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                           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
                                 )

                        FORFEITURE ORDER

Adopted:  July 25, 2005                           Released:  July 
27, 2005

By the  Regional  Director,  South  Central  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 Hightech CB Shop (``Hightech'') for willful and 
repeated violation of 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  The noted violation involves 
Hightech's offering for sale a non-certified Citizens Band 
(``CB'') transceiver.3

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)4 and 2.815(b)5 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.   In response to a complaint about the marketing of 
illegal, non FCC certified devices, on February 4, 2005, agents 
from the Tampa Office visited Hightech and observed several radio 
transceivers offered for sale.  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 Connex 3300 HP 
transceiver as a 10-Meter Amateur Radio 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. 

     4.   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.  

     5.   On May 24, 2005, the Tampa Office issued a Notice of 
Apparent Liability for Forfeiture to Hightech in the amount of 
seven thousand dollars ($7,000) for the apparent willful and 
repeated violation of Section 302(b) of the Act and Section 
2.803(a) of the Rules.6  On June 17, 2005, Hightech submitted a 
response to the NAL requesting a reduction or cancellation of the 
proposed forfeiture.

  III.    DISCUSSION

     6.   The proposed forfeiture amount in this case was 
assessed in accordance with Section 503(b) of the Act,7 Section 
1.80 of the Rules,8 and The Commission's Forfeiture Policy 
Statement and Amendment of Section 1.80 of the Rules to 
Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087 (1997), 
recon. denied, 15 FCC Rcd 303 (1999) (``Forfeiture Policy 
Statement'').  In examining Hightech's 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.9

     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.''10  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.''11  

     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.12  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), just above 
the CB band (26.965 to 27.405 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.  In an 
order, the Commission adopted changes to its Rules regarding 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.''13  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).14  The Office of Engineering and Technology of the 
Commission (``OET'') has clarified that ARS transceivers designed 
``such that they can easily be modified by the users to extend 
the operating frequency range into the frequency bands'' of the 
CB are CB transmitters, because they are intended to operate on 
the CB bands.15  

     9.   On May 9, 2001, the Tampa Office issued a Citation to 
Hightech for violation of Section 302(b) of the Communications 
Act, and Section 2.803(a)(1) 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 transmitter.  Hightech claims that this Citation was 
insufficient to provide the notice required pursuant to Section 
503(b)(5) of the Act, because the Citation involved a Galaxy 
model radio, not a Connex one.  According to Section 503(b)(5), 
however, a ``person shall not be entitled to receive any 
additional citation of the violation charged, with respect to any 
conduct of the type described in the citation sent under this 
paragraph.''16  The Citation charged Hightech with offering for 
sale a 10-Meter ARS radio that could be easily modified to 
operate on CB frequencies, the very same violation described in 
the NAL.  Accordingly, the Commission was not required to provide 
Hightech with another Citation specifically listing the Connex 
3300 HP before issuing the NAL. 

     10.  In its response to the Citation dated May 23, 2001, 
Hightech disputed that it violated the Rules and claimed that it 
was legal to sell ARS radios that were not FCC certified.  The 
Tampa Office responded on June 11, 2001, stating that it was 
illegal to sell ARS radios that can be easily modified to operate 
on CB frequencies.  The Tampa Office sent a copy of an ``Illegal 
CB Transceiver List'' and the OGC Letter with its response.  
Hightech sent a letter dated June 13, 2001 to the Tampa Office 
that stated it did not receive the enclosures with the June 11, 
2001 letter.  In its response to the NAL, Hightech claims that, 
because the Tampa Office failed to send the enclosures, it 
assumed the Tampa Office agreed with its response to the Citation 
dated May 23, 2001.  The Tampa Office states that it sent the 
enclosures with its June 11, 2001 letter because, following its 
normal practice, a copy of the letter and the enclosures as sent 
to Hightech were in Hightech's file.  Assuming arguendo that the 
Tampa Office did not send the enclosures, we find it unreasonable 
for Hightech to have concluded that the Tampa Office agreed with 
its positions.  The Tampa Office at no time stated orally or in 
writing that it agreed with Hightech's positions.  To the 
contrary, the only written correspondence from the Tampa Office - 
the Citation and letter dated June 11, 2001 - unambiguously 
stated that Hightech violated Section 302(b) of the Act and 
2.803(a) of the Rules.  Hightech's conclusion that the Tampa 
Office agreed with it seems irrational.       
 
     11.  Hightech admits that it offered for sale the Connex 
3300 HP on February 4 and 7, 2005 and also admits that the Connex 
3300 HP is not FCC certified.  Hightech asserts, however, that it 
is legal to sell such radios and claims the Commission cannot 
change its rules through changes in policy.  Hightech states 
that, because the Connex 3300 HP is an ARS transceiver, it does 
not require certification prior to marketing.  Hightech claims 
that the Commission has not explained what an easily modifiable 
ARS radio is, that almost all ARS radios can be modified to 
operate on CB frequencies, and that it violates due process to 
fine it for this violation.  Hightech also asserts that 
Commission staff told it in an email that it was legal to sell 
Connex 3300 transceivers.  Hightech claims it would be unfair to 
receive a forfeiture for following staff directions.  Finally, 
Hightech states that it posted a sign in its shop that stated 
Amateur equipment requires a license and that it is illegal to 
modify the radios to operate on CB frequencies. 

     12.  As described in detail above, the Commission adopted 
Rules determining that the definition of ``CB transmitter'' in 
Section 95.603(c) of the Rules includes radios ``intended to 
operate at a station authorized in the CB.''  OET and the Office 
of General Counsel for the Commission (``OGC'') have clarified 
that this definition includes ARS radios that can be easily 
modified to operate on CB frequencies.  OGC has stated that 
transmitters that ``have a built-in capability to operate on CB 
frequencies and can easily be altered to activate that 
capability, such as by moving or removing a jumper plug or 
cutting a single wire'' fall within the definition of ``CB 
transmitter.''17  Section 95.603 of the Rules states that all CB 
transmitters must be certificated.18  Thus, the Commission did 
not change its Rules merely by ``making a policy change'' as 
Hightech alleges, and it does not violate due process to enforce 
these Rules.  In addition, we note that the email from a 
Commission staff person that Hightech included in its response to 
the NAL was dated June 5, 1997.  Hightech knew or should have 
known that this email did not contain current information after 
it received the Citation and follow up letter from the Tampa 
Office in 2001, and it cannot use this email as justification for 
violating the rules.  Moreover, ``parties who rely on staff 
advice or interpretations do so at their own risk.''19  It is 
also irrelevant whether Hightech posted a sign in its shop as it 
claims, although we note that the agents did not see this alleged 
sign.  Hightech is prohibited from selling non-certified CB 
transmitters, and it cannot attempt to relieve its liability by 
posting a warning sign for its customers.  Moreover, it is 
irrelevant whether it might be legal or illegal to sell other 
models of non-certified ARS radios.  On February 4 and 7, 2005, 
Hightech offered for sale a non-certified Connex 3300 HP radio.  
This model has been tested by OET and found to be a CB 
transmitter, because it has built-in capability to operate on CB 
frequencies and can be easily altered to activate that 
capability, such as by moving or removing a jumper plug or 
cutting a single wire.  Hightech was aware that this model was 
not certified and could be easily modified to operate on CB 
frequencies.
 
     13.  Based on the evidence before us, we find that Hightech 
apparently willfully20 and repeatedly21 violated Section 302(b) 
of the Act and Section 2.803(a) of the Rules by offering for sale 
non-certified CB transmitters on February 4 and 7, 2005.

     14.  We have examined Hightech's 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 
find no basis for cancellation or reduction of the $7,000 
forfeiture proposed for this violation.

  IV.  ORDERING CLAUSES

     15.  Accordingly, IT IS ORDERED that, pursuant to Section 
503(b) of the Communications Act of 1934, as amended, and 
Sections 0.111, 0.311 and 1.80(f)(4) of the Commission's Rules, 
Hightech CB Shop IS LIABLE FOR A MONETARY FORFEITURE in the 
amount of seven thousand dollars ($7,000) for willfully and 
repeatedly violating Section 302(b) of the Act and 2.803(a) of 
the Rules. 

     16.  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.22  
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 bycheck or money order may be 
mailed to Federal Communications Commission, P.O. 
Box358340,Pittsburgh, PA 15251-8340. Payment by overnight mail 
may be sent toMellon Bank/LB358340,500 Ross Street, Room 
1540670, Pittsburgh, PA 15251. Payment by wire transfer may be 
made to ABA Number043000261, receiving bankMellon Bank, and 
account number911-6106.  Requests for full payment under an 
installment plan should be sent to: Chief, Revenue and 
Receivables Group, 445 12th Street, S.W., Washington, D.C. 
20554.23 

     17.  IT IS FURTHER ORDERED that a copy of this Order shall 
be sent by First Class and Certified Mail Return Receipt 
Requested to Hightech CB Shop at its record of address and to its 
attorney, Michael C. Olson, 4400 MacArthur Boulevard, Suite 23C, 
Newport Beach, California 92660.  


                              FEDERAL COMMUNICATIONS COMMISSION



                              Dennis P. Carlton
                              Regional Director, 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 C.F.R.  2.803(a)(1).

547 C.F.R.  2.815(b).

6Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200532700009 (Enf. Bur., Tampa Office, May 24, 2005) (``NAL'').

747 U.S.C.  503(b).

847 C.F.R.  1.80.

947 U.S.C.  503(b)(2)(D).

1047 U.S.C.  302a(b).

1147 C.F.R.  2.803(a). 

12See 47 C.F.R.  2.907, 2.927(a).

1347 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) (``Public 
Notice'').

1447 C.F.R.  95.655(a). 

15See Public Notice.  See also Letter from Christopher Wright, 
General Counsel, FCC to John Atwood, Chief Intellectual Property 
Rights, US Customs Service, 14 FCC Rcd 7797 (OGC, 1999) (``OGC 
Letter'')(noting that ARS transmitters that ``have a built-in 
capability to operate on CB frequencies and can easily be altered 
to activate that capability, such as by moving or removing a 
jumper plug or cutting a single wire'' fall within the definition 
of ``CB transmitter'').

1647 U.S.C.  503(b)(5). 

17OGC Letter. 

1847 C.F.R.  95.603. 

19Hinton Telephone Company, Memorandum Opinion and Order on 
Reconsideration, 10 FCC Rcd 11625, 11637 (1995); see also Texas 
Media Group, Inc., Memorandum Opinion and Order, 5 FCC Rcd 2851, 
2852 (1990) aff'd sub nom. Malkan FM Associates v. FCC, 935 F.2d 
1313 (D.C. Cir. 1991) (``It is the obligation of interested 
parties to ascertain facts from official Commission records and 
files and not rely on statements or informal opinions by the 
staff.''). 

20Section 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,' 
... 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).   

21The 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.''  47 U.S.C.  
312(f)(2).

2247 U.S.C.  504(a).

23See 47 C.F.R.  1.1914.