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 ) File No. EB-05-DL-181
)
Love's Travel Stops and Country ) NAL/Acct. No. 200632500001
Stores, Inc. )
) FRN # 0010520286
Oklahoma City, Oklahoma
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: February
09, 2006
By the District Director, Dallas Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find Love's Travel Stops and Country Stores, Inc.
(``Loves'') apparently liable for a forfeiture in the amount of
twenty-five thousand dollars ($25,000) for willful and repeated
violations of Section 302(b) of the Communications Act of 1934,
as amended (``Act''),1 and Section 2.803(a)(1) of the
Commission's Rules (``Rules'').2 Specifically, we find Loves
apparently liable for offering for sale radio frequency devices
without the required Commission equipment authorization.
II. BACKGROUND
2. Section 302 of the Act authorizes the Commission to
make reasonable regulations, consistent with the public interest,
governing the interference potential of equipment that emits
radio frequency energy,3 and prohibits, inter alia, the offering
for sale of radio frequency devices to the extent such activity
does not comply with those regulations. The purpose of this
section is to ensure that radio transmitters and other electronic
devices meet certain standards to control interference before
they reach the market.
3. The Commission carries out its responsibilities under
Section 302 in two ways. First, the Commission establishes
technical regulations for transmitters and other equipment to
minimize their potential for causing interference to radio
services. Second, the Commission administers an equipment
authorization program to ensure that equipment reaching the
market complies with the technical requirements.4 The equipment
authorization program requires that equipment be tested either by
the manufacturer or at a private test laboratory to ensure that
it complies with the technical requirements. For a large number
of devices, including Citizens Band (``CB'') radio transmitting
equipment,5 equipment may not be marketed within the United
States unless it has been tested and found to comply with
Commission technical requirements, granted Commission
Certification, and properly labeled.6 ``Marketing'' includes the
sale or lease, offer for sale or lease (including advertising for
sale or lease), importing, shipping, and/or distribution for the
purpose of selling or leasing or offering for sale or lease.7
4. Unlike CB radio transmitting equipment, 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.''8
5. Despite these changes to the definition of a CB
transmitter, Commission enforcement agents continued to encounter
non-certified CB transmitters marketed as ARS transmitters. On
May 13, 1996, the Commission's Office of Engineering and
Technology (``OET'') released a Public Notice ``to clarify the
Commission's Rules regarding equipment that is intended to
operate in various radio services in the high frequency radio
spectrum, including `10-Meter' Amateur Radio Service (ARS)
equipment.''9 The Notice stated that transmitters intended for
operation on non-amateur frequencies must be approved prior to
manufacture, importation or marketing. The Notice specifically
included 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 and other non-amateur radio
services among those devices subject to equipment authorization
procedures. The Notice also stated that the Commission considers
these transceivers as intended to be operated on frequencies
where the use of type accepted equipment is required ``because of
the simplicity of modifying them to extend their operating
frequency range.''10 The Commission's Office of General Counsel
(``OGC'') later released a letter on the importation and
marketing of ARS transmitters, which clarified that such
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'' under Section 95.603(c) of the Rules and therefore
require certification prior to marketing or importation.11
6. On October 15, 2001, and November 13, 2002, Enforcement
Bureau field agents visited two Loves retail outlets in
Weatherford and Anna, Texas. At these locations, the stores
displayed and offered for sale various models of non-certified CB
transceivers marketed as ARS transmitters, including Galaxy
models DX33HML and DX99V. OET specifically tested Galaxy models
DX33HML and DX99V in 2000 and found both models to be non-
certified CB transceivers. As a result of these inspections, the
Dallas Office of the Enforcement Bureau (``Dallas Office'')
issued two Citations directly to Loves' corporate headquarters in
Oklahoma City, Oklahoma on November 26, 2001 and November 15,
2002. The 2001 Citation specifically cited Loves for offering
for sale non-certified CB transmitters, Galaxy models DX33HML and
DX99V, while the 2002 Citation cited the Galaxy model DX99V as
the non-Certified CB transmitter offered for sale by Loves.
These Citations advised Loves of observed violations of the
Commission's equipment authorization and marketing rules,
specifically, marketing non-certified CB transceivers in
violation of Section 302(b) of the Act and Section 2.803(a)(1) of
the Rules. The Citations warned Loves that future violations may
subject Loves to substantial civil monetary forfeitures for each
such violation or each day of a continuing violation,12 seizure
of equipment through in rem forfeiture action, and criminal
sanctions including fines and imprisonment.13
7. In response to the 2001 and 2002 Citations, Loves'
Director of Risk Management at Loves' corporate headquarters in
Oklahoma City, Oklahoma stated that the specific locations listed
in the Citations would stop selling the named devices.14 In
addition to the response from Loves' corporate headquarters, the
Dallas Office received a letter on December 4, 2002 from Loves'
attorney, which stated ``[w]e dispute all of the legal and
factual contentions set forth in the citation and ask you to
treat this letter as a formal response to the citation.''15
8. On February 2, 2004 and January 28, 2005, the
Commission received complaints that Loves was marketing non-
certified CB transceivers. From March 2004 through January 2005,
Enforcement Bureau field agents visited 10 Loves retail outlets
at the following locations: Norman, Oklahoma; Oklahoma City,
Oklahoma; Calumet, Oklahoma; Ranger, Texas; Buckeye, Arizona;
Casa Grande, Arizona; Gila Bend, Arizona; Quartzsite, Arizona;
and Coachella, California. At these locations, the stores
displayed and offered for sale various models of non-certified CB
transceivers marketed as ARS transmitters, including Galaxy
models DX33HML and DX99V. OET specifically tested Galaxy models
DX33HML and DX99V in 2000 and 2004 and found both models to be
non-certified CB transceivers during all tests.
9. On January 12, 2005, based on inspections conducted on
January 5, 2005, the Los Angeles Office of the Enforcement Bureau
(``Los Angeles Office'') issued five Citations directly to Loves'
retail outlets in Buckeye, Arizona; Gila Bend, Arizona;
Quartzsite, Arizona; Coachella, California; and Casa Grande,
Arizona. All five of the 2005 Citations specifically cited Loves
for offering for sale non-certified CB transmitters, Galaxy
models DX33HML and DX99V. Each of these Citations advised Loves
of observed violations of the Commission's equipment
authorization and marketing rules, specifically, marketing non-
certified CB transceivers in violation of Section 302(b) of the
Act and Section 2.803(a)(1) of the Rules. The Citations warned
Loves that future violations may subject Loves to substantial
civil monetary forfeitures for each such violation or each day of
a continuing violation,16 seizure of equipment through in rem
forfeiture action, and criminal sanctions including fines and
imprisonment.17
10. On February 3, 2005, the Los Angeles Office received a
response to the five 2005 Citations from Love's Director of Risk
Management dated January 26, 2005, which stated ``immediately
upon my receipt of your letter, we immediately discontinued the
sale of this merchandise at each of the respective locations.''18
Additionally, the Los Angeles Office received a response from
Loves' attorney also dated January 26, 2005, stating ``. . . all
the radios in question are marketed as Amateur radios, a fact
conceded in the citation. As sold, the radios operate only on
the Amateur bands. As such, the radios are governed by Part 97
of 47 C.F.R., not Part 95. Part 97 does not require type
acceptance of Amateur radios.''19 On February 28, 2005, the Los
Angeles Office responded to Loves' attorney informing him that
his assertions were incorrect and that selling non-certified
Amateur radios that can be easily modified to operate on CB
frequencies violates the Rules.20
11. On February 23 and 25, 2005, Enforcement Bureau field
agents made two visits to Loves retail stores in Oklahoma where
Loves offered for sale non-certified CB transceivers, Galaxy
models DX33HML and DX99V.21 As noted above, OET had already
tested these specific models and determined them all to be dual
use Amateur Radio and CB transmitters. Each of the models could
be modified to allow transmit capabilities on CB frequencies.
III. DISCUSSION
12. Section 302(b) of the Act provides that no 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.
Section 2.803(a)(1) of the Rules provides that:
(a) 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: (1)
[i]n the case of a device subject to
certification, such device has been authorized by
the Commission in accordance with the rules in
this chapter and is properly identified and
labeled as required by § 2.925 and other relevant
sections in this chapter[.]
13. Section 95.603(c) of the Rules requires that ``[e]ach
CB transmitter (a transmitter that operates or is intended to
operate at a station authorized in the CB) must be
certificated.'' Section 95.655(a) of the Rules states that
``[n]o transmitter will be certificated for use in the CB service
if it is equipped with a frequency capability not [authorized for
CB in Part 95 of the Rules].'' This section also states that
``([CB t]ransmitters with frequency capability for the Amateur
Radio Services ... will not be certificated.)'' Additionally,
Section 95.655(c) of the Rules prohibits any internal or external
add-on device that functions to extend the transmitting frequency
capability of a CB transmitter beyond its original capability.
14. From March 2004 to January 2005, Commission agents
observed Loves offer for sale at ten different retail outlets
various models of non-certified CB transmitters, including Galaxy
models DX33HML and DX99V, which had all been tested and
determined by OET to be non-certified CB transmitters. Although
they were labeled as ``amateur radios,'' the specified models of
Galaxy transmitters are CB transmitters, because each was
designed to be easily modified by the end user to allow operation
on CB frequencies. Commission Field Offices issued a total of
seven Citations to Loves' corporate headquarters and its retail
outlets warning Loves that future violations would subject Loves
to penalties including civil monetary forfeitures. On February
23 and 25, 2005, Loves offered for sale at two of its retail
outlets non-certified CB transmitters, Galaxy models DX33HML and
DX99V.
15. Based on the evidence before us, we find that in three
instances22 -- two on February 23, 2005, and one on February 25,
2005 -- Loves offered for sale non-certified CB transmitters in
apparent willful23 and repeated24 violation of Section 302(b) of
the Act and Section 2.803(a)(1) of the Rules.25
16. Section 503(b) of the Act,26 authorizes the Commission
to assess a forfeiture for each willful or repeated violation of
the Act or of any rule, regulation, or order issued by the
Commission under the Act. In exercising such authority, we are
to 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 such other matters as justice may require.''27
17. 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'')28 and Section 1.80 of the Rules,29 the base
forfeiture amount for marketing unauthorized equipment is $7,000
per violation. Thus, the total base forfeiture amount for all of
Loves' violations is $21,000.
18. We are concerned, however, with the pattern of apparent
violations here. Our equipment authorization rules ensure that
radio transmitters and other electronic equipment comply with
Commission technical requirements. The proliferation of non-
certified CB transmitters may result in interference to certified
CB transmitters and other devices, thereby undermining the
effectiveness of our technical rules. Furthermore, we have
previously stated that ARS equipment that can be easily modified
to extend the operating frequency range into CB frequency bands
are CB transmitters subject to equipment authorization
procedures.30
19. We are particularly troubled that Loves continued to
violate these rules despite receiving numerous warnings from the
Commission. The Commission warned Loves by issuing Citations
directly to Loves' corporate headquarters in 2001 and 2002, and
the Commission issued five additional Citations to Loves' retail
outlets in 2005 after Loves continued to market non-certified CB
transmitters at ten of its retail outlets. These Citations put
Loves on actual notice that marketing of this equipment is
unlawful and that continued violations could make Loves liable
for severe sanctions. Yet, subsequent to these seven Citations,
Loves marketed the very same models of unlawful equipment at
least three times which involved at least two of its retail
outlets. Loves' continuing violations of the equipment
authorization requirements evince a pattern of intentional non-
compliance with and apparent disregard for these rules.
Accordingly, we believe an upward adjustment of the base
forfeiture amount is warranted.31 Applying the Forfeiture Policy
Statement and statutory factors (e.g., nature, extent and gravity
of the violation and the history of prior offenses)32 to the
instant case, we conclude that it is appropriate to adjust upward
the base forfeiture amount of $21,000 and propose a forfeiture of
$25,000 for Loves' apparent violations. Therefore, we find Loves
apparently liable for a forfeiture in the amount of $25,000.
IV. ORDERING CLAUSES
20. 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,
Love's Travel Stops and Country Store, Inc. is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of twenty-
five thousand dollars ($25,000) for willfully and repeatedly
violating Section 302(b) of the Act, and Section 2.803(a)(1) of
the Rules.
21. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NAL,
Love's Travel Stops and Country Stores, Inc. SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
22. Payment of the forfeiture may 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 Notice of Apparent Liability under an installment plan
should be sent to: Associate Managing Director, Financial
Operations, 445 12th Street, S.W., Room 1A625, Washington, D.C.
20554.33
23. The response if any must be mailed to Federal
Communications Commission, Enforcement Bureau, South Central
Region, Dallas Office, 9330 LBJ Fwy, Suite 1170, Dallas, Texas
75243 and must include the NAL/Acct. No. referenced in the
caption.
24. 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; 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.
25. IT IS FURTHER ORDERED that a copy of this NAL shall be
sent by regular First Class Mail and by Certified Mail Return
Receipt Requested to: Love's Travel Stops and Country Stores,
Inc., P.O. Box 26210, Oklahoma City, Oklahoma 73126.
FEDERAL COMMUNICATIONS COMMISSION
James D. Wells
District Director
Dallas Office
South Central Region
Enforcement Bureau
ATTACHMENT
1. February 23, 2005, Loves center #213, Tomkawa,
Oklahoma. Non-certified CB transceiver Galaxy models DX33HML
displayed and offered for sale.
2. February 23, 2005, Loves center #213, Tomkawa,
Oklahoma. Non-certified CB transceiver Galaxy models DX99V
displayed and offered for sale.
3. February 25, 2005, Loves center #202, Pauls Valley,
Oklahoma. Non-certified CB transceiver Galaxy models DX33HML
displayed and offered for sale.
_________________________
1 47 U.S.C. § 302a(b).
2 47 C.F.R. § 2.803(a)(1).
3 47 U.S.C. § 302a.
4 47 C.F.R. Part 2, Subpart J.
5 CB radio operation is confined to forty specified channels from
26.965 MHz to 27.405 MHz (carrier frequency).
6 See 47 C.F.R. § 2.927(a).
7 47 C.F.R. § 2.803(a).
8 47 C.F.R. § 95.603(c) [FCC 88-256], amended changing ``type
acceptance'' to ``certification'' [FCC 98-58].
9 Extended Coverage High Frequency Transceivers, Public Notice
62882, 1996 WL 242469, available at
<> (OET, rel. May 13, 1996) (``Notice'').
10 Id.
11 Letter from Christopher Wright, General Counsel, FCC to John
Atwood, Chief Intellectual Property Rights, US Customs Service,
14 FCC Rcd 7797 (OGC, 1999).
12 See 47 C.F.R. § 1.80(b)(3).
13 See 47 U.S.C. §§ 501, 503(b), 510.
14 See Letter from Carl Martincich, Director of Risk Management
for Loves to Agent Brock, Federal Communications Commission
Dallas Field Office (November 27, 2002).
15 See Letter from Michael C. Olson, counsel for Loves, to James
Wells, District Director, Federal Communications Commission
Dallas Field Office (December 2, 2002).
16 See 47 C.F.R. § 1.80(b)(3).
17 See 47 U.S.C. §§ 501, 503(b), 510.
18 See Letter from Carl Martincich, Director of Risk Management
for Loves to Catherine Deaton, District Director, Federal
Communications Commission Los Angeles Field Office (January 26,
2005).
19 See Letter from Michael C. Olson, counsel for Loves, to
Catherine Deaton, District Director, Federal Communications
Commission Los Angeles Field Office (January 26, 2005).
20 See Letter from Catherine Deaton, District Director, Federal
Communications Commission Los Angeles Field Office to Michael
Olson, counsel for Loves (February 28, 2005).
21 See ATTACHMENT for a listing of the Loves stores visited and
the models observed.
22 Although Loves offered for sale non-certified CB transmitters
on days prior to February 23, 2005, the Commission is barred from
enforcing those violations by the statute of limitations
contained in Section 503(b)(6) of the Act.
23 Section 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 . . . .'' See Southern California Broadcasting Co., 6
FCC Rcd 4387-88 (1991).
24 The 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).
25 See Hightech CB Shop, Forfeiture Order, 20 FCC Rcd 12514 (Enf.
Bur. 2005), Memorandum, Opinion and Order, DA 05-3125 (rel. Dec.
2, 2005).
26 47 U.S.C. § 503(b).
27 47 U.S.C. § 503(b)(2)(D).
28 12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999).
29 47 C.F.R. § 1.80.
30 See 47 C.F.R. § 95.603(c). See also Letter from Christopher
Wright, General Counsel, FCC to John Atwood, Chief Intellectual
Property Rights, US Customs Service, 14 FCC Rcd 7797 (1999).
31 See, e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 21866
(2002) (base forfeiture amount tripled); American Tower
Corporation, 16 FCC Rcd 1282 (2001) (base forfeiture amount
doubled).
32 See also 47 C.F.R. § 1.80, Note to paragraph (b)(4): Section
II. Adjustment Criteria for Section 503 Forfeitures.
33 See 47 C.F.R. § 1.1914.