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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-07-DV-058
CB Shop & More, LLLP ) NAL/Acct. No.: 200732800008
Loveland, Colorado ) FRN: 0016797623
)
)
FORFEITURE ORDER
Adopted: March 19, 2008 Released: March 21, 2008
By the Regional Director, Western Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of seven thousand dollars ($7,000) to CB Shop & More, LLLP
("CB Shop"), in Loveland, Colorado, for willful and repeated
violations of Section 302(b) of the Communications Act of 1934, as
amended ("Act"), and Section 2.803(a)(1) of the Commission's Rules
("Rules"). On August 28, 2007, the Enforcement Bureau's Denver Office
issued a Notice of Apparent Liability for Forfeiture ("NAL") to CB
Shop after determining that CB Shop offered for sale a non-certified
Citizens Band ("CB") transceiver. In this Order, we consider CB Shop's
argument that the CB transceiver at issue did not require Commission
certification.
II. BACKGROUND
2. On November 25, 2002, an agent from the Enforcement Bureau's Denver
Office inspected the CB Shop in Loveland, Colorado. The agent observed
that the store displayed and offered for sale twelve models of CB
transceivers, specifically, one Super Star 121 transceiver, one
General Longstreet transceiver, one Connex CX3300HP transceiver, one
Connex CX4400HP transceiver, and eight Galaxy transceivers models
DX33HML, DX44V, DX55V, DX66V, DX73, DX77HML, DX88HL, and DX99V. A
review of the Commission's records revealed that these devices had not
received an equipment authorization from the Commission.
3. On November 26, 2002, the FCC Denver Office issued a Citation to CB
Shop for violation of Section 302(b) of the Act and Section
2.803(a)(1) of the Commission's Rules by selling non-certified CB
transceivers. The Citation warned the CB Shop that future violations
may subject CB Shop to civil monetary forfeitures not to exceed
$11,000 for each violation or each day of a continuing violation,
seizure of equipment through in rem forfeiture action, and criminal
sanctions including fines and imprisonment.
4. In a response dated December 3, 2002, counsel for CB Shop disputed the
Citation, stating that the transceivers listed in the Citation were
legal to sell. Counsel for CB Shop further requested that the Denver
Office withdraw the Citation within 14 days from December 3, 2002. In
a response to the CB Shop, dated December 18, 2002, the Denver Office
reaffirmed the violation and warned that the marketing of the
non-certified CB transceivers should cease immediately.
5. On January 26, 2007, and March 8, 2007, the Denver Office received
complaints alleging that the CB Shop was selling non-certified CB
transmitters and modified 10-meter band radios. On March 30, 2007,
Denver agents visited the CB Shop. Agents noted that one of the CB
transceivers offered for sale was a Galaxy Model DX99V and asked if
they could purchase the transceiver. The Denver agents subsequently
identified themselves as FCC agents, and proceeded to interview the
owner of the CB Shop. The owner acknowledged that he once received a
Citation from the FCC, but he thought it was still legal for them to
sell the referenced CB transceivers.
6. On August 28, 2007, the Denver Office issued a NAL in the amount of
$7,000 to CB Shop. In the NAL, the Denver Office found that CB Shop
apparently willfully and repeatedly violated Section 302(b) of the
Act, and Section 2.803(a)(1) of the Rules by offering for sale a
non-certified CB transceiver. CB Shop filed a response on September
17, 2007 ("Response"). In its Response, CB Shop argues that Galaxy
Model DX99V does not require certification by the Commission because
it is not a CB transceiver. Consequently, CB Shop argues the
forfeiture should be cancelled.
III. DISCUSSION
7. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines. In examining
the Response, Section 503(b) of the Act requires that the Commission
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 other
such matters as justice may require.
8. 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 pursuant to this section." Section
2.803(a)(1) of the Rules provides that "[e]xcept as provided elsewhere
in this section, no person shall sell or lease, or offer for sale or
lease (including advertising for sale or lease), or import, ship, or
distribute for the purpose of selling or leasing or offering for sale
or lease, any radio frequency device unless in the case of a device
subject to certification such device has been authorized by the
Commission . . . ."
9. CB radio transceivers are subject to the equipment certification
process and must be certified and properly labeled prior to being
marketed or sold in the United States. Unlike CB radio transceivers,
radio transmitting equipment that transmits solely on Amateur Radio
Service ("ARS") frequencies is not subject to equipment authorization
requirements prior to manufacture or marketing. However, some radio
transmitters that transmit in a portion of the 10-meter band of the
ARS (28.000 to 29.700 MHz) are equipped with rotary, toggle, or
pushbutton switches mounted externally on the unit, which allow
operation in the CB bands after completion of minor and trivial
internal modifications to the equipment. To address these radios, the
Commission adopted changes to the CB type acceptance requirements by
defining a "CB Transmitter" as "a transmitter that operates or is
intended to operate at a station authorized in the CB." Section
95.655(a) of the Rules also states that no transmitter will be
certificated for use in the CB service if it is equipped with a
frequency capability not listed in Section 95.625 of the Rules (CB
transmitter channel frequencies). Also, the Commission's Office of
General Counsel ("OGC") released a letter on the importation and
marketing of ARS transmitters, which clarified that transmitters that
"have a built-in capacity to operate on CB frequencies and can easily
be altered to activate that capacity, such as by moving or removing a
jumper plug or cutting a single wire" fall within the definition of
"CB transmitter" under Section 95.603(c) of the Rules and therefore
require certification prior to marketing or importation. Additionally,
the Commission's Office of Engineering and Technology ("OET")
evaluated Galaxy Model DX99V here and determined that it could easily
be altered for use as a CB transceiver.
10. CB Shop argues that the Galaxy DX99V transceiver does not require
Commission certification (type acceptance) because it is not a CB
transceiver. CB Shop states that the Galaxy DX99V is manufactured to
operate solely on the 10 meter amateur band, and its intent in selling
the Galaxy DX99V was that the transceivers be used only as amateur
equipment. Consequently, CB Shop argues that Section 95.603 of the
Rules defines a CB transmitter as "a transmitter that operates or is
intended to operate at a station authorized in the CB," therefore, the
Galaxy DX99V, as manufactured by Galaxy and as marketed by CB Shop is
not a CB transceiver, as defined by the Commission's Rules. We
disagree. CB Shop fails to consider the OGC Letter, also discussed
above and in the NAL, which clarified that ARS transmitters that can
easily be altered to operate on CB transmitter channel frequencies
fall within the definition of "CB transmitter" under Section 95.603(c)
of the Rules. Consistent with Sections 95.603(c) and the OGC Letter,
and as stated in the NAL, OET evaluated the Galaxy Model DX99V and
determined that it was a non-certified CB transceiver. CB Shops
provides no evidence to show that the Galaxy Model DX99V it offered
for sale was not easily modified. Therefore, we find that Galaxy Model
DX99V is a CB transmitter pursuant to Section 95.603(c), regardless of
CB Shop's now stated intent regarding the sale of the Galaxy Model
DX99V.
11. CB Shop also argues that over ten years ago, OET issued a public
notice, "trying to expand the definition of a Citizen Band transmitter
to transceivers capable of being `easily modified' to work on the
Citizen Band service." CB Shop contends, however, that this was an
amendment to the CB Rules, that the Commission cannot amend the Rules
by merely putting out a public notice, and that its attempt to do so
violates the APA and due process. In assessing CB Shop's liability in
the NAL, the Denver Office relied on the OGC Letter and its
interpretation of Section 95.603(c), as well as OET's specific
determination concerning Galaxy Model DX99V, and did not rely on the
public notice cited to by CB Shop. We note that CB Shop does not argue
that the enactment of Section 95.603(c) violated the APA nor does CB
Shop object to the clarification offered by the OGC Letter.
Therefore, we find no merit to this argument either.
12. CB Shop further states that whether a transceiver can be "easily
modified" is one of degree and cites to an email from a Commission
staffer. We disagree. First, the Commission has consistently held that
regulatees are responsible for compliance with the Commission's Rules
and that they should not rely on informal opinions from Commission
staff. Additionally, "[w]hen the staff advice is contrary to the
Commission's rules, the Commission may still enforce its rules despite
any reliance by the public." Second, the OGC Letter explains the
concept of "easily modified" as including moving or removing a jumper
plug or cutting a single wire. Third, CB Shop was on notice that the
Galaxy transceivers it was offering for sale were considered to be
"easily modified," and therefore, non-certified CB transceivers for
years prior to the issuance of the NAL. It received a Citation on
November 26, 2002, explaining that if it continued to offer these
transceivers for sale, it would be subject to civil monetary
forfeitures. After its attorney questioned the Citation, it received a
follow-up notice from the Denver Office, on December 18, 2002, warning
that it should no longer offer for sale the Galaxy transceiver at
issue. Despite these notices and warnings, CB Shop continued to sell
the non-certified CB transceivers.
13. We have examined the Response to the NAL pursuant to the statutory
factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that CB Shop
willfully and repeatedly violated Section 302(b) of the Act, and
Section 2.803(a)(1) of the Rules. Considering the entire record and
the factors listed above, we find that neither reduction nor
cancellation of the proposed $7,000 forfeiture is warranted.
IV. ORDERING CLAUSES
14. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, CB Shop & More, LLLP,
IS LIABLE FOR A MONETARY FORFEITURE in the amount of $7,000 for
willfully and repeatedly violating Section 302(b) of the Act, and
Section 2.803(a)(1) of the Rules.
15. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within 30 days of the release of this Order.
If the forfeiture is not paid within the period specified, the case
may be referred to the Department of Justice for collection pursuant
to Section 504(a) of the Act. 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.
16. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to CB Shop &
More, LLLP, at its address of record, and its counsel of record,
Michael C. Olson, Esquire.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a)(1).
Citation to CB Shop & More, LLLP, released November 26, 2002 ("Citation").
See 47 C.F.R. S: 1.80(b)(3).
See 47 U.S.C. S:S: 501, 503(b), 510.
In a response to the Denver Office, dated December 23, 2002, Counsel for
CB Shop again disputed the Citation and requested that the Citation be
withdrawn by the Denver Office within 14 days.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732800008
(Enf. Bur., Western Region, Denver Office, released August 28, 2007).
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a)(1).
As part of its Response, CB Shop includes and undated letter from a
testing lab concerning the frequencies on which a "radio similar to the
Galaxy DX99V" operates. Response at Exhibit 1. CB shop states that the
report from the testing lab "shows that the radio does not require FCC
Certification' or `Type Acceptance.'" Because the report does not include
the Galaxy Model DX99V, we find that it has no relevance to the case
before us.
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a)(1).
See 47 C.F.R. S:S: 2.907, 2.927(a).
47 C.F.R. S: 95.603(c). See Pilot Travel Centers, 19 FCC Rcd 23113, 23114
(2004).
47 C.F.R. S: 95.655(a).
Letter from Christopher Wright, General Counsel, FCC to John Wood, Chief
Intellectual Property Rights, US Customs Service, 14 FCC Rcd 7797 (OGC
1999) ("OGC Letter"). See also, Ramko Distributors, Inc., 22 FCC Rcd 7161
(2007).
Pilot Travel Centers, 19 FCC Rcd at 23119. See also, TravelCenters of
America, 21 FCC Rcd 6978 (EB Western Region 2006).
To support this claim of intent, CB Shop includes in its Response an
affidavit from its owner stating that the "Subject Radios are intended by
CB Shop & More, LLLP to only be used as Amateur Radios. Before selling any
radio, the customer is required to acknowledge that the radio is a 10
meter radio with no CB frequencies." Response - Declaration of Paul Tate
at 1 - 2.
14 FCC Rcd 7797.
NAL at para. 8, and para 9, n.18. See also Pilot Travel Centers, 19 FCC
Rcd at 23119; TravelCenters of America, 21 FCC Rcd at 6981.
Response at 2 - 3.
The OGC Letter was published in the FCC Record, and therefore "may be
relied upon, used or cited as precedent by the Commission or private
parties in any manner." 47 C.F.R. S: 0.445(e). See TravelCenters of
America, 21 FCC Rcd at 6981. See also, HighTech CB Shop, 20 FCC Rcd 19269,
192671 (EB 2005).
Texas Media Group, Inc. 5 FCC Rcd 2851, 2852 (1990) aff'd sub nom Malkan
FM Associates v. FCC, 935 F.2d 1313 (D.C. Cir. 1991).
Hinton Telephone Company, 10 FCC Rcd 11625, 11637 (1995). See also, Malkan
FM Associates v. FCC, 935 F.2d 1313 (D.C. Cir 1991); Schweiker v. Hansen,
450 U.S. 785, 790 (1981) (petitioner's reliance on erroneous staff advice
does not estop agency from requiring compliance with valid regulation).
14 FCC Rcd 7797.
47 U.S.C. S:S: 302a(b), 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4),
2.803(a)(1).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 08-597
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Federal Communications Commission DA 08-597