of the Act or any rule, regulation, or order issued by
the Commission shall be liable to the United States for a forfeiture
penalty. To impose such a forfeiture penalty, the Commission must
issue a notice of apparent liability and the person against whom such
notice has been issued must have an opportunity to show, in writing,
why no such forfeiture penalty should be imposed. The Commission will
then issue a forfeiture if it finds by a preponderance of the evidence
that the person has violated the Act or a Commission rule. We conclude
under this standard that, as explained more fully in the Appendix,
Polaroid is apparently liable for forfeiture for its apparent willful
and repeated violations of Section 330(c) of the Act and Section
15.120(d)(2) of the Rules.
8. Under Section 503(b)(2)(D) of the Act, we may assess an entity that is
neither a common carrier, broadcast licensee or cable operator a
forfeiture of up to $11,000 for each violation or each day of a
continuing violation, up to a statutory maximum forfeiture of $97,500
for any single continuing violation. In exercising such authority, we
are required to take into account "the nature, circumstances, extent,
and gravity of the violation and, with respect to the violator, the
degree of culpability, any history of prior offenses, ability to pay,
and such other matters as justice may require."
9. The Commission's Forfeiture Policy Statement and Section 1.80 of the
Rules do not establish a specific base forfeiture for violation of the
DTV V-Chip technology requirements. The Commission has substantial
discretion, however, in proposing forfeitures. We may apply the base
forfeiture amounts described in the Forfeiture Policy Statement and
our rules, or we may depart from them altogether as the circumstances
demand.
10. We recently issued Notices of Apparent Liability for Forfeiture
proposing forfeitures against two manufacturers for importing and
shipping interstate television receivers that did not comply with the
Commission's DTV tuner requirement, reasoning that such a failure is
more egregious, in general, than many other types of equipment
marketing cases that come before us. In those cases, we found that
applying a proposed forfeiture on a per model basis, as we have in
other more routine equipment marketing cases, would result in
forfeiture amounts that are not commensurate with the seriousness of
the violation, and thus, we proposed a forfeiture based on each
noncompliant unit shipped or imported. We proposed a similar approach
for violations of our DTV V-Chip technology requirements involving the
interstate shipment of receivers that are incapable of receiving
program rating descriptors and blocking programs from viewing when the
program rating meets pre-determined user requirements. We imposed a
lower per unit forfeiture in the Funai NAL, however, because we
recognized that television receiving devices without digital tuners,
which were at issue in the Syntax-Brillain and Regent NALs, lack the
ability to receive digital television broadcast signals altogether,
whereas devices without V-Chip functionality deprive consumers of the
important capability to block unwanted programming but may still
receive digital television signals.
11. Considering these precedents, we conclude that violations of the
requirement to ensure that digital television receivers have the
capability to respond to changes in the content advisory rating
system, while serious, are not as egregious as violations of the DTV
tuner requirement or violations involving the failure to provide any
V-Chip blocking capability. Significantly, television receivers that
do not include digital tuners or do not include any V-Chip technology
both deprive consumers of a key functionality altogether. By contrast,
digital television receivers that lack the ability to adapt to a new
rating system are still able to receive the existing program rating
descriptors and block unwanted programming. Therefore, although each
time a digital television receiver that lacks the ability to adapt to
a new rating system is shipped interstate constitutes a separate
violation subject to forfeiture, we find that such an approach would
be excessively punitive, given the nature of these violations.
Therefore, we will follow a per-model approach to the forfeiture
calculation for cases involving the interstate shipment of receivers
that do not have the capability to respond to changes in the rating
system.
12. Section 503(b)(6) of the Act bars the Commission from proposing a
forfeiture for violations that occurred more than a year prior to the
issuance of a NAL. Section 503(b)(6) does not, however, bar the
Commission from assessing whether Polaroid's conduct prior to that
time period apparently violated the rules and from considering such
conduct in determining the appropriate forfeiture amount for
violations that occurred within the one-year statutory period. Thus,
while we may consider that Polaroid's prior conduct violated the
rules, the forfeiture amount we propose herein relates to Polaroid's
apparent violations that have occurred within the past year.
13. As noted above, in this case we may propose a forfeiture of up to
$11,000 for each violation or each day of a continuing violation, up
to a statutory maximum forfeiture of $97,500 for any single continuing
violation. In view of the important public policy considerations
underlying this requirement, we conclude that, generally, the
appropriate per model forfeiture amount in such cases will be $25,000.
We find that calculating forfeitures for the failure to include the
capability to respond to changes in the rating system using this per
model approach will result in forfeiture amounts that reflect the
seriousness of the violations and will deter future misconduct. In
cases presenting exacerbating factors, or if this enforcement approach
proves to be an inadequate deterrent to Polaroid or other entities
that ship television receivers in interstate commerce, however, we
will not hesitate to revisit this forfeiture calculation approach.
14. Pursuant to Polaroid's confidentiality request, we will not specify in
the NAL the precise number of non-compliant models that Polaroid
shipped interstate in apparent violation of our rules. We will say,
however, that based on the record in this case, Polaroid's violations
merit a large proposed forfeiture. The regulatory deadlines at issue
have been in place in some form since 1998. The Commission announced
the application of V-Chip technology requirements for digital
television receivers in 2004 and gave manufacturers 18 months,
consistent with the industry's design cycle for a television receiver
model, to comply. For more than 18 months after the March 15, 2006
deadline, however, Polaroid continued to ship in interstate commerce
digital television receivers that do not have the ability to respond
to changes in the content advisory rating system. These unlawful
shipments were substantial both in terms of the number of
non-compliant models and the total number of non-compliant units. For
these reasons, and based on the per model approach described above, we
propose a forfeiture of $775,000 for Polaroid's willful and repeated
interstate shipment of television receivers that do not comply with
the DTV V-Chip technology requirements in violation of Section 330(c)
of the Act and Section 15.120(d)(2) of the Rules. The interstate
shipments on which we are basing this proposed forfeiture all occurred
within the past year, i.e., within the applicable one-year statute of
limitations period.
IV. ordering clauses
15. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Section 1.80 of the Rules, Polaroid Corporation is NOTIFIED
of its APPARENT LIABILITY FOR A FORFEITURE in the amount of seven
hundred seventy five thousand dollars ($775,000) for willful and
repeated violations of Section 330(c) of the Act and Section
15.120(d)(2) of the Rules.
16. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture, Polaroid Corporation SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture. 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/Account Number and FRN Number referenced above.
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 NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help Desk
at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures. The response, if any, must be mailed to
the Office of the Secretary, Federal Communications Commission, 445
12th Street, S.W., Washington, D.C. 20554, ATTN: Enforcement Bureau -
Spectrum Enforcement Division, and must include the NAL/Acct. No.
referenced in the caption.
17. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices; or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.
18. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by first class mail and certified mail
return receipt requested to William M. Boyd, Senior Vice President and
General Counsel, Polaroid Corporation, 1265 Main Street, Waltham, MA
02451, and to its counsel, David Hilliard, Esq. and John M. Burgett,
Esq., Wiley Rein LLP, 1776 K Street, N.W., Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
47 U.S.C. S: 330(c).
47 C.F.R. S: 15.120(d)(2).
See Pub. L. No. 104-104, 110 Stat. 56 (1996).
In the Matter of Technical Requirements to Enable Blocking of Video
Programming Based on Program Rating, Report and Order, 13 FCC Rcd 11248
(1998) ("V-Chip Report and Order").
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) ("Second DTV Periodic Review Report and Order").
The V-Chip technology requirements also apply to devices sold without an
accompanying display device. Id. at 18348 ("Similar to our requirements
for closed caption capabilities in digital television receivers, the rules
will also be applicable to DTV tuners which are sold without an associated
display device.").
Id. at 18347-49 P:155-59.
Id. at 18348-49 P:159.
V-Chip Report and Order, 13 FCC Rcd at 11248 P: 2.
Pub. L. No. 104-104, 110 Stat. 56 (1996).
Id.
Id.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau to Polaroid Corporation, Telecom Department (August 6,
2007) ("LOI").
See Letter from William M. Boyd, Senior Vice President and General
Counsel, Polaroid Corporation, to Kathryn Berthot, Chief, Spectrum
Enforcement Division, Enforcement Bureau (September 19, 2007) ("LOI
Response"); Letter from Scott W. Hardy, Executive Vice President,
Technology and Management, Polaroid Corporation, to Kathryn Berthot,
Chief, Spectrum Enforcement Division, Enforcement Bureau (December 19,
2007) ("Supplemental Response").
Id.
See 47 U.S.C. S: 303(c)(1); 47 C.F.R. S: 15.120(b).
47 C.F.R. S: 15.120(d)(2).
47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1).
47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591 P: 4 (2002).
47 U.S.C. S: 503(b)(2)(D). The Commission twice amended Section 1.80(b)(3)
of the Rules, 47 C.F.R. S: 1.80(b)(3), to increase the maximum forfeiture
amounts, in accordance with the inflation adjustment requirements
contained in the Debt Collection Improvement Act of 1996, 28 U.S.C. S:
2461. See Amendment of Section 1.80 of the Commission's Rules and
Adjustment of Forfeiture Maxima to Reflect Inflation, Order, 15 FCC Rcd
18221 (2000) (adjusting the maximum statutory amounts from $10,000/$75,000
to $11,000/$87,500); Amendment of Section 1.80 of the Commission's Rules
and Adjustment of Forfeiture Maxima to Reflect Inflation, Order, 19 FCC
Rcd 10945 (2004) (adjusting the maximum statutory amounts from
$11,000/$87,500 to $11,000/$97,500).
47 U.S.C. S: 503(b)(2)(E). See also 47 C.F.R. S: 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
Forfeitures.
See The 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, 17115 (1997), recon. denied, 15 FCC Rcd 303
(1999) ("Forfeiture Policy Statement").
See, e.g., InPhonic, Inc., Order of Forfeiture and Further Notice of
Apparent Liability, 22 FCC Rcd 8689, 8699 P: 24 (2007); Globcom, 21 FCC
Rcd at 4723-24 P: 34.
See 47 C.F.R. S:1.80(b)(4) ("The Commission and its staff may use these
guidelines in particular cases [, and] retain the discretion to issue a
higher or lower forfeiture than provided in the guidelines, to issue no
forfeiture at all, or to apply alternative or additional sanctions as
permitted by the statute.") (emphasis added).
Syntax-Brillian Corporation, Notice of Apparent Liability for Forfeiture,
22 FCC Rcd 10530 (2007), response pending ("Syntax-Brillian NAL"); Regent
U.S.A., Inc., Notice of Apparent Liability for Forfeiture, 22 FCC Rcd
10520 (2007) (forfeiture paid) ("Regent NAL"). The DTV tuner requirement
requires that all new television broadcast receivers that are imported
into the United States or shipped in interstate commerce be capable of
receiving the signals of DTV broadcast stations over-the-air. See 47
C.F.R. S: 15.117(i)(1)(i).
Syntax-Brillian NAL, 22 FCC Rcd at 10535-36 P:P: 13-15 (concluding that
applying a proposed forfeiture on a per-model basis for shipment of
television receivers that were not compliant with the DTV tuner mandate
would result in forfeiture amounts incommensurate with the seriousness of
the violations); Regent NAL, 22 FCC Rcd at 10525-26 P:P: 13-15 (same). To
reflect the increasing seriousness of the violation as the number of
non-compliant units shipped or imported rises, we assessed forfeiture
amounts on a tier-by-tier basis, increasing the forfeiture amount as the
number of units shipped or imported increased. See e.g., Syntax-Brillian
NAL, 22 FCC Rcd 10535-36 P: 15 (Tiers and per-unit forfeiture amounts
were: 0-1000 units: $50 per unit, 1001-2500 units: $75 per unit, 2501-5000
units: $100 per unit, 5001-10000 units: $125 per unit, 10001-20000 units:
$150 per unit, 20001-30000 units: $175 per unit, 30001-40000 units: $200
per unit, 40001-50000: $225 per unit, and 50001+ units: $250 per unit.).
Funai Corporation, Inc., Notice of Apparent Liability for Forfeiture, 22
FCC Rcd 19663, 19667-8 P: 14 (2007), response pending ("Funai NAL").
Id. (Tiers and per-unit forfeiture amounts were: 0-1000 units: $12.50 per
unit, 1001-2500 units: $18.75 per unit, 2501-5000 units: $25 per unit,
5001-10000 units: $31.25 per unit, 10001-20000 units: $37.50 per unit,
20001-30000 units: $43.75 per unit, 30001-40000 units: $50 per unit,
40001-50000: $56.25 per unit, and 50001+ units: $62.50 per unit.).
47 U.S.C. S: 503(b)(6).
See 47 U.S.C. S: 503(b)(2)(E), 47 C.F.R. S: 1.80(b)(4); see also Behringer
USA, Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 1820,
1827-28 P: 22 (2006), forfeiture ordered, Forfeiture Order, 22 FCC Rcd
10451 (2007); Globcom, Inc. d/b/a Globcom Global Communications, Notice of
Apparent Liability for Forfeiture, 18 FCC Rcd 19893, 19903 P: 23 (2003),
forfeiture ordered, Forfeiture Order, 21 FCC Rcd 4710 (2006) ("Globcom");
Roadrunner Transportation, Inc., Forfeiture Order, 15 FCC Rcd 9669,
9671-72 P: 8 (2000); Cate Communications Corp., Memorandum Opinion and
Order, 60 RR 2d 1386, 1388 (1986); Eastern Broadcasting Corp., Memorandum
Opinion and Order, 10 FCC 2d 37, 37-38 P: 3 (1967) recon. denied, 11 FCC
2d 193, 195 P: 6 (1967).
Because each non-compliant unit shipped interstate is a separate
violation, we could impose a far higher forfeiture than $25,000 for each
model. As noted above, however, because of the circumstances of this rule
and these violations, we consider $25,000 per model to be sufficient. We
have used this amount in other contexts. Cf. AboCom Systems, Inc., Notice
of Apparent Liability for Forfeiture, 21 FCC Rcd 7875, 7878-79 P: 11 (Enf.
Bur. Spectrum Enf. Div. 2006), forfeiture ordered, 21 FCC Rcd 13140 (Enf.
Bur. Spectrum Enf. Div. 2006), recon. denied, 22 FCC Rcd 7448 (Enf. Bur.
2007) (proposing a $25,000 forfeiture against an equipment manufacturer
for marketing one model of radio frequency equipment that did not comply
with the terms of its equipment authorization and technical requirements
specified in the rules).
Second DTV Periodic Review Report and Order, 19 FCC Rcd at 18348-49 P:
159.
See supra paragraph 12.
(Continued from previous page)
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Federal Communications Commission FCC 08-110
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Federal Communications Commission FCC 08-110