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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-126
In the Matter of
) Acct. No. 200932100054
Hauppauge Computer Works, Inc.
) FRN No. 0014106520
)
ORDER
Adopted: October 14, 2011 Released: October 14, 2011
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau"), on behalf of the Federal
Communications Commission ("Commission"), and Hauppauge Computer
Works, Inc. ("Hauppauge"). The Consent Decree terminates an
investigation and cancels a Notice of Apparent Liability for
Forfeiture ("NAL") against Hauppauge for possible violations of
section 15.117(i)(1)(iv) of the Commission's rules ("Rules") regarding
the shipment in interstate commerce or importation into the United
States, for sale or resale to the public, after March 1, 2007, of
certain television receivers that do not have digital television
("DTV") reception capability.
2. The Bureau, on behalf of the Commission, and Hauppauge 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 and
cancels the NAL.
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 Hauppauge 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 sections 4(i) and 503(b)
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 and the Notice of Apparent Liability for Forfeiture issued
by the Commission against Hauppauge on April 15, 2009 IS CANCELLED.
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 Norman Leventhal, Esq., Holland & Knight, 2099
Pennsylvania Avenue, N.W., Suite 100, Washington, D.C. 20006, and to
Mr. Kenneth Plotkin, President and Chief Executive Officer, Hauppauge
Computer Works, Inc., 91 Cabot Court, Hauppauge, NY 11788.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-126
In the Matter of
) Acct. No. 200932100054
Hauppauge Computer Works, Inc.
) FRN No. 0014106520
)
CONSENT DECREE
The Enforcement Bureau, on behalf of the Commission, and Hauppauge
Computer Works, Inc., by their authorized representatives, hereby enter
into this Consent Decree for the purpose of terminating an investigation
into whether Hauppauge violated section 15.117(i)(1)(iv) of the
Commission's rules regarding the shipment in interstate commerce or
importation into the United States, for sale or resale to the public,
after March 1, 2007, of certain television receivers that do not have
digital television ("DTV") reception capability.
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, on behalf of the
Commission, 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 plan described in this Consent Decree at
paragraph 9.
f. "Digital Television" and "DTV" mean the television signals that are
generated, transmitted and received under the Advanced Television
Systems Committee ("ATSC") standard.
g. "Effective Date" means the date on which the Bureau, on behalf of the
Commission, releases the Adopting Order.
h. "Hauppauge" means Hauppauge Computer Works, Inc. and its
predecessors-in-interest and successors-in-interest.
i. "Investigation" means the investigation commenced by the Bureau's
July 18, 2007 Letter of Inquiry ("LOI") regarding whether Hauppauge
violated section 15.117(i)(1)(iv) of the Rules by shipping in
interstate commerce or importing into the United States, for sale or
resale to the public, after March 1, 2007, television receivers not
equipped with DTV tuners.
j. "NAL" means the Notice of Apparent Liability for Forfeiture issued by
the Commission against Hauppauge on April 15, 2009.
k. "Parties" mean Hauppauge and the Bureau, and each a "Party."
l. "Rules" mean the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
2. Pursuant to section 15.117(i)(iv) of the Rules, all "video devices
(videocassette recorders (VCRs), digital video recorders such as hard
drive and DVD recorders, etc.), that receive television signals,"
including devices without an associated television screen, shipped in
interstate commerce or imported into the United States, for sale or
resale to the public, were required to be equipped with a DTV tuner as
of March 1, 2007.
3. On July 18, 2007, the Bureau issued a Letter of Inquiry ("LOI") to
Hauppauge. The July 18, 2007 LOI directed Hauppauge, among other
things, to submit a sworn written response to a series of questions
relating to its importation, interstate shipment, and sale of certain
television tuner boards designed to be installed in personal
computers. Hauppauge responded to the July 18, 2007 LOI on August 15,
2007. On August 28, 2007, the Bureau issued a follow-up LOI to
Hauppauge. Hauppauge responded to the Follow-up LOI on April 15, 2008,
and supplemented its Second Response on May 6, 2008.
4. On April 15, 2009, the Commission issued an NAL proposing that
Hauppauge be held liable for a forfeiture of $175,000 under section
503(b)(1)(B) of the Act, and ordered Hauppauge either to pay the
proposed forfeiture or file a written response within thirty (30) days
of the NAL release date stating why the proposed forfeiture should be
reduced or canceled.
III. TERMS OF AGREEMENT
1. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau, on behalf of
the Commission, by incorporation of such provisions by reference in
the Adopting Order without change, addition, modification, or
deletion.
2. Jurisdiction. Hauppauge agrees that the Bureau, on behalf of the
Commission, has jurisdiction over it and the matters contained in this
Consent Decree and has the authority to enter into and adopt this
Consent Decree.
3. 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 adopted on behalf of the
Commission. Any violation of the Adopting Order or of the terms of
this Consent Decree shall constitute a separate violation of a
Commission Order, entitling the Commission to exercise any rights and
remedies attendant to the enforcement of a Commission Order.
4. 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, on behalf of the
Commission, agrees to terminate the Investigation and to cancel the
Commission's NAL. In consideration for the termination of said
Investigation and cancellation of the NAL, Hauppauge agrees to the
terms, conditions, and procedures contained herein. The Bureau, on
behalf of the Commission, further agrees that in the absence of new
material evidence, it will not use the facts developed in the
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 Hauppauge concerning the matters that were the subject
of the Investigation. The Bureau, on behalf of the Commission, also
agrees that it will not use the facts developed in the 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
Hauppauge with respect to Hauppauge's basic qualifications, including
its character qualifications, to hold Commission authorizations.
5. Compliance Plan. For purposes of settling the matters set forth
herein, Hauppauge agrees to maintain a limited Compliance Plan
related to its future compliance with the Act, the Rules, and the
Commission's Orders. The Plan will include the following components.
a. Compliance Officer. Hauppauge will designate an employee to be
familiar with all applicable Commission Rules, regulations and
associated policies relating to television receivers, including all
applicable administrative, technical, labeling and identification
requirements ("Compliance Officer"). The designated Compliance
Officer will administer the Compliance Plan. The designated
Compliance Officer will also review, with counsel, any new or
modified Rules, regulations and associated policies, described above,
on an annual basis to stay abreast of any new requirements, and
ensure that any television receivers imported, shipped interstate, or
marketed by Hauppauge comply with these Rules, regulations and
policies.
b. Compliance Reports. Hauppauge shall file compliance reports with the
Commission twelve (12) months after the Effective Date and
twenty-four (24) months after the Effective Date. Each report shall
include a compliance certificate from the Compliance Officer, as an
agent of Hauppauge, stating that the Hauppauge has established
operating procedures intended to ensure compliance with this Consent
Decree (namely, continued, compliance with section 15.117(i)(iv) of
the Rules regarding television reception devices with analog only
tuners) together with an accompanying statement explaining the basis
for the compliance certification. All compliance reports shall be
submitted to Ricardo M. Durham, Senior Deputy 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
Nissa.Laughner@fcc.gov and to Neal.McNeil@fcc.gov.
c. Termination Date. Unless stated otherwise, the requirements of this
Compliance Plan will expire twenty-four (24) months from the
Effective Date.
6. Voluntary Contribution. Hauppauge agrees that it shall make a
voluntary contribution to the United States Treasury in the amount of
fifty-five thousand dollars ($55,000) to be made in eleven (11)
consecutive monthly payments of five thousand dollars ($5,000), due on
or before the fifteenth (15th) day of each month, with the first
payment due on or before October 15, 2011 and the eleventh payment due
on or before August 15, 2012. Each 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
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 NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Hauppauge will also send electronic notification on the date
said payment is made to Nissa.Laughner@fcc.gov and Neal.McNeil@fcc.
7. Waivers. Hauppauge 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, on behalf of the
Commission, issues the Adopting Order without change, addition,
modification, or deletion. Hauppauge 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 Hauppauge nor the Bureau on behalf of the
Commission shall contest the validity of the Consent Decree or the
Adopting Order, and Hauppauge shall waive any statutory right to a
trial de novo. Hauppauge 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.
8. 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.
9. 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 Hauppauge does not expressly
consent) that provision will be superseded by such Rule or Order.
10. Successors and Assigns. Hauppauge agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
11. 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.
12. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
13. 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.
14. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
15. 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.
________________________________
P. Michele Ellison
Chief
Enforcement Bureau
________________________________
Date
________________________________
Kenneth Plotkin
President and Chief Executive Officer
Hauppauge Computer Works, Inc.
________________________________
Date
Hauppauge Computer Works, Inc., Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd 5272 (2009).
47 C.F.R. S: 15.117(i)(1)(iv).
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 U.S.C. S:S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S: 15.117(i)(1)(iv).
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").
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Hauppauge
Computer Works, Inc. (July 18, 2007).
47 C.F.R. S: 15.117(i)(1)(iv).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Hauppauge
Computer Works, Inc. (July 18, 2007).
See Letter from Ken Plotkin, President and Chief Executive Officer,
Hauppauge Computer Works, Inc., to Neal McNeil, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission (August
15, 2007) at 1 ("Response").
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Ken Plotkin,
Chief Executive Officer, Hauppauge Computer Works, Inc. (August 28, 2007).
See Letter from Kenneth Plotkin, President and Chief Operation Officer,
Hauppauge Computer Works, Inc., to Marlene H. Dortch, Secretary, Federal
Communications Commission (April 15, 2008) ("Second Response").
See Letter from Norman P. Leventhal, Esq., Counsel for Hauppauge Computer
Works, Inc., to Marlene H. Dortch, Secretary, Federal Communications
Commission (May 6, 2008) ("Supplemental Response").
Hauppauge Computer Works, Inc., Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd 5272 (2009).
Federal Communications Commission DA 11-1638
2
Federal Communications Commission DA 11-1638