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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-10-SE-019
In the Matter of
) Acct. No.: 201232100032
Silicondust USA, Inc.
) FRN: 0021901046
)
ORDER
Adopted: August 20, 2012 Released: August 20, 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 Silicondust USA, Inc. (Silicondust). The
Consent Decree resolves and terminates the Bureau's investigation into
Silicondust'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 Silicondust 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 Silicondust 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 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 Theodore D. Head, President and CEO, Silicondust USA,
Inc., 5662 La Ribera St., Suite C, Livermore, CA 94550, and to
Stephanie Blair, Esq., and Otto Lee, Esq., counsel for Silicondust
USA, Inc., Intellectual Property Law Group, LLP, 12 South First
Street, 12th Floor, San Jose, CA 95113.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-10-SE-019
In the Matter of
) Acct. No.: 201232100032
Silicondust USA, Inc.
) FRN: 0021901046
)
CONSENT DECREE
The Enforcement Bureau of the Federal Communications Commission and
Silicondust USA, Inc., 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 television broadcast
receivers.
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 Silicondust 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 Silicondust who
perform, or supervise, oversee, or manage the performance of, duties
that relate to Silicondust's responsibilities under the Equipment
Marketing Rules.
h. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
i. "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.
j. "Investigation" means the investigation commenced by the Bureau's
March 18, 2010, letter of inquiry regarding whether the marketing of
certain digital television receivers by Silicondust complies with the
Equipment Marketing Rules.
k. "Operating Procedures" means the standard, internal operating
procedures and compliance policies established by Silicondust to
implement the Compliance Plan.
l. "Parties" means Silicondust and the Bureau, each of which is a
"Party."
m. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
n. "Silicondust" means Silicondust USA, Inc., and its
predecessors-in-interest and successors-in-interest.
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. Silicondust imports and
markets a broadcast television receiver, the HD HomeRun television
tuner model, that is designed to connect directly to a television
antenna and to a 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." As the importer of the device,
Silicondust is responsible for the device's compliance with the
applicable technical standards and administrative requirements,
including Section 15.19 of the Rules.
2. On March 18, 2010, the Bureau's Spectrum Enforcement Division issued
a letter of inquiry (LOI) to Silicondust, directing the company to
submit a sworn written response to a series of questions relating to
Silicondust's manufacture, importation, and marketing of digital
television receivers. Silicondust responded to the LOI on May 10,
2010 (LOI Response). In its LOI Response, Silicondust submitted
information and documentation relating to the HD HomeRun tuner model,
including documentation demonstrating that the model had been
properly verified before marketing. Silicondust acknowledged,
however, that it had not included the language required by Section
15.19(a)(1) of the Rules on the labels for this model because it
mistakenly believed that the Rule did not apply to its HD HomeRun
television tuner model. Silicondust subsequently submitted an
affidavit certifying that as of April 14, 2010, its HD HomeRun
television tuner model devices were labeled in accordance with
Section 15.19(a)(1). Silicondust also reported that, upon receipt of
the LOI, the company had updated the model's online instruction
manual with the language set forth in Section 15.19(a)(1). The Bureau
and Silicondust 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. Silicondust 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, Silicondust 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 Silicondust 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 Silicondust with respect to
Silicondust'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, Silicondust 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
Silicondust 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,
Silicondust 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, Silicondust shall implement the following procedures:
a. Operating Procedures on Equipment Marketing. Within sixty (60)
calendar days after the Effective Date, Silicondust shall establish
Operating Procedures that all Covered Employees must follow to help
ensure Silicondust's compliance with the Equipment Marketing Rules.
Silicondust's Operating Procedures shall include internal procedures
and policies specifically designed to ensure that all television
broadcast receivers and all other radio frequency devices marketed by
Silicondust 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 Silicondust's compliance with the Equipment Marketing Rules.
Silicondust shall periodically review and revise the Compliance
Manual as necessary to ensure that the information set forth therein
remains current and complete. Silicondust shall distribute any
revisions to the Compliance Manual promptly to all Covered Employees.
c. Compliance Training Program. Silicondust 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 Silicondust'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. Silicondust 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.
10. Reporting Noncompliance. Silicondust 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 Silicondust 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
Silicondust 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. Silicondust 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
Silicondust'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 Silicondust, stating that the Compliance Officer has personal
knowledge that Silicondust (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 Silicondust,
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 Silicondust 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 Silicondust 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 at 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. Silicondust 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. Silicondust 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. Silicondust 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. Silicondust 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 Silicondust nor the Commission shall contest
the validity of the Consent Decree or of the Adopting Order, and
Silicondust shall waive any statutory right to a trial de novo.
Silicondust 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 Silicondust does not expressly
consent) that provision will be superseded by such Rule or Commission
order.
17. Successors and Assigns. Silicondust 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 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 Silicondust represents and warrants that he is authorized
by Silicondust to execute this Consent Decree and to bind Silicondust
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
_______________________________
Theodore D. Head
President and Chief Operating Officer
Silicondust USA, Inc.
______________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803, 15.19.
47 U.S.C. S:S: 154(i), 503(b).
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 Theodore D. Head, President and Chief Operating
Officer, Silicondust USA, Inc. (Mar. 18, 2010) (on file in EB-10-SE-019).
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803.
See id. S: 15.3(z) (defining "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").
See id. S: 15.3(w) (defining "television (TV) 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").
Silcondust sells two tuner models under the moniker, HDHomeRun, with
either one or two tuners. The physical differences between these two
models do not result in differences in the emanation characteristics of
the devices, and therefore, under Section 2.953(d) of the Rules, 47 C.F.R.
S: 2.953(d), the two models may be verified under a single verification.
Accordingly, for the purpose of this Consent Decree, the two HDHomeRun
models marketed by Silicondust are treated as a single model.
See id. S: 15.101.
Id. S: 15.19.
Id. S: 15.19(a)(1).
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 Otto O. Lee, counsel for Silicondust USA, Inc., to Ricardo
Durham, Senior Deputy Chief, and Nissa Laughner, Attorney Advisor,
Spectrum Enforcement Division, FCC Enforcement Bureau (May 10, 2010) (on
file in EB-10-SE-019).
See id. at 4 and Exhibit C.
See id.
Affidavit of Theodore D. Head, President and Chief Executive Officer,
Silicondust USA, Inc. (Mar. 23, 2012).
See LOI Response at 4 and Exhibit C.
See, e.g., Tolling Agreement Extension, File No. EB-10-SE-019, executed by
and between John D. Poutasse, Chief, Spectrum Enforcement Division, FCC
Enforcement Bureau, and Theodore Head, President and Chief Executive
Officer, Silicondust USA, Inc. (June 27, 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 12-1108
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Federal Communications Commission DA 12-1108