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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-1045
In the Matter of
) Acct. No. 201132100003
VisionTek Products, LLC
) FRN No. 0019165612
)
order
Adopted: October 14, 2010 Released: October 14, 2010
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and VisionTek Products, LLC
("VisionTek"). The Consent Decree terminates an investigation by the
Bureau against VisionTek for possible violations of section 330(c) of
the Communications Act of 1934, as amended, (the "Act"), and section
15.120(d)(2) of the Commission's Rules ("Rules"), 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 VisionTek 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 which terminates 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 VisionTek 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 Act,
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 all third-party complaints against
VisionTek 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 Michael Innes, Executive Vice President and Chief
Operating Officer, VisionTek Products, LLC, 1610 Colonial Parkway,
Inverness, IL 60067 and to counsel for VisionTek Products, LLC, Henry
Goldberg, Esq., Goldberg, Godles, Wiener & Wright, 1229 19th Street,
NW, Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-08-SE-1045
In the Matter of
) Acct. No. 201132100003
VisionTek Products, LLC
) FRN No. 0019165612
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and VisionTek Products, LLC
("VisionTek"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's investigation
into whether VisionTek 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. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
h. "Investigation" means the investigation commenced by the Bureau's
November 18, 2008 Letter of Inquiry ("LOI") regarding whether
VisionTek 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.
i. "Parties" means VisionTek and the Bureau, and each a "Party".
j. "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.
k. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
l. "VisionTek" means VisionTek Products, LLC and its
predecessors-in-interest and successors-in-interest.
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, the Commission applied the program blocking requirements to
DTV tuners sold without associated display screens, effective January
30, 2008.
3. On November 18, 2008, the Bureau issued an LOI to VisionTek. The LOI
directed VisionTek, among other things, to submit a sworn written
response to a series of questions relating to the interstate shipment
of PCTV tuners with the brand name "TV Wonder" in potential violation
of the requirement of section 15.120(d)(2) of the Commission's Rules.
The rule requires such devices to allow blocking of the display of
programming based on its content and to respond to changes in the
content advisory rating system. VisionTek responded to the LOI on
January 9, 2009. VisionTek's response indicated the interstate
shipment of a number of potentially non-compliant units. VisionTek
additionally informed the Bureau that it had ceased shipping the
potentially non-compliant PCTV tuners in interstate commerce for
distribution to the public and had taken other steps to address the
FCC's concerns.
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. VisionTek 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 Effective Date. 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,
VisionTek 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, 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
VisionTek concerning the matters that were the subject of the
Investigation. The Bureau also agrees that in the absence of new
material evidence it will not use the facts developed in this
Investigation through the Effective Date, 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 VisionTek
with respect to VisionTek'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, VisionTek agrees to create, within 30 days of the Effective
Date, 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. Within 30 days of the Effective Date, VisionTek
will designate a Compliance Officer who will be responsible for
implementing and administering the remedial measures.
b. Remedial Measures. Within 10 days of the Effective Date, VisionTek
will provide a consumer notice on its website of how to use Microsoft
Windows Media Center software to effect V-chip functionality of the TV
Wonder products. VisionTek also will make available to all interested
past purchasers of its TV Wonder products, free of charge, software
that will allow for parental control functionality so that the
products are in full compliance with the V-chip technology
requirements. For any and all instances in which VisionTek has access
to the address of registered past purchasers, VisionTek will contact
all such past purchasers to inform them of the availability of the
software and how to obtain it. To further inform past purchasers of
the availability of the software, VisionTek will also post a live
download request form on its website and on all applicable TV Wonder
product pages. VisionTek will make the software available for
twenty-four (24) months from the Effective Date of this Consent
Decree.
c. Compliance Reports. VisionTek will file Compliance Reports with the
Commission ninety (90) days after the Effective Date, twelve (12)
months after the Effective Date, and twenty-four (24) months after the
Effective Date. Each Compliance Report shall include a certification
by the Compliance Officer, as an agent of and on behalf of VisionTek,
stating that the Compliance Officer has personal knowledge that
VisionTek (i) has established operating procedures intended to ensure
compliance with the terms and conditions of this Consent Decree,
together with an accompanying statement explaining the basis for the
Compliance Officer's certification; (ii) has been utilizing those
procedures since the previous Compliance Report was submitted; and
(iii) is not aware of any instances of non-compliance. The
certification must comply with section 1.16 of the Rules and be
subscribed to as true under penalty of perjury in substantially the
form set forth therein. If the Compliance Officer cannot provide the
requisite certification, the Compliance Officer, as an agent of and on
behalf of VisionTek, shall provide the Commission with a detailed
explanation of: (i) any instances of non-compliance with this Consent
Decree and the Rules, and (ii) the steps that VisionTek has taken or
will take to remedy each instance of non-compliance and ensure future
compliance, and the schedule on which proposed remedial actions will
be taken. All Compliance Reports shall be submitted to the 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 Jackie
Ellington at Jackie.Ellington@fcc.gov and to Kathy Berthot at
Kathy.Berthot@fcc.gov.
d. Termination Date. Unless stated otherwise, the requirements of this
Paragraph 8 of the Consent Decree will expire twenty-four (24) months
after the Effective Date.
9. Voluntary Contribution. VisionTek agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $15,000
(Fifteen Thousand Dollars). The payment will be made within 30 days
after the Effective Date. 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 the 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). VisionTek will also send electronic notification to Jackie
Ellintgon at Jackie.Ellington@fcc.gov and Kathy Berthot at
Kathy.Berthot@fcc.gov within forty-eight (48) hours of the date said
payment is made.
10. Waivers. VisionTek 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. VisionTek 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 VisionTek nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and VisionTek
shall waive any statutory right to a trial de novo. VisionTek 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 VisionTek does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
13. Successors and Assigns. VisionTek agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
14. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further agree that this Consent Decree does not constitute
either an adjudication on the merits or a factual or legal finding or
determination regarding any compliance or noncompliance with the
requirements of the Act or the Commission's Rules and Orders.
15. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
16. Paragraph Headings. The headings of the Paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
17. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
18. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
_______________________________
Kathryn Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
________________________________
Date
________________________________
Tony Graffia
Principal Owner
VisionTek Products, LLC
________________________________
Date
47 U.S.C. S: 330(c).
47 C.F.R. S: 15.120(d)(2).
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S: 330(c).
47 C.F.R. S: 15.120(d)(2).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau to Michael Innes, VisionTek Products, LLC (November 18,
2008).
47 U.S.C. S: 330(c); 47 C.F.R. S: 15.201(d)(2).
47 U.S.C. S: 303(x).
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 Michael Innes, VisionTek Products, LLC (November 18,
2008).
See Letter from Henry Goldberg and Laura Stefani, to Marlene Dortch,
Secretary, Federal Communications Commission (January 9, 2009). VisionTek
was granted an extension of time, until January 9, 2009, by which to
respond.
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