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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
                                )

                    

                  MEMORANDUM OPINION AND ORDER

Adopted:  November 30, 2005                  Released:   December 
2, 2005

By the Chief, Enforcement Bureau:

I.  INTRODUCTION

     1.   In this Memorandum Opinion and Order (``Order''), we 
          deny the petition for reconsideration filed by 
          Hightech CB Shop (``Hightech'') of the Forfeiture 
          Order issued July 27, 2005.1  The Forfeiture Order 
          imposed a monetary forfeiture in the amount of $7,000 
          to Hightech for the willful and repeated violation of 
          Section 302(b) of the Communications Act of 1934, as 
          amended (``Act''),2 and Section 2.803(a) of the 
          Commission's Rules (``Rules'').3  The noted violation 
          involved Hightech's offering for sale a non-certified 
          Citizens Band (``CB'') transceiver.4  

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.   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.7  
          On June 17, 2005, Hightech submitted a response to the 
          NAL requesting a reduction or cancellation of the 
          proposed forfeiture.  Hightech argued that it had not 
          received a Citation for selling the particular Connex 
          model transceivers listed in the NAL and that it was 
          legal to sell the non-FCC certified Connex models, 
          because they are Amateur Radios.  On July 27, 2005, 
          the Enforcement Bureau rejected Hightech's arguments 
          and released the Forfeiture Order.  The Enforcement 
          Bureau received Hightech's petition for 
          reconsideration on August 30, 2005, requesting 
          cancellation of the forfeiture.  

III.  DISCUSSION

     6.   The forfeiture amount in this case was assessed in 
          accordance with Section 503(b) of the Act, 8 Section 
          1.80 of the Rules,9 and The Commission's Forfeiture 
          Policy Statement and Amendment of Section 1.80 of the 
          Rules to Incorporate the Forfeiture Guidelines.10  In 
          examining Hightech's petition, 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 any other such matters as justice 
          may require.11  

     7.   In the introduction to its petition for 
          reconsideration, Hightech again claims that it 
          believed the Commission had accepted its positions, 
          because the Commission failed to provide certain 
          enclosures to a letter dated June 11, 2001 and failed 
          to respond to a letter it sent dated June 13, 2001.  
          The assertions contained in the introduction were 
          raised in Hightech's response to the Notice of 
          Apparent Liability and addressed in the Forfeiture 
          Order.  ``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.''12       

     8.   In its petition for reconsideration, Hightech alleges 
          that it did not violate the Rules.  Hightech states 
          that the Connex transceiver in question, as 
          manufactured, operates solely on Amateur Radio Service 
          (``ARS'') bands and, therefore, does not require FCC 
          certification.  Hightech argues that the Rules only 
          require certification of transmitters that operate or 
          are intended to operate at a station authorized in the 
          CB and that it did not intend to sell this model for 
          operation on the CB bands.  It claims that it posted a 
          sign in the vicinity of the display case advising 
          customers that an Amateur license is required to use 
          Amateur equipment and that the equipment is intended 
          for use as an Amateur transceiver.  Moreover, it 
          claims each transceiver comes packaged with a warning 
          that it is illegal to transmit on the equipment 
          without the appropriate Amateur license.  It asserts 
          that the CB Rules say nothing about the certification 
          of Amateur transceivers that can be easily modified to 
          operate on CB frequencies and that the Commission 
          cannot add a requirement covering such transceivers, 
          without first complying with the Administrative 
          Procedures Act.  It also argues that the Commission 
          failed to define what ``easily modifiable'' means and 
          that such language is unconstitutionally vague.  
          Finally, it claims that almost all ARS radios may be 
          modified to operate on CB frequencies and, thus, the 
          Commission effectively subjected all ARS radios to 
          certification.   

     9.   We reject Hightech's arguments and deny its petition 
          for reconsideration.  Section 95.603(c) of the Rules 
          states that a CB transmitter is a ``transmitter that 
          operates or is intended to operate at a station 
          authorized in the CB'' and that such transmitters must 
          be certificated.13  The Office of General Counsel 
          (``OGC'') subsequently clarified 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'' are intended for use 
          in the CB frequencies as well as the amateur service 
          and fall within the definition of ``CB 
          transmitter.''14  Thus, the Commission clarified an 
          existing Rule that was adopted pursuant to a Notice 
          and Comment Rulemaking and did not change its Rules 
          merely by making a policy change, as Hightech alleges.  
          This Rule and the Commission's subsequent 
          interpretation of the Rule make clear that a device 
          manufactured to operate on ARS frequencies and labeled 
          an ARS transmitter may nevertheless be a CB 
          transmitter.  The Commission also provided a clear 
          example of what it meant by easily alterable, i.e., 
          moving or removing a jumper plug or cutting a single 
          wire.  Moreover, the OGC Letter was published in the 
          FCC Record.  Pursuant to Section 0.445(e) of the 
          Rules, interpretations designed to have general 
          applicability and legal effect that are published in 
          the FCC Record ``may be relied upon, used or cited as 
          precedent by the Commission'' in any manner.15  
          Although the Commission has clarified that a 
          transmitter intended to operate in the CB band 
          includes ARS transmitters that can be easily modified 
          to operate on CB frequencies, the Commission has never 
          stated that intent to operate in the CB bands can be 
          determined through the actions of a seller of an ARS 
          transceiver.  Moreover, our Rules prohibit the sale or 
          lease or offering for sale or lease of non-certified 
          CB transmitters and do not prohibit the purchase of 
          such devices.  Therefore, it is irrelevant whether 
          Hightech posted a sign that the transmitters in 
          question require an Amateur license, that similar 
          inserts were placed in the transmitter packaging, or 
          that other ARS transmitters might qualify as CB 
          transmitters.16  The Connex 3300 HP radio has been 
          tested by the Office of Engineering and Technology 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.  
          Accordingly, there is no basis for cancellation of the 
          forfeiture imposed in the Forfeiture Order.  

V.  ORDERING CLAUSES

     10.  Accordingly, IT IS ORDERED that, pursuant to Section 
          405 of the Communications Act of 1934, as amended,17 
          and Section 1.106 of the Commission's Rules,18 
          Hightech CB Shop's petition for reconsideration of the 
          July 27, 2005 Forfeiture Order IS hereby DENIED.

     11.  IT IS ALSO ORDERED that, pursuant to Section 503(b) of 
          the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of 
          the Commission's Rules,19 Hightech CB Shop IS LIABLE 
          FOR A MONETARY 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.

     12.  Payment of the $7,000 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.20  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: 
          Associate Managing Director, Financial Operations, 445 
          12th Street, S.W., Room 1A625, Washington, D.C. 
          20554.21

     13.  IT IS FURTHER ORDERED that this Order shall be sent by 
          regular mail and by certified mail, return receipt 
          requested, to Hightech CB Shop at its address of 
          record and its counsel, Michael C. Olson, 4400 
          MacArthur Boulevard, Suite 23C, Newport Beach, 
          California 92660.

                         
                         FEDERAL COMMUNICATIONS COMMISSION       


                         Kris Anne Monteith
                         Chief, Enforcement Bureau
_________________________

1Hightech CB Shop, Forfeiture Order, 20 FCC Rcd 12514 (Enf. Bur. 
South Central Region, 2005) (``Forfeiture Order'').

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

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

4CB radio operation is confined to forty specified channels from 
26.965 MHz to 27.405 MHz (carrier frequency).

547 C.F.R.  2.803(a)(1).

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

7Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200532700009 (Enf. Bur., Tampa Office, May 24, 2005) (``NAL'').

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

947 C.F.R.  1.80.

1012 FCC Rcd. 17087 (1997), recon. denied, 15 FCC Rcd. 303 
(1999).

1147 U.S.C.  503(b)(2)(D).

12Forfeiture Order at 12516.

1347 C.F.R.  95.603(c).

14See 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'').  See also 
Extended Coverage High Frequency Transceivers, Public Notice 
62882, 1996 WL 242469, available at 
<> (OET, rel. May 13, 1996) (clarifying 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).

1547 C.F.R.  0.445(e).

16We note that the agents did not see this alleged sign in the CB 
Shop. 

1747 U.S.C.  405.

1847 C.F.R.  1.106.

19 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

2047 U.S.C.  504(a).

21See 47 C.F.R.  1.1914.