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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 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 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.