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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                             )                               
                                                                             
     In the Matter of                        )                               
                                                                             
     Trans World Entertainment Corporation   )   File Number EB-07-RK-009    
     dba                                                                     
                                             )   NAL/Acct. No. 200832460002  
     F.Y.E.                                                                  
                                             )   FRN # 0012611646            
     Albany, NY                                                              
                                             )                               
                                                                             
                                             )                               


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: October 15, 2007 Released: October 15, 2007 

   By the Chief, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       that Trans World Entertainment Corporation dba F.Y.E. ("F.Y.E.")
       apparently willfully and repeatedly  violated Section 15.117(k)  of
       the Commission's Rules ("Rules") by failing to place the required
       Consumer Alert label immediately adjacent to and clearly associated
       with television receiving equipment that contains an analog broadcast
       television tuner but does not contain a digital broadcast television
       tuner (hereinafter "analog-only tuner") that it displayed or offered
       for sale or rent. We conclude, pursuant to Section 503(b) of the
       Communications Act of 1934, as amended ("Act"), that F.Y.E. is
       apparently liable for a forfeiture in the amount of eight thousand
       dollars ($8,000).

   II. BACKGROUND

    2. Congress has established February 17, 2009 as the deadline for the end
       of analog transmissions for full power television stations. The
       Commission is statutorily obligated to promote the orderly transition
       to digital television, "a critical step in the evolution of broadcast
       television." As the Commission stated previously, "[w]e are committed
       to ensuring the rapid completion of that transition in a way that
       delivers the greatest possible benefits to the viewing public." As
       part of that commitment and in light of the upcoming deadline, the
       Commission recently announced that "it is necessary and appropriate to
       require retailers to provide consumers with information regarding this
       transition date at the point of sale." The Commission reached this
       conclusion after determining that consumer electronics industry
       efforts had not adequately informed consumers how analog-only
       television equipment purchased now will function when the transition
       to digital broadcasting ends.

    3. To ensure that consumers do not inadvertently buy analog-only
       television equipment without understanding that such devices will not
       be capable of receiving off-the-air television reception of digital
       signals after analog broadcasting ends unless connected to a
       digital-to-analog converter or a digital subscription service, we
       adopted rules requiring anyone that sells, offers for sale, or rents
       television receiving equipment that does not contain a digital
       television ("DTV") tuner to display a Consumer Alert at the point of
       sale. This requirement also applies to the sale or rent of analog-only
       television receiving equipment via direct mail, catalog, or electronic
       means (e.g., the Internet). These requirements are contained in
       Section 15.117(k) of the Rules, which became effective on May 25,
       2007.

    4. Section 15.117(k)(3) of the Rules requires that the Consumer Alert
       contain the following language:


                                   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 at: www.dtv.gov.                         


       The Consumer Alert must 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 alert either must be printed on a
       transparent material and affixed to the screen, in a manner that is
       removable by the consumer and does not obscure the picture when
       displayed for sale, or displayed separately immediately adjacent to
       each television receiver offered for sale and clearly associated with
       the analog-only model to which it pertains. In the case of other
       analog-only video devices that do not include a display (e.g., VCRs,
       DVD players), the Consumer Alert must be in a prominent location on
       the device, such as on the top or front, or displayed separately
       immediately adjacent to and clearly associated with the analog-only
       model to which it pertains. To the extent that any persons display or
       offer for sale or rent via direct mail, catalog, or electronic means
       analog-only television receiving equipment, they must prominently
       display the Consumer Alert as part of all advertisements or
       descriptions of such television receiving equipment, in clear and
       conspicuous print, and in close proximity to any images or
       descriptions of such equipment.

         5. Immediately after the rule became effective, the Commission's
            Enforcement Bureau began inspecting hundreds of stores throughout
            the country, as well as dozens of popular retailer websites, and
            observed many models of analog-only  television receiving
            equipment on display without the required Consumer Alert labels.
            On June 14, 2007, the Enforcement Bureau issued a Citation to
            F.Y.E. for offering for sale television receiving equipment
            having an analog-only tuner without displaying the required
            Consumer Alert in close proximity.  After affording F.Y.E. a
            reasonable opportunity to respond to the first Citation, agents
            from the Enforcement Bureau began inspecting  numerous additional
            F.Y.E. stores  on July 16, 2007 in various states  and once again
            observed television receiving equipment with analog-only tuners
            on display without the required Consumer Alert labels in  one 
            F.Y.E. store.

         6. Under Section 503(b)(1) of the Act, any person who is determined
            by the Commission to have willfully or repeatedly failed to
            comply with any provision of the Act or any rule, regulation, or
            order issued by the Commission shall be liable to the United
            States for a forfeiture penalty. 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. The legislative history to Section 312(f)(1) of the Act
            clarifies that this definition of willful applies to both
            Sections 312 and 503(b) of the Act and the Commission has so
            interpreted the term in imposing forfeitures pursuant to Section
            503(b). The Commission may also assess a forfeiture for
            violations that are merely repeated, and not willful.  "Repeated"
            means that the act was committed or omitted more than once, or
            lasts more than one day. To impose such a forfeiture penalty, the
            Commission must issue a notice of apparent liability and the
            person against whom the notice has been issued must have an
            opportunity to show, in writing, why no such forfeiture penalty
            should be imposed. The Commission will then issue a forfeiture if
            it finds by a preponderance of the evidence that the person has
            violated the Act or a Commission rule. As we set forth below, we
            conclude under this standard that F.Y.E. is apparently liable for
            forfeiture for its apparent willful and repeated violations of
            Section 15.117(k) of the Commission's rules.

        III. DISCUSSION

         7. Based on the evidence before us, we find that F.Y.E.  apparently
            willfully and repeatedly violated Section 15.117(k) of the Rules
            by failing to display conspicuously and in close proximity to
            equipment with an analog-only tuner, in clear and conspicuous
            print, the required Consumer Alert label. Specifically, as
            detailed in Attachment  A,  agents from the Enforcement Bureau
            observed one model of television receiving equipment having only
            an analog-only tuner on display in one F.Y.E. store  without the
            required Consumer Alert labels. F.Y.E. previously received 1
            Citation for this same type of conduct prior to the agents'
            inspection.

         8. Under Section 503(b)(2)(D) of the Act, we may assess an entity
            that is neither a common carrier, broadcast licensee or cable
            operator a forfeiture of up to $11,000 for each violation or each
            day of a continuing violation, up to a statutory maximum
            forfeiture of $97,500 for any single continuing violation. In
            exercising such authority, we must 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."

         9. The Commission's Forfeiture Policy Statement and Section 1.80 of
            the Rules do not establish a specific base forfeiture for
            violation of the analog-only tuner labeling requirements. In
            adopting the Consumer Alert labeling requirements, the Commission
            stated that "[a]ccurate communication of this impending change is
            a highly material disclosure for consumers contemplating the
            purchase of a television."  The Commission also noted that it is
            a matter of public safety for consumers who rely on analog-only
            televisions to obtain critical emergency information.

        10. Similar issues arose regarding labeling requirements for wireless
            hearing aid-compatible handsets. In those cases, the Enforcement
            Bureau established a base forfeiture amount of $8,000 per handset
            model that failed to comply with the labeling requirements. The
            labeling requirements for wireless hearing aid-compatible
            handsets and the analog-only tuner labeling requirements both
            serve the important goal of ensuring that consumers have access
            to necessary  information. In light of the similarities in these
            labeling requirements, we conclude that a $8,000 base forfeiture
            amount per unlabeled model or device in each store where Bureau
            agents and investigators observed a violation is appropriate  for
            apparent violations of Section 15.117(k). 

        11. We find that, on July 17, 2007, even after receiving the Citation
            warning of a violation in its store, F.Y.E. displayed one model
            of equipment with an analog-only tuner in one store without the
            required Consumer Alert label. As a result, F.Y.E.  continued to
            market television receiving equipment to consumers without
            adequately warning that the equipment contained an analog-only
            television receiver. Those consumers may not learn of their
            equipment's limitations until the analog-only devices cease to
            receive over-the-air television signals, long after any period
            for returning the equipment has expired. This scenario is
            precisely the outcome that our rule was intended to prevent.
            Applying the analysis set forth above to the facts of this case,
            we conclude that F.Y.E.  is apparently liable for a  ($8,000)
            base forfeiture.

        IV. ORDERING CLAUSES

        12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of
            the Communications Act of 1934, as amended, and Section 1.80 of
            the Commission's Rules, Trans World Entertainment Corporation dba
            F.Y.E. is hereby NOTIFIED of this APPARENT LIABILITY FOR A
            FORFEITURE in the amount of eight thousand dollars ($8,000) for
            violations of Section 15.117(k) of the Rules.

        13. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
            Commission's Rules within thirty days of the release date of this
            Notice of Apparent Liability for Forfeiture, Trans World
            Entertainment Corporation dba F.Y.E. SHALL PAY the full amount of
            the proposed forfeiture or SHALL FILE a written statement seeking
            reduction or cancellation of the proposed forfeiture.

        14. Payment of the forfeiture must be made by check or similar
            instrument, payable to the order of the Federal Communications
            Commission. The payment must include the NAL/Acct. No. and FRN
            No. referenced above. Payment by check or money order may be
            mailed to Federal Communications Commission, P.O.
            Box 358340, Pittsburgh, PA 15251-8340.  Payment by overnight mail
            may be sent to Mellon Bank /LB 358340, 500 Ross Street, Room
            1540670, Pittsburgh, PA 15251.   Payment by wire transfer may be
            made to ABA Number 043000261, receiving bank Mellon Bank, and
            account number 911-6106.

        15. The response, if any, must be mailed to Federal Communications
            Commission, Enforcement Bureau, and must include the NAL/Acct.
            No. referenced in the caption.

        16. The Commission will not consider reducing or canceling a
            forfeiture in response to a claim of inability to pay unless the
            petitioner submits: (1) federal tax returns for the most recent
            three-year period; (2) financial statements prepared according to
            generally accepted accounting practices ("GAAP"); or (3) some
            other reliable and objective documentation that accurately
            reflects the petitioner's current financial status. Any claim of
            inability to pay must specifically identify the basis for the
            claim by reference to the financial documentation submitted.

        17. Requests for payment of the full amount of this Notice of
            Apparent Liability for Forfeiture under an installment plan
            should be sent to: Associate Managing Director, Financial
            Operations, 445 12th Street, S.W., Room 1A625, Washington, D.C.
            20554.

        18. IT IS FURTHER ORDERED that a copy of this Notice of Apparent
            Liability for Forfeiture shall be sent by Certified Mail, Return
            Receipt Requested, and regular mail, to Trans World Entertainment
            Corporation dba F.Y.E. at  its address of record.

       FEDERAL COMMUNICATIONS COMMISSION

       Kris Anne Monteith

       Chief, Enforcement Bureau

                                  Attachment A

       1. 7/17/07, F.Y.E. Store #0136, Garden City, NY.


         Manufacturer   Device          Model #    Forfeiture Amount  

         Panasonic      DVD/VCR combo   PV-D4745   $8,000             

                                        Subtotal   $8,000             


       TOTAL PROPOSED FORFEITURE: $8,000

       47 C.F.R. S: 15.117(k).

       47 U.S.C. S: 503(b).

       2002 Biennial Regulatory Review, Report and Order and Notice of
       Proposed Rulemaking, 18 FCC Rcd 13620, 13825 P: 532 (2003).

       Id.

       Second Periodic Review of the Commission's Rules and Policies
       Affecting the Conversion To Digital Television, Second Report and
       Order, FCC Rcd 8776 (2007) ("Second DTV Periodic Report and Order") at
       P: 1.

       Id. at P: 10.

       Second DTV Periodic Report and Order at P: 14. See 47 C.F.R. S:
       15.117(k). In the Second DTV Periodic Report and Order, the Commission
       defined "point of sale" as the "place where televisions are displayed
       for consumers prior to purchase." See Second DTV Periodic Report and
       Order at n.29.

       Second Periodic Review in the Commission's Rules and Policies
       Affecting the Conversion to Digital Television, 72 Fed. Reg. 28894-01
       (May 23, 2007).

       47 C.F.R. S: 15.117(k)(1).

       Id.

       47 C.F.R. S: 15.117(k)(2).

       F.Y.E., Citation No. C20073238022, (Enf. Bur. New York Office, rel.
       June 14, 2007) ("Citation"). In preparing the Citation, Enforcement
       Bureau staff relied on publicly available information, including
       retailer websites, to identify the television receiving equipment with
       analog-only tuners. 

       On June 27, 2007, F.Y.E. responded to the Citation. See Letter from
       Brian Haynes, Buyer - Electronics & Accessories for F.Y.E. to Daniel
       Noel, District Director, New York Office, Enforcement Bureau, dated
       June 22, 2007.

       See Attachment A for a listing of the store visited and the model
       observed.  Enforcement Bureau staff determined that the model had an
       analog-only tuner by consulting the manufacturer's product manuals.

       47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(2).

       47 U.S.C. S: 312(f)(1).

       H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).

       See, e.g., Application for Review of Southern California Broadcasting
       Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991)
       ("Southern California Broadcasting Co.").

       See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of
       Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362, P:
       10 (2001) ("Callais Cablevision") (issuing a Notice of Apparent
       Liability for, inter alia, a cable television operator's repeated
       signal leakage).

       Southern California Broadcasting Co., 6 FCC Rcd at 4388, P: 5; Callais
       Cablevision, Inc., 16 FCC Rcd at 1362, P: 9.

       47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).

       See, e.g., SBC Communications, Inc.,  Forfeiture Order, 17 FCC Rcd
       7589, 7591, P: 4 (2002) (forfeiture paid).

       Attachment A lists the date of the Enforcement Bureau inspection, the
       analog-only model identified in violation of Section 15.117(k), as
       well as the F.Y.E. store involved.

       Section 503(b)(5) states that no forfeiture liability shall be
       determined against any person who does not hold a license, permit,
       certificate, or other authorization issued by the Commission unless,
       prior to issuance of any Notice of Apparent Liability, such person is
       "(A) sent a citation of the violation charged; (B) is given a
       reasonable opportunity for a personal interview with an official of
       the Commission at the field office of the Commission which is nearest
       to such person's place of residence; and (C) subsequently engages in
       conduct of the type described in such citation." 47 U.S.C. S:
       503(b)(5). The violations discussed in this NAL are subject to
       forfeiture because we have issued the Citation and afforded F.Y.E. an
       opportunity for a personal interview or to submit a written response.
       To the extent that the television receiving models involved in this
       NAL differ from those listed in the Citation, no additional citations
       are necessary because the more recent apparent violations are "conduct
       of the type described" in the earlier Citation - violations of Section
       15.117(k). See HighTech CB Shop, Forfeiture Order, 20 FCC Rcd 12514,
       12516 P: 9 (Enf. Bur. South Central Region 2005), recon. denied, 20
       FCC Rcd 19269 (Enf. Bur. 2005). In any event, the requirements of
       Section 503(b)(5) do not apply to F.Y.E., which is a Commission
       licensee and therefore subject to forfeiture under Section 503(b)(2)
       of the Act without first receiving notice via a citation. See  Call
       Sign WQCE685.

       47 U.S.C. S: 503(b)(2)(D). The Commission twice amended Section
       1.80(b)(3) of the Rules, 47 C.F.R. S: 1.80(b)(3), to increase the
       maximum forfeiture amounts, in accordance with the inflation
       adjustment requirements contained in the Debt Collection Improvement
       Act of 1996, 28 U.S.C. S: 2461. See Amendment of Section 1.80 of the
       Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
       Inflation, Order, 15 FCC Rcd 18221 (2000) (adjusting the maximum
       statutory amounts from $10,000/$75,000 to $11,000/$87,500); Amendment
       of Section 1.80 of the Commission's Rules and Adjustment of Forfeiture
       Maxima to Reflect Inflation, Order, 19 FCC Rcd 10945 (2004) (adjusting
       the maximum statutory amounts from $11,000/$87,500 to
       $11,000/$97,500).

       47 U.S.C. S: 503(b)(2)(E). See also 47 C.F.R. S: 1.80(b)(4), Note to
       paragraph (b)(4): Section II. Adjustment Criteria for Section 503
       Forfeitures.

       See The Commission's Forfeiture Policy Statement and Amendment of
       Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
       Report and Order, 12 FCC Rcd 17087, 17115 (1997), recon. denied, 15
       FCC Rcd 303 (1999) ("Forfeiture Policy Statement").

       Second DTV Periodic Report and Order at P: 12.

       Id. See also 47 C.F.R. S:S: 11.1-11.61, 79.2.

       See Pine Telephone Inc., Notice of Apparent Liability, 22 FCC Rcd 9205
       (Enf. Bur. Spectrum Enf. Div. 2007); IT&E Overseas, Inc., Notice of
       Apparent Liability, 22 FCC Rcd 7660 (Enf Bur. Spectrum Enf. Div.
       2007).

       We caution F.Y.E.  and other retailers that future cases involving
       repeat offenders may result in the imposition of forfeitures on a
       continuing violation basis.

       "After the transition, absent a label requirement, even cable and
       satellite subscribers might be surprised to find that they cannot
       receive television broadcasts over-the-air on an analog-only
       television purchased today if they choose to discontinue subscription
       service or their cable or satellite service is terminated by disaster,
       service disruption, or for non-payment of their bills." Second DTV
       Periodic Report and Order at P: 12.

       See Attachment A regarding the calculation of the total proposed
       forfeiture amounts.

       47 U.S.C. S: 503(b), 47 C.F.R. S:S: 1.80, 15.117(k).

       See 47 C.F.R. S: 1.1914.

       (...continued from previous page)

                                                              (continued....)

       Federal Communications Commission DA 07-4287

                                       1

       Federal Communications Commission DA 07-4287