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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-08-SE-559
In the Matter of
) NAL/Acct. No.: 200832100078
Hannspree North America, Inc.
) FRN: 0018065409
)
Memorandum opinion and order
Adopted: July 12, 2012 Released: July 13, 2012
By the Chief, Enforcement Bureau:
I. Introduction
1. In this Memorandum Opinion and Order, issued pursuant to Section 405
of the Communications Act of 1934, as amended (Act), and Section 1.106
of the Federal Communications Commission's rules (Rules), we grant in
part and deny in part the Petition for Reconsideration (Petition)
filed by Hannspree North America, Inc. (Hannspree). Hannspree seeks
reconsideration of the Forfeiture Order that imposed a twelve thousand
four hundred fifty dollar ($12,450) forfeiture for Hannspree's willful
and repeated violation of Section 15.117(i)(1)(iii) of the Rules in
connection with its interstate shipment of television broadcast
receivers that failed to include the capability to receive
over-the-air DTV broadcast signals. For the reasons set forth below,
the Petition is granted in part and denied in part, and we reduce the
amount of the forfeiture penalty to eleven thousand eight hundred
dollars ($11,800).
II. Background
2. In 2002, the Federal Communications Commission (Commission) adopted
the "DTV tuner requirement," which requires that all new television
broadcast receivers imported into the United States or shipped in
interstate commerce include the capability to receive over-the-air DTV
broadcast signals. The DTV tuner requirement was intended to
facilitate the transition to digital television by promoting the
availability of DTV reception equipment and to protect consumers by
ensuring that their television receivers provide over-the-air
television reception of digital signals.
3. Hannspree, a subsidiary of Hannstar Display Corporation, is a
California-based importer and retailer of television broadcast
receivers. On July 8, 2008, the Enforcement Bureau (Bureau) issued a
letter of inquiry (LOI) to Hannspree regarding the company's
compliance with the DTV tuner requirement. In its August 6, 2008,
response (LOI Response), Hannspree conceded, via affidavit, that
certain of its receiver offerings were noncompliant; it also provided,
under penalty of perjury, comprehensive business sales records of all
receivers imported and shipped during the period covered by the
investigation. After analyzing the data provided by Hannspree, the
Bureau issued a Notice of Apparent Liability for Forfeiture (NAL) to
the company, proposing a $12,450 forfeiture for its apparent willful
and repeated violation of Section 15.117(i)(1)(iii) of the Rules by
shipping in interstate commerce 249 television receivers that were not
equipped with the required DTV tuners.
4. Hannspree filed a response to the NAL on September 3, 2008 (NAL
Response). In its NAL Response, Hannspree requested the exclusion of
noncompliant receivers that were imported prior to the March 1, 2007,
deadline, but sold and shipped from its two California-based retail
stores after the deadline. The Forfeiture Order considered Hannspree's
NAL Response but found that Hannspree presented no circumstances that
warranted reduction of the proposed forfeiture. In particular, the
Forfeiture Order reiterated that Section 15.117(i) prohibits the
importation or interstate shipment of noncompliant units after the
applicable deadlines.
5. In its Petition, Hannspree argues for the first time that the Bureau
incorrectly calculated the number of noncompliant receivers that were
subject to the forfeiture computation. Hannspree avers that it shipped
interstate a total of 74 non-DTV-compliant receivers that were subject
to a forfeiture penalty, rather than the 249 units stated in the NAL.
Accordingly, Hannspree seeks a corresponding reduction in the
forfeiture.
III. Discussion
6. Under Section 1.106(c)(1) of the Rules, a petition for reconsideration
that relies on facts or arguments not previously presented to the
designated authority may be granted only if (1) the facts or arguments
relate to events that occurred or circumstances that have changed
since the last opportunity to present such matters; or (2) the
petition relies on facts or arguments unknown to the petitioner until
after petitioner's last opportunity to present such matters. Section
1.106(c)(2) of the Rules also permits grant of a petition for
reconsideration that raises new facts or arguments if the designated
authority determines that consideration of the new information is
required to serve the public interest.
7. In support of its Petition, Hannspree provides a new analysis of its
sales records purporting to show that only 74 units are subject to a
forfeiture penalty and resubmits certain business sales records.
Without explanation, however, Hannspree omits a sizeable group of
noncompliant receivers that it had previously disclosed. In addition,
Hannspree neither explains the figures in its analysis (or describes
their origin), nor demonstrates, as required by Section 1.106(c)(1),
that the new analysis relates to changed circumstances or previously
unknown facts. Therefore, while Hannspree argues that the Bureau
miscalculated the number of noncompliant television receivers that
were subject to a forfeiture penalty, it provides little factual
support to undergird its claims, and what it does offer fails to meet
the procedural threshold in Section 1.106(c)(1).
8. We note, however, that the Bureau has conducted another careful
review of the record and identified a small miscalculation, which,
consistent with the public interest, warrants partial reconsideration
and modification of the Forfeiture Order. The NAL determined that
Hannspree shipped a total of 5,518 receivers during the relevant
period, of which 249 were non-compliant. We now conclude that
Hannspree shipped a total of 5,519 units, only 236 of which were
non-DTV-compliant. We thus affirm our finding that Hannspree
willfully and repeatedly violated Section 15.117(i)(1)(iii) of the
Rules by shipping in interstate commerce television receivers that
were not equipped with DTV tuners, but modify the decision to
reflect the interstate shipment of 236 non-DTV-compliant television
receivers-or 13 fewer units-within the one year preceding the issuance
of the NAL. Consistent with Commission precedent, we reduce the
forfeiture to $11,800 (236 units x $50 per unit) for Hannspree's
willful and repeated violation of Section 15.117(i)(1)(iii) of the
Rules in connection with its interstate shipment of television
receivers that did not comply with the DTV tuner requirement.
IV. ordering clauses
9. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
Communications Act of 1934, as amended, and Section 1.106 of the
Commission's rules, the Petition for Reconsideration filed by
Hannspree North America, Inc. hereby IS GRANTED IN PART AND DENIED
IN PART.
10. IT IS FURTHER ORDERED that, pursuant to Section 503(b) of the Act and
Sections 0.111, 0.311, and 1.80(f)(4) of the Commission's rules,
Hannspree North America, Inc. IS LIABLE FOR A MONETARY FORFEITURE in
the amount of eleven thousand eight hundred dollars ($11,800) for
violation of Section 15.117(i)(1)(iii) of the Rules.
11. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within fifteen (15) calendar days after the
release date of this Memorandum Opinion and Order. If the forfeiture
is not paid within the period specified, the case may be referred to
the U.S. Department of Justice for enforcement of the forfeiture
pursuant to Section 504(a) of the Act. Hannspree North America,
Inc. shall send electronic notification of payment to Daudeline Meme
at Daudeline.Meme@fcc.gov, Kevin Pittman at Kevin.Pittman@fcc.gov, and
to Samantha Peoples at Sam.Peoples@fcc.gov on the date said payment is
made.
12. 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.
13. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. 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. IT IS FURTHER ORDERED that this Memorandum Opinion and Order shall be
sent by First Class Mail and by Certified Mail, return receipt
requested, to Hannspree North America, Inc. at 14450 Myford Road,
Suite 100, Irvine, CA 92606.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
On April 1, 2009, Hannspree filed a letter seeking reduction of the
forfeiture. See Letter from Eric Hsu, Vice President of Operations,
Hannspree North America, Inc., to Secretary, Federal Communications
Commission (Apr. 1, 2009) (on file in EB-08-SE-559). Consistent with
Section 405 of the Act and Section 1.106 of the Rules, we are treating
this letter as a petition for reconsideration.
Hannspree North America, Inc., Forfeiture Order, 24 FCC Rcd 3616 (Enf.
Bur. 2009) (Forfeiture Order).
See 47 C.F.R. 15.117(i)(1)(iii); see also 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 Review of the Commission's Rules and Policies Affecting the Conversion
to Digital Television, Second Report and Order and Second Memorandum
Opinion and Order, 17 FCC Rcd 15978 (2002) (DTV Review Second Report and
Order). The Commission later modified the Rules to advance the dates by
which new television receivers were required to include DTV tuners. See
Requirements for Digital Television Receiving Capability, Report and Order
and Further Notice of Proposed Rulemaking, 20 FCC Rcd 11196 (2005) (DTV
Tuner Report and Order); Requirements for Digital Television Receiving
Capability, Second Report and Order, 20 FCC Rcd 18607 (2005) (DTV Tuner
Second Report and Order).
See DTV Review Second Report and Order, 17 FCC Rcd at 15996, para. 40. The
DTV tuner requirement also applies to other television receiving
equipment, such as VCRs and DVD players. See id.
See id. at 15979, para. 1. In this regard, the DTV tuner requirement
ensures that the intent of the All Channel Receiver Act of 1962 (ACRA),
Pub. L. No. 87-529, 76 Stat. 150, is fulfilled. The ACRA, which is
codified at 47 U.S.C. S: 303(s), provides the Commission with "authority
to require" that all television receivers "be capable of adequately
receiving all frequencies allocated by the Commission to television
broadcasting."
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
FCC Enforcement Bureau, to Hannspree North America, Inc. (July 8, 2008)
(on file in EB-08-SE-559).
See Letter from Eric Hsu, Vice President of Operations, Hannspree North
America, Inc., to Kathryn S. Berthot, Chief, Spectrum Enforcement
Division, FCC Enforcement Bureau (Aug. 6, 2008) (on file in EB-08-SE-559).
See Hannspree North America, Inc., Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 12902 (Enf. Bur. 2008).
See Letter from Eric Hsu, Vice President of Operations, Hannspree North
America, Inc., to Secretary, Federal Communications Commission (Sept. 3,
2008) (on file in EB-08-SE-559).
See id. at 1.
See Forfeiture Order, 24 FCC Rcd at 3620, para. 10.
See id.
See Petition at 1.
See id. at 2.
See 47 C.F.R. S: 1.106(c)(1).
See id. S: 1.106(c)(2).
See LOI Response at Exhibit A. Specifically, the business sales records
that Hannspree submitted with its Petition exclude one attachment that
details shipment of over 400 television receivers during the period
covered by the investigation. Hannspree does not argue in its Petition
that the 400 receivers that it had previously disclosed were improperly
considered in connection with the NAL. Therefore, the Bureau again
considers those receivers in its evaluation here.
See 47 C.F.R. S: 1.106(c)(1).
See id S: 1.106(c)(2); see also EZ Sacramento, Inc., 15 FCC Rcd 18257
(Enf. Bur. 2000) (citing WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub.
nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965)).
NAL, 23 FCC Rcd at 12907, para. 15 & n.17. To determine the number of
receiver units subject to forfeiture penalty, the NAL analysis excluded
the following categories of receivers: compliant receivers; receivers that
were exported; noncompliant receivers that were shipped interstate more
than one year prior to the date on which the NAL was issued; and receivers
with diagonal screen sizes measuring less than 13 inches that were shipped
interstate prior to the effective date for such receivers. See id. The DTV
tuner requirement became applicable to television receivers with screen
sizes less than 13 inches (measured diagonally) on January 30, 2008. See
Third Periodic Review of the Commission's Rules and Policies Affecting the
Conversion to Digital Television, Report and Order, 23 FCC Rcd 2994, 3081,
para. 190 (2007) (correcting language in Section 15.117(i)(2) regarding
receivers with screen sizes less than 13 inches); Third Periodic Review of
the Commission's Rules and Policies Affecting the Conversion to Digital
Television, Final Rule, 73 Fed. Reg. 5634 (Jan. 30, 2008) (publishing the
rule correction).
To arrive at this number, the Bureau excluded the following units that
were compliant with the Rules or were otherwise not subject to forfeiture
penalty: 1,404 units that, in fact, contained DTV tuners; 6 units that
were exported; 3,521 units that were shipped more than one year before the
August 28, 2008, issuance of the NAL; and 352 units with screen sizes less
than thirteen inches that were shipped before the January 30, 2008, DTV
tuner effective date for such receivers. Because of the order in which
these exclusions are applied, certain overlap among the units within these
categories, and the inclusion of additional DTV-compliant units, the
numbers of receivers in each category differ somewhat from those
represented in the NAL.
Section 312(f)(1) of the Act defines "willful" as "the conscious and
deliberate commission or omission of [any] act, irrespective of any intent
to violate" the law. 47 U.S.C. S: 312(f)(1). The legislative history of
Section 312 clarifies that this definition of willful applies to both
Sections 312 and 503 of the Act, H.R. Conf. Rep. No. 97-765 (1982), and
the Commission has so interpreted the term in the Section 503(b) context.
See Southern California Broadcasting Co., Memorandum Opinion and Order, 6
FCC Rcd 4387, 4388, para. 5 (1991), recon. denied, 7 FCC Rcd 3454 (1992)
(Southern California); see also Telrite Corporation, Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 7231, 7237, para. 12 (2008), consent
decree ordered, Order and Consent Decree, 27 FCC Rcd 4110 (2012); San Jose
Navigation, Inc., Forfeiture Order, 22 FCC Rcd 1040, 1042, para. 9 (2007),
consent decree ordered, Order and Consent Decree, 25 FCC Rcd 1494 (2010).
Section 312(f)(2) of the Act, which also applies to forfeitures assessed
pursuant to Section 503(b) of the Act, provides that "[t]he term
`repeated'. . . means the commission or omission of such act more than
once or, if such commission or omission is continuous, for more than one
day." 47 U.S.C. S: 312(f)(2). See Callais Cablevision, Inc., Notice of
Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 9
(2001), forfeiture ordered, Forfeiture Order, 17 FCC Rcd 22626 (2002)
(forfeiture paid); Southern California, 6 FCC Rcd at 4388, para. 5.
47 C.F.R. S: 15.117(i)(1)(iii).
See, e.g., Precor, Inc., Notice of Apparent Liability for Forfeiture, 23
FCC Rcd 6361, 6367, para. 16. (2008) (applying the following tiered
approach to the forfeiture calculation: 0-1000 units: $50 per unit;
1001-2500 units: $75 per unit; 2501-5000 units: $100 per unit; 5001-10,000
units: $125 per unit; 10,001-20,000 units: $150 per unit; 20,001-30,000
units: $175 per unit; 30,001-40,000 units: $200 per unit; 40,001-50,000
units: $225 per unit; 50,001+ units: $250 per unit).
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).
See 47 C.F.R. S: 1.80.
See 47 U.S.C. S: 504(a).
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
Federal Communications Commission DA 12-1096
Federal Communications Commission DA 12-1096