Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No. EB-08-SE-100
In the Matter of )
NAL/Acct. No. 200832100068
Invision Industries, Inc. )
FRN # 0018034611
)
)
Notice of apparent Liability for forfeiture and order
Adopted: August 14, 2008 Released: August 18, 2008
By the Commission:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture and Order ("NAL"),
we find Invision Industries, Inc. ("Invision") apparently liable for a
forfeiture in the amount of $324,000 for its willful and repeated
violation of Section 15.117(i)(1)(iii) of the Commission's Rules
("Rules"). These apparent violations involve Invision's importation
and interstate shipment, after January 30, 2008, of television
receivers that do not comply with the Commission's rules regarding
digital television ("DTV") reception capability. Additionally, we find
Invision apparently liable for a forfeiture in the amount of $4,000
for providing to the Commission, during the course of its
investigation, material factual information that is incorrect without
a reasonable basis for believing the material factual information was
correct, in willful violation of Section 1.17(a)(2) of the Rules. In
light of evidence that the company has continued to import and ship
interstate television receivers in violation of our rules, we further
order Invision to submit a report within 10 days of release of this
NAL certifying that it has ceased all such unlawful conduct.
II. Background
2. The Commission adopted the DTV reception capability requirement in
2002. The DTV reception requirement, which also is often termed 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 over-the-air the signals
of DTV broadcast stations. The DTV tuner requirement was intended to
facilitate the transition to digital television by promoting the
availability of DTV reception equipment and to protect consumers by
ensuring that their television receivers will provide over-the-air
television reception of digital signals just as they have provided
over-the-air television reception of analog signals.
3. In order to minimize the impact of the DTV tuner requirement on both
manufacturers and consumers, the Commission adopted a phase-in
schedule that applied the requirement first to receivers with the
largest screens and then to progressively smaller screen receivers and
other television receiving devices that do not include a viewing
screen, such as VCRs and DVD players. This phase-in plan was intended
to allow increasing economies of scale with production volume to be
realized so that DTV tuner costs would be lower when they are required
to be included in smaller sets and other television receiving devices.
As modified by the Commission in 2005, this phase-in schedule is as
follows:
Receivers with screen sizes 36" and above -- 50% of units imported or
shipped interstate by responsible parties were required to include DTV
tuners effective July 1, 2004; 100% of such units were required to include
DTV tuners effective July 1, 2005;
Receivers with screen sizes 25" to 35" -- 50% of units imported or shipped
interstate by responsible parties were required to include DTV tuners
effective July 1, 2005; 100% of such units were required to include DTV
tuners effective March 1, 2006;
Receivers with screen sizes less than 25" - 100% of units imported or
shipped interstate by responsible parties were required to include DTV
tuners effective March 1, 2007; and
Other video devices (videocassette recorders (VCRs), digital video
recorders such as hard drive and DVD recorders, etc.) that receive
television signals - 100% of units imported or shipped interstate by
responsible parties were required to include DTV tuners effective March 1,
2007.
4. The Commission's 2005 DTV Tuner Second Report and Order also amended
the rules to apply the DTV tuner requirement to new receivers with
screen sizes smaller than 13" on this same schedule (i.e., March 1,
2007). Although the Commission adopted this requirement for receivers
with screen sizes smaller than 13" through the appropriate notice and
comment procedures, and modified the rules to show March 1, 2007, as
the accelerated deadline, the Commission inadvertently failed to
delete the exception in Section 15.117(i)(2) for "units with
integrated tuners/displays that have screen sizes measuring less than
7.8 inches vertically, i.e., the vertical measurement of a screen in
the 4:3 aspect ratio that measures 13' [sic] diagonally across the
picture viewing area." The Commission subsequently corrected Section
15.117(i)(2) by striking the inappropriate language, and the DTV tuner
requirements for receivers with screen sizes smaller than 13" became
effective on January 30, 2008.
5. Invision is a retailer headquartered in Kissimmee, Florida that sells
rear seat entertainment accessories to the automotive industry. Among
the devices marketed by the company are monitors and television
broadcast receivers with screen sizes less than 13" measured
diagonally. A consumer wishing to purchase equipment marketed by
Invision can do so only by placing an order through an automotive
dealership. Invision imports the devices from a foreign manufacturer
and ships them to automotive dealers. The equipment is then integrated
into the vehicle by the dealer.
6. In February 2008, Enforcement Bureau ("Bureau") staff visited the
Invision web site and observed that Invision was marketing television
broadcast receivers that apparently did not comply with the DTV tuner
requirements. Specifically, the Bureau observed the following models
displayed on Invision's web site: (1) Revolution III (7" screen); (2)
Revolution II (7" screen); (3) Revolution IIG (7" screen); (4) SL (7"
or 8" screen); (5) G10 (10.2" screen); (6) G9 (9" screen); and (7)
Camry Center Console (7" screen). The Bureau issued a letter of
inquiry ("LOI") to Invision on March 4, 2008 regarding the importation
and interstate shipment of these devices. Invision filed a response to
the LOI on April 18, 2008, and in response to staff's request for
clarification, an Amended Response on May 12, 2008.
7. In its LOI Response, Invision stated that two of its models -- G10 and
G9 -- contained a "built-in TV tuner" but did not state whether these
models were equipped with DTV tuners. The LOI Response further stated
that for these models, since January 30, 2008, twelve units had been
shipped interstate and zero units had been imported.
8. After the Bureau contacted Invision for clarification on another issue
in its LOI response, Invision clarified, in its Amended Response, that
the G10 and G9 models were not equipped with DTV tuners and provided
further information concerning two additional models -- the G8 (10.2"
screen) and the G7 (10.4" screen) -- that contained television
receivers that were not equipped with DTV tuners. Invision stated that
4,115 units of the G10 and G9 units and 0 units of the G8 and G7
models were manufactured by its foreign manufacturer between January
2008 and April 30, 2008. Invision further stated that it imported a
total of 4,115 units and that it shipped interstate 2,968 units of the
four subject models between January 30, 2008 and April 30, 2008.
9. Invision asserted its belief that the non-DTV-compliant television
receivers may lawfully be imported and shipped because the devices are
"parts" specifically designed for use in the automotive industry.
Invision further submitted that the television reception capability of
the devices is an option "that is, rarely, if ever utilized for its
intended purpose." Thus, it is Invision's belief that the devices are
not subject to the DTV tuner requirements.
III. DISCUSSION
A. Failure to Comply with DTV Tuner Requirement
10. We conclude that Invision apparently willfully and repeatedly imported
and shipped in interstate commerce television receivers that do not
comply with the DTV tuner requirement in violation of Section
15.117(i)(1)(iii). Invision admits that, after January 30, 2008, it
imported 4,115 and shipped interstate 2,968 television broadcast
receivers that were not equipped with DTV tuners.
11. We reject Invision's argument that the DTV tuner requirement does not
apply to the sale of television receivers designed specifically for
the automotive industry. The DTV tuner requirement is clearly not
limited to receivers produced for any particular segment of American
commerce and provides no exception for the possibility of incidental
use of the television tuning function. In analogous situations, the
Commission has rejected arguments that the DTV tuner requirement does
not apply to television receivers that are part of a specialized video
system distributed for use in the health care industry and to
television receivers that are used primarily as monitors. In rejecting
these arguments, the Commission noted that the DTV tuner requirement
does not exclude television receivers used as monitors, that it was
likely these devices would be used as television receivers at some
point, and therefore, we would not assume that owners of these devices
would never attempt to use them to receive over-the-air broadcasts.
Similarly, no exception to the DTV tuner requirements exists for units
like those at issue here simply because they are sold for use in cars
and might not be used to receive over-the-air broadcasts by the
consumer. The rule applies to all receivers imported into the United
States or shipped interstate that are capable of receiving
over-the-air television broadcast signals. Accordingly, the rule
covers the Invision devices and the company is subject to enforcement
for violating the rule.
A. Provision of Incorrect Material Information to the Commission
12. Section 1.17(a)(2) of the Rules provides that no person may provide,
in any written statement of fact, "material factual information that
is incorrect or omit material information that is necessary to prevent
any material factual statement that is made from being incorrect or
misleading without a reasonable basis for believing that any such
material factual statement is correct and not misleading." Any person
who has received a letter of inquiry from the Commission or its staff
or is otherwise the subject of a Commission investigation is subject
to this rule. In expanding the scope of Section 1.17 in 2003 to
include written statements that are made without a reasonable basis
for believing the statement is correct and not misleading, the
Commission explained that this requirement was intended to more
clearly articulate the obligations of persons dealing with the
Commission, ensure that they exercise due diligence in preparing
written submissions, and enhance the effectiveness of the Commission's
enforcement efforts. Thus, even absent an intent to deceive, a false
statement may constitute an actionable violation of Section 1.17 of
the Rules if it is provided without a reasonable basis for believing
that the statement is correct and not misleading.
13. As noted above, Invision stated in its LOI response that it had
imported zero units and shipped interstate twelve units of the G10 and
G9 models between January 30, 2008 and April 15, 2008. In its Amended
Response, however, which was submitted only after Bureau staff
contacted Invision to clarify another statement provided in its LOI
Response, Invision stated that it had imported 4,115 units and shipped
interstate 2,928 units between January 30, 2008 and April 30, 2008.
Invision did not proffer any explanation in its Amended Response for
its submission of incorrect information in its earlier LOI Response.
14. As we have stated, parties must "use due diligence in providing
information that is correct and not misleading to the Commission,
including taking appropriate affirmative steps to determine the
truthfulness of what is being submitted. A failure to exercise such
reasonable diligence would mean that the party did not have a
reasonable basis for believing in the truthfulness of the
information." Though provided ample time to compile a very limited
amount of data from its business records, Invision inexplicably
provided the Commission with grossly inaccurate information. We think
that, had it exercised even minimal diligence prior to the submission
of its initial LOI Response, Invision would not have submitted the
incorrect and misleading material factual information that it
submitted in its LOI response. We conclude, therefore, that Invision
apparently lacked a reasonable basis for its belief that its LOI
Response was correct and not misleading in violation of Section
1.17(a)(2) of the Rules.
A. Proposed Forfeiture
15. 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. Based on
the analysis set forth below, we conclude that Invision is apparently
liable for a forfeiture in the amount of $324,000 for its willful and
repeated violation of Section 15.117(i)(1)(iii) of the Rules and a
forfeiture in the amount of $4,000 for its willful violation of
Section 1.17(a)(2), for a total proposed forfeiture of $328,000.
16. 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."
17. 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 tuner requirement. 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.
18. The DTV tuner requirement promotes the important public policy goal of
helping to speed the transition to digital television, and we
therefore have found violations of this requirement to be more
egregious, in general, than many other types of equipment marketing
cases that come before us. DTV receivers are a necessary element of
digital broadcast television service. Consumers must have the
capability to receive DTV signals for the DTV transition to move
forward to successful completion. The DTV tuner requirement is
intended to protect consumers by ensuring that their TV receivers will
provide over-the-air TV reception of digital signals when analog TV
operation ceases. Thus, we have concluded 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.
19. In the Syntax-Brillian NAL and the Regent NAL, we determined that, in
cases involving the interstate shipping or importation of television
receivers that did not comply with the DTV tuner requirements, we will
propose a forfeiture based on each unit shipped or imported within the
statute of limitations, regardless of the number of models shipped or
imported. This approach, we noted, "gets to the root of the apparent
violation - non-compliant televisions in the hands of American
consumers." Furthermore, to reflect the increasing seriousness of the
violation as the number of non-compliant units shipped or imported
rises, we concluded that we would propose forfeitures on a
tier-by-tier basis, applying an escalating per-unit forfeiture amount
separately to each successive tier.
20. In Syntax-Brillian and Regent, we applied the following tiers and
per-unit penalties for violation of our DTV tuner requirements:
0-1000 units: $50 per unit
1001-2500 units: $75 per unit
2501-5000 units: $100 per unit
5001-10,000 units: $125 per unit
10,001-20,000 units: $150 per unit
20,001-30,000 units: $175 per unit
30,001-40,000 units: $200 per unit
40,001-50,000 units: $225 per unit
50,001+ units: $250 per unit.
Consistent with Syntax-Brillian and Regent, we will use the tier-by-tier,
per-unit methodology articulated in those NALs to assess the forfeiture
here.
21. In the Precor NAL, we noted that the DTV tuner requirement imposes two
distinct prohibitions on responsible parties: it prohibits both the
importation and the interstate shipment of television receivers that
do not contain digital tuners. We found, however, that treating the
importation and subsequent interstate shipment of the same television
receiver as two separate violations is not warranted. Given that the
DTV tuner rule is meant to ensure that all television receiving
devices are equipped with a digital tuner, we concluded that the
purpose of the rule will best be served by treating the importation
and subsequent interstate shipment of the same receiver as a single
violation. We determined, therefore, that in future forfeiture actions
taken for violations of the DTV tuner requirement, we would assess the
facts of each case in determining how best to enforce the requirements
of Section 15.117. In this case, we propose a forfeiture only for
those non-compliant television receivers that Invision imported after
the January 30, 2008 deadline for television receivers with screen
sizes less than 13 inches.
22. Based on the record in this case, Invision's violations merit a
significant proposed forfeiture. The unlawful importation was
substantial in terms of the number of non-DTV compliant units -- more
than 4,000 -- between the January 30, 2008 deadline and Invision's May
12, 2008 Amended Response. Moreover, many of these units were imported
after receipt of our LOI, which provided the company with explicit and
individualized notice of the regulation over and above its publication
in the Federal Register.
23. Invision imported 4,115 non-DTV-compliant television receivers between
January 30, 2008 and April 30, 2008. Applying the forfeiture
calculation methodology outlined above results in a proposed
forfeiture of $324,000 for Invision's willful and repeated importation
and interstate shipment of television receivers that do not comply
with the DTV tuner requirement in violation of Section
15.117(i)(1)(iii) of the Rules.
24. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80(b)(4) of the Rules, the base forfeiture amount for
misrepresentation or lack of candor is the statutory maximum, or, in
this case, $11,000. In determining the appropriate forfeiture amount,
we may adjust the base amount upward or downward by considering the
factors enumerated in Section 503(b)(2)(E) of the Act, including "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."
25. Considering all of the enumerated factors and the particular
circumstances of this case, we find that forfeiture of $4,000 is
warranted here for Invision's apparent willful violation of Section
1.17(a)(2). The Commission has stated that "[we rely] heavily on the
truthfulness and accuracy of the information provided to us. If
information submitted to us is incorrect, we cannot properly carry out
our statutory responsibilities." Invision's failure to exercise due
diligence to ensure that the information provided in its LOI Response
was correct and not misleading hampered our ability to properly carry
out our statutory responsibilities. Although Invision provided the
correct information, against its interest, in a relatively timely
manner and prior to any formal Commission action, it did so only after
the Bureau contacted the company for clarification of another issue in
its LOI Response and ultimately requested that Invision submit an
amended response. Nevertheless, given that Invision disclosed the full
scope of its apparent violations in a timely manner without a specific
request from the Bureau , we find that a significant downward
adjustment to the base forfeiture amount is warranted. Based on all of
the above circumstances, we find that a $4,000 forfeiture is
appropriate for Invision's apparent willful violation of Section
1.17(a)(2).
26. Finally, we note that Invision is apparently continuing to market
non-DTV-compliant television broadcast receivers. On July 15, 2008,
Bureau staff again observed that the company was marketing on its
website the same non-DTV-compliant television receivers that were
earlier observed. We strongly caution Invision that any continued
importation and interstate shipment of these receivers will subject it
to additional and potentially much higher forfeiture penalties. We
direct Invision to submit a report within 10 days of the release of
this NAL certifying that it has ceased all unlawful importation and
interstate shipment of non-DTV-compliant television receivers.
IV. ordering clauses
27. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Section 1.80 of the Rules, Invision Industries, Incorporated
is NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount
of three hundred twenty-four thousand dollars ($324,000) for willful
and repeated violation of Section 15.117(i)(1)(iii) and four thousand
dollars ($4,000) for willful violation of Section 1.17(a)(2), for a
total proposed forfeiture of three hundred and twenty-eight thousand
dollars ($328,000).
28. 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, Invision Incorporated SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
29. 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. Invision will also send electronic
notification on the date said payment is made to JoAnn Lucanik at
JoAnnLucanik@fcc.gov and to Kevin M. Pittman at Kevin.Pittman@fcc.gov.
30. 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.
31. 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.
32. IT IS FURTHER ORDERED that Invision IS hereby DIRECTED to submit the
report described in paragraph 26 within 10 days of the release of this
NAL.
33. 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 Heather McLeod, Invision Industries,
Incorporated, 1170 Celebration Boulevard, Suite 100, Kissimmee, FL
34747.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
47 C.F.R. S: 15.117(i)(1)(iii).
See 47 C.F.R. S: 15.3(w) (defining a television broadcast receiver as "a
device designed to receive television pictures that are broadcast
simultaneously with sound on the television channels authorized under part
73 of this chapter").
47 C.F.R. S: 1.17(a)(2).
Review of the Commission's Rules and Policies Affecting the Conversion to
Digital Television, Second Report and Order and Second Memorandum Opinion
and Order, 17 FCC Rcd 15978 (2002) ("DTV Review Second Report and Order").
DTV reception capability involves more circuitry than just a tuner. To
provide this capability requires a tuner to receive the digital signal, an
MPEG decoder/formatter, and associated processing capability and memory.
See Requirements for Digital Television Receiving Capability, Report and
Order and Further Notice of Proposed Rulemaking, 20 FCC Rcd 11196 n.2
(2005) ("DTV Tuner Report and Order").
DTV Review Second Report and Order, 17 FCC Rcd at 15996. The DTV tuner
requirement also applies to other devices such as television interface
devices that do not include a viewing screen, e.g., devices such as VCRs
and DVD players that are intended to provide audio-video signals to a
video monitor with an antenna or antenna terminals that can be used for
over-the-air television reception. See 47 C.F.R. S: 15.117(i)(1)(iv).
DTV Review Second Report and Order, 17 FCC Rcd at 15979. In this latter
regard, the DTV tuner requirement ensures that the intent of the All
Channel Receiver Act of 1962 ("ACRA"), P.L. No. 87-529, 76 Stat. 150, is
fulfilled. The ACRA, which is codified at 47 U.S.C. S: 303(s), states that
the Commission shall "[h]ave authority to require that apparatus designed
to receive television pictures broadcast simultaneously with sound be
capable of adequately receiving all frequencies allocated by the
Commission to television broadcasting ...." See DTV Review Second Report
and Order, 17 FCC Rcd at 15589-91.
Id. at 15998-99.
Id.
In June 2005, the Commission modified the rules to advance the date on
which 100% of new television receivers with screen sizes 25-36" that are
imported or shipped interstate must include DTV tuners from July 1, 2006
to March 1, 2006. DTV Tuner Report and Order, 20 FCC Rcd at 11203.
Subsequently, in November 2005, the Commission modified the rules to
advance the date on which 100% of new television receivers with screen
sizes 13-24" and certain other television receiving devices such as VCRs
and digital video recorders that are imported or shipped interstate must
include DTV tuners from July 1, 2007 to March 1, 2007. See Requirements
for Digital Television Receiving Capability, Second Report and Order, 20
FCC Rcd 18607, 18614-16 (2005) ("DTV Tuner Second Report and Order").
The DTV tuner requirement applies to "responsible parties," as defined in
Section 2.909 of the Rules, 47 C.F.R. S: 2.909. Under Section 2.909(b),
the party responsible for equipment such as television receivers that are
subject to our "verification" equipment authorization procedure is the
manufacturer or, in the case of imported equipment, the importer. If
subsequent to manufacture and importation, the equipment is modified by
any party not working under the authority of the responsible party, the
party performing the modification becomes the new responsible party.
DTV Tuner Second Report and Order, 20 FCC Rcd at 18614-16.
See Third Periodic Review of the Commission's Rules and Policies Affecting
the Conversion to Digital Television, Report and Order, 23 FCC Rcd 2994,
3081 (2007).
See Third Periodic Review of the Commission's Rules and Policies Affecting
the Conversion to Digital Television, Final Rule, 73 Fed. Reg. 5634 (Jan.
30, 2008).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Chris Vitito,
Director, Invision, Inc. (March 4, 2008) ("LOI").
See Letter from Heather McLeod, Vice President of Marketing, Invision
Industries, to Kevin M. Pittman, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (April 18, 2008)
("LOI Response").
See Heather McLeod, Vice President of Marketing, Invision Industries, to
Kevin M. Pittman, Spectrum Enforcement Division, Enforcement Bureau,
Federal Communications Commission (May 12, 2008) ("Amended Response").
LOI Response at 1. Invision stated that the other five models did not
include television tuners. Id.
Id.
See Amended Response at 1.
Id.
Id. Invision stated that it shipped interstate 3,294 units but that 326 of
these units were returned to its facility. Id.
Id.
Id. at 2.
Id.
Section 312(f)(1) of the Act defines "willful" as "the conscious and
deliberate commission or omission of [any] act, irrespective of any intent
to violate" the law. 47 U.S.C. S: 312(f)(1). The legislative history of
Section 312(f)(1) of the Act clarifies that this definition of willful
applies to both Sections 312 and 503(b) of the Act, H.R. Rep. No. 97-765,
97th Cong. 2d Sess. 51 (1982), and the Commission has so interpreted the
term in the Section 503(b) context. See Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recon.
denied, 7 FCC Rcd 3454 (1992) ("Southern California").
Section 312(f)(2) of the Act, which also applies to forfeitures assessed
pursuant to Section 503(b) of the Act, provides that "[t]he term
`repeated,'... means the commission or omission of such act more than once
or, if such commission or omission is continuous, for more than one day."
47 U.S.C. S: 312(f)(2). See Callais Cablevision, Inc., Notice of Apparent
Liability for Forfeiture, 16 FCC Rcd 1359, 1362 (2001); Southern
California, 6 FCC Rcd at 4388.
Under our rules, "[a]ll TV broadcast receivers shipped in interstate
commerce or imported into the United States, for sale or resale to the
public, shall comply" with the regulations set forth by the Commission.
See 47 C.F.R. S: 15.117(a).
See Requirements for Digital Television Receiving Capability, Order, 21
FCC Rcd 9478, 9479-80 (2006) ("PDI Order").
See Precor, Inc., Notice of Apparent Liability for Forfeiture, 23 FCC Rcd
6361, 6369 (2008) (forfeiture paid) (proposing a forfeiture for violation
of DTV tuner requirement where "personal viewing screens" sold to fitness
facilities were designed to be used in a closed circuit video system)
("Precor NAL"); Regent U.S.A., Inc., Notice of Apparent Liability for
Forfeiture, 22 FCC Rcd 10520, 10526 (2007) (forfeiture paid) (proposing a
forfeiture for violation of DTV tuner requirement where devices were used
primarily as monitors by commercial customers) ("Regent NAL"); see also 47
C.F.R. S: 15.3(w).
See Precor NAL, 23 FCC Rcd at 6369; Regent NAL, 22 FCC Rcd at 10526; see
also PDI Order, 21 FCC Rcd at 9480.
47 C.F.R. S: 1.17(a)(2).
47 C.F.R. S: 1.17(b)(4).
In the Matter of Amendment of Section 1.17 of the Commission's Rules
Concerning Truthful Statements to the Commission, Report and Order, 18 FCC
Rcd 4016, 4016-4017, 4021 (2003), recon. denied, Memorandum Opinion and
Order, 19 FCC Rcd 5790, further recon. denied, Memorandum Opinion and
Order, 20 FCC Rcd 1250 (2004).
See In the Matter of Amendment of Section 1.17 of the Commission's Rules
Concerning Truthful Statements to the Commission, 18 FCC Rcd at 4017
(stating that the revision to Section 1.17 is intended to "prohibit
incorrect statements of omissions that are the results of negligence, as
well as an intent to deceive").
LOI Response at 1; see also paragraph 7, supra. Invision provided this
information in response to question 1(b) of the LOI, which stated "State
the total number of receivers imported into the United States ("these
receivers") and the dates of importation," and question 1(d) of the LOI,
which stated "State the total number of these receivers that were shipped
interstate." LOI at 2.
Amended Response at 1. Invision did not provide a specific breakdown, for
each model, of the number of units imported, as directed in the LOI.
Nevertheless, based on Invision's statement that 4,115 units of the G10
and G9 models and zero units of the G8 and G7 models were manufactured
between January 30, 2008 and April 30, 2008, it appears that most, if not
all, of the 4,115 units imported during this period were units of the G10
and G9 models. Invision also failed to provide a specific breakdown, for
each model, of the number of units shipped interstate, as directed in the
LOI. Based on the attachment submitted with Invision's Amended Response,
however, it appears that, although some units of the G8 and G7 models may
have been shipped interstate between January 30, 2008 and April 30, 2008,
the bulk of the 2,968 units shipped interstate during this period were
units of the G10 and G9 models. Id. at Attachment. Invision's disregard
for our LOI instructions by itself is a violation of a Commission order
and therefore subject to enforcement action, see SBC Communications, Inc.,
Forfeiture Order, 17 FCC Rcd 7589 (2002) ("SBC Communications"). Based on
the totality of the circumstances, including the fact that we are already
proposing a forfeiture related to Invision's LOI response, however, we
will exercise our prosecutorial discretion here and not propose an
additional penalty.
Amendment of Section 1.17, 18 FCC Rcd at 4021.
The Bureau afforded Invision a total of six weeks' time in which to
compile information for its LOI Response regarding its interstate shipping
and importation of seven models of television receivers. We note that an
importer is expected to have ready access to such information in its
records.
See, e.g., In re Applications of Citicasters License, L.P., et al.,
Memorandum Opinion and Order and Notice of Apparent Liability, 22 FCC Rcd
19324, 19338 (2007) (forfeiture paid) (finding that a licensee's false
certification that it had not violated the Act or any Commission rules
during the preceding license term had no reasonable basis but was not made
with the intent to deceive Commission and, therefore, violated Section
1.17(a)(2) of the rules) ("Citicasters"). As stated above, in its Amended
Response, Invision proffered no explanation for the incorrect information
it provided. Thus, Invision has not articulated a reasonable basis for its
belief that the import and interstate shipment data in its LOI Response
were correct, nor has it provided any reason for its provision of
incorrect or misleading information.
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, 17 FCC Rcd at 7591.
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 (2007); Globcom, Inc. d/b/a
Globcom Global Commun., Order of Forfeiture, 21 FCC Rcd 4710, 4723-24
(2006).
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, 10535 (2007), forfeiture ordered, 23 FCC Rcd 6323
(2008) ("Syntax-Brillian NAL"); Regent NAL, 22 FCC Rcd 10520 (2007).
See DTV Tuner Report and Order, 20 FCC Rcd at 11199; DTV Tuner Second
Report and Order, 20 FCC Rcd at 18608.
See id.
Syntax-Brillian NAL, 22 FCC Rcd at 10535-36 (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 (same).
Id.
Syntax-Brillian NAL, 22 FCC Rcd at 10535; Regent NAL, 22 FCC Rcd at 10525.
Syntax-Brillian NAL, 22 FCC Rcd at 10535-36; Regent NAL, 22 FCC Rcd at
10525-26.
Syntax-Brillian NAL, 22 FCC Rcd at 10535; Regent NAL, 22 FCC Rcd at 10525.
Precor NAL, 23 FCC Rcd at 6367.
Id.
Id.
Id.
We derived this amount as follows: (1000 units * $50/unit) + (1500 units *
$75/unit) + (1615 units * $100/unit) = $324,000.
See Forfeiture Policy Statement, 12 FCC Rcd at 17113; 47 C.F.R. S:
1.80(b)(4), Note to Paragraph (b)(4): Section I. Base Amounts for Section
503 Forfeitures.
See 47 U.S.C. S: 503(b)(2)(D) (setting forth the statutory maximum
forfeiture for entities other than broadcasters and common carriers). See
also 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 forfeiture amounts for entities other than
broadcasters and common carriers to $11,000/$97,500). See also
Syntax-Brillian Forfeiture Order, 23 FCC Rcd at 6343; Citicasters, 22 FCC
Rcd at 19339 (both using the base forfeiture amount for
misrepresentation/lack of candor as the base forfeiture for violation of
Section 1.17 of the rules).
See Forfeiture Policy Statement, 12 FCC Rcd at 17100; 47 C.F.R. S:
1.80(b)(4).
In the Matter of Amendment of Section 1.17 of the Commission's Rules
Concerning Truthful Statements to the Commission, Notice of Proposed
Rulemaking, 17 FCC Rcd 3296, 3297 (2002).
Federal Communications Commission FCC 08-187
5
Federal Communications Commission FCC 08-187