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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-10-SE-018
In the Matter of
) Acct. No.: 201232100029
Elgato Systems LLC
) FRN: 0021841176
)
ORDER
Adopted: July 12, 2012 Released: July 13, 2012
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau (Bureau) of the Federal Communications
Commission (Commission) and Elgato Systems LLC (Elgato). The Consent
Decree resolves and terminates the Bureau's investigation into
Elgato's compliance with Section 302(b) of the Communications Act of
1934, as amended (Act), and Sections 2.803 and 15.19 of the
Commission's rules (Rules) pertaining to the marketing of television
broadcast receivers.
2. The Bureau and Elgato have negotiated the Consent Decree that resolves
this matter. A copy of the Consent Decree is attached hereto and
incorporated herein 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 Elgato 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 a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Adam Steinberg, Vice President of Marketing, Elgato
Systems LLC, 900 Kearney Street, San Francisco, CA 94133, and to Jason
Rademacher, Esq., counsel for Elgato Systems LLC, Dow Lohnes PLLC,
1200 New Hampshire Avenue, N.W., Suite 800, Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-10-SE-018
In the Matter of
) Acct. No.: 201232100029
Elgato Systems LLC
) FRN: 0021841176
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and Elgato
Systems LLC, by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Enforcement Bureau's
investigation into possible violations of Section 302(b) of the
Communications Act of 1934, as amended, and Sections 2.803 and 15.19 of
the Commission's rules pertaining to the marketing of a television
broadcast receiver model.
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. "Communications Laws" means collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to
which Elgato is subject by virtue of its business activities,
including but not limited to, the Equipment Marketing Rules.
e. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
f. "Compliance Plan" means the compliance obligations, programs and
procedures described in this Consent Decree at paragraph 9.
g. "Covered Employees" means all employees and agents of Elgato who
perform, or supervise, oversee, or manage the performance of, duties
that relate to Elgato's responsibilities under the Equipment Marketing
Rules.
h. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
i. "Elgato" means Elgato Systems LLC, and its predecessors-in-interest
and successors-in-interest.
j. "Equipment Marketing Rules" means Section 302(b) of the Act and
Sections 2.803 and 15.19 of the Rules and other Communications Laws
governing the marketing of radio frequency devices within the United
States and its territories.
k. "Investigation" means the investigation described in the Bureau's
March 18, 2010 letter of inquiry regarding whether the marketing of
certain digital television receivers by Elgato complies with Section
2.803 and Part 15 of the Commission's Rules.
l. "Operating Procedures" means the standard, internal operating
procedures and compliance policies established by Elgato to implement
the Compliance Plan.
m. "Parties" means Elgato and the Bureau, each of which is a "Party."
n. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
1. Pursuant to Section 302(b) of the Act and Section 2.803 of the Rules,
certain unintentional radiators may not be marketed in the United
States unless the devices comply with the applicable technical
standards as well as the administrative requirements relating to
equipment labeling and consumer disclosure. Elgato markets a
broadcast television receiver, the EyeTV One television tuner model,
that is designed to connect directly to a television antenna and/or
an incoming cable line and to a network router or computer for the
purpose of delivering digital television to the monitor of a personal
computer. As an unintentional radiator, this device is subject to
authorization via the Commission's equipment verification procedures.
Devices subject to the verification procedures must, among other
requirements, be labeled in accordance with Section 15.19 of the
Rules. Under Section 15.19(a)(1) of the Rules, receivers operating in
the broadcast services must be labeled, in a conspicuous location,
with the following statement: "This device complies with part 15 of
the FCC Rules. Operation is subject to the condition that this device
does not cause harmful interference." However, under Section
15.19(a)(5) of the Rules, when a device subject to verification is so
small that it is not practicable to fully label it, it may be labeled
only with a "unique identifier," provided that the remaining required
information is "placed in a prominent location in the instruction
manual or pamphlet supplied to the user" or "on the container in
which the device is marketed." As the importer of the device, Elgato
is responsible for the device's compliance with the applicable
technical standards and administrative requirements, including
Section 15.19.
2. On March 18, 2010, the Bureau's Spectrum Enforcement Division issued
a letter of inquiry (LOI) to Elgato, directing the company to submit
a sworn written response to a series of questions relating to
Elgato's manufacture, importation, and marketing of digital
television receivers. Elgato responded to the LOI on April 19, 2010
(LOI Response). In its LOI Response, Elgato reported that it imports
and markets only one digital television receiver, the EyeTV One
television tuner model, and provided documentation demonstrating that
the model had been properly verified before marketing. Elgato also
provided photographs demonstrating that the model is smaller than the
palm of a hand and that the label affixed to the model displayed a
unique identifier. Elgato acknowledged that the EyeTV One television
tuner model devices did not include the remaining information
required by Section 15.19(a)(1), either on the label, or in the
instruction manual or on the container in which the device was sold.
However, Elgato reported that, as of the date of its LOI Response, it
had taken specific remedial measures, including labeling the EyeTV
One television tuner model devices in accordance with Section
15.19(a)(5), updating the online instruction manual, and also posting
on its website a frequently asked question that included the
information required by Section 15.19(a). The Bureau and Elgato
executed tolling agreements to toll the statute of limitations.
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.
5. Jurisdiction. Elgato agrees that the Bureau has jurisdiction over it
and the matters contained in this Consent Decree and that the Bureau 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 as defined herein. As of the
Effective Date, the Adopting Order and this Consent Decree shall have the
same force and effect as any other order 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.
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 the Investigation. In
consideration for the termination of the Investigation, Elgato 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 the 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 Elgato 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 the 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 Elgato with respect to Elgato's basic
qualifications, including its character qualifications, to be a Commission
licensee or to hold Commission licenses or authorizations.
8. Compliance Officer. Within thirty (30) calendar days after the
Effective Date, Elgato shall designate a senior corporate manager with the
requisite corporate and organizational authority to serve as Compliance
Officer and to discharge the duties set forth below. The person designated
as the Compliance Officer shall be responsible for developing,
implementing, and administering the Compliance Plan and ensuring that
Elgato complies with the terms and conditions of the Compliance Plan and
this Consent Decree. In addition to the general knowledge of the
Communications Laws necessary to discharge his/her duties under this
Consent Decree, the Compliance Officer shall have specific knowledge of
the Equipment Marketing Rules prior to assuming his/her duties.
9. Compliance Plan. For purposes of settling the matters set forth herein,
Elgato agrees that it shall within sixty (60) calendar days after the
Effective Date, develop and implement a Compliance Plan designed to ensure
future compliance with the Communications Laws and with the terms and
conditions of this Consent Decree. With respect to the Equipment Marketing
Rules, Elgato shall implement the following procedures:
a. Operating Procedures on Equipment Marketing. Within sixty (60)
calendar days after the Effective Date, Elgato shall establish
Operating Procedures that all Covered Employees must follow to help
ensure Elgato's compliance with the Equipment Marketing Rules.
Elgato's Operating Procedures shall include internal procedures and
policies specifically designed to ensure that all television
broadcast receivers and other radio frequency devices marketed by
Elgato have been properly authorized (via the certification,
verification, or declaration of conformity procedures, as
applicable), comply with applicable technical standards, and comply
with the applicable administrative requirements relating to equipment
labeling and consumer disclosure.
b. Compliance Manual. Within sixty (60) calendar days after the
Effective Date, the Compliance Officer shall develop and distribute a
Compliance Manual to all Covered Employees. The Compliance Manual
shall explain the Equipment Marketing Rules and set forth the
Operating Procedures that Covered Employees shall follow to help
ensure Elgato's compliance with the Equipment Marketing Rules. Elgato
shall periodically review and revise the Compliance Manual as
necessary to ensure that the information set forth therein remains
current and complete. Elgato shall distribute any revisions to the
Compliance Manual promptly to all Covered Employees.
c. Compliance Training Program. Elgato shall establish and implement a
Compliance Training Program on compliance with the Equipment
Marketing Rules and the Operating Procedures. As part of the
Compliance Training Program, Covered Employees shall be advised of
Elgato's obligation to report any noncompliance with the Equipment
Marketing Rules under paragraph 10 of this Consent Decree and shall
be instructed on how to disclose noncompliance to the Compliance
Officer. All Covered Employees shall be trained pursuant to the
Compliance Training Program within sixty (60) calendar days after the
Effective Date, except that any person who becomes a Covered
Employee at any time after the Effective Date shall be trained within
thirty (30) calendar days after the date such person becomes a
Covered Employee. Elgato shall repeat the compliance training on an
annual basis and shall periodically review and revise the Compliance
Training Program as necessary to ensure that it remains current and
complete and to enhance its effectiveness.
d. Remedial Measures. Elgato agrees to prominently display and maintain
a link on its website that provides consumers the information
required by Section 15.19(a) of the Rules.
10. Reporting Noncompliance. Elgato shall report any noncompliance with
the Equipment Marketing Rules and with the terms and conditions of this
Consent Decree within fifteen (15) calendar days after discovery of such
noncompliance. Such reports shall include a detailed explanation of (i)
each instance of noncompliance; (ii) the steps that Elgato has taken or
will take to remedy such noncompliance; (iii) the schedule on which such
remedial actions will be taken; and (iv) the steps that Elgato has taken
or will take to prevent the recurrence of any such noncompliance. All
reports of noncompliance shall be submitted to the Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission, Room 3-C366, 445 12th Street, S.W. Washington, D.C. 20554,
with a copy submitted electronically to Nissa Laughner at
Nissa.Laughner@fcc.gov and to Ricardo Durham at Ricardo.Durham@fcc.gov.
11. Compliance Reports. Elgato shall file Compliance Reports with the
Commission ninety (90) calendar days after the Effective Date, twelve (12)
months after the Effective Date, and twenty-four (24) months after the
Effective Date.
a. Each compliance report shall include a detailed description of
Elgato's efforts during the relevant period to comply with the terms
and conditions of this Consent Decree and the Equipment Marketing
Rules. In addition, each Compliance Report shall include a
certification by the Compliance Officer, as an agent of and on behalf
of Elgato, stating that the Compliance Officer has personal knowledge
that Elgato (i) has established and implemented the Compliance Plan;
(ii) has utilized the Operating Procedures since the implementation of
the Compliance Plan; and (iii) is not aware of any instances of
noncompliance with the terms and conditions of this Consent Decree,
including the reporting obligations set forth in paragraph 10 hereof.
b. The Compliance Officer's certification shall be accompanied by a
statement explaining the basis for such certification and 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.
c. If the Compliance Officer cannot provide the requisite certification,
the Compliance Officer, as an agent of and on behalf of Elgato, shall
provide the Commission with a detailed explanation of the reason(s)
why and describe fully (i) each instance of noncompliance; (ii) the
steps that Elgato has taken or will take to remedy such noncompliance,
including the schedule on which proposed remedial actions will be
taken; and (iii) the steps that Elgato has taken or will take to
prevent the recurrence of any such noncompliance, including the
schedule on which such preventive action will be taken.
d. 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, with a copy
submitted electronically to Nissa.Laughner@fcc.gov and to Ricardo
Durham at Ricardo.Durham@fcc.gov.
12. Termination Date. Unless stated otherwise, the requirements of
paragraphs 8 through 11 of this Consent Decree shall expire
twenty-four (24) months after the Effective Date.
13. Voluntary Contribution. Elgato agrees that it will make a voluntary
contribution to the United States Treasury in the amount of two
thousand eight hundred dollars ($2,800) within thirty (30) calendar
days after the Effective Date. Elgato shall also send electronic
notification of payment to Nissa Laughner at Nissa.Laughner@fcc.gov,
Ricardo Durham at Ricardo.Durham@fcc.gov, and Samantha Peoples at
Sam.Peoples@fcc.gov on the date said payment is made. The payment must
be made by check or similar instrument, wire transfer, or credit card,
and must include the NAL/Account number and FRN referenced above.
Regardless of the form of payment, a completed 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).
Below are additional instructions you should follow based on the form
of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
If you have questions regarding payment procedures, please contact the
Financial Operations Group Help Desk by phone, 1-877-480-3201, or by
e-mail, ARINQUIRIES@fcc.gov.
14. Waivers. Elgato 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 as defined herein. Elgato 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 Elgato nor the Commission shall contest the
validity of the Consent Decree or of the Adopting Order, and Elgato
shall waive any statutory right to a trial de novo. Elgato hereby
agrees to waive any claims it may have under the Equal Access to
Justice Act, relating to the matters addressed in this Consent Decree.
15. 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.
16. 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 Elgato does not expressly
consent) that provision will be superseded by such Rule or Commission
order.
17. Successors and Assigns. Elgato agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
18. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties with
respect to the Investigation. 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
Communications Laws.
19. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
20. 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.
21. Authorized Representative. The individual signing this Consent Decree
on behalf of Elgato represents and warrants that he is authorized by
Elgato to execute this Consent Decree and to bind Elgato to the
obligations set forth herein. The FCC signatory represents that he is
signing this Consent Decree in his official capacity and that he is
authorized to execute this Consent Decree.
22. 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.
________________________________
John D. Poutasse
Chief
Spectrum Enforcement Division
Enforcement Bureau
_______________________________
Date
_______________________________
Adam Steinberg
Vice President of Marketing
Elgato Systems LLC
______________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803, 15.19.
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803, 15.19.
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803, 15.19.
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
FCC Enforcement Bureau, to Adam Steinberg, Director, Product Line
Management, Elgato Systems LLC (Mar. 18, 2010) (on file in EB-10-SE-018).
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803.
Section 15.3(z) of the Rules defines an "unintentional radiator" as a
"device that intentionally generates radio frequency energy for use within
the device, or that sends radio frequency signals by conduction to
associated equipment via connecting wiring, but which is not intended to
emit RF energy by radiation or induction." Id. S: 15.3(z).
Section 2.803(e)(4) of the Rules defines "marketing" as the "sale or
lease, or offering for sale or lease, including advertising for sale or
lease, or importation, shipment, or distribution for the purpose of
selling or leasing or offering for sale or lease." Id. S: 2.803(e)(4).
Id. 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").
Id. S: 15.101.
Id. S: 15.19.
Id. S: 15.19(a)(1).
Id.
Id. S: 15.19(a)(5); see also id. S: 2.954 (stating that "[d]evices subject
to verification shall be uniquely identified by the person responsible for
marketing or importing the equipment within the United States. However,
the identification shall not be of a format which could be confused with
the FCC Identification required on certified, notified or type accepted
equipment. The importer or manufacturer shall maintain adequate
identification records to facilitate positive identification for each
verified device.").
47 C.F.R. S: 15.19(a)(5); see also id. S: 2.954 (requiring that devices
subject only to verification be "uniquely identified").
47 C.F.R. S: 15.19(a)(5).
See id. S: 2.909(b) (defining the "responsible party" for equipment
subject to verification as the equipment manufacturer, the importer, or if
the device is modified by any party not working under the authority of the
responsible party, the party performing the modification).
See supra note 5.
See Letter from Adam Steinberg, Vice President of Marketing, Elgato
Systems LLC, to Nissa Laughner, Attorney Advisor, Spectrum Enforcement
Division, FCC Enforcement Bureau (Apr. 19, 2010) (on file in
EB-10-SE-018).
Id. at 10 and Exhibit 3.
Id. at 11-12.
Id. at 12.
Id. at 12.
See, e.g., Tolling Agreement Extension, File No. EB-10-SE-018, executed by
and between Ricardo M. Durham, Senior Deputy Division Chief, on behalf of
John D. Poutasse, Chief, Spectrum Enforcement Division, FCC Enforcement
Bureau, and Adam Steinberg, Vice President of Marketing, Elgato Systems
LLC (Apr. 9, 2012).
47 C.F.R. S: 1.16.
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
Equal Access to Justice Act, Pub L. No. 96-481, 94 Stat. 2325 (1980)
(codified at 5 U.S.C. S: 504); see also 47 C.F.R. S:S: 1.1501-1.1530.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 12-1091
Federal Communications Commission DA 12-1091