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 )
)
TravelCenters of America ) File Number EB-05-PO-029
)
Troutdale, Oregon ) NAL/Acct. No.
) 20053292002
FRN #
0013411665
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 27,
2005
By the Resident Agent, Portland Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that TravelCenters of America
(``TravelCenters'') in Troutdale, Oregon, apparently willfully
and repeatedly violated Section 302(b) of the Commissions Act
of 1934, as amended (``Act''),1 and Section 2.803(a)(1) of the
Commission's Rules (``Rules'')2 by offering for sale a non-
certified Citizens Band (``CB'') transceiver. We conclude,
pursuant to Section 503(b) of the Act,3 TravelCenters is
apparently liable for a forfeiture in the amount of seven
thousand dollars ($7,000).4
II. BACKGROUND
2. On October 25, 2001, an agent from the Enforcement
Bureau's Portland Resident Agent Office (``Portland Office'')
visited TravelCenters' retail store in Troutdale, Oregon. The
agent observed that the store displayed and offered for sale
six models of CB transceivers, specifically, one Delta Force
transceiver and five Galaxy transceivers models DX33HML, DX44V,
DX66V, 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 19, 2001, the Portland Office issued a
Citation to TravelCenters' retail store in Troutdale, Oregon
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.5 The Citation warned TravelCenters that
future violations may subject TravelCenters to civil monetary
forfeitures not to exceed $11,000 for each violation or each
day of a continuing violation,6 seizure of equipment through in
rem forfeiture action, and criminal sanctions including fines
and imprisonment.7
4. In a response dated December 3, 2001, counsel for
TravelCenters disputed the Citation, stating that the
transceivers listed in the Citation were legal to sell.
Counsel for TravelCenters further requested that the Portland
Office withdraw the Citation within 30 days from December 3,
2001. In a letter to the Portland Office, dated January 18,
2002, counsel for TravelCenters indicated that he would advise
his client to resume selling the referenced non-certified CB
transceivers. In a response to TravelCenters, dated February
6, 2002, the Portland Office reaffirmed the violation and
warned that the marketing of the non-certified CB transceivers
should cease immediately.8
5. On February 9, 2005, an agent from the Portland Office
went to TravelCenters' retail store in Troutdale, Oregon. The
agent observed and took photographs of non-certified Galaxy CB
transceivers that were displayed at the store. The agent asked
a salesperson at the store if he could purchase one of the
transceivers and the salesperson responded that she would sell
the transceiver to the agent. The agent also interviewed the
store manager. The store manager acknowledged that his store
once received a Citation from the FCC but that he believed the
above Galaxy CB transceivers were legal to sell. After talking
with the agent, the store manager indicated that he would pull
the transceivers off the shelves.9
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.10 The term
``repeated'' means the commission or omission of such act more
than once or for more than one day.11
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.''12 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 . . . .''13
8. 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.14
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.''15 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).16 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.17 Additionally, the Commission's Office of
Engineering and Technology (``OET'') has evaluated the Galaxy
models at issue here and has determined that these devices
could easily be altered for use as CB transceivers.
9. On November 19, 2001, the Portland Office issued a
Citation to TravelCenters' retail store in Troutdale, Oregon,
for violation of Section 302(b) of the Act and Section
2.803(a)(1) of the Rules. Specifically, the TravelCenters'
store was selling non-certified Galaxy CB transceivers. On
February 9, 2005, a subsequent inspection by a Portland agent
revealed that the TravelCenters' retail store in Troutdale,
Oregon continued to sell non-certified Galaxy CB
transceivers.18 When asked by the agent if he could purchase
one of the transceivers, the salesperson in the store responded
that she would sell the transceiver to the agent. At the time
of the inspection, the manager of the store acknowledged to the
Portland agent that the store had previously received a
Citation from the Commission.
10. TravelCenters previously received a Citation
concerning the sale of non-certified Galaxy CB transceivers in
its Troutdale, Oregon store, but continued to sell the
transceivers. Therefore, its violation was willful. The
violation occurred on more than one day. Therefore, it was
repeated. Based on the evidence before us, we find that
TravelCenters 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.
11. Pursuant to The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, ("Forfeiture Policy
Statement"),19 and Section 1.80 of the Rules,20 the base
forfeiture amount for marketing unauthorized equipment is
$7,000 per violation.21 In assessing the monetary forfeiture
amount, we must also take into account the statutory factors
set forth in Section 503(b)(2)(D) of the Act, which include the
nature, circumstances, extent, and gravity of the violations,
and with respect to the violator, the degree of culpability,
and history of prior offenses, ability to pay, and other such
matters as justice may require.22 Applying the Forfeiture
Policy Statement, Section 1.80, and the statutory factors to
the instant case, we conclude that TravelCenters 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, and
Sections 0.111, 0.311, 0.314 and 1.80 of the Commission's
Rules,23 TravelCenters of America is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of seven
thousand dollars ($7,000) for willfully and repeatedly
violating Section 302(b) of the Act, and Section 2.803(a)(1) 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 Notice of Apparent Liability for Forfeiture,
TravelCenters of America 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.
15. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region,
Portland Resident Agent Office, P.O. Box 61469, Vancouver,
Washington 98666-1469 and must include the NAL/Acct. No.
referenced in the caption.
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. Requests for payment of the full amount of this
Notice of Apparent Liability under an installment plan should
be sent to: Chief, Revenue and Receivables Operations Group,
445 12th Street, S.W., Washington, D.C. 20554.24
18. IT IS FURTHER ORDERED that a copy of this Notice of
Apparent Liability for Forfeiture shall be sent by Certified
Mail, Return Receipt Requested, and regular mail, to
TravelCenters of America, at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Binh Nguyen
Resident Agent
Portland Resident Agent Office
Western Region
Enforcement Bureau
_________________________
147 U.S.C. § 302a(b).
247 C.F.R. § 2.803(a)(1).
347 U.S.C. § 502(b).
447 C.F.R. Part 2, Subpart J.
5Citation to TravelCenters of America, Inc., released November
19, 2001 (``Citation'').
6See 47 C.F.R. § 1.80(b)(3).
7See 47 C.F.R. § 501, 503(b), 510.
8In a response letter to the Portland Office, dated February 13,
2002, Counsel for TravelCenters again disputed the Citation and
requested that the Citation to be withdrawn by the Portland
Office within 30 days.
9On January 20, 2005, the Commission's Detroit District Office
issued a Citation for selling non-certified CB transceivers to a
TravelCenters retail store in Dexter, Michigan. In a response
dated February 4, 2005, TravelCenters stated that they disagreed
with the legal and factual contentions in the Citation, but that
they would remove the transceivers from the Dexter, Michigan
retail store. On April 5, 2005, the Commission's New York
District Office issued a Citation for selling non-certified CB
transceivers to a TravelCenters retail store in Bloomsbury, New
Jersey. In a response dated April 14, 2005, TravelCenters again
stated that they disagreed with the legal and factual contentions
contained in the Citation but that they would remove the
transceivers from the Bloomsbury, New Jersey retail store.
10Section 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).
11Section 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.''
1247 U.S.C. § 302a(b).
1347 C.F.R. § 2.803(a)(1).
14See 47 C.F.R. §§ 2.907, 2.927(a).
1547 C.F.R. § 95.603(c).
1647 C.F.R. § 95.655(a).
17Letter from Christopher Wright, General Counsel, FCC to John
Wood, Chief Intellectual Property Rights, US Customs Service, 14
FCC Rcd 7797 (OGC, 1999).
18The Galaxy transceivers found by the agent at the time of the
inspection have previously been evaluated by OET, which
determined that they were non-certified CB transceivers.
1912 FCC Rcd 17087 (1997), recon. Denied 15 FCC Rcd 303 (1999).
2047 C.F.R. § 1.80.
2112 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. §1.80.
2247 U.S.C. § 503(b)(2)(D).
2347 C.F.R. §§ 0.111, 0.311, 0.314, and 1.80.
24See 47 C.F.R. § 1.1914.