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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No. EB-07-RK-007
)
BJ's Wholesale Club, Inc. Acct. No. 0832460005
)
Natick, MA FRN #0004895405
)
)
ORDER
Adopted: June 10, 2008 Released: June 12, 2008
By the Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and BJ's Wholesale Club,
Inc. ("BJ's"). The Consent Decree terminates an investigation by the
Bureau against BJ'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 BJ'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 BJ'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 BJ's Wholesale Club, 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). BJ's shall also send electronic
notification on the date said payment is made to SCR-Response@fcc.gov.
8. IT IS FURTHER ORDERED that BJ's Wholesale Club, 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 BJ's, stating that the officer has personal
knowledge that BJ'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 BJ's Wholesale Club, Inc., Lon F. Povich, EVP, General
Counsel & Secretary, One Mercer Rd, PO Box 9501, Natick, MA
01760-9601.
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-RK-007
BJ's Wholesale Club, Inc. ) Acct. No. 0832460005
Natick, MA ) FRN #0004895405
)
)
CONSENT DECREE
The Enforcement Bureau and BJ's Wholesale Club, Inc. ("BJ's"), by their
authorized representatives, hereby enter into this Consent Decree for the
purpose of terminating the Enforcement Bureau's Investigation into BJ'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: 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 tuner.
d. "BJ's" means BJ's Wholesale Club, Inc. and its
predecessors-in-interest and successors-in-interest.
e. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
f. "Citations" means the citations issued by Bureau or the Commission
between May 29, 2007, and the Effective Date alleging violations by
BJ's of Section 15.117(k) of the Commission's Rules.
g. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
h. "Effective Date" means the date on which the Commission releases the
Adopting Order.
i. "Investigation" means the investigation initiated by the Bureau
regarding BJ's' 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.
j. "Parties" means BJ's and the Bureau.
k. "Rules" means the Commission's regulations found 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 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 BJ's stores.
Based on those inspections, and relying on publicly available
information, the Bureau issued a Citation to BJ's for alleged
violations of Section 15.117(k) at one of its stores. After
affording BJ's a reasonable opportunity to respond to the
Citation, agents and investigators from the Enforcement Bureau
inspected BJ'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.
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 Bureau
by incorporation of such provisions by reference in the Adopting
Order without change, addition, modification, or deletion.
6. Jurisdiction. BJ'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, BJ'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, any new proceeding, formal or
informal, or take any action on its own motion against BJ'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 any proceeding, formal or
informal, or take any action on its own motion against BJ's with
respect to BJ's' basic qualifications, including its character
qualifications, to hold Commission authorizations.
9. Consumer Education Regarding the Digital Transition. BJ'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
expire February 17, 2009.
A. Within thirty (30) days of the Effective Date, BJ's will include
references to the FCC's DTV transition website (www.dtv.gov) on
BJ's web site's general welcome screen and television welcome
screen.
B. Within thirty (30) days of the Effective Date, or the date it
receives an electronic copy of a sample pamphlet from the Bureau,
whichever is later, BJ'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 a DTV "tip sheet" made available by the Bureau.
In the event that the Commission or its designee notifies BJ's
that the DTV tip sheet has been updated, BJ's will begin using
the revised tip sheet within 30 days of its being made available
to retailers.
10. Termination of Sales of Analog-Only Televisions. BJ's has
permanently terminated all domestic retail sales of analog-only
televisions.
11. Participation in the NTIA Digital-to-Analog Converter Box Coupon
Program. BJ's has agreed to participate in the Coupon Eligible
Converter Box Program (the "CECB Program") developed by the U.S.
Department of Commerce's National Telecommunications and
Information Administration ("NTIA") by offering digital-to-analog
converters through its stores that sell televisions. BJ's will
participate in the program as follows:
A. BJ's will train member services desk staff regarding the CECB
Program;
B. BJ's has ordered converter boxes for its stores and has them on
sale for customers;
C. BJ's retains the discretion to determine the number of boxes to
be delivered to individual stores, based on anticipated customer
demand; and
D. BJ's will continue to sell converter boxes until such time as,
based on its reasonable judgment, reimbursement payments to BJ's
are no longer likely to be forthcoming;
12. Compliance Reports. BJ's will file compliance reports with the
Commission ninety (90) days after the Effective Date and July 9,
2009. Each compliance report shall include a compliance
certificate from an officer, as an agent of BJ's, stating that
the officer has personal knowledge that BJ'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.
13. Termination Date. Unless stated otherwise, the requirements of
this Consent Decree will expire July 9, 2009.
14. Voluntary Contribution. BJ's agrees that it will make a voluntary
contribution to the United States Treasury in the amount of
twenty thousand dollars ($20,000). The payment will be made
within thirty (30) 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). BJ'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.
15. Waivers. BJ'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 without change, addition, modification, or
deletion. BJ'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 BJ's nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and BJ's
shall waive any statutory right to a trial de novo. BJ'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.
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 BJ's does not
expressly consent) that provision will be superseded by such
Commission rule or Order.
18. Successors and Assigns. BJ's 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. The Parties agree that this
Consent Decree is for settlement purposes only and that by
agreeing to this Consent Decree, BJ's does not admit or deny
noncompliance, violation or liability for violating the Act or
Rules in connection with the matters that are the subject of this
Consent Decree.
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
________________________________
Lon F. Povich
Executive Vice President, General Counsel and Secretary
BJ's Wholesale Club, Inc.
________________________________
Date
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 08-1380
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Federal Communications Commission DA 08-1380
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Federal Communications Commission DA 08-1380
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Federal Communications Commission DA 08-1380