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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File Number EB-07-RC-003
)
Circuit City Stores, Inc. NAL/Acct. No. 200732200002
)
Richmond, VA FRN # 0003753686
)
)
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 Circuit City Stores, Inc. ("Circuit City") 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 Circuit City is apparently liable for a
forfeiture in the amount of seven hundred twelve thousand dollars
($712,000).
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
Circuit City for offering for sale television receiving equipment
having an analog-only tuner without displaying the required
Consumer Alert in close proximity. On June 6, 2007, the
Enforcement Bureau issued a Citation to Circuit City for offering
for sale on its online retail outlet, www.circuitcity.com,
television receiving equipment having an analog-only tuner
without displaying the required Consumer Alert in close
proximity. Between May 31, 2007 and June 11, 2007, the
Enforcement Bureau conducted inspections at numerous stores and,
based on these inspections, issued additional Citations to
Circuit City for violations at its stores. After affording
Circuit City a reasonable opportunity to respond to the first
Citations issued to Circuit City, agents and investigators from
the Enforcement Bureau began inspecting numerous additional
Circuit City stores on June 19, 2007 in various states and once
again observed in twenty-five Circuit City stores television
receiving equipment with analog-only tuners on display without
the required Consumer Alert labels.
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 Circuit City 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 Circuit City
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 twenty-four Circuit City stores
without the required Consumer Alert labels. Circuit City
previously received thirty-two 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 19, 2007, as detailed in
Attachment B, even after receiving the Citations warning of
violations in its stores across the country, Circuit City
displayed numerous different models of equipment with an
analog-only tuner in twenty-five Circuit City stores without the
required Consumer Alert label. As a result, Circuit City
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 Circuit City is apparently liable for a
$712,000 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, Circuit City Stores, Inc. is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of seven hundred twelve thousand dollars ($712,000) 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, Circuit City Stores,
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 Circuit City Stores, Inc.
at its address of record and Robert S. Schwartz, counsel for
Circuit City Stores, Inc., at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
Attachment A
CITATIONS
Store #-
Citation No. Release Date
Location
#3111
C20073232003 May 31, 2007
Schaumberg, IL
#3672
C20073238012 May 31, 2007
Westbury, NY
#3347
C20073280005 May 31, 2007
Lakewood, CO
Clearwater, FL C20073270007 June 1, 2007
#3319
C20073298006 June 1, 2007
Bellevue, WA
Tampa. FL C20073270005 June 1, 2007
Miami, FL (Doral) C20073260003 June 1, 2007
Culver City, CA C20073290017 June 1, 2007
Buena Park, CA C20073290018 June 1, 2007
#542
C20073254002 June 1, 2007
Houston, TX
#817
C20073264006 June 1, 2007
Virginia Beach, VA
#3220
C200732480005 June 1, 2007
Duluth, GA
#543
C2007325005 June 4, 2007
Plano, TX
#3770
C20073226002 June 4, 2007
Taunton, MA
#443
C20073294009 June 4, 2007
San Diego, CA
#3210
C20073256005 June 5, 2007
Independence, MO
#3556
C20073240010 June 5, 2007
Philadelphia, PA
#3321
C20073298011 June 5, 2007
Tacoma, WA
#3608
C20073236006 June 5, 2007
Novi, MI
#423
C20073296010 June 6, 2007
Fresno, CA
Plantation, FL C20073260008 June 7, 2007
#3336
C20073298014 June 8, 2007
Tukwila, WA
#4101
C20073240022 June 11, 2007
Montgomeryville, PA
#1816
C20073226007 June 11, 2007
Milford, CT
#3627
C20073234009 June 12, 2007
Hanover, MD
#3663
C20073238028 June 14, 2007
Brooklyn, NY
#3694
C20073238023 June 14, 2007
Valley Stream, NY
#3688
C20073238017 June 14, 2007
North Bergen, NJ
#3305
C20073294018 June 21, 2007
Tuscon, AZ
#4302
C20073296027 June 21, 2007
San Jose, CA
#270
C20073290036 June 26, 2007
Las Vegas
EB-07-SE-182
www.circuitcity.com June 6, 2007
DA 07-2369
Attachment B
PROPOSED FORFEITURE AMOUNTS
1. June 19, 2007, Circuit City # 849, Miami, FL
Manufacturer Device Model # Forfeiture
Amount
Polaroid Television PCB TDM1311 $8,000
Symphonic Television ST414FG $8,000
SUBTOTAL $16,000
2. June 19, 2007, Circuit City Store #3307, Albuquerque, NM
Manufacturer Device Model # Forfeiture Amount
Pye DVD/VCR PY90VG $8,000
Panasonic DVD DMR-ES35V $8,000
SUBTOTAL $16,000
3. June 19, 2007, Circuit City Store #3411, Buford, GA
Manufacturer Device Model # Forfeiture Amount
Symphonic TV/DVD/VCR SC724FDF $8,000
SUBTOTAL $8,000
4. June 19, 2007, Circuit City Store #3378, Albuquerque, NM
Manufacturer Device Model # Forfeiture
Amount
Samsung DVD Recorder DVD-VR330 $8,000
SUBTOTAL $8,000
5. June 19, 2007, Circuit City Store #3269, Tampa, FL
Manufacturer Device Model # Forfeiture
Amount
Polaroid TV/DVD PCBTDM1421C $8,000
Symphonic TV/DVD/VCR SC720FDF $8,000
Symphonic TV ST414FG $8,000
SUBTOTAL $24,000
6. June 19, 2007, Circuit City Store # 3691, Staten Island, NY
Manufacturer Device Model # Forfeiture Amount
Panasonic DVD DMR-ES25 $8,000
Panasonic DVD DMR-ES35VS $8,000
Panasonic DVD/VCR DMR-EH75V $8,000
Philips DVD/VCR DVP3150V $8,000
PYE DVD PY90DG $8,000
PYE DVD/VCR PY90VG $8,000
Samsung DVD/VCR DVDV5650 $8,000
Sony DVD RDRGX330 $8,000
Sony DVD/VCR RDRVX530 $8,000
Sony DVD/VCR SLVD370P $8,000
Symphonic TV ST414FG $8,000
SUBTOTAL $88,000
7. June 19, 2007, Circuit City Store #434, San Diego, CA
Manufacturer Device Model # Forfeiture
Amount
Polaroid TV FLM1514B $8,000
Polaroid TV TDM1421C $8,000
Pye DVD recorder PY90DG $8,000
SUBTOTAL $24,000
8. June 19, 2007, Circuit City Store #3617, West Mifflin, PA
Manufacturer Device Model # Forfeiture
Amount
Panasonic TV/DVD/VCR PAN $8,000
PVDF2036M
Symphonic TV/DVD/VCR SC720FDF $8,000
Samsung DVD RW/VCR DVDVR330 $8,000
SUBTOTAL $24,000
9. June 20, 2007, Circuit City, Woodland Hills, CA
Manufacturer Device Model # Forfeiture Amount
Polaroid TV/DVD TTM2003 $8,000
Polaroid TV/DVD TDM-1421C $8,000
Symphonic TV ST414FG $8,000
SUBTOTAL $24,000
10. June 20, 2007, Circuit City Store #3125, Bloomingdale, IL
Manufacturer Device Model # Forfeiture Amount
Symphonic TV ST413E $8,000
Symphonic TV ST414FG $8,000
Samsung TV TXR1635 $8,000
Magnavox TV 14MS2331 $8,000
Polaroid TV-DVD TDM1311 $8,000
Panasonic TV-DVD PVDF2035 $8,000
Polaroid TV-DVD TDM1421C $8,000
Magnavox TV-DVD-VDR 24MC4306 $8,000
SUBTOTAL $64,000
11. June 20, 2007, Circuit City Store #433, San Diego, CA
Manufacturer Device Model # Forfeiture
Amount
Pye DVD recorder PY90DG $8,000
Symphonic TV SC520FDF $8,000
Polaroid TV TDM1311 $8,000
Symphonic TV ST414FG $8,000
Polaroid TV FLM1514B $8,000
SUBTOTAL $40,000
12. June 20, 2007, Circuit City Store #3327, San Diego, CA
Manufacturer Device Model # Forfeiture Amount
Polaroid TV FLM1514B $8,000
Polaroid TV TTM2003 $8,000
Magnavox TV 13MT143S $8,000
Magnavox TV 14MS2331 $8,000
Symphonic TV ST413E $8,000
Symphonic TV SC720FDF $8,000
Pye DVD rec PY90DG $8,000
Pye DVD/VCR PY90VG $8,000
Samsung DVD/VCR DVDV5650 $8,000
Panasonic DVD/VCR DMRES35VS $8,000
Sony DVD/VCR SLV-D370P $8,000
SUBTOTAL $88,000
13. June 20, 2007, Circuit City Store #3264, Frisco, TX
Manufacturer Device Model # Forfeiture
Amount
Sylvania Television/DVD SYL6620LDT $8,000
Player
SUBTOTAL $8,000
14. June 21, 2007, Circuit City Store #3763, Sparks, NV
Manufacturer Device Model # Forfeiture Amount
Polaroid TV/DVD TDM-1311 $8,000
Sony TV KV24FS120 $8,000
SUBTOTAL $16,000
15. June 22, 2007, Circuit City Store #3375, Roseville, CA
Manufacturer Device Model # Forfeiture
Amount
Polaroid TV PLR FLM-1514B $8,000
Polaroid TV/DVD PCB FDM-0715 $8,000
Polaroid TV/DVD PCB FDM1015 $8,000
Symphonic TV/DVD/VCR SC720FDF $8,000
Zenith TV Z20LCD1A $8,000
Panasonic DVD/VCR DMR-ES35V $8,000
Sony DVDR RDR-GX330 $8,000
Sony DVDR/VCR RDR-VX530 $8,000
Pye DVDR PY90DG $8,000
Sony DVD/VCR SLVD370P $8,000
Polaroid TV TTM2410 $8,000
Disney TV MCP/DT1350P $8,000
Magnavox TV/DVD/VCR 24MC4306 $8,000
SUBTOTAL $104,000
16. June 22, 2007, Circuit City Store #4303, Fairfield, CA
Manufacturer Device Model # Forfeiture
Amount
Polaroid TV PLR FLM-1514B $8,000
Sony TV KV24FS120 $8,000
Panasonic DVDR/VCR DMR-EH75V $8,000
Sony DVDR RDR-VX530 $8,000
SUBTOTAL $32,000
17. June 25, 2007, Circuit City Store #3501, Dallas, TX
Manufacturer Device Model # Forfeiture
Amount
Panasonic DVD DMR-ES35V $8,000
Panasonic DVD DMR-EH75VS $8,000
Polaroid Under-the-cabinet TV/DVD FDM1015 $8,000
combo
Sony DVD RDR-GX330 $8,000
Sony DVD RDR-VX530 $8,000
SUBTOTAL $40,000
18. July 11, 2007, Circuit City Store #4301, Vista, CA
Manufacturer Device Model # Forfeiture Amount
Polaroid TV FDM0715 $8,000
SUBTOTAL $8,000
19. July 11, 2007, Circuit City Store #449, Escondido CA
Manufacturer Device Model # Forfeiture Amount
Polaroid TV FDM0715 $8,000
SUBTOTAL $8,000
20. July 12, 2007, Circuit City Store # 893, Jacksonville, FL
Manufacturer Device Model # Forfeiture Amount
Panasonic TV/DVD/VCR PVDF2035 $8,000
SUBTOTAL $8,000
21. July 19, 2007, Circuit City Store #507, Dallas, TX
Manufacturer Device Model # Forfeiture Amount
Sony DVDR RDR-GX330 $8,000
Panasonic DVDR DMR-ES25 $8,000
Polaroid TV TTM-2420 $8,000
SUBTOTAL $24,000
22. October 5, 2007, Circuit City Store #443, San Diego, CA
Manufacturer Device Model # Forfeiture Amount
Panasonic DVD recorder DMRES15 $8,000
SUBTOTAL $8,000
23. October 5, 2007, Circuit City Store #3627, Hanover, MD
Manufacturer Device Model # Forfeiture Amount
Symphonic TV ST414FG $8,000
SUBTOTAL $8,000
24. December 20, 2007, Circuit City Store #3522, Garland, TX
Manufacturer Device Model # Forfeiture
Amount
Samsung DVD Recorder DVDR120 $8,000
PYE VCR/DVDR PY90VG $8,000
SUBTOTAL $16,000
25. March 14, 2008, Circuit City Store #3302, Palm Desert. CA
Manufacturer Device Model # Forfeiture
Amount
Truetech TV/DVD player KLV3112 $8,000
r
SUBTOTAL $8,000
Circuit City Total Proposed Forfeiture: $712,000
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, 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).
Circuit City Stores, Inc., Citation No. C20073232003 (Enf. Bur.
Chicago Office, rel. May 31, 2007).
Circuit City Stores, Inc., Citation No. EB-07-SE-182 (Enf. Bur.
Spectrum Enforcement Division, rel. June 6, 2007).
See Attachment A for a list of the citations issued to Circuit City
(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: Circuit City Citation No.
C20073264006 (Samsung DVD/Recorder, Model DVDVR357; Toshiba
DVD/Recorder, Model DR400); Circuit City Citation No. C20073280005
(All Models); Circuit City Citation No. C20073260003 (Philips Model
27PC4326; Sharp Model 32SF56B); Circuit City Citation No. C20073264006
(Samsung DVD/Recorder DVDVR357; Toshiba TV 20H63; Toshiba
DVD/Recorder, DR400); Circuit City Citation No. C20073270007 (Samsung
DVD/VCR Recorder, SAMDVDVR357; Sharp 32" TV, Model SHA32SF56B);
Circuit City Citation No. C20073226003 (Nexxtech DVD, Model NVV-N400H;
Nexxtech DVD, Model NXX-N400H; Prima TV Model PRACV1311); Circuit City
Citation No. C20073262004 (Toshiba TV/DVD MD20H63); Circuit City
Citation No. C20073294009 (Samsung DVD/Recorder, DVDVR357; Toshiba
DVD/Recorder, DR400). In light of this evidence, we hereby cancel the
relevant portions of the above citations with respect to those models.
On June 18, 2007, counsel for Circuit City submitted a response to the
Citations issued to Circuit City as of June 12, 2007. See Letter from
Robert S. Schwartz, Esq., Constantine Cannon, to Kris A. Monteith,
Chief, Enforcement Bureau, FCC, dated June 18, 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 Circuit City'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 dates of the Enforcement Bureau inspections,
the analog-only models identified in violation of Section 15.117(k),
as well as the Circuit City stores 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 apparent violations discussed in this NAL are subject
to forfeiture because we afforded Circuit City a reasonable
opportunity for a personal interview or to submit a written response
to its first Citation before conducting a second round of inspections
that would count towards potential forfeiture liability. See supra
para. 5 and notes 14, 17. 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 Circuit City, 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, e.g., Stations WPYK295, WPZV695,
WQGX521, licensed to Circuit City in the Industrial/Business Pool
Private Land Mobile Service.
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 Circuit City 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 08-105