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June 1, 2007
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
4300 Portsmouth Blvd.
Chesapeake, Virginia 23321
c/o Sears Holding Corporation
3333 Beverly Road
Hoffman Estates, IL 60179
Attn.: William R. Harker
Senior Vice President and General Counsel
Re: File No. EB-07-NF-039
Citation No.: C20073264004
This is an official CITATION, issued pursuant to Section 503(b)(5) of the
Communications Act of 1934, as amended ("Act"), 47 U.S.C. S 503(b)(5), to
Kmart for failure to provide appropriate Consumer Alert disclosures on
analog tuner only television receiving equipment in violation of Section
302(b) of the Act, 47 U.S.C. S 302a(b), and Section 15.117(k) of the
Commission's Rules ("Rules"), 47 C.F.R. S 15.117(k). As explained below,
future violations of the Commission's rules in this regard may subject
your company to monetary forfeitures.
On May 29, 2007, an agent from the Commission's Norfolk Office of the
Enforcement Bureau visited the Kmart store at 4300 Portsmouth Blvd.,
Chesapeake, VA and observed that Kmart did not have the proper Consumer
Alert label displayed on equipment that contained an analog tuner but not
a digital tuner at the point of sale.
Section 302(b) of the Act provides that "[n]o person shall manufacture,
import, sell, offer for sale, or ship devices or home electronic equipment
and systems, or use devices, which fail to comply with regulations
promulgated to this section." Section 15.117(k) of the Commission's Rules
(k) The following requirements apply to all responsible parties, as
defined in S2.909 of this chapter, and any person that displays or
offers for sale or rent television receiving equipment that is not
capable of receiving, decoding and tuning digital signals.
(1) Such parties and persons shall place conspicuously and in close
proximity to such television broadcast receivers a sign containing, in
clear and conspicuous print, the Consumer Alert disclosure text
required by subparagraph (3). The text should be in a size of type
large enough to be clear, conspicuous and readily legible, consistent
with the dimensions of the equipment and the label. The information
may be printed on a transparent material and affixed to the screen, if
the receiver includes a display, in a manner that is removable by the
consumer and does not obscure the picture, or, if the receiver does
not include a display, in a prominent location on the device, such as
on the top or front of the device, when displayed for sale, or the
information in this format may be displayed separately immediately
adjacent to each television broadcast receiver offered for sale and
clearly associated with the analog-only model to which it pertains.
(2) If such parties and persons display or offer for sale or rent such
television broadcast receivers via direct mail, catalog, or electronic
means, they shall prominently display in close proximity to the images
or descriptions of such television broadcast receivers, in clear and
conspicuous print, the Consumer Alert disclosure text required by
subparagraph (3). The text should be in a size large enough to be
clear, conspicuous, and readily legible, consistent with the
dimensions of the advertisement or description.
(3) "CONSUMER ALERT
This television receiver has only an analog broadcast tuner and will
require a converter box after February 17, 2009, to receive
over-the-air broadcasts with an antenna because of the Nation's
transition to digital broadcasting. Analog-only TVs should continue to
work as before with cable and satellite TV services, gaming consoles,
VCRs, DVD players, and similar products. For more information, call
the Federal Communications Commission at 1-888-225-5322 (TTY:
1-888-835-5322) or visit the Commission's digital television website
Accordingly, it appears that Kmart has violated Section 302(b) of the Act,
and Section 15.117(k) of the Rules by failing to place conspicuously and
in close proximity to the following equipment, in clear and conspicuous
print, the Consumer Alert label required under Section 15.117(k):
a. Sylvania TV receiver, 6513DG
b. Sylvania TV receiver, 6419TG
c. Sylvania TV receiver, 6420FF
d. RCA TV receiver, 13V420T; and
e. Sylvania DVD recorder, ZC320SL8B.
We caution you that failure to display the appropriate Consumer Alert
label on any television receiving equipment that is not capable of
receiving, decoding and tuning digital signals would constitute a further
violation of Section 302(b) of the Act and Section 15.117(k) of the Rules.
If, after receipt of this citation, any Kmart retail outlet or any other
retail outlets under common ownership or control violates the
Communications Act or the Commission's rules in any manner described
herein, the Commission may impose monetary forfeitures not to exceed
$11,000 for each such violation or each day of a continuing violation up
to $97,500 for a single continuing violation.
If you choose to do so, you may respond to this citation within 10 days
from the date of this letter either through (1) a personal interview at
the Commission's Field Office nearest to your place of business, or (2) a
written statement. Your response should specify the actions that Kmart is
taking to ensure that it does not violate the Commission's rules governing
the marketing of unauthorized radio frequency devices in the future.
Kmart may request an interview at the closest FCC Office, which is Federal
Communications Commission, 1457 Mount Pleasant Road, Suite 113,
Chesapeake, VA 23322. You may contact this office by telephone, (XXX)
XXXX-XXXX to schedule this interview, which must take place within 10 days
of this Citation. Kmart may also submit a written statement to the above
address within 10 days of the date of this Citation. Any written
statements should specify what actions have been taken to correct the
violations outlined above. Please reference file number EB-07-NF-029 when
corresponding with the Commission.
Under the Privacy Act of 1974, 5 U.S.C. S 552a(e)(3), we are informing you
that the Commission's staff will use all relevant material information
before it, including information that you disclose in your interview or
written statement, to determine what, if any, enforcement action is
required to ensure your compliance with the Communications Act and the
The knowing and willful making of any false statement, or the concealment
of any material fact, in reply to this citation is punishable by fine or
imprisonment under 18 U.S.C. S 1001.
Thank you in advance for your anticipated cooperation.
FEDERAL COMMUNICATIONS COMMISSION
Resident Agent, Norfolk, Office,
South Central Region
See 47 C.F.R. S 1.80(b)(3).
47 U.S.C. S 503(b)(5).
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554