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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No. EB-07-SE-229
)
Big Lots Stores, Inc. Acct. No. 200832100052
)
Columbus, OH FRN # 0008420911
)
)
ORDER
Adopted: June 11, 2008 Released: June 12, 2008
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Big Lots Stores, Inc.
("Big Lots"). The Consent Decree terminates an investigation by the
Bureau against Big Lots for a possible violation of Section 15.117(k)
of the Commission's rules ("Rules") regarding the labeling of
television receiving equipment that contains an analog broadcast
television tuner but does not contain a digital broadcast television
tuner.
2. The Bureau and Big Lots have negotiated the terms of the Consent
Decree that resolve this matter. A copy of the Consent Decree is
attached hereto and incorporated 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 Big Lots 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 section 4(i) of the
Communications Act of 1934, as amended, and sections 0.111 and 0.311
of the Commission's 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 Big Lots shall make its voluntary
contribution to the United States Treasury, as specified in the
Consent Decree, by mailing a check or similar instrument payable to
the order of the Federal Communications Commission, to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an 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).
8. 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 William H. Macbeth III, Senior Counsel, Big Lots, 100
Phillipi Road, Columbus, OH 43228.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-07-SE-229
Big Lots Stores, Inc. ) Acct. No. 200832100052
Columbus, OH ) FRN # 0008420911
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Big Lot Stores, Inc. ("Big Lots")
by their respective authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Bureau's Investigation
into Big Lots' compliance with the Commission's regulations in 47 C.F.R.
S: 15.117(k) regarding the labeling of television receiving equipment that
contains an analog broadcast television tuner but does not contain a
digital broadcast television tuner.
I. DEFINITITIONS
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. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
c. "Commission" or "FCC" means the Federal Communications Commission.
d. "Citations" means the citations issued by Bureau or the Commission
between May 29, 2007, and the Effective Date alleging violations by
Big Lots of Section 15.117(k) of the Commission's Rules.
e. "Effective Date" means the date on which the Commission releases the
Order.
f. "Investigation" means the investigation initiated by the Bureau
regarding Big Lots' compliance through the Effective Date with Section
15.117(k) of the Commission's Rules regarding the labeling of
television receiving equipment that contains an analog broadcast
television tuner but does not contain a digital broadcast television
("DTV") tuner.
g. "Adopting Order" means an Order of the Commission adopting the terms
of this Consent Decree without change, addition, deletion, or
modification.
h. "Parties" means Big Lots and the Commission.
i. "Rules" means the Commission's regulations set forth in Title 47 of
the Code of Federal Regulations.
j. "Big Lots" means collectively, Big Lots Stores, Inc., PNS Stores,
Inc., Durant DC, LLC, Closeout Distribution, Inc., West Coast
Liquidators, Inc., CSC Distribution, Inc., and C.S. Ross Company.
II. BACKGROUND
2. To ensure that consumers do not inadvertently buy analog-only
television receiving 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, the
Commission adopted rules requiring anyone that sells, offers for
sale, or rents television receiving equipment that does not contain a
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.
3. 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.
4. Immediately after the rule became effective, the 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. Beginning on or about May 29,
2007, the Bureau conducted inspections at multiple Big Lots
stores. Based on those inspections, and relying on publicly
available information, the Bureau issued Citations to Big Lots
for alleged violations of Section 15.117(k) at its stores. After
affording Big Lots a reasonable opportunity to respond to the
first Citation, agents and investigators from the Enforcement
Bureau inspected Big Lots stores in various states and observed,
in stores and on the Big Lots website, what appeared to them to
be television receiving equipment with analog-only tuners on
display apparently without the required Consumer Alert labels.
III. TERMS OF AGREEMENT
5. Adopting Order. The Parties agree that the provisions of this
Consent Decree shall be subject to final approval by the
Commission by incorporation of such provisions by reference in
the Adopting Order without change, addition, modification, or
deletion.
6. Jurisdiction. Big Lots agrees that the Commission has
jurisdiction over it and the matters contained in this Consent
Decree and has the authority to enter into and adopt this Consent
Decree.
7. Effective Date: Violations. The Parties agree that this Consent
Decree shall become effective on the date on which the FCC
releases the Adopting Order. Upon release, 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 Bureau to
exercise any rights and remedies attendant to the enforcement of
a Commission Order.
8. 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 Bureau's investigation. In consideration for the
termination of said investigation, Big Lots agrees to the terms,
conditions, and procedures contained herein. The Bureau further
agrees that in the absence of new material evidence, the
Commission will not use the facts developed in this investigation
through the Effective Date of the Consent Decree, 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 Big Lots concerning the matters
that were the subject of the investigation. The Bureau also
agrees that it will not use the facts developed in this
investigation through the Effective Date of this Consent Decree,
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 Big Lots with respect to Big Lots' basic
qualifications, including its character qualifications, to hold
Commission authorizations.
9. Training obligations. Big Lots agrees that it will develop,
within thirty (30) days from the Effective Date, an internal
Compliance Plan to ensure Big Lots' future compliance with this
Consent Decree. The Compliance Plan will, at a minimum, provide
that all store employees responsible for the sale of television
receiving equipment (i.e., those sales personnel who regularly
work in the consumer electronics section of affected stores), all
customer service representatives, and all those responsible for
managing such personnel shall receive training on the DTV
transition. Training will consist of the providing of information
about:
A. the need for a digital television receiver or a digital-to-analog
converter box to receive over-the-air broadcasts with an antenna
due to the transition to digital broadcasting;
B. the February 17, 2009 end date for the DTV transition;
C. the FCC's DTV transition website (www.dtv.gov); and
D. compliance with 16 CFR Part 238 ("Guides Against Bait
Advertising").
10. Consumer education regarding the DTV transition: Big Lots agrees
to implement the following measures to educate the public about
the upcoming digital transition:
A. Within 30 days of the Effective Date, Big Lots will include
references to the FCC's DTV transition website (www.dtv.gov) on all
Big Lots web pages offering televisions for sale.
B. Within 30 days of the Effective Date, Big Lots will provide
prominent in-store signage in the consumer electronics section in each
of its stores in addition to Section 15.117(k) notices to further
educate consumers about the DTV transition. Within 30 days of the
Effective Date or the date it receives an electronic copy of a
tipsheet on the DTV transition from the Bureau, whichever is later,
Big Lots will offer such tipsheet in the electronics departments of
its stores. In the event that the Commission or its designee notifies
Big Lots that the DTV tip sheet has been updated, Big Lots will begin
using the revised tip sheet within 30 days of its being made available
to retailers.
C. In 50 percent of all print advertising featuring televisions
beginning 30 days after the Effective Date and ending on the
termination date of this Consent Decree, Big Lots will include a
reference to the February 17, 2009 DTV transition end date and refer
to the FCC's DTV transition website (www.dtv.gov).
11. Termination of sales of analog-only televisions. Big Lots will
terminate all domestic retail sales of analog-only televisions
by September 1, 2008.
12. Compliance Report. Big Lots will file a compliance report with
the Commission 90 days of the Effective Date and on February 17,
2009. The compliance report shall include a compliance
certificate from an officer, as an agent of Big Lots, stating
that the officer has personal knowledge that Big Lots has
established operating procedures intended to ensure compliance
with this Consent Decree, together with an accompanying statement
explaining the basis for the officer's compliance certification.
The compliance reports shall be submitted to Kathryn S. Berthot,
Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Washington,
D.C.20554 and at Kathy.Berthot@fcc.gov.
13. Termination Date. Unless stated otherwise, the requirements of
this Consent Decree will expire February 17, 2009.
14. Voluntary Contribution. Big Lots agrees that it will make a
voluntary contribution to the United States Treasury in the
amount of forty-eight thousand dollars ($48,000). This payment
will be made within 30 days after the Effective Date of the
Adopting Order. Each payment must be made by check or similar
instrument, payable to the order of the Federal Communications
Commission. The payment must include the NAL/Account Number and
FRN Number referenced in the caption to the Adopting Order.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza,
St. Louis, MO 63101. Payments by wire transfer may be made to ABA
Number 021030004, receiving bank TREAS/NYC, and account number
27000001. For payment by credit card, an FCC Form 159 (Remittance
Advice) must be submitted. When completing the FCC Form 159,
enter the NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment
type code). Big Lots will also send electronic notification on
the date said payment is made to Kathy.Berthot@fcc.gov and
Neal.McNeil@fcc.gov.
15. Waivers. Big Lots 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
the Adopting Order without change, addition, modification, or
deletion. Big Lots 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 Big Lots nor the Commission shall contest
the validity of the Consent Decree or the Adopting Order, and Big
Lots shall waive any statutory right to a trial de novo. Big Lots
hereby agrees to waive any claims it may otherwise have under the
Equal Access to Justice Act, 5 U.S.C. S: 504 and 47 C.F.R. S:
1.1501 et seq., relating to the matters addressed in this Consent
Decree.
16. Severability. The Parties agree that if any of the provisions of
the Adopting Order or the Consent Decree shall be invalid or
unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable the entire Adopting Order or
Consent Decree, but rather the entire Adopting Order or Consent
Decree shall be construed as if not containing the particular
invalid or unenforceable provision or provisions, and the rights
and obligations of the Parties shall be construed and enforced
accordingly. 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.
17. 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 Big Lots does
not expressly consent) that provision will be superseded by such
Commission rule or Order.
18. Successors and Assigns. Big Lots agrees that the provisions of
this Consent Decree shall be binding on its successors, assigns,
and transferees.
19. Final Settlement. The Parties agree and acknowledge that this
Consent Decree shall constitute a final settlement between the
Parties. 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 requirements of the Act or the
Commission's Rules and Orders.
20. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
21. 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.
22. Authorized Representative. Each party represents and warrants to
the other that it has full power and authority to enter into this
Consent Decree.
23. 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.
________________________________
Kris Anne Monteith
Chief
Enforcement Bureau
________________________________
Date
________________________________
John Martin
Executive Vice President, Merchandising
Big Lots Stores, Inc.
________________________________
Date
47 C.F.R. S: 15.117(k).
47 U.S.C. S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. 15.117(k).
Second Periodic Review of the Commission's Rules and Policies
Affecting the Conversion To Digital Television, Second Report and
Order, 22 FCC Rcd 8776 (2007) ("Second DTV Periodic Report and
Order").
Second Periodic Review in the Commission's Rules and Policies
Affecting the Conversion to Digital Television, 72 Fed. Reg. 28894-01
(May 23, 2007).
Federal Communications Commission DA 08-1378
2
Federal Communications Commission DA 08-1378