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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-1095
In the Matter of
) Acct. No. 200932100068
Technogym S.p.A.
) FRN No. 0018710319
)
ORDER
Adopted: July 8, 2009 Released: July 10, 2009
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Technogym S.p.A.
("Technogym"). The Consent Decree terminates an investigation by the
Bureau against Technogym for possible violations of Section
15.117(i)(1)(iii) of the Commission's Rules ("Rules"), 47 C.F.R. S:
15.117(i)(1)(iii), regarding the importation and interstate shipment
of broadcast television receivers without digital television reception
capability after applicable dates set forth in the Rules.
2. The Bureau and Technogym have negotiated the terms of the Consent
Decree that resolves 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 Technogym 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 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 a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Technogym S.p.A., c/o Technogym USA, 830 Fourth Avenue
South, Suite 300, Seattle, WA 98134 and counsel for Technogym S.p.A.,
Delbert D. Smith, Esq., Jones Day, 51 Louisiana Ave., NW, Washington,
DC 20001and Stefan M. Lopatkiewicz, Esq., Dorsey & Whitney LLP, 1050
Connecticut Avenue NW, Suite 1250, Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
) File No. EB-08-SE-1095
In the Matter of
) Acct. No. 200932100068
Technogym S.p.A.
) FRN No. 0018710319
)
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Technogym S.p.A. ("Technogym" or the
"Company"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
into whether Technogym violated section 15.117(i)(1)(iii) of the
Commission's Rules ("Rules"), regarding the importation and interstate
shipment of broadcast television receivers without digital television
reception capability after applicable dates set forth in the Rules.
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. "Adopting Order" means an Order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
e. "Compliance Plan" means the program described in this Consent Decree
at paragraph 7.
f. "DTV Tuner" means "the capability of receiving the signals of DTV
broadcast stations over-the-air" including "[reception of the digital
signal], an MPEG decoder/formatter, and associated processing
capability and memory."
g. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
h. "Parties" means Technogym and the Bureau.
i. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
j. "Technogym" means Technogym S.p.A. and its subsidiaries,
predecessors-in-interest and successors-in-interest.
k. "Television broadcast receiver" or "TV broadcast receiver" means a
"device designed to receive television pictures that are broadcast
simultaneously with sound on the television channels authorized under
part 73" of the Rules.
II. BACKGROUND
2. Section 15.117(i)(1) of the Commission's Rules requires that all new TV
broadcast receivers imported into the United States or shipped interstate
be equipped with a DTV tuner according to the following schedule: (i)
screen sizes 36" and above - effective July 1, 2005; (ii) screen sizes 25"
to 35" - effective March 1, 2006; and (iii) screen sizes less than 25" -
effective March 1, 2007. The Commission subsequently amended its rule to
make it applicable to screen sizes less than 13" effective January 30,
2008. Technogym is an Italian manufacturer of physical fitness training
equipment. On October 8, 2008, Technogym voluntarily disclosed to the
Bureau that it had imported into the United States after March 1, 2007
physical training equipment which incorporated television receivers
lacking the requisite DTV tuners with 15" and 12" screen sizes. On
November 13, 2008, Technogym provided a written report to the Bureau of
the number of 15" television receivers it had imported since March 1, 2007
and the number of 12" television receivers it had imported since January
30, 2008.
III. TERMS OF AGREEMENT
3. 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.
4. Jurisdiction. Technogym 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.
5. 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.
6. 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. In
consideration for the termination of said investigation, Technogym 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 Technogym
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 Technogym with respect to Technogym's basic qualifications,
including its character qualifications, to hold Commission authorizations.
7. Compliance Plan. For purposes of settling the matters set forth herein,
Technogym agrees to create within 60 days 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. Technogym has designated its Director of R&D
Development as the compliance officer ("Compliance Officer") who will
be responsible for administering the Compliance Plan.
b. Compliance Measures. Technogym has adopted a corporate compliance
program to insure compliance with Section 15.117 of the Rules. After
learning that the Commission's DTV tuner requirements apply to
television receivers incorporated into fitness equipment, Technogym
accelerated its efforts to secure licensing rights to technology
required to comply with these rules. By September 11, 2008, it had
voluntarily ceased importing non-DTV compliant television receivers.
In consultation with in-house counsel - who is taking advice from U.S.
communications counsel - the following key employees have received
training in the Commission's DTV compliance requirements: the Director
of Laboratory Test and Product Certification, the Electronics Manager,
the Television Products Leader, the Director of Product Marketing, and
the Director of Operations.
c. Employee Training. Technogym will ensure that any new or additional
employees who are involved in the development of products
incorporating television receivers for export to the United States
will be trained regarding the requirements of Section 15.117 of the
Rules within 120 days of being hired or otherwise becoming involved in
such product development.
d. Compliance Reports. Technogym will file compliance reports with the
Commission 90 days after the Effective Date, 12 months after the
Effective Date, and 24 months after the Effective Date. Each
compliance report shall include a compliance certificate from an
officer, as an agent of Technogym, stating that the officer has
personal knowledge that Technogym 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. All reports shall also be submitted electronically to
Linda.Nagel@fcc.gov and Kathy.Berthot@fcc.gov.
(e) Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire 24 months after the Effective Date.
8. Voluntary Contribution. Technogym agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $30,000. 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 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).
Technogym will also send electronic notification on the date said payment
is made to Linda.Nagel@fcc.gov and Kathy.Berthot@fcc.gov.
9. Waivers. Technogym 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
Adopting Order, provided the Bureau issues an Adopting Order adopting the
Consent Decree without change, addition, modification, or deletion.
Technogym 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 Technogym nor the
Commission shall contest the validity of the Consent Decree or the
Adopting Order, and Technogym shall waive any statutory right to a trial
de novo. Technogym 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.
10. Invalidity. 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.
11. 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 Technogym does not expressly consent) that
provision will be superseded by such Commission rule or Order
12. Successors and Assigns. Technogym agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
13. 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.
14. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
15. 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.
16. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
17. 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
________________________________
Riccardo Losappio
General Manager
Technogym S.p.A.
________________________________
Date
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S: 15.117(i)(1)(iii).
See Requirements for Digital Television Receiving Capability, Report and
Order and Further Notice of Proposed Rulemaking, 20 FCC Rcd 11196 and n. 2
(2005) ("DTV Tuner Report and Order").
47 C.F.R. S: 15.3(w).
47 C.F.R. S: 15.117(i)(1).
See Third Periodic Review of the Commission's Rules and Policies Affecting
the Conversion of Digital Television, Report and Order, 23 FCC Rcd 2994,
3081 P: 190 ("Third Report and Order").
Federal Communications Commission DA 09-1435
5
Federal Communications Commission DA 09-1435