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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File Number EB-07-SE-203
Wal-Mart Stores, Inc. and Sam's West, )
Inc. NAL/Acct. No. 200832100036
)
Bentonville, AR FRN #0008627473
)
)
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 Wal-Mart Stores, Inc. and Sam's West, Inc. (collectively
"Wal-Mart"), 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 Wal-Mart
is apparently liable for a forfeiture in the amount of nine hundred
ninety-two thousand dollars ($992,000).
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 30 2007, the Enforcement Bureau issued a Citation to
Wal-Mart for offering for sale television receiving equipment
having an analog-only tuner without displaying the required
Consumer Alert in close proximity. Between May 30, 2007, and June
13, 2007, the Enforcement Bureau conducted inspections at
numerous stores and, based on those inspections, issued
additional Citations to Wal-Mart for violations at its stores.
After affording Wal-Mart a reasonable opportunity to respond to
the first Citation, agents and investigators from the Enforcement
Bureau began inspecting numerous additional Wal-Mart stores on
June 14, 2007, in various states and once again observed in
fifty-one (51) stores and the Sam's Club website, 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 Wal-Mart 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 Wal-Mart
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 fifty-one (51) Wal-Mart stores
and on the Sam's club website without the required Consumer Alert
labels. Wal-Mart previously received sixty-three (63) 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 an $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 14, 2007, as detailed in
attachment B, even after receiving the Citations warning of
violations in its stores across the country, Wal-Mart displayed
numerous different models of equipment with an analog-only
tuner in fifty-one (51) stores and the Sam's Club website without
the required Consumer Alert label. As a result, Wal-Mart
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 Wal-Mart is apparently liable for a $992,000
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, Wal-Mart Stores, Inc., and Sam's West,
Inc., are hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of nine hundred ninety-two thousand
dollars ($992,000) 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, Wal-Mart Stores,
Inc., and Sam's West, 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 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. Requests for payment of the full amount of this Notice of
Apparent Liability for Forfeiture under an installment plan
should be sent to: Associate Managing Director, Financial
Operations, 445 12th Street, S.W., Room 1A625, Washington, D.C.
20554.
18. 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 Kyle Holifield, Director,
Product Compliance & Safety, Wal-Mart Stores, Inc., 702 SW 8th
Street, Bentonville, AR 72716 and Gregory Kunkle, Esq., Keller &
Heckman, LLP, at 1001 G Street, NW, Washington, DC 20005.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
Attachment A
Store #-
Citation No. Release Date
Location
Wal-Mart Store # 573, Lee's Summit, C20073256002 May 30, 2007
MO
Wal-Mart Store # 5338, San Diego, C20073294006 May 31, 2007
CA
Wal-Mart Store # 2082, Cerritos, CA C20073290016 May31, 2007
Wal-Mart Store # 789, Mesquite, TX C20073250006 May 31, 2007
Wal-Mart Store # 3725, Niles, IL C20073232004 May 31, 2007
Wal-Mart Store # 2550, Vancouver, C20073292004 May 31, 2007
WA
Wal-Mart Store # 3420, Westbury, NY C20073238011 May 31, 2007
Wal-Mart Store # 2091,
C20073260001 May 31, 2007
Miami, FL
Wal-Mart Store # 3831, Portsmouth, C20073264005 June 1, 2007
VA
Sam's Club Store # 6676,
C20073240006 June 1, 2007
Willow Grove, PA
Wal-Mart Store # 1960,
C200073270004 June 1, 2007
Tampa, FL
Wal-Mart Store # 0989,
C20073262001 June 1, 2007
Metairie, LA
Wal-Mart Store # 0591, Covington, C20073262002 June 1, 2007
LA
Wal-Mart Store # 5131, Trevose, PA C20073240003 June 4, 2007
Wal-Mart Store # 2904, Brockton, MA C20073226004 June 4, 2007
Wal-Mart Store # 2088, Batavia, NY C20073228002 June 4, 2007
Wal-Mart Store # 5130, C20073240008 June 4, 2007
Philadelphia, PA
Wal-Mart Store # 2007,
C20073278001 June 4, 2007
Anchorage, AK
Wal-Mart Store # 3297, Houston, TX C20073254005 June 4, 2007
Sam's Club Store # 6346, Houston, C20073254007 June 5, 2007
TX
Sam's Club Store # 8274, Houston, C20073254006 June5, 2007
TX
Wal-Mart Store # 2204, Des Plaines, C20073232007 June 5, 2007
IL
Wal-Mart Store # 2248, Catonsville, C20073234003 June 5, 2007
MD
Wal-Mart Store # 2341, Quincy, MA C20073226001 June 5, 2007
Sam's Club Store # 4735,
C20073290023 June 5, 2007
La Habra, CA
Wal-Mart Store # 2242,
C20073290024 June 5, 2007
Anaheim, CA
Sam's Club # 4743,
C20073250008 June 6, 2007
Plano, TX
Wal-Mart Store # 3564, Horsham, PA C20073240012 June 6, 2007
Wal-Mart Store # 1985, Laurel, MD C200732340005 June 6, 2007
Wal-Mart Store # 1103, Houston, TX C200732540008 June 6, 2007
Wal-Mart Store # 1373, Lilburn, GA C20073248007 June 6, 2007
Wal-Mart Store # 428, Lakewood, CO C20073280008 June 6, 2007
Wal-Mart Store # 1117, Plano, TX C20073250010 June 6, 2007
Sam's Club Store # 4735,
C20073290023 June 6, 2007
Forney, CA
Wal-Mart Store # 1985
C20073234005 June 6, 2007
Laurel, MD
Wal-Mart Store # 2151, Sunrise, FL C20073260007 June 7, 2007
Wal-Mart Store # 5091, Cypress, TX C20073254010 June 7, 2007
Wal-Mart Store # 1184, Stone C20073248008 June 7, 2007
Mountain, GA
Wal-Mart Store # 2406, Hamburg, NY C20073228003 June 7, 2007
Wal-Mart Store # 1040, Houston, TX C20073254011 June 7, 2007
Sam's Store # 6635, Littleton, CO C20073280011 June 11, 2007
Wal-Mart Store # 2559, Warren, MI C20073236007 June 11, 2007
Wal-Mart Store #2445, Hatfield PA C20073240021 June 11, 2007
Wal-Mart Store # 2040, Burlington, C20073240023 June 11, 2007
NJ
Wal-Mart Store # 1837, Humble, TX C20073254014 June 11, 2007
Wal-Mart Store # 3476, Canton, MI C20073236008 June 11, 2007
Wal-Mart Store # 2412?, Ellicott C20073234008 June 12, 2007
City, MD
Wal-Mart Store # 768, Katy, TX C20073254016 June 12, 2007
Wal-Mart Store # 5177, Bristol, PA C20073240027 June 12, 2007
Wal-Mart Store # 2068, Fairless C20073240024 June 12, 2007
Hills, PA
Wal-Mart Store # 1811, Norfolk, VA C20073264010 June 12, 2007
Sam's Club Store # 4764, Katy, TX C20073254015 June 12, 2007
Wal-Mart Store # 2412,
C20073234008 June 12, 2007
Ellicott City, MD
Wal-Mart Store # 2022, North C20073226006 June 12, 2007
Windham, CT
Wal-Mart Store # 5296, C20073234010 June 13, 2007
Barboursville, WV
Wal-Mart Store # 3520, Seacaucus, C20073238018 June 14, 2007
NJ
Wal-Mart Store # 2031, Union City, C200732960016 June 14, 2007
CA
Wal-Mart Store # 5293, Valley C20073238025 June 14, 2007
Stream, NY
Sam's Club Store # 4774, C20073238019 June 14, 2007
Seacaucus, NJ
Wal-Mart Store # 1697, Elk Grove, C20073296024 June 18, 2007
CA
Wal-Mart Store # 5192, Sacramento, C20073296022 June 18, 2007
CA
Wal-Mart Store # 2269,
C20073298020 June 18, 2007
Yakima, WA
Wal-Mart Store # 2277, Clovis, CA C20073296026 June 20, 2007
Attachment B
1. June 14, 2007, Wal-Mart, Store # 2074, Wasilla, AK.
Manufacturer Device Model # Forfeiture Amount
Magnavox DVD MWR10D6 $8,000
Magnavox DVD/VCR MWR20V6 $8,000
Panasonic DVD DMR-ES15 $8,000
Panasonic DVD/VCR DMR-ES35VS $8,000
Samsung DVD DVD-R129 $8,000
Sony DVD RDR-GX330 $8,000
Sony DVD/VCR SLV-D370P $8,000
SV2000 DVD WV10D6 $8,000
Subtotal $64,000
2. June 14, 2007, Wal-Mart Store # 1291, Tucson, AZ.
Manufacturer Device Model # Forfeiture Amount
Funai DVD/VCR WV10D6 $8,000
Magnavox DVD/VCR MWR20V6 $8,000
Subtotal $16,000
3. June 14, 2007, Wal-Mart Store # 5435, San Jose, CA.
Manufacturer Device Model # Forfeiture Amount
Philips TV 20PT6245/37 $8,000
Sony DVD/VCR SLV-D370P $8,000
Subtotal $16,000
4. June 14, 2007, Wal-Mart Store # 3762, West Des Moines, IA.
Manufacturer Device Model # Forfeiture Amount
Philips TV 20PT6245/37 $8,000
Subtotal $8,000
5. June 14, 2007, Wal-Mart Store # 5380, Hanover, MA.
Manufacturer Device Model # Forfeiture Amount
Magnavox DVD MWR20V6 $8,000
Subtotal $8,000
6. June 14, 2007, Wal-Mart Store # 2522, Escanaba, MI.
Manufacturer Device Model # Forfeiture Amount
Durabrand SDTV DWT1304A $8,000
Magnavox TV/VHS/DVD MWC20T6 $8,000
Magnavox SDTV 20MS233S $8,000
Magnavox TV/DVD/VCR MWC20T6 $8,000
Philips TV 20PT6245/37 $8,000
Subtotal $40,000
7. .June 14, 2007, Wal-Mart Store # 2434, Iron Mountain, MI.
Manufacturer Device Model # Forfeiture Amount
Durabrand TV DWT1304 $8,000
Subtotal $8,000
8. June 14, 2007, Wal-Mart Store # 3565, East Norristown, PA.
Manufacturer Device Model # Forfeiture Amount
Durabrand TV DWT1304 $8,000
Magnavox TV/DVD/VCR MWC20T6 $8,000
Magnavox DVD/VCR MWR20V6 $8,000
Magnavox DVD MWR10D6 $8,000
Philips DVD/VCR DVP3150V $8,000
Subtotal $40,000
9. June 14, 2007, Wal-Mart Store # 1469, Chattanooga, TN.
Manufacturer Device Model # Forfeiture Amount
Philips DVR DVP3150V $8,000
Subtotal $8,000
10. June 14, 2007, Wal-Mart Store # 2257, Houston, TX.
Manufacturer Device Model # Forfeiture Amount
Philips DVR DVP3050V $8,000
Samsung DVD/VCR DVD-V5650 $8,000
Subtotal $16,000
11. June 14, 2007, Wal-Mart Store # 1313, San Antonio, TX.
Manufacturer Device Model # Forfeiture Amount
Magnavox DVDR MWR10D6 $8,000
Magnavox DVD/VCR MWR20V6 $8,000
Philips DVDR DVDR-3390 $8,000
SV2000 DVDR WV10D6 $8,000
Subtotal $32,000
12. June 14, 2007, Wal-Mart Store # 5245, San Antonio, TX.
Manufacturer Device Model # Forfeiture Amount
Philips DVDR DVDR-3390 $8,000
Subtotal $8,000
13. June 15, 2007, Wal-Mart Store # 1325, Tucson, AZ.
Manufacturer Device Model # Forfeiture Amount
Philips DVD/DVR DVP3150V/37 $8,000
Subtotal $8,000
14. June 15, 2007, Wal-Mart Store # 771, Merritt Island, FL.
Manufacturer Device Model # Forfeiture Amount
Durabrand TV DWT1905 $8,000
Durabrand TV DWT1304 $8,000
Philips TV 20PT6245/37 $8,000
Subtotal $24,000
15. June 15, 2007, Wal-Mart Store # 834, Bethany, MO.
Manufacturer Device Model # Forfeiture Amount
Philips TV 20PT6245/37 $8,000
Subtotal $8,000
16. June 15, 2007, Wal-Mart Store # 2404, San Antonio, TX.
Manufacturer Device Model # Forfeiture Amount
Magnavox DVD/VCR MWR10D6 $8,000
Subtotal $8,000
17. June 15, 2007, Sam's Club, samsclub.com.
Manufacturer Device Model # Forfeiture Amount
Panasonic DVD DMR-ES15S $8,000
Subtotal $8,000
18. June 16, 2007, Sam's Club Store # 8290, Orlando, FL.
Manufacturer Device Model # Forfeiture Amount
Magnavox TV/DVD/VCR MSD724G $8,000
Subtotal $8,000
19. June 16, 2007, Wal-Mart Store #2247, Cary, NC.
Manufacturer Device Model # Forfeiture Amount
Duraband TV DWT 1905 $8,000
Subtotal $8,000
20. June 16, 2007, Wal-Mart Store # 1751, Raleigh, NC.
Manufacturer Device Model # Forfeiture Amount
Philips TV 20PT6245/37 $8,000
Panasonic DVD Recorder DMR-ES15 $8,000
Subtotal $16,000
21. June 18, 2007, Wal-Mart Store # 3891, Waukeegan, IL.
Manufacturer Device Model # Forfeiture Amount
Magnavox TV/DVD/VCR MWC20T6 $8,000
Magnavox TV/DVD/VCR MWC24T5 $8,000
Philips TV 20PT6245 $8,000
Subtotal $24,000
22. June 18, 2007, Wal-Mart Store # 3507, Baltimore/P. Coving, MD.
Manufacturer Device Model # Forfeiture Amount
Durabrand SDTV DWT1304 $8,000
Durabrand SDTV DWT1905 $8,000
Magnavox TV/DVD MWC13D6 $8,000
Philips TV 20TP6245/37 $8,000
RCA TV 20F420T $8,000
Subtotal $40,000
23. June 18, 2007, Wal-Mart Store # 2539, Spokane Valley, WA.
Manufacturer Device Model # Forfeiture Amount
Philips DVD/VCR DVP3150V $8,000
Subtotal $8,000
24. June 19, 2007, Sam's Club Store # 8203, Marietta, GA.
Manufacturer Device Model # Forfeiture Amount
Panasonic DVD DMR-ES15 $8,000
Subtotal $8,000
25. June 19, 2007, Wal-Mart Store # 2281, West Mifflin, PA.
Manufacturer Device Model # Forfeiture Amount
Durabrand TV DWT1304 $8,000
Emerson DVD/VCR EWH100F $8,000
JVC DVD/VCR DR-MV7 $8,000
Panasonic DVD RW DMR-ES35V $8,000
Panasonic Diga DVD RW DMR-ES20 $8,000
Polaroid DVD DRM-2001G $8,000
Philips TV 20PT6245/37 $8,000
Philips TV 20PF5120 $8,000
Philips DVD RW DVDR3455H $8,000
Sony DVD/VCR SLV-D370P $8,000
Subtotal $80,000
26. June 19, 2007, Wal-Mart Store # 2423, Carolina, PR.
Manufacturer Device Model # Forfeiture Amount
RCA DVD/VCR DRC8320N $8,000
Subtotal $8,000
27. June 19, 2007, Wal-Mart Store # 2105, Farmers Branch, TX.
Manufacturer Device Model # Forfeiture Amount
Magnavox DVD MWR10D6 $8,000
Magnavox TV/DVD/VCD MWC20T6 $8,000
Magnavox TV/DVD MWC13D6 $8,000
Philips DVD/VCR DVP3150V $8,000
Samsung DVD/VCR DVD-V5650 $8,000
Subtotal $40,000
28 June 19, 2007, Wal-Mart Store # 1055, Garland, TX.
Manufacturer Device Model # Forfeiture Amount
Samsung DVD/VCR DVD-V5650 $8,000
Subtotal $8,000
29. June 19, 2007, Sam's Club # 4783, Garland, TX.
Manufacturer Device Model # Forfeiture Amount
Magnavox TV/DVD/VCR MSD742G $8,000
Subtotal $8,000
30. June 20, 2007, Wal-Mart Store # 2718, San Antonio, TX.
Manufacturer Device Model # Forfeiture Amount
Philips DVD/VCR DVP3050V/37 $8,000
Magnavox DVD/VCR MWR20V6 $8,000
Subtotal $16,000
31. June 29, 2007, Wal-Mart Store # 2871, Cinnaminson, NJ.
Manufacturer Device Model # Forfeiture Amount
Philips DVD/VCR DVP3150V/37 $8,000
Magnavox DVD/VCR MWR10D6 $8,000
Magnavox DVD/VCR MWD2205 $8,000
Samsung DVD/VCR DVD-V5650 $8,000
Subtotal $32,000
32. June 29, 2007, Wal-Mart Store # 2300, Pittsburgh, PA..
Manufacturer Device Model # Forfeiture Amount
Durabrand TV DWT1304 $8,000
Magnavox TV/DVD/VCR MWC20T6 $8,000
Magnavox DVD Recorder MWR10D6 $8,000
Magnavox DVD/VCR MWR20V6 $8,000
Philips DVD Recorder DVDR3390/37 $8,000
Philips DVD/VCR DVP3150V/37 $8,000
Samsung DVD/VCR DVDV5650 $8,000
SV2000 DVD Recorder WV10D6 $8,000
Subtotal $64,000
33. July 2, 2007, Wal-Mart Store # 905, Longmont, CO
Manufacturer Device Model # Forfeiture Amount
Philips DVD/VCR DVP3050V $8,000
Samsung DVD/VCR DVD-V5650 $8,000
Panasonic DVD Recorder DMR-ES15S $8,000
Sanyo TV DS24205 $8,000
Subtotal $32,000
34. July 6, 2007, Wal-Mart Store # 194, Baytown, TX
Manufacturer Device Model # Forfeiture Amount
Magnavox DVD MWR10D6 $8,000
SV2000 DVD WV10D6 $8,000
Subtotal $16,000
35. July 9, 2007, Sam's Club Store # 8299, Plano, TX
Manufacturer Device Model # Forfeiture Amount
Magnavox DVD Recorder MSR90D6 $8,000
Subtotal $8,000
36. July 11, 2007, Wal-Mart Store # 1875, Glen Burnie, MD
Manufacturer Device Model # Forfeiture Amount
Durabrand SDTV DWT1304 $8,000
Subtotal $8,000
37. July 11, 2007, Wal-Mart Store # 5228, Columbia, MD
Manufacturer Device Model # Forfeiture Amount
Durabrand SDTV DWT1304 $8,000
Magnavox TV/DVD MWC24T5 $8,000
Subtotal $16,000
38. July 11, 2007, Wal-Mart Store # 2449, Caguas, PR.
Manufacturer Device Model # Forfeiture Amount
JVC DVD/VCR DR-MV7SU $8,000
Toshiba TV 20AS26 $8,000
RCA DVD/VCR DRC8320N $8,000
Subtotal $24,000
39. July 11, 2007, Sam's Club Store # 6350, Sherman, TX
Manufacturer Device Model # Forfeiture Amount
Magnavox DVD Recorder MSR90D6 $8,000
Subtotal $8,000
40. July 17, 2007, Wall-Mart Supercenter Store # 24, Jacksonville, AR
Manufacturer Device Model # Forfeiture Amount
Panasonic DVD Recorder/VCR DMR-ES35V $8,000
Samsung DVD Recorder DVD-R129 $8,000
Subtotal $16,000
41. July 19, 2007, Wall-Mart Store # 1884, Scranton, PA
Manufacturer Device Model # Forfeiture Amount
Magnavox DVD Recorder MWR10D6 $8,000
Philips DVD Recorder DVDR3390 $8,000
Subtotal $16,000
42. October 9, 2007, Wall-Mart Store # 3475, Norristown, PA
Manufacturer Device Model # Forfeiture Amount
Magnavox DVD Recorder MWR10D6 $8,000
SV2000 DVD Recorder WV10D6 $8,000
Subtotal $16,000
43. October 9, 2007, Wall-Mart Store # 5229, Wyncote, PA
Manufacturer Device Model # Forfeiture Amount
Magnavox DVD Recorder MWR10D6 $8,000
Philips DVD Recorder WV10D6 $8,000
Subtotal $16,000
44. October 9, 2007, Sam's Club Store # 6368, Chesapeake, VA
Manufacturer Device Model # Forfeiture Amount
Magnavox DVD Recorder MSR90D6 $8,000
Panasonic DVD Recorder/VCR DMR-ES46V $8,000
Subtotal $16,000
45. October 9, 2007, Wal-Mart Store # 5047, Audubon, NJ
Manufacturer Device Model # Forfeiture Amount
SV2000 DVD Recorder WV10D6 $8,000
Subtotal $8,000
46. October 9, 2007, Wal-Mart Store # 2096, Warminster, PA
Manufacturer Device Model # Forfeiture Amount
Magnavox DVD Recorder MWR10D6 $8,000
Subtotal $8,000
47. November 9, 2007, Wal-Mart Store # 546, Richmond, TX
Manufacturer Device Model # Forfeiture Amount
Magnavox DVD Recorder/VCR MWR10D6 $8,000
SV2000 DVD Recorder WV10D6 $8,000
Subtotal $16,000
48. November 19, 2007, Wal-Mart Store # 2242, Anaheim, CA
Manufacturer Device Model # Forfeiture Amount
Magnavox DVD Recorder/VCR MWR10D6 $8,000
SV2000 DVD Recorder WV10D6 $8,000
Subtotal $16,000
49. December 6, 2007, Sam's Club Store # 6677, Monroeville, PA
Manufacturer Device Model # Forfeiture Amount
Magnavox DVD Recorder MSR900D6 $8,000
Subtotal $8,000
50. December 11, 2007, Wal-Mart Store # 5045, Tomball, TX
Manufacturer Device Model # Forfeiture Amount
Magnavox DVD Recorder/ MWR10D6 $8,000
Subtotal $8,000
51. December 20, 2007, Sam's Club Store # 4783, Garland, TX
Manufacturer Device Model # Forfeiture Amount
Magnavox DVD Recorder MSR90D6 $8,000
Subtotal $8,000
52. December 20, 2007, Wal-Mart Store # 1055, Garland, TX
Manufacturer Device Model # Forfeiture Amount
Philips HD DVD Recorder DVDR3455H $8,000
Polaroid TV FLM-153B $8,000
Subtotal $16,000
53. January 15, 2008, Wal-Mart Store # 1935, Johnstown, PA
Manufacturer Device Model # Forfeiture Amount
Magnavox DVD Recorder/VCR MWR10D6 $8,000
SV2000 DVD Recorder WV10D6 $8,000
Subtotal $16,000
54. February 21, 2008, Wal-Mart Store # 5033, Fort Morgan, CO
Manufacturer Device Model # Forfeiture Amount
Magnavox DVD Recorder/VCR MWR10D6 $8,000
Subtotal $8,000
TOTAL PROPOSED FORFEITURE: $992,000
Sam's West, Inc. is wholly-owned by Wal-Mart Stores, Inc., and
operates 582 domestic Sam's Club warehouse merchandise outlets.
47 C.F.R. S: 15.117(k).
The devices subject to this proceeding were offered for sale at
various Wal-Mart and Sam's Club retail locations and electronically at
the Sam's Club internet site, www.samsclub.com.
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 P: 1 (2007) ("Second DTV Periodic Report and
Order").
Id. at 8781-2 P: 10.
Id. at 8784 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, 22 FCC Rcd at
8781 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).
Wal-Mart Supercenter Store #573, Citation No. C20073256002, (Enf.
Bur., Kansas City, MO Office, rel. May 30, 2007).
See Attachment A for a list of the citations issued to Wal-Mart
(collectively "Citations"). In preparing the Citations, Enforcement
Bureau staff relied on publicly available information, including
retailer and manufacturer websites, to identify the television
receiving equipment with analog-only tuners.
On June 11, 2007, Wal-Mart responded to the first Citation. See Letter
from Gary De Angelis, Co-Manager for Wal-Mart Store #573, to the
Enforcement Bureau, Federal Communications Commission dated June 1,
2007 ("Citation Response"). Wal-Mart subsequently filed consolidated
responses to the first and other Citations. See Letters from Kyle
Holifield, Director, Product Compliance & Safety for Wal-Mart, to
William Davenport, Assistant Bureau Chief and George Dillon, Assistant
Bureau Chief, Enforcement Bureau, Federal Communications Commission
dated June 13, 21, and 29, 2007. We note that following issuance of
the citations, the Enforcement Bureau, after reviewing the devices'
technical specifications and user's manuals, determined that the
following Citations referred to erroneously identified equipment
models: Citation Nos. C20073264010 (Toshiba MW27H62) and C20073254008
(Samsung DVD6700). In light of this evidence, we hereby cancel the
relevant portions of the above citations with respect to those models.
See Attachment B for a listing of the stores and the website visited
and the models observed at each store and website. 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 the Wal-Mart
and Sam's Club websites.
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 Wal-Mart 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 have afforded Wal-Mart 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 15 and 16. 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 Wal-Mart , 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., Earth station
authorizations E940457 and E950140 issued to Wal-Mart Stores, Inc. (We
note further that Wal-Mart also apparently holds numerous wireless
licenses through the entity Wal-Mart Stores East, LP. See, e.g.,
Stations KD51835 and KNAD455 licensed to Wal-Mart Stores East, LP, 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, 22 FCC Rcd at 8782-3 P: 12.
Id. at 8783 P: 12. 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 P: 11 (Enf. Bur., Spectrum Enf. Div. 2007); IT&E Overseas,
Inc., Notice of Apparent Liability, 22 FCC Rcd 7660, 7665 P: 10 (Enf.
Bur., Spectrum Enf. Div. 2007).
We caution Wal-Mart 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, 22 FCC Rcd at 8783 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).
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission FCC 08-106
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Federal Communications Commission FCC 08-106