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 Federal  Communications  Commission  DA  04-  1092 
 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  Commissions  Rules  (  Rules).  2  The  noted  violations  involve  Johannuss  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  Commissions  rules.  4  The  complainant 
 asserted  that  other  digital  electronic  organ  companies  suffered  competitive  harm  because  Johannus,  through  its  failure  to  comply  with  the  Commissions  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 
 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, 
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 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  Commissions  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  Commissions  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  Commissions  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  Johannuss  website  which  clearly  indicated  that  Johannus  was  marketing  its  organs  for  use  in  a  residential 
 environment,  7  we  concluded  that  Johannuss  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  Commissions  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  Commissions  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 

 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). 
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 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 
 Johannuss  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  Johannuss  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  Commissions  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  Johannuss  claim  that  it  mistakenly  believed  that  its  organs  were  Class  A  digital  devices  unpersuasive.  As  noted  in  the  NAL  and  as  set  forth  above,  Johannuss  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 
 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). 
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 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  Johannuss  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  Johannuss  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 

 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. 
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 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  Johannuss  counsel,  Lewis  H.  Goldman,  Esq.,  45  Dudley  Court,  Bethesda,  MD  20814. 

 FEDERAL  COMMUNICATIONS  COMMISSION 

 David  H.  Solomon  Chief,  Enforcement  Bureau 
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