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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-1046
In the Matter of
) Acct. No. 200932100073
Pinnacle Systems, Inc.
) FRN No. 0004897468
)
ORDER
Adopted: July 28, 2009 Released: July 30, 2009
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Pinnacle Systems, Inc.
("Pinnacle"). The Consent Decree terminates an investigation by the
Bureau against Pinnacle for possible violations of section 330(c) of
the Communications Act of 1934, as amended, (the "Act") 47 U.S.C. S:
330(c) and section 15.120(d)(2) of the Commission's Rules ("Rules"),
47 C.F.R. S: 15.120(d)(2), regarding the interstate shipment, after
January 30, 2008, of personal computer digital television tuners that
do not comply with V-Chip technology requirements.
2. The Bureau and Pinnacle 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 Pinnacle 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 Pinnacle
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 a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Gary G. Greenfield, Chairman and CEO, Avid Technology,
Inc., Avid Technology Park, 1 Park West, Tewksbury, MA 01876, and to
counsel for Avid, Jack N. Goodman, Esq., Wilmer Hale, 1875
Pennsylvania Avenue, NW, Washington, DC 20006.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-1046
In the Matter of
) Acct. No. 200932100073
Pinnacle Systems, Inc.
) FRN No. 0004897468
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Pinnacle Systems, Inc. ("Pinnacle"),
by their authorized representatives, hereby enter into this Consent Decree
for the purpose of terminating the Bureau's investigation into whether
Pinnacle 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 January 30, 2008, of personal
computer digital television tuners ("PCTV tuners") that do not comply with
the V-Chip technology requirements because they lack the ability to block
programs from viewing based on ratings or 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. "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. "Complaints" means third-party complaints that may have been received
by, or are in the possession of, the Commission or Bureau alleging
violations of the V-Chip technology requirements.
f. "Compliance Plan" means the program described in this Consent Decree
at paragraph 8.
g. "Personal computer digital television tuners" or "PCTV tuners" means
devices, sold without associated display screens, that are designed to
receive digital television signals for viewing on personal computers.
h. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
i. "Investigation" means the investigation commenced by the Bureau's
October 20, 2008 Letter of Inquiry ("LOI") regarding whether Pinnacle
violated section 330(c) of the Act, and Section 15.120(d)(2) of the
Rules, by shipping interstate PCTV tuners that do not comply with the
V-Chip technology requirements because they lack the ability to block
programs from viewing based on ratings or to adapt to new rating
systems.
j. "Parties" means Pinnacle and the Bureau.
k. "Pinnacle" means Pinnacle Systems, Inc. and its
predecessors-in-interest and successors-in-interest.
l. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
2. 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 program blocking ("V-Chip")
requirements prescribed by the Commission pursuant to its authority
under section 303(x) of the Act. In 1998, the Commission adopted
V-Chip requirements for both analog and digital television ("DTV")
receivers. In 2004, the Commission adopted specific technical
standards to implement V-Chip functionality for DTV receivers. In
addition to adopting the V-Chip technical standards, the Commission
also applied the programming blocking requirements to DTV tuners sold
without associated display screens, effective January 30, 2008.
3. On October 20, 2008, the Bureau issued an LOI to Pinnacle. The LOI
directed Pinnacle, among other things, to submit a sworn written
response to a series of questions relating to the interstate shipment
of PCTV tuners in potential violation of the requirement of Section
15.120(d)(2) of the Commission's Rules that they be able 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.
Pinnacle responded to the LOI on November 19, 2008. Pinnacle's
response indicated the interstate shipment of a number of potentially
non-compliant units. Pinnacle has subsequently informed the Bureau
that it is no longer shipping PCTV tuners in interstate commerce for
distribution to the public.
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. Pinnacle 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,
Pinnacle 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 Pinnacle 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 Pinnacle with respect to
Pinnacle's basic qualifications, including its character
qualifications, to be a Commission licensee or hold Commission
authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, Pinnacle has taken the following steps to ensure compliance
with the Act, the Commission's Rules, and the Commission's Orders:
a. Compliance Officer. Pinnacle will designate a Compliance Officer who
will be responsible for implementing and administering the remedial
measures.
b. Remedial Measures. Pinnacle has notified customers who registered
certain models of PCTV tuners that it will provide, depending on the
model, (i) a software patch for the TV Center Pro software, or (ii) a
software patch for the Elgato EyeTV Lite software, which was released
on January 19, 2009, and is currently available directly from the
Elgato web site. Pinnacle also provides customers using non-updated
software electronic notifications of the availability of these
software patches when they initially install the PCTV software, when
they initially run the PCTV software, and each time they run the PCTV
software if their computers are connected to the Internet. Both the TV
Center Pro and the Elgato EyeTV Lite software patches are available
for automatic downloading at no cost. Pinnacle has also posted a
notification on its website and has made the software patch available
on its website as well. Pinnacle will make the TV Center Pro software
patch available until twenty-four (24) months from the Effective Date
of this Consent Decree.
c. Compliance Reports. Pinnacle 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 Pinnacle, stating that the officer has
personal knowledge that Pinnacle has implemented the remedial measures
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 Holly
Berland at Holly.Berland@fcc.gov and to Kathy Berthot at
Kathy.Berthot@fcc.gov.
d. Termination. Unless stated otherwise, the requirements of this Consent
Decree will expire twenty-four (24) months from the Effective Date.
9. Voluntary Contribution. Pinnacle agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $25,000
(Twenty-Five Thousand Dollars). The payment will be made within 30
days after the Effective Date of the Adopting Order. The payment must
be made by check or similar instrument, payable to the Order of the
Federal Communications Commission. The payment must include the
Account Number and FRN Number referenced in the caption to the
Adopting Order. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the Account number
in block number 23A (call sign/other ID), and enter the letters "FORF"
in block number 24A (payment type code). Pinnacle shall also send
electronic notification on the date said payment is made to Holly
Berland at Holly.Berland@fcc.gov and to Kathy Berthot at
Kathy.Berthot@fcc.gov.
10. Waivers. Pinnacle 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. Pinnacle 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 Pinnacle nor the Commission shall contest the validity of
the Consent Decree or the Adopting Order, and Pinnacle shall waive any
statutory right to a trial de novo. Pinnacle 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. 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.
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 Pinnacle does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
13. Successors and Assigns. Pinnacle 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. The
Parties agree that this Consent Decree is for settlement purposes only
and that, by agreeing to this Consent Decree, Pinnacle does not admit
or deny noncompliance, violation or liability for violating the Act or
Rules in connection with the matters that are the subject of this
Consent Decree.
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
________________________________
Paige Parisi
Secretary
Pinnacle Systems, Inc.
________________________________
Date
Pinnacle is a subsidiary of Avid Technology, Inc.
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
Pinnacle is a subsidiary of Avid Technology, Inc.
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 Ms. Patti S. Hart, President and Chief Executive
Officer, Pinnacle Systems, Inc. (October 20, 2008).
47 U.S.C. S: 330(c); 47 C.F.R. S: 15.201(d)(2).
Since the issuance of the LOI, Pinnacle sold the division which produced
and marketed PCTV tuners, and no longer manufactures or markets such
devices.
47 U.S.C. S: 330(c).
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).
Second Periodic Review of the Commission's Rules and Policies Affecting
the Conversion to Digital Television, Report and Order, 19 FCC Rcd 18279
(2004).
Id. at 18348 P: 158.
See Rules and Regulations, Federal Communications Commission, Parts 15, 73
and 76, Third Periodic Review of the Commission's Rules and Policies
Affecting the Conversion to Digital Television, 73 Fed. Reg. 5634, 5682
(Jan. 30, 2008).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau to Ms. Patti S. Hart, President and Chief Executive
Officer, Pinnacle Systems, Inc. (October 20, 2008).
See Letter from Jack N. Goodman, Wilmer Cutler Pickering Hale and Dorr
LLP, to Marlene Dortch, Secretary, Federal Communications Commission
(November 19, 2008).
See Letter from Jack N. Goodman, Wilmer Cutler Pickering Hale and Dorr
LLP, to Marlene Dortch, Secretary, Federal Communications Commission
(December 4, 2008).
Since the Elgato EyeTV Lite software is not provided by Pinnacle, it
cannot provide any assurances of the future availability of the patch for
that software product.
Federal Communications Commission DA 09-1645
2
Federal Communications Commission DA 09-1645