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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number EB-07-RK-003
Best Buy Co., Inc. ) NAL/Acct. No. 200732460003
Richfield, MN ) FRN 0002625630
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 9, 2008 Released: April 10, 2008
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Best Buy Co., Inc. ("Best Buy") 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 Best Buy is apparently liable for a
forfeiture in the amount of two hundred eighty thousand dollars
($280,000).
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 we 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, we 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." We 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 May 31, 2007, the Enforcement Bureau issued a Citation to Best
Buy for offering for sale television receiving equipment having
an analog-only tuner without displaying the required Consumer
Alert in close proximity. Between May 31 and June 11, 2007, the
Enforcement Bureau conducted inspections at numerous stores and,
based on those inspections, issued additional Citations to Best
Buy for violations at its stores and its website. After affording
Best Buy a reasonable opportunity to respond to the first
Citation, agents from the Enforcement Bureau began inspecting
numerous additional Best Buy stores on June 12, 2007 in various
states and once again observed television receiving equipment
with analog-only tuners on display without the required Consumer
Alert labels in 18 Best Buy stores.
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 Best Buy 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 Best Buy
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 B, agents and
investigators from the Enforcement Bureau observed a number of
different models of television receiving equipment having only an
analog-only tuner on display in 18 Best Buy stores without the
required Consumer Alert labels. Best Buy previously received 19
Citations for this same type of conduct prior to the agents'
inspections.
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." We 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, beginning on June 12, 2007, as detailed in
Attachment B, even after receiving the Citations warning of
violations in its stores across the country, Best Buy displayed
numerous different models of equipment with an analog-only tuner
in 18 stores without the required Consumer Alert label. As a
result, Best Buy 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 Best Buy is apparently
liable for a $280,000 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, Best Buy Co., Inc. is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of two
hundred eighty thousand dollars ($280,000) 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, Best Buy Co., Inc.
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/Account Number and
FRN Number referenced above. 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[s] 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). Requests for full
payment under an installment plan should be sent to: Chief
Financial Officer -- Financial Operations, 445 12th Street, S.W.,
Room 1-A625, Washington, D.C. 20554. Please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment
procedures.
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. 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 Best Buy Co., Inc. at
its address of record and Robert Bodeau, Corporate Counsel, Best
Buy, 7601 Penn Avenue South, Richfield, MN 55423-3645.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
Attachment A
Store #-
Citation No. Release Date
Location
Store # 504 Duluth, GA C20073248003 5/31/07
Store # 564, Clearwater, FL C20073270001 5/31/07
Store # 305, Schaumburg, IL C20073232002 5/31/07
Store #454, Westbury, NY C20073238010 5/31/07
Store # 498, Bellevue, WA C20073298007 6/1/07
Store # 382, Lakewood, CO C20073280007 6/4/07
Store # 470, Seattle, WA C20073298009 6/4/07
Store #589, Philadelphia, PA C20073240009 6/5/07
Store # 830, Tacoma, WA C20073298012 6/5/07
Store # 897, Farmington Hills, MI C20073236005 6/5/07
Store # 188, Chula Vista, CA C20073294012 6/6/07
Store # 121, Fresno, CA C20073296009 6/6/07
Store # 551, Plantation, FL C20073260006 6/7/07
Store # 36, Independence, MO C20073256008 6/7/07
Store # 438, San Diego, CA C20073294014 6/7/07
Store # 135, Pleasant Hill, CA C20073296012 6/8/07
Store # 525, North Wales, PA C20073240020 6/11/07
Store # 352, San Diego, CA C20073294016 6/11/07
Store # 581, Mays Landing, NJ C20073240025 6/12/07
Store # 349, Elk Grove, CA C20073296021 6/18/07
Store # 660, Sacramento, CA C20073296020 6/18/07
Webpage EB-07-SE-175 6/6/07
Attachment B
1. 6/12/07, Best Buy Store #115, Murrieta, CA.
Manufacturer Device Model # Forfeiture Amount
Panasonic VCR/DVD Recorder DMR-ES35V5 $8,000
Subtotal $8,000
2. 6/13/07, Best Buy Store # 1023, Sherman, TX.
Manufacturer Device Model # Forfeiture Amount
Philips DVD Recorder DVDR3400 $8,000
Subtotal $8,000
3. 6/13/07, Best Buy Store # 19, Des Moines, IA.
Manufacturer Device Model # Forfeiture Amount
Coby 7" TV TF-TV700 $8,000
Subtotal $8,000
4. 6/13/07, Best Buy Store #143, Chesterfield, MO.
Manufacturer Device Model # Forfeiture Amount
Magnavox TV 20MF251W $8,000
Subtotal $8,000
5. 6/13/07, Best Buy Store # 942, Fenton, MO.
Manufacturer Device Model # Forfeiture Amount
Insignia DVD/VCR NS-DRVCR $8,000
Subtotal $8,000
6. 6/13/07, Best Buy Store # 268, Charlotte, NC.
Manufacturer Device Model # Forfeiture Amount
Insignia DVD Recorder NS-DRVCR $8,000
Subtotal $8,000
7. 6/13/07, Best Buy Store # 155, Greensboro, NC.
Manufacturer Device Model # Forfeiture Amount
Panasonic DVD Recorder DMR-ES35V $8,000
Panasonic DVD Recorder DMR-ES15V $8,000
Subtotal $16,000
8. 6/14/07, Best Buy Store # 469, Staten Island, NY.
Manufacturer Device Model # Forfeiture Amount
Insignia DVD/VCR NS-DRVCR $8,000
Sony DVD RDRGX330 $8,000
Subtotal $16,000
9. 6/14/07, Best Buy Store # 374, Yonkers, NY.
Manufacturer Device Model # Forfeiture
Amount
Magnavox 20" TV 20MF251W $8,000
Panasonic DVD Recorder/VCR DMR-ES35VS $8,000
Combo
Insignia DVD Combo Recorder NS-DRVCR $8,000
Subtotal $24,000
10. 6/14/07, Best Buy Store #488, Chattanooga, TN.
Manufacturer Device Model # Forfeiture Amount
Panasonic DVD/Recorder DMR-ES15 $8,000
Subtotal $8,000
11. 6/14/07, Best Buy Store # 547, Harrisburg, PA.
Manufacturer Device Model # Forfeiture Amount
Sylvania TV/DVD/VCR 6727DE $8,000
Philips DVD RW DVDR3400 $8,000
Toshiba DVD RW D-RW2 $8,000
Subtotal $24,000
12. 6/14/07, Best Buy Store # 1802, Las Vegas, NV.
Manufacturer Device Model # Forfeiture Amount
Toshiba DVD D-RW2 $8,000
Panasonic DVD/VCR DMR-ES35V $8,000
Sony DVD/VCR RDR-VX530 $8,000
Subtotal $24,000
13. 6/14/07, Best Buy Store # 1414, San Antonio, TX.
Manufacturer Device Model # Forfeiture Amount
Toshiba DVDR D-RW2 $8,000
Toshiba DVDR-VCR D-VR5 $8,000
Samsung DVDR/VCR DVD-VR330 $8,000
Subtotal $24,000
14. 6/14/07, Best Buy Store # 190, San Jose, CA.
Manufacturer Device Model # Forfeiture Amount
Sony DVDR/VCR RDR-VX530 $8,000
Panasonic DVD/VCR DMR-ES15 $8,000
Panasonic DVD/VCR DMR-ES40 $8,000
Sony DVD/VCR RDR-GX330 $8,000
Subtotal $32,000
15. 6/15/07, Best Buy Store # 871, San Marcos, CA.
Manufacturer Device Model # Forfeiture Amount
Insignia TV/DVD IS-TV040918 $8,000
Subtotal $8,000
16. 7/5/07, Best Buy Store # 373, Harvey, LA.
Manufacturer Device Model # Forfeiture Amount
Insignia DVD-R / VCR NS-DRVCR $8,000
Toshiba DVD-R D-RW2 $8,000
Samsung DVD-R DVD-R135 $8,000
Subtotal $24,000
17. 7/12/07, Best Buy Store # 849, Gurnee, IL.
Manufacturer Device Model # Forfeiture Amount
Symphonic TV/VCR SC309D $8,000
Subtotal $8,000
18. 7/13/07, Best Buy Store # 103, City of Industry, CA.
Manufacturer Device Model # Forfeiture Amount
Sony DVD/VCR RDR-VX530 $8,000
Insignia DVD/VCR NS-DRVCR $8,000
Insignia TV IS-TVDVD20 $8,000
Subtotal $24,000
TOTAL PROPOSED FORFEITURE: $280,000.00
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, 22 FCC Rcd 8776 at P: 1 (2007) ("Second DTV Periodic Report and
Order").
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).
Best Buy, Inc., Citation No. C20073248003, (Enf. Bur. Atlanta Office,
rel. May 31, 2007).
See Attachment A for a list of the citations issued to Best Buy
(collectively "Citations"). In preparing the Citations, Enforcement
Bureau staff relied on publicly available information, including
retailer websites, to identify the television receiving equipment with
analog-only tuners. Subsequently, Enforcement Bureau staff determined
that the following Citations referred, in whole or in part, to
erroneously identified equipment models: Citation No. C20073270001
(Toshiba model MD20H63); Citation No. C20073294014 (Samsung model
DVD-VR357); Citation No. C20073294012 (Samsung model DVD-VR357, Sony
model RDRGC330). In light of this evidence, we hereby cancel the
relevant portions of the above citations with respect to those models.
On June 8, 2007, Best Buy responded to the first Citation. See Letter
from Robert A. Bodeau, corporate counsel for Best Buy to Douglas
Miller, District Director, Atlanta Office, Enforcement Bureau, dated
June 7, 2007 ("Citation Response"). Best Buy subsequently filed
responses to the other Citations. See Letter from Robert A. Bodeau,
corporate counsel for Best Buy to Ralph Barlow, District Director,
Tampa Office, Enforcement Bureau, dated June 7, 2007; Letter from
Robert A. Bodeau, corporate counsel for Best Buy to James Roop, Acting
District Director, Chicago Office, Enforcement Bureau, dated June 7,
2007; Letter from Robert A. Bodeau, corporate counsel for Best Buy to
Kathryn Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau, dated June 12, 2007; Letter from Robert A. Bodeau, corporate
counsel for Best Buy to Nikki Shears, District Director, Denver
Office, Enforcement Bureau, dated June 13, 2007; Letter from Robert A.
Bodeau, corporate counsel for Best Buy to Kristine McGowan, District
Director, Seattle Office, Enforcement Bureau, dated June 13, 2007;
Letter from Robert A. Bodeau, corporate counsel for Best Buy to
Kristine McGowan, District Director, Seattle Office, Enforcement
Bureau, dated June 13, 2007; Letter from Robert A. Bodeau, corporate
counsel for Best Buy to James Bridgewater, District Director, Detroit
Office, Enforcement Bureau, dated June 13, 2007; Letter from Robert A.
Bodeau, corporate counsel for Best Buy to William Zears, District
Director, San Diego Office, Enforcement Bureau, dated June 13, 2007;
Letter from Robert A. Bodeau, corporate counsel for Best Buy to Thomas
Van Stavern, District Director, San Francisco Office, Enforcement
Bureau, dated June 13, 2007; Letter from Robert A. Bodeau, corporate
counsel for Best Buy to Gerardo Daubar, Resident Agent, Miami Office,
Enforcement Bureau, dated June 13, 2007; Letter from Robert A. Bodeau,
corporate counsel for Best Buy to Robert McKinney, District Director,
Kansas City Office, Enforcement Bureau, dated June 14, 2007; Letter
from Robert A. Bodeau, corporate counsel for Best Buy to Thomas Van
Stavern, District Director, San Francisco Office, Enforcement Bureau,
dated June 14, 2007; Letter from Robert A. Bodeau, corporate counsel
for Best Buy to Gene Stanbro, District Director, Philadelphia Office,
Enforcement Bureau, dated June 18, 2007; Letter from Robert A. Bodeau,
corporate counsel for Best Buy to Gene Stanbro, District Director,
Philadelphia Office, Enforcement Bureau, dated June 21, 2007; Letter
from Robert A. Bodeau, corporate counsel for Best Buy to William
Zears, District Director, San Diego Office, Enforcement Bureau, dated
June 21, 2007; Letter from Robert A. Bodeau, corporate counsel for
Best Buy to Thomas Van Stavern, District Director, San Francisco
Office, Enforcement Bureau, dated June 26, 2007; Letter from Robert A.
Bodeau, corporate counsel for Best Buy to Thomas Van Stavern, District
Director, San Francisco Office, Enforcement Bureau, dated June 26,
2007.
See Attachment B for a listing of the stores visited and the models
observed at each store. Enforcement Bureau staff determined that
these models had analog-only tuners by consulting the manufacturer's
product manuals or, if such were unavailable, the models' technical
specifications from Best Buy's website.
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 B lists the date(s) of the Enforcement Bureau inspections,
the analog-only models identified in violation of Section 15.117(k),
as well as the Best Buy store(s) 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 Citations and afforded Best Buy
an opportunity for a personal interview or to submit a written
response. See Attachment A and supra note 14 for 3 Citations cancelled
in whole or in part. To the extent that the television receiving
models involved in this NAL differ from those listed in the Citations,
no additional citations are necessary because the more recent apparent
violations are "conduct of the type described" in the earlier
Citations - 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 Best Buy, 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 WPSH642.
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, 9210 (Enf. Bur., Spectrum Enf. Div. 2007) subsequent history
omitted; IT&E Overseas, Inc., Notice of Apparent Liability, 22 FCC Rcd
7660, 7665 (Enf. Bur., Spectrum Enf. Div. 2007).
We caution Best Buy 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 B 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).
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Federal Communications Commission FCC 08-104
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Federal Communications Commission FCC 08-104