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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File Number EB-04-LA-133
Charles E. Vance III )
NAL/Acct. No. 200632900005
d/b/a/ CB Candy Electronics )
FRN # 0014383509
Ontario, California )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 22, 2006
By the District Director, Los Angeles Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Charles E. Vance, III d/b/a/ CB Candy Electronics (Vance) in
Ontario, California, apparently willfully and repeatedly violated
Section 302(b) of the Commissions Act of 1934, as amended ("Act"), and
Sections 2.803(a)(1) and 2.815(c) of the Commission's Rules ("Rules")
by offering for sale non-certified Citizens Band ("CB") transceivers
and external RF power amplifiers. We conclude, pursuant to Section
503(b) of the Act, that Vance is apparently liable for a forfeiture in
the amount of fourteen thousand dollars ($14,000).
II. BACKGROUND
2. On June 28, 2005, an agent from the Enforcement Bureau's Los Angeles
Office visited the CB Candy Electronics website. The agent downloaded
a sales catalog that displayed and offered for sale multiple makes and
models of non-certificated CB transceivers, including Galaxy models
DX-33, DX-66V and DX-99V, as well as the Connex 3300 model, among
others. The catalog also included numerous makes and models of
external radio frequency power amplifiers, specifically Skipper 350-B,
Palomar 1000, 450HD, 600HD; Red Devil 250R, 350 HD, and others. A
review of the Commission's records revealed that these devices had not
received an equipment authorization from the Commission.
3. On June 28, 2005, the Los Angeles Office issued a Citation to Vance
for violation of Section 302(b) of the Act, and Section 2.803(a)(1) of
the Commission's Rules by offering for sale, non-
certified CB transceivers and Section 2.815(c) of the Commission's Rules
("Rules") by offering for sale external RF power amplifiers. The Citation
warned Vance that future violations might subject him to civil monetary
forfeitures not to exceed $11,000 for each violation or each day of a
continuing violation, seizure of equipment through in rem forfeiture
action, and criminal sanctions including fines and imprisonment.
4. In a response dated July 21, 2005, counsel for Vance disputed "all
legal and factual contentions set forth in the citation" and stated that
the transceivers listed in the Citation were legal to sell. The response
did not address the marketing of external power amplifiers but stated the
expectation that the Citation would be withdrawn within 14 days. The Los
Angeles Office did not withdraw or otherwise cancel the Citation within
the 14 day period set forth by counsel for Vance.
5. On September 6, 2005, and again on February 3, 2006, an agent from the
Los Angeles Office again visited the CB Candy Electronics website. The
agent downloaded the identical catalog as found on the website on June 28,
2005. All of the non-certified CB transceivers and external RF power
amplifiers were still being offered for sale.
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. The term "repeated"
means the commission or omission of such act more than once or for more
than one day.
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." 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 . . . ." Section 2.815(c) of the Rules
provides that "[n]o person shall manufacture, sell or lease, 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 external radio frequency power amplifier or amplifier kit
capable of operation on any frequency below 144 MHz unless the device has
received a grant of type acceptance . . . ."
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. 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." 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). 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. Additionally, the Commission's Office
of Engineering and Technology ("OET") has evaluated the models at issue
here and has determined that these devices could easily be altered for use
as CB transceivers.
9. On June 28, 2005, the Los Angeles Office issued a Citation to Vance
concerning his marketing of non-certified CB transceivers and external RF
power amplifiers. As of February 3, 2006, Vance continued to market
non-certified CB transceivers and RF amplifiers. Vance was aware the
devices he was offering for sale were not certified, therefore, his
violation was willful. The violation occurred on more than one day,
therefore, it was repeated. Based on the evidence before us, we find
that Vance apparently willfully and repeatedly violated Section 302(b)
of the Act and Sections 2.803(a)(1) and 2.815(c) of the Rules by offering
for sale non-certified CB transceivers and an non-certified external RF
power amplifiers.
10. 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"), and Section 1.80 of the Rules, the base
forfeiture amount for marketing unauthorized equipment is $7,000 per
violation. 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. Applying the Forfeiture Policy Statement,
Section 1.80, and the statutory factors to the instant case, we find that
Vance offered for sale non-certified CB transceivers, in violation of
Section 2.803(a)(1), and non-certified external RF power amplifiers, in
violation of Section 2.815(c). We therefore conclude that that Vance is
apparently liable for a $14,000 forfeiture.
IV. ORDERING CLAUSES
11. 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, Charles E. Vance III d/b/a/ CB Candy
Electronics is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of fourteen thousand dollars ($14,000) for willfully and
repeatedly violating Section 302(b) of the Act, and Section 2.803(a)(1)
and 2.815(c) of the Rules.
12. 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, Charles E. Vance III d/b/a/ CB Candy
Electronics SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the proposed
forfeiture.
13. 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.
14. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Los Angeles District
Office, 18000 Studebaker RD., Suite 660, Cerritos, CA 90703 and must
include the NAL/Acct. No. referenced in the caption.
15. 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.
16. 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 12^th Street, S.W., Room 1A625,
Washington, D.C. 20554.
17. 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 Charles E. Vance III at his residence address, and to
CB Candy Electronics at the address listed on the website, and to their
attorney, Michael C. Olson., Law Office of Michael C. Olson, 4400
MacArthur Blvd., Suite 230, Newport Beach, CA 92660.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director
Los Angeles District Office
Western Region
Enforcement Bureau
47 U.S.C. S 302a(b).
47 C.F.R. SS 2.803(a)(1), 2.815(c).
47 U.S.C. S 502(b).
See Pilot Travel Centers, 19 FCC Rcd 23113 (2004), Hightech CB Shop, 20
FCC Rcd 12514 (EB 2005).
Citation to Charles E. Vance, III d/b/a/ CB Candy Electronics, released
June 28, 2005 ("Citation").
See 47 C.F.R. S 1.80(b)(3).
See 47 C.F.R. SS 501, 503(b), 510.
Section 312(f)(1) of the Act, 47 U.S.C. S 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).
Section 312(f)(2) of the Act, 47 U.S.C. S 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."
47 U.S.C. S 302a(b).
47 C.F.R. S 2.803(a)(1).
47 C.F.R. S 2.815(c).
See 47 C.F.R. SS 2.907, 2.927(a).
47 C.F.R. S 95.603(c).
47 C.F.R. S 95.655(a).
Letter from Christopher Wright, General Counsel, FCC to John Wood, Chief
Intellectual Property Rights, US Customs Service, 14 FCC Rcd 7797 (OGC,
1999).
12 FCC Rcd 17087 (1997), recon. denied 15 FCC Rcd 303 (1999).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. SS 302a(b), 503(b); 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80,
2.803(a)(1), 2.815(c).
See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission