Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Hightech CB Shop ) File Number EB-05-TP-066
8391 U.S. 301 South, ) NAL/Acct. No.200532700009
Jacksonville, Florida 32234 ) FRN 0013520705
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 24,
2005
By the District Director, Tampa Field Office, South Central
Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Hightech CB Shop (``Hightech'')
apparently willfully and repeatedly violated Section 302(b) of
the Communications Act of 1934, as amended (``Act''),1 and
Section 2.803(a) of the Commission's Rules (``Rules'')2 by
offering for sale a non-certified Citizens Band (``CB'')
transceiver.3 We conclude, pursuant to Section 503(b) of the
Act,4 that Hightech is apparently liable for a forfeiture in the
amount of seven thousand dollars ($7,000).
II. BACKGROUND
2. On May 9, 2001, the Commission's Tampa Office of the
Enforcement Bureau (``Tampa Office'') issued a Citation to
Hightech for violation of Section 302(b) of the Act and Sections
2.803(a)(1)5 and 2.815(b)6 of the Rules by offering for sale RF
linear amplifiers and non-certified CB transceivers at its CB
shop located at 8391 U.S. 301 S., Jacksonville, Florida.
3. On December 13, 2004, the Tampa Office received a
complaint about the marketing of illegal, non FCC certified
devices by Hightech at its shop.
4. On February 4, 2005, agents from the Tampa Office
visited the Hightech CB Shop and observed several radio
transceivers offered for sale on display shelves. One of the
agents examined one of the radios, a Connex 3300 HP, and observed
that the device did not have any markings or labels that
identified the radio as an FCC certified device. The agent told
a shop employee that he was interested in making a purchase and
requested more information about the radio. The shop employee
identified the transceiver as a 10-Meter Amateur Radio, Connex
3300 HP model, and offered to sell the device to the agent for
$239.00. The shop employee stated that the Connex models could
be easily modified to operate on CB frequencies, that the store
accepted credit card payments, and that the radio could be
delivered by mail.
5. On February 7, 2005, an agent from the Tampa Office
again visited the Hightech CB Shop and requested information
about the Connex 3300 HP transceiver. Shop employees offered to
sell the Connex 3300 HP to the agent for $239.00.
III. DISCUSSION
6. Section 503(b) of the Act provides that any person who
willfully or repeatedly fails to comply substantially with the
terms and conditions of any license, or willfully or repeatedly
fails to comply with any of the provisions of the Act or of any
rule, regulation or order issued by the Commission thereunder,
shall be liable for a forfeiture penalty. The term ``willful''
as used in Section 503(b) has been interpreted to mean simply
that the acts or omissions are committed knowingly.7 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day.8
7. 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.''9 Section 2.803(a) of the Rules provides that:
``Except 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 such device has been authorized
by the Commission.''10
8. CB radio transceivers are subject to the equipment
authorization procedure known as Certification and must be
certified and properly labeled prior to being marketed or sold in
the United States.11 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.''12 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).13
9. On May 9, 2001, the Tampa Office issued a Citation to
Hightech for violation of Section 302(b) of the Communications
Act, and Sections 2.803(a)(1) and 2.815(b) of Commission's Rules
by, among other things, offering for sale a 10-Meter ARS radio
that could be easily modified to operate on CB frequencies, i.e.,
a non-certified CB transceiver. On February 4 and 7, 2005, an
employee at the Hightech CB Shop offered to sell a non-certified
CB transceiver, specifically a Connex 3300 HP, to an agent from
the Tampa Office. On February 4, 2005, an employee at the shop
told the agent that the Connex 3300 HP could be easily modified
to operate on CB frequencies. Prior to the agent's visit to the
shop, OET tested the Connex models 3300 and 3300 HP and
determined that they were ARS transceivers that could be easily
altered for use on CB frequencies. Accordingly, the Connex
3300HP is a CB transceiver that cannot be certified under the
Rules.
10. Based on the evidence before us, we find that Hightech
apparently willfully and repeatedly violated Section 302(b) of
the Act and Section 2.803(a) of the Rules by offering for sale
non-certified CB transceivers.
11. Pursuant to Section 1.80(b)(4) of the Rules,14 the base
forfeiture amount for the marketing of unauthorized or non-
compliant equipment is $7,000. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in Section 503(b) (2) (D) of Act, which include
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.15 Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the instant
case, we conclude that Hightech is apparently liable for a $7,000
forfeiture.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Communications Act of 1934, as amended,16 and
Sections 0.111, 0.311 and 1.80 of the Rules,17 Hightech CB Shop
IS hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of seven thousand dollars ($7,000) for willful and
repeated violation of Section 302(b) of the Act and Section
2.803(a) 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 NAL, Hightech CB Shop 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/Acct. No. and FRN No. referenced above. Payment by check or
money order may be mailed to Federal Communications Commission,
P.O. Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight
mail may be sent to Mellon Bank /LB 358340, 500 Ross Street, Room
1540670, Pittsburgh, PA 15251. Payment by wire transfer may be
made to ABA Number 043000261, receiving bank Mellon Bank, and
account number 911-6106. Requests for payment of the full amount
of this NAL under an installment plan should be sent to: Chief,
Revenue and Receivable Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.18
15. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Tampa Field
Office, 2203 N. Lois Avenue, Suite 1215, Tampa, Florida 33607
within thirty days of the date of this NAL and MUST INCLUDE THE
NAL/Acct. No. referenced above.
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. IT IS FURTHER ORDERED that a copy of this NAL shall
be sent by regular mail and Certified Mail Return Receipt
Requested to High Tech CB Shop, 8391 U.S. 301 South,
Jacksonville, Florida, 32234.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
District Director
Tampa Office
South Central Region
Enforcement Bureau
_________________________
147 U.S.C. § 302a(b).
247 C.F.R. § 2.803(a).
3CB radio operation is confined to forty specified channels from
26.965 MHz to 27.405 MHz (carrier frequency).
447 U.S.C. § 503(b).
547 C.F.R. § 2.803(a)(1).
647 C.F.R. § 2.85(b).
7Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that "[t]he term 'willful',
when used with reference to the commission or omission of any
act, means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act or any rule or regulation of the Commission authorized
by this Act...." See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
8Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that "[t]he term 'repeated',
when used with reference to the commission or omission of any
act, means the commission or omission of such act more than once
or, if such commission or omission is continuous, for more than
one day.''
947 U.S.C. § 302a(b).
1047 C.F.R. § 2.803(a).
11See 47 C.F.R. §§ 2.907, 2.927(a).
1247 C.F.R. § 95.603(c) [FCC 88-256], amended changing ``type
acceptance'' to ``certification'' [FCC 98-58]. See also Extended
Coverage High Frequency Transceivers, Public Notice 62882, 1996
WL 242469, available at
<> (OET, rel. May 13, 1996).
1347 C.F.R. § 95.655(a).
1447 C.F.R. § 1.80(b) (4).
1547 U.S.C. § 503(b)(2)(D).
1647 U.S.C. § 503(b).
1747 C.F.R. §§ 0.111, 0.311, 1.80.
18See 47 C.F.R. § 1.1914.