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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File Number EB-07-RC-002
Sears Roebuck and Co. )
NAL/Acct. No. 200732200001
Kmart Corporation )
FRN # 0007050388
Hoffman Estates, Illinois )
)
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 Sears Roebuck and Co. ("Sears Roebuck") and Kmart Corporation
("Kmart") (collectively "Sears") 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 Sears is apparently liable for a forfeiture in
the amount of one million ninety-six thousand dollars ($1,096,000).
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 June 1, 2007, the Enforcement Bureau issued a Citation to
Sears Roebuck for offering for sale television receiving
equipment having an analog-only tuner without displaying the
required Consumer Alert in close proximity. Between June 1, 2007
and June 11, 2007, the Enforcement Bureau conducted inspections
at numerous stores and, based on those inspections, issued
additional Citations to Sears Roebuck for violations at its
stores. On June 7, 2007, the Enforcement Bureau issued a Citation
to Sears Roebuck for offering for sale on its online retail
outlet, www.sears.com, television receiving equipment having an
analog-only tuner without displaying the required Consumer Alert
in close proximity. On May 31, 2007, the Enforcement Bureau
issued a Citation to Kmart for offering for sale 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 those
inspections, issued additional Citations to Kmart for violations
at its stores. On June 7, 2007, the Enforcement Bureau issued a
Citation to Kmart for offering for sale on its online retail
outlet, www.kmart.com, television receiving equipment having an
analog-only tuner without displaying the required Consumer Alert
in close proximity. After affording Sears a reasonable
opportunity to respond to the first Citations issued to Kmart and
Sears Roebuck., agents and investigators from the Enforcement
Bureau began inspecting numerous additional Sears Roebuck and
Kmart stores on June 12, 2007, in various states and once again
observed in twenty-seven Kmart stores, the Sears Roebuck website,
and sixteen Sears Roebuck 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 Sears 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 Sears 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-seven Kmart stores, the Sears Roebuck
website, and sixteen Sears Roebuck stores, without the required
Consumer Alert labels. Kmart previously received twenty-three
Citations and Sears Roebuck previously received twenty 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, numerous different
models of equipment with an analog-only tuner were displayed in
twenty-seven Kmart stores, the Sears Roebuck website, and sixteen
Sears Roebuck stores without the required Consumer Alert label.
As a result, Sears 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 Sears Roebuck is apparently
liable for a $320,000 base forfeiture and Kmart is apparently
liable for a $776,000 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, Sears Roebuck and Co. is hereby NOTIFIED
of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
three hundred twenty thousand dollars ($320,000) for violations
of Section 15.117(k) of the Rules.
13. IT IS FURTHER ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Section 1.80 of the
Commission's Rules, Kmart Corporation is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of seven
hundred seventy six thousand dollars ($776,000) for violations
of Section 15.117(k) of the Rules.
14. 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, Sears Roebuck and
Co. and Kmart Corporation SHALL PAY the full amount of their
proposed forfeitures or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
15. 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.
16. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, and must include the NAL/Acct.
No. referenced in the caption.
17. 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.
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 Mark D. Molay, Senior
Counsel - Vendor Compliance, Sears Holdings Management
Corporation, at his address of record, and to David Hilliard,
Wily Rein LLP, Counsel for Sears Roebuck and Co. and Kmart
Corporation, at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
Attachment A
CITATIONS
Sears, Roebuck & Co.
Store #-
Citation No. Release Date
Location
Tampa, FL C20073270002 May 31, 2007
Miami, FL C20073260004 May 31, 2007
San Diego, CA C20073294008 June 1, 2007
#1685 Duluth, GA C20073248004 June 1, 2007
Houston, TX C20073254003 June 1, 2007
#1019 Pleasanton, CA C20073296007 June 5, 2007
Tacoma, WA C20073298013 June 5, 2007
#1354 Willow Grove, PA C20073240011 June 6, 2007
Tukwila, WA C20073298017 June 8, 2007
Anchorage, AK C20073278003 June 8, 2007
Ellicot City, MD C20073234007 June 8, 2007
#1834 North Wales, PA C20073240019 June 11, 2007
Peabody, MA C20073226005 June 11, 2007
Richardson, TX C20073250013 June 11, 2007
#1248 Hayward, CA C20073296014 June 12, 2007
#1874 Burlington, NJ C20073240030 June 12, 2007
#1615 Chesapeake, VA C20073264008 June 12, 2007
New Hyde Park, NY C20073238020 June 14, 2007
Valley Stream, NY C20073238024 June 14, 2007
www.sears.com EB-07-SE-188 June 7, 2007
Kmart
Store #-
Citation No. Release Date
Location
#3187 Langhorne, PA C200732440004 May 31, 2007
#12127601 New York, NY C20073238013 May 31, 2007
#3117 Willow Grove, PA C20073240005 June 1, 2007
Tampa, FL C20073270006 June 1, 2007
Miami, FL C20073260002 June 1, 2007
#3742 Chesapeake, VA C20073264004 June 1, 2007
#4988 Norfolk, VA C20073264003 June 1, 2007
Seattle, WA C20073298010 June 4, 2007
Batavia, NY C20073228001 June 4, 2007
Ocala, FL C20073270008 June 4, 2007
LaHabra, CA C20073290022 June 5, 2007
#3207 Farmington, MI C20073236003 June 5, 2007
#3159 Farmington, MI C20073236004 June 5, 2007
#4451 Doraville, GA C20073248010 June 6, 2007
Depew, NY C20073228004 June 7, 2007
Denver, CO C20073280009 June 8, 2007
San Diego, CA C20073294015 June 11, 2007
Kapolei, HI C20073286005 June 11, 2007
#3077 Burlington, NJ C20073240028 June 12, 2007
#3596 Pleasantiville, NJ C20073240026 June 12, 2007
San Leandro, CA C20073296018 June 15, 2007
Hayward, CA C20073296017 June 15, 2007
www.kmart.com EB-07-SE-181 June 7, 2007
Attachment B
PROPOSED FORFEITURE AMOUNTS
Sears, Roebuck & Co.
1. June 12, 2007, Sears Store # 1108, Temecula, CA.
Manufacturer Device Model # Forfeiture
Amount
Sylvania TV 6720FDG/F $8,000
Toshiba TV MD 20F51 $8,000
Toshiba TV MD13Q42 $8,000
Haier America TV HTN20R15 $8,000
Audiovox TV VE-720 $8,000
Sony TV ICF-DVD57TV $8,000
Sony TV ICF- CD555TV $8,000
Toshiba TV 14AF45 $8,000
SUBTOTAL $64,000
2. June 12, 2007, Sears Store, Wasilla, AK
Manufacturer Device Model # Forfeiture
Amount
Sony TV KV20FS120 $8,000
Sylvania TV 6424TFS $8,000
Sylvania TV 6419TG $8,000
Sylvania TV 6413TG $8,000
Toshiba TV 14AF45 $8,000
Sony DVD/VCR RDR-VX530 $8,000
Samsung DVD/VCR DVD-R330 $8,000
Toshiba TV/DVD MD13Q42 $8,000
Sylvania TV/VCR 6313CE $8,000
Sylvania TV/DVD/VCR 6720FDG $8,000
SUBTOTAL $80,000
3. June 12, 2007, Sears Store # 1098, Clovis, CA
Manufacturer Device Model # Forfeiture Amount
Sony TV KV20FS120 $8,000
SUBTOTAL $8,000
4. June 12, 2007, Sears Store, Cheyenne, WY
Manufacturer Device Model # Forfeiture
Amount
Panasonic DVD Recorder DMR-ES15 $8,000
SUBTOTAL $8,000
5. June 13, 2007, Sears Store, Baltimore, MD
Manufacturer Device Model # Forfeiture Amount
Disney Princess 13" TV DT1350-P $8,000
SUBTOTAL $8,000
6. June 13, 2007, Sears Store #1224, Harrisburg, PA
Manufacturer Device Model # Forfeiture Amount
Sylvania TV/DVD/VCR 6724FDG $8,000
SUBTOTAL $8,000
7. June 13, 2007, Sears Store #1646, Charlotte, NC
Manufacturer Device Model # Forfeiture
Amount
Samsung DVD Recorder DVD-VR330 $8,000
SUBTOTAL $8,000
8. June 14, 2007, Sears Store #1057, Dallas, TX
Manufacturer Device Model # Forfeiture
Amount
Sony DVD/VCR combo SLV-D360P $8,000
Samsung DVD/VCR combo DVD-VR330 $8,000
LCD HDTV
Philips monitor with 23PF5320/28 $8,000
NTSC tuner
SUBTOTAL $24,000
9. June 14, 2007, Sears Store, St. Peters, MO
Manufacturer Device Model # Forfeiture Amount
Philips LCD HDTV 23PF5320/28 $8,000
MONITOR
SUBTOTAL $8,000
10. June 14, 2007, Sears Store #3231, Escanaba, MI
Manufacturer Device Model # Forfeiture
Amount
Philips 23" LCD TV 23PF5320/28 $8,000
SUBTOTAL $8,000
11. June 14, 2007, Sears Store # 6909, San Bruno, CA
Manufacturer Device Model # Forfeiture Amount
Panasonic DVDR DMR-ES15 $8,000
Sylvania TV 6424TFS $8,000
SUBTOTAL $16,000
12. June 14, 2007, Store #1335 Greensboro, NC
Manufacturer Device Model # Forfeiture Amount
Sylvania TV set 6313CG $8,000
Sylvania TV set 6513DG $8,000
SUBTOTAL $16,000
13. June 15, 2007, Sears Store #1728, Tuscon, AZ
Manufacturer Device Model # Forfeiture
Amount
Memcorp - Disney TV DT1350-C $8,000
Electronics
SUBTOTAL $8,000
14. July 2, 2007, Sears Store #2446, Mission, KS
Manufacturer Device Model # Forfeiture Amount
Sylvania TV/DVD/VCR 6720FDG $8,000
SUBTOTAL $8,000
15. July 2, 2007, Sears Store #2398, Longmont, CO
Manufacturer Device Model # Forfeiture Amount
Toshiba DVD/VCR D-VR5SU $8,000
Panasonic DVD DMR-ES15 $8,000
SUBTOTAL $16,000
16. July 11, 2007, Sears Store # 1485, Orange Park, FL
Manufacturer Device Model # Forfeiture
Amount
Sylvania 19" TV 6419TG $8,000
Toshiba 24" TV/DVD/VCR MW24F52 $8,000
SUBTOTAL $16,000
17. June 14, 2007, Sears website, www.sears.com
Manufacturer Device Model # Forfeiture Amount
Philips TV 23PF5320/28 $8,000
Spectra TV 507-BWR $8,000
SUBTOTAL $16,000
Sears, Roebuck, & Co. Total Proposed Forfeiture: $320,000
Kmart
1. June 12, 2007, Kmart Store #9394, Fajardo, PR
Manufacturer Device Model # Forfeiture Amount
Memorex DVD/VCR MVD 4543 $8,000
Sylvania DVD/VCR DVC 841G $8,000
RCA DVD/VCR DCR 6355N $8,000
Toshiba DVD/VCR SD-V394 $8,000
Sony DVD/VCR SLV-D370P $8,000
SUBTOTAL $40,000
2. June 12, 2007, Kmart Store, 15909 Manchester Road, Ballwin, MO
Manufacturer Device Model # Forfeiture Amount
Memorex DVD/VCR MVD4543 $8,000
Magnavox TV 20MF605T $8,000
Sylvania LCD TV 6620LCT $8,000
Toshiba TV/DVD MD20F52 $8,000
SUBTOTAL $32,000
3. June 12, 2007, Kmart Store, 6650 Manchester Street, St. Louis, MO
Manufacturer Device Model # Forfeiture Amount
Sony DVD/VCR SLV-D370P $8,000
RCA TV 20F512T $8,000
SUBTOTAL $16,000
4. June 12, 2007, Kmart Store #3833, Iron Mountain, MI
Manufacturer Device Model # Forfeiture Amount
DN Princess 13" TV DT 1350-P $8,000
Pooh 13" TV DT 1350-RWP $8,000
SUBTOTAL $16,000
5. June 12, 2007, Kmart Store, Clovis, CA
Manufacturer Device Model # Forfeiture
Amount
Sylvania TV C6419TE $8,000
Memorex TV MT0550 / $8,000
MT0500
Sharp TV LC15SH $8,000
SUBTOTAL $24,000
6. June 12, 2007, Kmart Store #4244, Knoxville, TN
Manufacturer Device Model # Forfeiture Amount
Sylvania TV/DVD 6520FDG $8,000
Sylvania TV/DVD 6513DG $8,000
Sylvania TV 6420FB $8,000
SUBTOTAL $24,000
7. June 12, 2007, Kmart Store, Cheyenne, WY
Manufacturer Device Model # Forfeiture
Amount
DVD/CD/VCD/MP3/Photo CD
Memorex Player and Video Cassette MVD4543 $8,000
Recorder
SUBTOTAL $8,000
8. June 13, 2007, Kmart Store #4137, Charlotte, NC
Manufacturer Device Model # Forfeiture Amount
Sylvania TV set 6427TF $8,000
Sylvania TV set 6432TF $8,000
Sylvania TV set 6424TFS $8,000
SUBTOTAL $24,000
9. June 13, 2007, Kmart Store, 5100 Sinclair Lane, Baltimore, MD
Manufacturer Device Model # Forfeiture
Amount
Disney Princess 13" Color DT1350-P $8,000
TV
RCA 20" Stereo 20V500T $8,000
TV
Sylvania 13" TV/DVD 6513DG $8,000
SUBTOTAL $24,000
10. June 13, 2007, Kmart Store #3028, Feasterville, PA
Manufacturer Device Model # Forfeiture Amount
Memorex DVD/VCR MVD4543 $8,000
Disney TV DT1350-P $8,000
Magnavox TV 14MS2331/17 $8,000
RCA TV 13V420T $8,000
Sylvania TV 6419TG $8,000
Olevia TV LT23HVX $8,000
SUBTOTAL $48,000
11. June 13, 2007, Kmart Store #4479, Harrisburg, PA
Manufacturer Device Model # Forfeiture Amount
Disney TV DT1350-RWP $8,000
SUBTOTAL $8,000
12. June 13, 2007, Kmart Store, Casa Grande, AZ
Manufacturer Device Model # Forfeiture
Amount
Magnavox TV MS2331 $8,000
RCA TV 13V420T $8,000
Memcorp (Disney TV DT1350-C $8,000
Electronics)
SUBTOTAL $24,000
13. June 13, 2007, Kmart Store (Baseline Road), Phoenix, AZ
Manufacturer Device Model # Forfeiture Amount
Sylvania TV 6620LCT $8,000
SUBTOTAL $8,000
14. June 14, 2007, Kmart Store #4248, Staten Island, NY
Manufacturer Device Model # Forfeiture Amount
Magnavox TV 20MF605T/17 $8,000
SUBTOTAL $8,000
15. June 14, 2007, Kmart Store # 4308, Birmingham, AL
Manufacturer Device Model # Forfeiture Amount
Sylvania TV 6413TG $8,000
Sylvania TV/VCR 6313CE $8,000
Sylvania DVR DVR90DF $8,000
Sylvania TV/DVD 6513DG $8,000
RCA TV 13V420T $8,000
RCA TV 24V511T $8,000
Magnavox TV 14MS2331 $8,000
Memorex TV MT0500 $8,000
SUBTOTAL $64,000
16. June 14, 2007, Kmart Store, Riverside, CA
Manufacturer Device Model # Forfeiture
Amount
Sylvania TV 6313CD $8,000
Maganavox VCR/DVD 20MF605T $8,000
Memcorp - Disney TV DT1350-P $8,000
Electronics
Memorex TV MVD4543 $8,000
SUBTOTAL $32,000
17. June 14, 2007, Kmart Store #9065, Escanaba, MI
Manufacturer Device Model # Forfeiture Amount
DN Princess 13" TV DT 1350-P $8,000
Pooh 13" TV DT 1350-RWP $8,000
SUBTOTAL $16,000
18. June 14, 2007, Kmart Store #3179, Orlando, FL
Manufacturer Device Model # Forfeiture
Amount
Sylvania TV/DVD 6513DG $8,000
Memorex TV/DVD/CD MVD1402 $8,000
Sylvania TV 6424TF $8,000
Toshiba TV/DVD MD20F52 $8,000
RCA TV 13V420T $8,000
Magnavox FLT Stereo 14MS2331 $8,000
TV
Sylvania TV 6419TG $8,000
Magnavox TV 20MT133S $8,000
Sylvania TV 6424TFS $8,000
RCA TV 20V500T $8,000
Sylvania TV 6413TG $8,000
RCA TV E13320 $8,000
Disney Classic TV Princess $8,000
TV 13-DT135OC
SUBTOTAL $104,000
19. June 14, 2007, Kmart Store, San Mateo, CA
Manufacturer Device Model # Forfeiture
Amount
Memorex TV MT0550/MT0500 $8,000
Disney/Memorex TV D1350 P $8,000
Magnavox TV 20MS2331/17 $8,000
Magnavox TV 15MF605T $8,000
SUBTOTAL $32,000
20. June 15, 2007, Kmart Store, Sierra Vista, AZ
Manufacturer Device Model # Forfeiture
Amount
Sylvania TV 6620LDT $8,000
Magnavox TV 20MF500T $8,000
Memcorp - Disney TV DT1350-C $8,000
Electronics
SUBTOTAL $24,000
21. June 15, 2007, Kmart Store #4844, San Juan, PR
Manufacturer Device Model # Forfeiture Amount
Sylvania TV 6319CE $8,000
Symphonic TV SC724FDF $8,000
Sylvania DVD/VCR DVC 840F $8,000
Sylvania DVD/VCR DVC 841G $8,000
Memorex DVD/VCR MVD4543 $8,000
RCA DVD/VCR DRC6355N $8,000
SUBTOTAL $48,000
22. On July 5, 2007, Kmart Store # 4220, Kansas City, MO
Manufacturer Device Model # Forfeiture Amount
RCA TV 20V500T $8,000
Magnavox TV 20MT133S $8,000
SUBTOTAL $16,000
23. July 9, 2007, Kmart Store #4427, Independence, MO
Manufacturer Device Model # Forfeiture Amount
RCA TV 20F512T $8,000
RCA TV 24V511T $8,000
Disney TV DT1350-P $8,000
Magnavox TV 20MF500T $8,000
SUBTOTAL $32,000
24. July 10, 2007, Kmart Store #9936, Independence, MO
Manufacturer Device Model # Forfeiture Amount
Sony DVD/VCR SLV-D370P $8,000
Sylvania TV 6620LCT $8,000
RCA TV 13V420T $8,000
SUBTOTAL $24,000
25. July 10, 2007, Kmart Store # 4157, Kansas City, MO
Manufacturer Device Model # Forfeiture Amount
Sylvania TV 6620LCT $8,000
Magnavox TV 14MS2331 $8,000
RCA TV 20V500T $8,000
Sylvania TV 6620LE $8,000
RCA TV E13320 $8,000
SUBTOTAL $40,000
26. July 12, 2007, Kmart Store, El Centro CA
Manufacturer Device Model # Forfeiture Amount
Sony DVD/VCR SLVD370P $8,000
RCA DVD/VCR DRC6355N $8,000
Trutech TV KLV3170 $8,000
SUBTOTAL $24,000
27. July 14, 2007, Kmart Store #3641, Manahawkin, NJ
Manufacturer Device Model # Forfeiture Amount
Disney TV DT1350-P $8,000
RCA TV 20F512T $8,000
SUBTOTAL $16,000
Kmart Total Proposed Forfeiture: $776,000
SEARS HOLDING CORPORATION TOTAL PROPOSED FORFEITURE: $1,096,000
Sears Roebuck and Co. and Kmart Corporation are wholly-owned
subsidiaries of Sears Holdings Management Corporation.
47 C.F.R. S: 15.117(k).
47 U.S.C. S: 503(b).
This amount represents a proposed based forfeiture amount of $320,000
for Sears Roebuck and $776,000 for Kmart. See Attachment B for the
calculation of the proposed forfeiture amounts.
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).
Sears, Roebuck & Co, Citation No. C20073248004 (Enf. Bur. Atlanta
Office, rel. June 1, 2007).
See Attachment A for a list of the citations issued to Sears Holdings
Corporation (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: Sears Citation No.
C20073294008 (Sylvania Model D155SL8); Kmart Citation No. C20073228004
(All Models). In light of this evidence, we hereby cancel the relevant
portions of the above citations with respect to those models. We also
determined that the following Citation issued to K-Mart should have
been issued to another retailer, and therefore we cancel this Citation
as well: Citation No. C20073290022 (rel. June 5, 2007).
Sears, Roebuck & Co, Citation No. EB-07-SE-188 (Enf. Bur. Spectrum
Enforcement Division, rel. June 7, 2007).
Kmart c/o Sears Holding Corporation, Citation No. C20073240004 (Enf.
Bur. Philadelphia Office, rel. May 31, 2007).
See Attachment A. All of the violations underlying the Citations
occurred before June 12, 2007.
Sears, Roebuck & Co, Citation No. EB-07-SE-181 (Enf. Bur. Spectrum
Enforcement Division, rel. June 7, 2007).
On June 8, 14, and 22, 2007, Sears Holdings Corporation submitted
consolidated responses to the citations issued to Kmart and Sears,
Roebuck & Co. See Letter from Mark D. Moloy, Senior Counsel - Vendor
Compliance, Law Department, Sears Holdings Management Corporation, to
William Davenport, Assistant Bureau Chief, and George Dillon,
Associate Bureau Chief, Enforcement Bureau, Federal Communications
Commission, dated June 8, 2007; Letter from Mark D. Moloy, Senior
Counsel - Vendor Compliance, Law Department, Sears Holdings Management
Corporation, to William Davenport, Assistant Bureau Chief, and George
Dillon, Associate Bureau Chief, Enforcement Bureau, Federal
Communications Commission, dated June 14, 2007; Letter from Mark D.
Moloy, Senior Counsel - Vendor Compliance, Law Department, Sears
Holdings Management Corporation, to William Davenport, Assistant
Bureau Chief, and George Dillon, Associate Bureau Chief, Enforcement
Bureau, Federal Communications Commission, dated June 22, 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 Sears Holding Corporation'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 Sears Roebuck and Kmart 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 Sears 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 Sears Roebuck, Kmart, or Sears Holding Corporation, which are
Commission licensees and therefore subject to forfeiture under Section
503(b)(2) of the Act without first receiving notice via a citation.
See, e.g., Stations KB92013, WPAI989, and WPAW266, licensed to Sears
Roebuck, Kmart, and Sears Holding Corporation, respectively, 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 Sears Roebuck and Kmart 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 proposed forfeiture
amounts.
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 1.80, 15.117(k).
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 08-107
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Federal Communications Commission FCC 08-107