**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Johannus Orgelbouw b.v. ) File No. EB-03-TS-089

The Netherlands ) NAL/Acct. No. 200432100006

) FRN \# 0009-7508-60

)

## FORFEITURE ORDER 

**Adopted: April 23, 2004 Released: April 27, 2004**

By the Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of five thousand, six hundred dollars
    (\$5,600) to Johannus Orgelbouw b.v. ("Johannus"), for repeated
    violation of Section 302(b) of the Communications Act of 1934, as
    amended ("Act"),[^1] and Section 2.803(a) of the Commission's Rules
    ("Rules").[^2] The noted violations involve Johannus's importing and
    marketing digital electronic organs that do not comply with the
    technical requirements set forth in Part 15 of the Rules.

2.  On November 6, 2003, the Enforcement Bureau issued a *Notice of
    Apparent Liability* *for Forfeiture* ("*NAL*") [^3] in the amount of
    seven thousand dollars (\$7,000) to Johannus. Johannus filed a
    response to the *NAL* ("Response") on December 19, 2003.

**II.** **BACKGROUND**

3.  On March 27, 2003, the Enforcement Bureau received a complaint
    alleging that Johannus imported digital electronic organs that did
    not comply with the Commission's rules.[^4] The complainant asserted
    that other digital electronic organ companies suffered competitive
    harm because Johannus, through its failure to comply with the
    Commission's rules, was able to produce digital electronic organs
    less expensively.

4.  On June 18, 2003, the Enforcement Bureau issued a letter of inquiry
    to Johannus ("LOI").[^5] In its answer to the LOI, Johannus stated
    that it imports about 13 organs a month into the U.S. and Canada,
    and that, after receiving the Commission's letter, it found that
    some of its organs radiated signals in excess of the radiated
    emission limits for Class A digital devices[^6] in the Commission's
    rules. Johannus claimed that the organs only began to radiate such
    signals after a design change in the CPU board that affected organs
    manufactured from July to October of 2002. Johannus admitted that it
    imported and marketed some of those organs into the U.S.

5.  On November 6, 2003, the Enforcement Bureau issued an *NAL* to
    Johannus for importing and marketing in the U.S. digital electronic
    organs which did not comply with the Commission's radiated emission
    limits in repeated violation of Section 302(b) of the Act and
    Section 2.803(a) of the Rules. We found in the *NAL* that Johannus
    had apparently imported and marketed organs that did not comply with
    the radiated emission limits for Class A digital devices. However,
    based on information found on Johannus's website which clearly
    indicated that Johannus was marketing its organs for use in a
    residential environment,[^7] we concluded that Johannus's organs are
    actually Class B digital devices[^8] and therefore must comply with
    the more stringent emission limits applicable to such devices. In
    its response to the *NAL*, Johannus claims that it did not willfully
    violate the Commission's rules because it was not aware that any of
    its electronic organs fell under the requirements for Class B
    digital devices. Johannus also claims in the response that it has a
    history of overall compliance, that it had already planned to modify
    its organs to meet the Class B requirements before receiving the
    *NAL*, and that it stopped importing organs into the U.S. after
    receiving the *NAL*.

**III.** **DISCUSSION**

6.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Act,[^9] Section 1.80 of the
    Rules,[^10] and *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines* ("*Policy Statement*")*.*[^11] In examining Johannus'
    response, Section 503(b) of the Act requires that the Commission
    take into account the nature, circumstances, extent, and gravity of
    the violation and, with respect to the violator, the degree of
    culpability, any history of prior offenses, ability to pay, and such
    other matters as justice may require.[^12]

7.   Section 302(b) of the Act states that no one shall import, ship,
    sell, or offer for sale devices that fail to comply with regulations
    promulgated pursuant to this section.[^13] Section 2.803(a) of the
    Rules states that no person shall sell, offer for sale, import,
    ship, or distribute a device that does not comply with technical,
    labeling and identification requirements specified in this
    chapter.[^14] It is undisputed that Johannus's organs are digital
    devices and, therefore, must comply with Part 15 of the Rules,
    including the radiated emission limits. In its *NAL* response,
    Johannus argues that its violation was not willful because it
    mistakenly believed that its organs fell under the technical
    requirements for Class A digital devices, and a small modification
    and improvement in the CPU/Voice Board of the organs unintentionally
    caused the devices to exceed the Class A emission limits.

8.  We need not address Johannus's argument that the violation was not
    willful. The *NAL* cited Johannus for repeated, not willful,
    violation of Section 302(b) of the Act and Section 2.803(a) of the
    Rules. In this regard, Section 503(b)(1) of the Act provides that a
    forfeiture penalty may be imposed if the violation is *either*
    willful *or* repeated.[^15] Johannus previously admitted that, as
    recently as July 2003, it imported into the U.S. and marketed in the
    U.S. at least one model of organ (involving more than one organ)
    that did not comply with the Commission's radiated emission
    limits.[^16] Further, Johannus does not dispute in its response to
    the *NAL* that the violation was repeated. Accordingly, based on the
    evidence before us, we conclude that Johannus repeatedly[^17]
    violated Section 302(b) of the Act and Section 2.803(a) of the
    Rules. In any event, we find Johannus's claim that it mistakenly
    believed that its organs were Class A digital devices unpersuasive.
    As noted in the *NAL* and as set forth above, Johannus's website
    indicated that it was marketing the devices for use in a residential
    environment. Since Johannus clearly knew that it was marketing its
    organs for residential use, it knew or should have known that the
    organs were Class B devices and therefore had to comply with the
    more stringent technical standards for Class B devices.

9.  Johannus also asserts that, before receiving the *NAL* on November
    6, 2003, it had already begun planning to modify all of its organs
    to meet Class B standards. We do not believe that any reduction of
    the forfeiture amount on this basis is warranted. In this regard,
    Johannus does not present evidence that it took steps to modify its
    organs to correct the violation prior to our investigation of this
    matter.[^18] Moreover, while Johannus indicates that it is taking
    remedial actions, the Commission has repeatedly held that remedial
    actions taken to come into compliance with Commission rules are not
    mitigating factors warranting reduction of a forfeiture.[^19]

10. Finally, Johannus requests cancellation or reduction of the
    forfeiture because it has "sold electronic organs for decades
    without a violation." We find that Johannus has a history of overall
    compliance. Pursuant to Section 1.80(b)(4) of the Rules,[^20] we
    reduce the forfeiture amount to \$5,600.

11. We have examined Johannus's Response pursuant to the statutory
    factors above, and in conjunction with the *Policy Statement* as
    well. As a result of our review, we conclude that Johannus
    repeatedly violated Section 302(b) of the Act and Section 2.803(a)
    of the Rules. Due to Johannus's history of overall compliance, we
    find that a reduction of the forfeiture to the amount indicated
    above is in order.

####  IV. ORDERING CLAUSES

12. Accordingly, **IT IS ORDERED THAT**, pursuant to Section 503(b) of
    the Act,[^21] and Sections 0.111, 0.311 and 1.80(f)(4) of the
    Rules,[^22] Johannus Orgelbouw, b.v. **IS LIABLE FOR A MONETARY
    FORFEITURE** in the amount of five thousand, six hundred dollars
    (\$5,600) for repeatedly violating Section 302(b) of the Act and
    Section 2.803(a) of the Rules.

13. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Rules[^23] within 30 days of the release of
    this *Order*. If the forfeiture is not paid within the period
    specified, the case may be referred to the Department of Justice for
    collection pursuant to Section 504(a) of the Act.[^24] Payment shall
    be made by mailing a check or similar instrument, payable to the
    order of the Federal Communications Commission, to the Federal
    Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482. The payment must include the FCC Registration Number
    (FRN) referenced above, and also should note the NAL/Acct.
    No. 200432100006. Requests for full payment under an installment
    plan should be sent to: Chief, Revenue and Receivables Operations
    Group, 445 12th Street, S.W., Washington, D.C. 20554.[^25]

14. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by Certified Mail Return Receipt Requested to Johannus Orgelbouw
    b.v., Keplerlann 2, 6717 BS Ede, The Netherlands, and to Johannus's
    counsel, Lewis H. Goldman, Esq., 45 Dudley Court, Bethesda, MD
    20814.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: ^?^ 47 U.S.C. § 302a(b).

[^2]: ^?^ 47 C.F.R. § 2.803(a).

[^3]: ^?^ *Johannus Orgelbouw b.v.*, 18 FCC Rcd 23078 (Enf. Bur. 2003).

[^4]: ^?^ Specifically, the complainant stated that it purchased a
    Johannus Rembrandt Model 370 organ, tested the device, and concluded
    that it did not comply with the radiated emissions limits for Class
    B digital devices.

[^5]: ^?^ Letter to Johannus Orgelbouw b.v. from Joseph P. Casey, Chief,
    Technical and Public Safety Division, Enforcement Bureau (June 18,
    2003).

[^6]: ^?^ Section 15.3(h) of the Rules defines a Class A digital device
    as "a digital device marketed for use in a commercial, industrial or
    business environment, exclusive of a device that is marketed for use
    by the general public or is intended to be used in the home." 47
    U.S.C. § 15.3(h).

[^7]: ^?^ As noted in the *NAL*, the Johannus web site states that the
    Opus series organs "are designed for living room and chapel"; the
    Monarch series organs "find a place in both living rooms and
    churches"; the Majestic and Sovereign series organs are "designed
    for both home practice purposes and church"; and the Chamber organ
    "has been designed for both small and medium sized churches (and
    home use)."

[^8]: ^?^ Section 15.3(i) of the Rules defines a Class B digital device
    as "a digital device marketed for use in a residential environment
    notwithstanding use in commercial, business and industrial
    environments." 47 C.F.R. § 15.3(i).

[^9]: ^?^ 47 U.S.C. § 503(b).

[^10]: ^?^ 47 C.F.R. § 1.80.

[^11]: ^?^ 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303
    (1999).

[^12]: ^?^ 47 U.S.C. § 503(b)(2)(D).

[^13]: ^?^ *See* 47 U.S.C. § 302(b).

[^14]: ^?^ *See* 47 U.S.C. § 2.803(a)(2).

[^15]: ^?^ 47 U.S.C. § 503(b)(1).

[^16]: ^?^ Letter to the Enforcement Bureau, Technical and Public Safety
    Division, from Gert A. Van de Weerd, President, Johannus Orgelbouw
    b.v. (July 10, 2003).

[^17]: ^?^ As provided by 47 U.S.C. § 312(f)(2), a violation is
    "repeated" if it occurs more than once or continues for more than
    one day. The Conference Report for Section 312(f)(2) indicates that
    Congress intended to apply this definition to Section 503 of the Act
    as well as Section 312. *See* H.R. Rep. 97^th^ Cong. 2d Sess. 51
    (1982). *See Southern California Broadcasting Company*, 6 FCC Rcd
    4387, 4388 (1991).

[^18]: ^?^ *Cf. Radio One Licenses, Inc.*, 18 FCC Rcd 15964, 15965
    (2003) (reducing a forfeiture based on good faith where the licensee
    took steps to correct the violation *prior* to the FCC inspection).

[^19]: ^?^ *See e.g., AT&T Wireless Services, Inc.*, 17 FCC Rcd 21866,
    21871 (2002); *Seawest Yacht Brokers*, 9 FCC Rcd 6099 (1994);
    *Station KGVL, Inc.*, 42 FCC 2d 258, 259 (1973).

[^20]: ^?^ See Section 1.80(b)(4) of the Rules, 47 C.F.R. § 1.80(b)(4).

[^21]: ^?^ 47 U.S.C. § 503(b).

[^22]: ^?^ 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^23]: ^?^ 47 C.F.R. § 1.80.

[^24]: ^?^ 47 U.S.C. § 504(a).

[^25]: ^?^ *See* 47 C.F.R. § 1.1914.