# Before the

# Federal Communications Commission

# Washington, D.C. 20554

+--------------------------------+-------+-----------------------------+
| In the Matter of               | )     | File No. EB-07-RK-007       |
|                                |       |                             |
| BJ's Wholesale Club, Inc.      | )     | Acct. No. 0832460005        |
|                                |       |                             |
| Natick, MA                     | )     | FRN #0004895405             |
|                                |       |                             |
|                                | )     |                             |
|                                |       |                             |
|                                | )     |                             |
|                                |       |                             |
|                                | )     |                             |
+--------------------------------+-------+-----------------------------+

# ORDER

**Adopted:** June 10, 2008 **Released:** June 12, 2008

By the Enforcement Bureau:

1.  In this Order, we adopt the attached Consent Decree entered into
    between the Enforcement Bureau ("Bureau") and BJ's Wholesale Club,
    Inc. ("BJ's"). The Consent Decree terminates an investigation by the
    Bureau against BJ's for possible violations of Section 15.117(k) of
    the Commission's Rules regarding the labeling of television
    receiving equipment that contains an analog broadcast television
    tuner but does not contain a digital broadcast television tuner.

2.  The Bureau and BJ's have negotiated the terms of the Consent Decree
    that resolve this matter. A copy of the Consent Decree is attached
    hereto and incorporated by reference.

3.  After reviewing the terms of the Consent Decree and evaluating the
    facts before us, we find that the public interest would be served by
    adopting the Consent Decree and terminating the investigation.

4.  In the absence of material new evidence relating to this matter, we
    conclude that our investigation raises no substantial or material
    questions of fact as to whether BJ's possesses the basic
    qualifications, including those related to character, to hold or
    obtain any Commission license or authorization.

5.  Accordingly, **IT IS ORDERED** that, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended,[^1] and Sections 0.111 and
    0.311 of the Commission's Rules,[^2] the Consent Decree attached to
    this Order **IS ADOPTED**.

6.  **IT IS FURTHER ORDERED** that the above-captioned investigation
    **IS TERMINATED**.

7.  **IT IS FURTHER ORDERED** that BJ's Wholesale Club, Inc. shall make
    its voluntary contribution to the United States Treasury, as
    specified in the Consent Decree, by mailing a check or similar
    instrument payable to the order of the Federal Communications
    Commission, to Federal Communications Commission, P.O. Box 979088,
    St. Louis, MO 63197-9000. Payment by overnight mail may be sent to
    U.S. Bank -- Government Lockbox #979088, SL-MO-C2-GL, 1005
    Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may
    be made to ABA Number 021030004, receiving bank TREAS/NYC, and
    account number 27000001. For payment by credit card, an FCC Form 159
    (Remittance Advice) must be submitted.  When completing the FCC Form
    159, enter the NAL/Account number in block number 23A (call
    sign/other ID), and enter the letters "FORF" in block number 24A
    (payment type code). BJ's shall also send electronic notification on
    the date said payment is made to SCR-Response@fcc.gov.

8.  **IT IS FURTHER ORDERED** that BJ's Wholesale Club, Inc. will file
    reports with the Commission ninety days after the Effective Date and
    on July 9, 2009. Each report shall include a compliance certificate
    from an officer, as an agent of BJ's, stating that the officer has
    personal knowledge that BJ's has established operating procedures
    intended to ensure compliance with this Consent Decree, together
    with an accompanying statement explaining the basis for the
    officer's compliance certification. All reports shall be submitted
    to Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
    Enforcement Bureau, Federal Communications Commission, 445 12th
    Street, S.W., Washington, D.C. 20554 and by e-mail at
    Kathy.Berthot@fcc.gov.

9.  **IT IS FURTHER ORDERED** that a copy of this Order and Consent
    Decree shall be sent by first class mail and certified mail, return
    receipt requested, to BJ's Wholesale Club, Inc., Lon F. Povich, EVP,
    General Counsel & Secretary, One Mercer Rd, PO Box 9501, Natick, MA
    01760-9601.

FEDERAL COMMUNICATIONS COMMISSION

Kris Anne Monteith

Chief, Enforcement Bureau

# 

# Before the

# Federal Communications Commission

# Washington, D.C. 20554

+--------------------------------+-------+-----------------------------+
| In the Matter of               | )     | File No. EB-07-RK-007       |
|                                |       |                             |
| BJ's Wholesale Club, Inc.      | )     | Acct. No. 0832460005        |
|                                |       |                             |
| Natick, MA                     | )     | FRN #0004895405             |
|                                |       |                             |
|                                | )     |                             |
|                                |       |                             |
|                                | )     |                             |
|                                |       |                             |
|                                | )     |                             |
|                                |       |                             |
|                                | )     |                             |
+--------------------------------+-------+-----------------------------+

**CONSENT DECREE**

The Enforcement Bureau and BJ's Wholesale Club, Inc. ("BJ's"), by their
authorized representatives, hereby enter into this Consent Decree for
the purpose of terminating the Enforcement Bureau's Investigation into
BJ's' compliance with the Federal Communications Commission's
regulations in 47 C.F.R. § 15.117(k) regarding the labeling of
television receiving equipment that contains an analog broadcast
television tuner but does not contain a digital broadcast television
tuner.

**I. DEFINITIONS**

1.  For the purposes of this Consent Decree, the following definitions
    shall apply:

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(a) "Act" means the Communications Act of 1934, as amended, 47 U.S.C.
    § 151 *et seq.*

(b) "Adopting Order" means an order of the Bureau adopting this Consent
    Decree.

(c) "Analog-only television receiving equipment" means television
    receiving equipment that contains an analog broadcast television
    tuner but does not contain a digital broadcast television tuner.

(d) "BJ's" means BJ's Wholesale Club, Inc. and its
    predecessors-in-interest and successors-in-interest.

(e) "Bureau" means the Enforcement Bureau of the Federal Communications
    Commission.

(f) "Citations" means the citations issued by Bureau or the Commission
    between May 29, 2007, and the Effective Date alleging violations by
    BJ's of Section 15.117(k) of the Commission's Rules.

(g) "Commission" and "FCC" mean the Federal Communications Commission
    and all of its bureaus and offices.

(h) "Effective Date" means the date on which the Commission releases the
    Adopting Order.

(i) "Investigation" means the investigation initiated by the Bureau
    regarding BJ's' compliance through the Effective Date with Section
    15.117(k) of the Commission's Rules regarding the labeling of
    television receiving equipment that contains an analog broadcast
    television tuner but does not contain a digital broadcast television
    ("DTV") tuner.

(j) "Parties" means BJ's and the Bureau.

(k) "Rules" means the Commission's regulations found in Title 47 of the
    Code of Federal Regulations.

**II. BACKGROUND**

2.  To ensure that consumers do not inadvertently buy analog-only
    television receiving equipment without understanding that such
    devices will not be capable of receiving off-the-air television
    reception of digital signals after analog broadcasting ends unless
    connected to a digital-to-analog converter or a digital subscription
    service, the Commission adopted rules requiring anyone that sells,
    offers for sale, or rents television receiving equipment that does
    not contain a DTV tuner to display a Consumer Alert at the point of
    sale.[^3] 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]

3.  Section 15.117(k)(3) of the Rules requires that the Consumer Alert
    contain the following language:

+-----------------------------------------------------------------------+
| **[CONSUMER ALERT]{.underline}**                                      |
|                                                                       |
| 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](http://www.dtv.gov/).    |
+-----------------------------------------------------------------------+

The Consumer Alert must be in a size of type large enough to be clear,
conspicuous and readily legible, consistent with the dimensions of the
equipment and the label. The alert either must be printed on a
transparent material and affixed to the screen, in a manner that is
removable by the consumer and does not obscure the picture when
displayed for sale, or displayed separately immediately adjacent to each
television receiver offered for sale and clearly associated with the
analog-only model to which it pertains. In the case of other analog-only
video devices that do not include a display (*e.g*., VCRs, DVD players),
the Consumer Alert must be in a prominent location on the device, such
as on the top or front, or displayed separately immediately adjacent to
and clearly associated with the analog-only model to which it pertains.
To the extent that any persons display or offer for sale or rent via
direct mail, catalog, or electronic means analog-only television
receiving equipment, they must prominently display the Consumer Alert as
part of all advertisements or descriptions of such television receiving
equipment, in clear and conspicuous print, and in close proximity to any
images or descriptions of such equipment.

4.  Immediately after the rule became effective, the Bureau began
    inspecting hundreds of stores throughout the country, as well as
    dozens of popular retailer websites, and observed many models of
    analog-only television receiving equipment on display without the
    required Consumer Alert labels. Beginning on or about May 29, 2007,
    the Bureau conducted inspections at multiple BJ's stores. Based on
    those inspections, and relying on publicly available information,
    the Bureau issued a Citation to BJ's for alleged violations of
    Section 15.117(k) at one of its stores. After affording BJ's a
    reasonable opportunity to respond to the Citation, agents and
    investigators from the Enforcement Bureau inspected BJ's stores in
    various states and observed, in stores what appeared to them to be
    television receiving equipment with analog-only tuners on display
    apparently without the required Consumer Alert labels.

**III. TERMS OF AGREEMENT**

5.  **[Adopting Order]{.underline}.** The Parties agree that the
    provisions of this Consent Decree shall be subject to final approval
    by the Bureau by incorporation of such provisions by reference in
    the Adopting Order without change, addition, modification, or
    deletion.

6.  **[Jurisdiction]{.underline}.** BJ's agrees that the Bureau has
    jurisdiction over it and the matters contained in this Consent
    Decree and has the authority to enter into and adopt this Consent
    Decree.

7.  **[Effective Date; Violations]{.underline}.** The Parties agree that
    this Consent Decree shall become effective on the date on which the
    Bureau releases the Adopting Order. Upon release, the Adopting Order
    and this Consent Decree shall have the same force and effect as any
    other Order of the Bureau. Any violation of the Adopting Order or of
    the terms of this Consent Decree shall constitute a separate
    violation of a Bureau Order, entitling the Bureau to exercise any
    rights and remedies attendant to the enforcement of a Commission
    Order.

8.  **[Termination of Investigation]{.underline}.** In express reliance
    on the covenants and representations in this Consent Decree and to
    avoid further expenditure of public resources, the Bureau agrees to
    terminate its Investigation. In consideration for the termination of
    said Investigation, BJ's agrees to the terms, conditions, and
    procedures contained herein. The Bureau further agrees that in the
    absence of new material evidence, the Bureau will not use the facts
    developed in this Investigation through the Effective Date of the
    Consent Decree, or the existence of this Consent Decree, to
    institute, on its own motion, any new proceeding, formal or
    informal, or take any action on its own motion against BJ's
    concerning the matters that were the subject of the Investigation.
    The Bureau also agrees that it will not use the facts developed in
    this Investigation through the Effective Date of this Consent
    Decree, or the existence of this Consent Decree, to institute on its
    own motion any proceeding, formal or informal, or take any action on
    its own motion against BJ's with respect to BJ's' basic
    qualifications, including its character qualifications, to hold
    Commission authorizations.

9.  **[Consumer Education Regarding the Digital
    Transition]{.underline}.** BJ's agrees that it will take the
    following actions to educate consumers about the upcoming transition
    for over-the-air broadcasting from analog programming to digital
    programming schedule for completion by February 17, 2009. The
    requirements of this paragraph will expire February 17, 2009.

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A.  Within thirty (30) days of the Effective Date, BJ's will include
    references to the FCC's DTV transition website
    ([www.dtv.gov](http://www.dtv.gov/)) on BJ's web site's general
    welcome screen and television welcome screen.

B.  Within thirty (30) days of the Effective Date, or the date it
    receives an electronic copy of a sample pamphlet from the Bureau,
    whichever is later, BJ's will provide prominent in-store signage in
    the consumer electronics section in each of its stores in addition
    to Section 15.117(k) notices to further educate consumers about the
    DTV transition. Such signage shall include the offering of a DTV
    "tip sheet" made available by the Bureau. In the event that the
    Commission or its designee notifies BJ's that the DTV tip sheet has
    been updated, BJ's will begin using the revised tip sheet within 30
    days of its being made available to retailers.

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10. **[Termination of Sales of Analog-Only Televisions]{.underline}.**
    BJ's has permanently terminated all domestic retail sales of
    analog-only televisions.

11. [**Participation in the NTIA** **Digital-to-Analog Converter Box
    Coupon Program**]{.underline}**.** BJ's has agreed to participate in
    the Coupon Eligible Converter Box Program (the "CECB Program")
    developed by the U.S. Department of Commerce's National
    Telecommunications and Information Administration ("NTIA") by
    offering digital-to-analog converters through its stores that sell
    televisions. BJ's will participate in the program as follows:

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A.  BJ's will train member services desk staff regarding the CECB
    Program;

B.  BJ's has ordered converter boxes for its stores and has them on sale
    for customers;

C.  BJ's retains the discretion to determine the number of boxes to be
    delivered to individual stores, based on anticipated customer
    demand; and

D.  BJ's will continue to sell converter boxes until such time as, based
    on its reasonable judgment, reimbursement payments to BJ's are no
    longer likely to be forthcoming;

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12. **[Compliance Reports]{.underline}.** BJ's will file compliance
    reports with the Commission ninety (90) days after the Effective
    Date and July 9, 2009. Each compliance report shall include a
    compliance certificate from an officer, as an agent of BJ's, stating
    that the officer has personal knowledge that BJ's has established
    operating procedures intended to ensure compliance with this Consent
    Decree, together with an accompanying statement explaining the basis
    for the officer's compliance certification. All compliance reports
    shall be submitted to Kathryn S. Berthot, Chief, Spectrum
    Enforcement Division, Enforcement Bureau, Federal Communications
    Commission, 445 12th Street, S.W., Washington, D.C. 20554 and by
    e-mail at Kathy.Berthot@fcc.gov.

13. **[Termination Date]{.underline}.** Unless stated otherwise, the
    requirements of this Consent Decree will expire July 9, 2009.

14. **[Voluntary Contribution]{.underline}.** BJ's agrees that it will
    make a voluntary contribution to the United States Treasury in the
    amount of twenty thousand dollars (\$20,000). The payment will be
    made within thirty (30) calendar days after the Effective Date of
    the Adopting Order. The payment must be made by check or similar
    instrument, payable to the order of the Federal Communications
    Commission. The payment must include the NAL/Account Number and FRN
    Number referenced in the caption to the Adopting Order. Payment by
    check or money order may be mailed to Federal Communications
    Commission, P.O. Box 979088, St. Louis, MO 63197-9000. Payment by
    overnight mail may be sent to U.S. Bank -- Government Lockbox
    #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
    Payment by wire transfer may be made to ABA Number 021030004,
    receiving bank TREAS/NYC, and account number 27000001. For payment
    by credit card, an FCC Form 159 (Remittance Advice) must be
    submitted.  When completing the FCC Form 159, enter the NAL/Account
    number in block number 23A (call sign/other ID), and enter the
    letters "FORF" in block number 24A (payment type code). BJ's shall
    also send electronic notification on the date said payment is made
    to Diane Law-Hsu, Regional Counsel, South Central Region, at
    SCR-Response@fcc.gov.

15. **[Waivers]{.underline}.** BJ's waives any and all rights it may
    have to seek administrative or judicial reconsideration, review,
    appeal or stay, or to otherwise challenge or contest the validity of
    this Consent Decree and the Adopting Order, provided the Bureau
    issues the Adopting Order without change, addition, modification, or
    deletion. BJ's shall retain the right to challenge Commission
    interpretation of the Consent Decree or any terms contained herein.
    If either Party (or the United States on behalf of the Commission)
    brings a judicial action to enforce the terms of the Adopting Order,
    neither BJ's nor the Commission shall contest the validity of the
    Consent Decree or the Adopting Order, and BJ's shall waive any
    statutory right to a trial *de novo*. BJ's hereby agrees to waive
    any claims it may otherwise have under the Equal Access to Justice
    Act, 5 U.S.C. § 504 and 47 C.F.R. § 1.1501 *et seq*., relating to
    the matters addressed in this Consent Decree.

16. **[Severability]{.underline}.** The Parties agree that if any of the
    provisions of the Adopting Order or the Consent Decree shall be
    invalid or unenforceable, such invalidity or unenforceability shall
    not invalidate or render unenforceable the entire Adopting Order or
    Consent Decree, but rather the entire Adopting Order or Consent
    Decree shall be construed as if not containing the particular
    invalid or unenforceable provision or provisions, and the rights and
    obligations of the Parties shall be construed and enforced
    accordingly. In the event that this Consent Decree in its entirety
    is rendered invalid by any court of competent jurisdiction, it shall
    become null and void and may not be used in any manner in any legal
    proceeding.

17. **[Subsequent Rule or Order]{.underline}.** The Parties agree that
    if any provision of the Consent Decree conflicts with any subsequent
    rule or Order adopted by the Commission (except an Order
    specifically intended to revise the terms of this Consent Decree to
    which BJ's does not expressly consent) that provision will be
    superseded by such Commission rule or Order.

18. **[Successors and Assigns]{.underline}.** BJ's agrees that the
    provisions of this Consent Decree shall be binding on its
    successors, assigns, and transferees.

19. **[Final Settlement]{.underline}.** The Parties agree and
    acknowledge that this Consent Decree shall constitute a final
    settlement between the Parties. The Parties further agree that this
    Consent Decree does not constitute either an adjudication on the
    merits or a factual or legal finding or determination regarding any
    compliance or noncompliance with the requirements of the Act or the
    Commission's Rules and Orders. The Parties agree that this Consent
    Decree is for settlement purposes only and that by agreeing to this
    Consent Decree, BJ's does not admit or deny noncompliance, violation
    or liability for violating the Act or Rules in connection with the
    matters that are the subject of this Consent Decree.

20. **[Modifications]{.underline}.** This Consent Decree cannot be
    modified without the advance written consent of both Parties.

21. **[Paragraph Headings]{.underline}.** The headings of the Paragraphs
    in this Consent Decree are inserted for convenience only and are not
    intended to affect the meaning or interpretation of this Consent
    Decree.

22. **[Authorized Representative]{.underline}.** Each Party represents
    and warrants to the other that it has full power and authority to
    enter into this Consent Decree.

23. **[Counterparts]{.underline}.** This Consent Decree may be signed in
    any number of counterparts (including by facsimile), each of which,
    when executed and delivered, shall be an original, and all of which
    counterparts together shall constitute one and the same fully
    executed instrument.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Kris Anne Monteith

Chief

Enforcement Bureau

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Date

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

Lon F. Povich

Executive Vice President, General Counsel and Secretary

BJ's Wholesale Club, Inc.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Date

# 

[^1]: 47 U.S.C. § 154(i).

[^2]: 47 C.F.R. §§ 0.111, 0.311.

[^3]: *Second Periodic Review of the Commission's Rules and Policies
    Affecting the Conversion To Digital Television*, Second Report and
    Order, 22 FCC Rcd 8776 (2007) ("*Second DTV Periodic Report and
    Order*").

[^4]: *Second Periodic Review in the Commission's Rules and Policies
    Affecting the Conversion to Digital Television,* 72 Fed. Reg.
    28894-01 (May 23, 2007).