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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No. EB-07-RK-008
)
Conn's, Inc. Acct. No. 0832460006
)
Beaumont, TX FRN #0016772667
)
)
ORDER
Adopted: June 10, 2008 Released: June 13, 2008
By the Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Conn's Inc. ("Conn's").
The Consent Decree terminates an investigation by the Bureau against
Conn's for possible violations of 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 tuner.
2. The Bureau and Conn's 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 Conn's 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 Conn's, Inc. 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 NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Conn's shall also send
electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
8. IT IS FURTHER ORDERED that Conn's, Inc. will file reports with the
Commission ninety days after the Effective Date and on July 9, 2009.
Each report shall include a compliance certificate from an officer, as
an agent of Conn's, stating that the officer has personal knowledge
that Conn's 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. All 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 by e-mail at Kathy.Berthot@fcc.gov.
9. 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 Conn's counsel, Scott Feira, Arnold & Porter, LLP, 555
12th St. NW, Washington, DC 20004-1206.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No. EB-07-RK-008
In the Matter of )
Acct. No. 0832460006
Conn's, Inc. )
FRN #0016772667
)
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Conn's, Inc. ("Conn's"), by their
respective authorized representatives, hereby enter into this Consent
Decree for the purpose of terminating the Bureau's Investigation into
Conn's compliance with the Federal Communications 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. DEFINITIONS
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:S: 151 et seq.
b. "Adopting Order" means an order of the Bureau adopting this Consent
Decree.
c. "Analog-only television receiving equipment" means television
receiving equipment that contains an analog broadcast television tuner
but does not contain a digital broadcast television ("DTV") tuner.
d. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
e. "Commission" or "FCC" means the Federal Communications Commission.
f. "Conn's" means Conn's, Inc. and its wholly owned subsidiaries.
g. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
h. "Investigation" means the investigation initiated by the Bureau
regarding Conn's compliance through the Effective Date with Section
15.117(k) of the Commission's Rules regarding the labeling of
analog-only television receiving equipment.
i. "Parties" means Conn's and the Bureau.
j. "Rules" means the Commission's regulations set forth in Title 47 of
the Code of Federal Regulations.
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 over-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. After the rule became effective, the Bureau began inspecting
stores throughout the country, as well as 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 Conn's stores. Based on those
inspections, and relying on publicly available information, the
Bureau issued Citations to Conn's for alleged violations of
Section 15.117(k) at its stores. After affording Conn's a
reasonable opportunity to respond to the first Citation, agents
and investigators from the Enforcement Bureau inspected Conn's
stores in various states and observed, in stores, what appeared
to them to be television receiving equipment with analog-only
tuners on display apparently without the required Consumer Alert
labels.
I. TERMS OF AGREEMENT
5. Adopting Order. The Parties agree that the provisions of this
Consent Decree shall be subject to final approval by the Bureau
by incorporation of such provisions by reference in the Adopting
Order without change, addition, modification, or deletion.
6. Jurisdiction. Conn's agrees that the Bureau 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 Bureau
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 Bureau. Any violation of the Adopting Order or
of the terms of this Consent Decree shall constitute a separate
violation of a Bureau 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 its Investigation. In consideration for the termination
of said Investigation, Conn's agrees to the terms, conditions,
and procedures contained herein. The Bureau further agrees that
in the absence of new material evidence, the Bureau 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 or in response to
third-party objection, any new proceeding, formal or informal, or
take any action on its own motion against Conn's 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 or in response to third-party objection any proceeding,
formal or informal, or take any action on its own motion against
Conn's with respect to Conn's basic qualifications, including its
character qualifications, to hold Commission authorizations.
9. Compliance Plan. For purposes of settling the matters set forth
herein, Conn's agrees to develop, within thirty (30) calendar
days from the Effective Date, an internal Compliance Plan related
to future compliance with this Consent Decree. The Plan will
include, at a minimum, the following components:
Training obligations. 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) and all those
responsible for managing such personnel shall receive training on the
DTV transition. Training will include, at a minimum, 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. Conn's agrees that it will take the following
actions to educate consumers about the upcoming transition for
over-the-air broadcasting from analog programming to digital
programming schedule for completion by February 17, 2009. The
requirements of this paragraph will end on February 17, 2009.
A. Within thirty (30) days of the Effective Date, Conn's will
include references to the FCC's DTV transition website
(www.dtv.gov) on the Conn's web site's general welcome screen and
television welcome screen.
B. Within thirty (30) days of the Effective Date, Conn's 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.
Such signage shall include the offering of an informational
tipsheet on the DTV transition, developed by the Commission.
Conn's will print and stock in its electronics department copies
of the tipsheet within thirty (30) days of the Effective Date or
receipt of an electronic copy of the document from the Bureau,
whichever is later. In the event that the Commission or its
designee notifies Conn's that the DTV tip sheet has been updated,
Conn's will begin using the revised tip sheet within thirty (30)
days of its being made available to retailers.
C. In fifty (50) percent of all print advertising featuring
televisions between the Effective Date and February 17, 2009,
Conn's 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).
D. Within thirty (30) days of the Effective Date, Conn's will
display a video announcement on the DTV transition and the
Coupon-Eligible Converter Box Program (the "CECB Program") on a
continuous loop in each Conn's store.
11. Termination of Sales of Analog-Only Televisions. Conn's has not
placed any orders for analog only televisions after February
2007. Conn's stock of unsold devices with analog-only receivers
as of the Effective Date is less than 1,110 units. Conn's shall
terminate all domestic retail sales of these devices no later
than December 31, 2008. Beginning August 29, 2008, and on the
last business day of each successive month, Conn's shall notify
Diane Law-Hsu, Regional Counsel, South Central Region,
Enforcement Bureau, Federal Communications Commission, at
SCR-Response@fcc.gov whether Conn's continues to sell analog-only
televisions. Beginning September 1, 2008, and continuing on the
first business day of each successive month, Conn's shall make a
voluntary contribution to the United States Treasury in the
amount of $1,500 until Conn's no longer sells devices with
analog-only receivers. Payment shall be made as described in
Paragraph 15. Conn's audit staff will confirm compliance with
this paragraph.
12. Participation in the NTIA Digital-to-Analog Converter Box Coupon
Program. Conn's has agreed to participate in the CECB Program
developed by the U.S. Department of Commerce's National
Telecommunications and Information Administration by offering
digital-to-analog converters through its stores that sell
televisions. Conn's will participate in the program as follows:
A. Conn's has ordered converter boxes for its stores;
B. unless delays on the part of suppliers or shippers make such
action infeasible, Conn's will place, by July 1, 2008, the
converter boxes in all of its stores in which televisions are
sold;
C. Conn's retains the discretion to determine the number of boxes to
be delivered to individual stores, based on anticipated customer
demand;
D. if a particular store does not have converter boxes in stock,
Conn's will order a converter box for shipment directly to the
customer's home; and
E. Conn's will continue to sell converter boxes until such time as,
based on its reasonable judgment, reimbursement payments to
Conn's are no longer likely to be forthcoming.
13. Compliance Reports. Conn's will file compliance reports with the
Commission ninety (90) days after the Effective Date and on July
9, 2009. Each compliance report shall include a compliance
certificate from an officer, as an agent of Conn's, stating that
the officer has personal knowledge that Conn's 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.
All 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 by e-mail at Kathy.Berthot@fcc.gov.
14. Termination Date. Unless stated otherwise, the requirements of
this Consent Decree will expire July 9, 2009.
15. Voluntary Contribution. Conn's agrees that it will make a
voluntary contribution to the United States Treasury in the
amount of seventy thousand dollars ($70,000). The payment will be
made within thirty calendar days after the Effective Date of the
Adopting Order. The 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. 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 NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment
type code). Conn's shall also send electronic notification on the
date said payment is made to Diane Law-Hsu, Regional Counsel,
South Central Region, at SCR-Response@fcc.gov.
16. Waivers. Conn's 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 adopting the Consent Decree without change,
addition, modification, or deletion. Conn's 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 Conn's
nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Conn's shall waive any
statutory right to a trial de novo. Conn's 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.
17. 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.
18. 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 Conn's does
not expressly consent) that provision will be superseded by such
Commission rule or Order.
19. Successors and Assigns. Conn's agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
20. 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. The Parties agree that this
Consent Decree is for settlement purposes only and that by
agreeing to this Consent Decree, Conn's does not admit or deny
noncompliance, violation or liability for violating the Act in
connection with the matters that are the subject of this Consent
Decree.
21. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
22. 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.
23. Authorized Representative. Each party represents and warrants to
the other that it has full power and authority to enter into this
Consent Decree.
25. 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
Federal Communications Commission
________________________________
Date
________________________________
Timothy L. Frank
President
Conn's, Inc.
________________________________
Date
24. 47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
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 08-1379
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Federal Communications Commission DA 08-1379
Federal Communications Commission DA 08-1379
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Federal Communications Commission DA 07-