June 1, 2007 VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED Mr. James Jehle Manager KMart 12350 SW 8th Street Miami, FL 33184 Kmart c/o Sears Holding Corporation 3333 Beverly Road Hoffman Estates, IL 60179 Attn.: William R. Harker Senior Vice President and General Counsel Re: File No. EB-07-MA-023 Citation No.: C20073260002 This is an official CITATION, issued pursuant to Section 503(b)(5) of the Communications Act of 1934, as amended (“Act”), 47 U.S.C. § 503(b)(5), to Kmart for failure to provide appropriate Consumer Alert disclosures on analog tuner only television receiving equipment in violation of Section 302(b) of the Act, 47 U.S.C. § 302a(b), and Section 15.117(k) of the Commission’s Rules (“Rules”), 47 C.F.R. § 15.117(k). As explained below, future violations of the Commission’s rules in this regard may subject your company to monetary forfeitures. On May 30, 2007, agents from the Commission’s Miami Office of the Enforcement Bureau visited the Kmart store located at 12350 SW 8th Street, Miami, FL and observed that Kmart did not have the proper Consumer Alert label displayed on equipment that contained an analog tuner but not a digital tuner at the point of sale. Section 302(b) of the Act provides that “[n]o person shall manufacture, import, sell, offer for sale, or ship devices or home electronic equipment and systems, or use devices, which fail to comply with regulations promulgated to this section.” Section 15.117(k) of the Commission’s Rules states: (k) The following requirements apply to all responsible parties, as defined in §2.909 of this chapter, and any person that displays or offers for sale or rent television receiving equipment that is not capable of receiving, decoding and tuning digital signals. FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 2 (1) Such parties and persons shall place conspicuously and in close proximity to such television broadcast receivers a sign containing, in clear and conspicuous print, the Consumer Alert disclosure text required by subparagraph (3). The text should 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 information may be printed on a transparent material and affixed to the screen, if the receiver includes a display, in a manner that is removable by the consumer and does not obscure the picture, or, if the receiver does not include a display, in a prominent location on the device, such as on the top or front of the device, when displayed for sale, or the information in this format may be displayed separately immediately adjacent to each television broadcast receiver offered for sale and clearly associated with the analog-only model to which it pertains. (2) If such parties and persons display or offer for sale or rent such television broadcast receivers via direct mail, catalog, or electronic means, they shall prominently display in close proximity to the images or descriptions of such television broadcast receivers, in clear and conspicuous print, the Consumer Alert disclosure text required by subparagraph (3). The text should be in a size large enough to be clear, conspicuous, and readily legible, consistent with the dimensions of the advertisement or description. (3) “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.” Accordingly, it appears that Kmart has violated Section 302(b) of the Act, and Section 15.117(k) of the Rules by failing to place conspicuously and in close proximity to the following equipment, in clear and conspicuous print, the Consumer Alert label required under Section 15.117(k): - Curtis Mathes 13” TV, model CM13102; - Disney TV model DT1350P; - Magnavox TV model 14MS2331; - Memorex model Memory 14; - RCA TV model 13V420T; and - Sylvania TV model CT202SL8. We caution you that failure to display the appropriate Consumer Alert label on any television receiving equipment that is not capable of receiving, decoding and tuning digital signals would constitute a further violation of Section 302(b) of the Act and Section 15.117(k) of the Rules. If, after receipt of this citation, any Kmart retail outlet or any other retail outlets under common ownership or control violates the Communications Act or the Commission’s 3 rules in any manner described herein, the Commission may impose monetary forfeitures not to exceed $11,000 for each such violation or each day of a continuing violation up to $97,500 for a single continuing violation. 1 If you choose to do so, you may respond to this citation within 10 days from the date of this letter either through (1) a personal interview at the Commission’s Field Office nearest to your place of business, or (2) a written statement. Your response should specify the actions that Kmart is taking to ensure that it does not violate the Commission’s rules governing the marketing of unauthorized radio frequency devices in the future. Kmart may request an interview at the closest FCC Office, which is Federal Communications Commission, 2203 N. Lois Ave., Room 1215, Tampa, FL 33607.2 You may contact this office by telephone, (XXX) XXXX-XXXX to schedule this interview, which must take place within 10 days of this Citation. Kmart may also submit a written statement to the above address within 10 days of the date of this Citation. Any written statements should specify what actions have been taken to correct the violation outlined above. Please reference file number EB- 07-MA-023 when corresponding with the Commission. Under the Privacy Act of 1974, 5 U.S.C. § 552a(e)(3), we are informing you that the Commission’s staff will use all relevant material information before it, including information that you disclose in your interview or written statement, to determine what, if any, enforcement action is required to ensure your compliance with the Communications Act and the Commission’s rules. The knowing and willful making of any false statement, or the concealment of any material fact, in reply to this citation is punishable by fine or imprisonment under 18 U.S.C. § 1001. Thank you in advance for your anticipated cooperation. Sincerely, FEDERAL COMMUNICATIONS COMMISSION Gerardo Daubar Resident Agent Miami, FL Enforcement Bureau 1 See 47 C.F.R. § 1.80(b)(3). 2 47 U.S.C. § 503(b)(5).