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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-05-DT-131
Gambler's CB & Ham Radio Sales & Service )
) NAL/Acct. No. 200632360001
Pinconning, Michigan ) FRN: 0014 2684 94
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 31, 2006
By the District Director, Detroit Office, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Gambler's CB & Ham Radio Sales & Service ("Gambler's")
apparently willfully violated Section 302(b) of the Communications
Act of 1934 as amended, ("Act"), and Section 2.803(a)(1) of the
Commission's Rules (the "Rules"), by offering for sale non-certified
Citizens Band ("CB") transceivers. We conclude, pursuant to Section
503(b) of the Act, that Gambler's is apparently liable for a
forfeiture in the amount of seven thousand dollars ($7,000).
II. BACKGROUND
2. On April 5, 2004, the FCC Enforcement Bureau's Detroit Field Office
("Detroit Office") received information that Gambler's was marketing
illegal, non-FCC certified devices. Agents from the Detroit Office
visited Gambler's in Pinconning, Michigan on April 9, 2004, and
observed that Gambler's displayed and offered for sale non-certified
CB transceivers marketed as ARS transmitters, including Galaxy models
DX33HML and DX66V, which the Commission's Office of Engineering and
Technology ("OET") previously had tested and determined to be
non-certified CB transceivers. As a result of the inspection, the
Detroit Office issued Gambler's a Citation on April 13, 2004 for
marketing non-certified CB tansceivers in violation of Section 302(b)
of the Act and Section 2.803(a)(1) of the Rules. The Citation
specifically cited Galaxy models DX33HML and DX66V and warned
Gambler's that future violations may subject Gambler's to substantial
civil monetary forfeitures 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.
3. On April 30, 2004, the Detroit Office received a response from
Gambler's attorney, which stated that "all of the radios in question
are marketed as Amateur radios . . .and [a]s sold, operate only on the
Amateur bands . . . [and] as such, these radios are governed by Part
97 . . . , [which] does not require type acceptance of Amateur radios.
The letter further stated that "[w]e expect that your office will
withdraw the notice of citation within 14 days from the date of this
letter." The Detroit Office received a second letter from Gambler's
attorney on May 10, 2004, stating that because "[w]e have not heard
anything from your office in response to our letter of April 22, 2004.
. . we assume you agree with our position that the radios in question
are legal and that the FCC is withdrawing the citation."
4. On May 17, 2004, the Detroit Office sent a letter to Gambler's
attorney addressing the response to the Citation. The letter advised
Gambler's that the devices referred to in the Citation are intended
for use on CB as well as ARS frequencies because they have built-in
design features which facilitate their operation on CB frequencies by
the exercise of simple, end-user accessible modifications to the
devices. Accordingly, the letter advised, such devices are considered
CB transmitters pursuant to Section 95.603(c) of the Rules,
irrespective of any labeling purporting the devices to be "Amateur
Radio Transceivers." Gambler's attorney sent a third letter, dated May
22, 2004, stating his continued disagreement with the position set
forth in the Citation.
5. In response to a complaint that Gambler's continued to sell non-FCC
certified CB transceivers, an agent from the Detroit Office visited
Gambler's store on April 13, 2005 and found that the store displayed
and offered for sale non-certified CB transceivers, including Galaxy
Models DX-33HML and DX44V. OET previously had tested these models and
determined them to be non-certified CB transceivers.
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.
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 . . . ." 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.
8. 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.
9. On April 9, 2004, agents from the Detroit Office observed that
Gambler's offered for sale various non-certified CB transmitters,
including Galaxy models DX33HML and DX66V, which had been tested and
determined by OET to be non-certified CB transceivers. 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.
The Detroit Office issued a Citation to Gambler's on April 13, 2004,
warning Gambler's that future violations would subject Gambler's to
penalties, including civil monetary forfeitures. On April 13, 2005, an
FCC agent observed Gambler's offer for sale non-certified CB
transmitters, Galaxy Models DX33HML and DX44V.
10. Based on the evidence before us, we find that Gambler's apparently
willfully violated Section 302(b) of the Act and Section 2.803(a)(1)
of the Rules by offering for sale non-certified CB transceivers at its
store in Pinconning, Michigan.
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"), and Section 1.80 of the Rules, the
base forfeiture amount for the importation or marketing of
unauthorized equipment is seven thousand dollars ($7,000). 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, any 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 conclude that Gambler's 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, Gambler's CB & Ham Radio
Sales & Service is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of seven thousand dollars ($7,000) for
violation of 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 (30) days of the release date of this
Notice of Apparent Liability for Forfeiture, Gambler's CB & Ham Radio
Sales & Service, 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, Northeast Region, Detroit Office,
24897 Hathaway Street, Farmington Hills, MI 48335-1552, 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 for Forfeiture under an installment plan should be sent to:
Associate Managing Director, Financial Operations, 445 12th Street,
S.W., Room 1A625, Washington, D.C. 20554.
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 Gambler's CB & Ham Radio Sales &
Service, at its address of record and to Gambler's counsel.
FEDERAL COMMUNICATIONS COMMISSION
James A. Bridgewater
District Director
Detroit Office
Northeast Region
Enforcement Bureau
Cc: Law Office of Michael C. Olson
4400 MacArthur Blvd.
Suite 230
Newport Beach, California 92660
47 U.S.C. S 302(b).
47 C.F.R S 2.803 (a)(1).
47 U.S.C. S 503(b).
Citation issued to Gambler's C.B. & Ham Radio Sales and Services, Citation
No. C20043236004, released April 13, 2004 ("Citation"). The Detroit Office
also cited Gambler's for selling CB linear amplifiers, in violation of
Sections 2.803(a) and 2.815(b) of the Rules. During subsequent visits to
Gambler's store, FCC agents did not observe linear amplifiers being
offered for sale.
See 47 C.F.R. S 1.80(b)(3).
See 47 U.S.C. SS 501, 503(b), 510.
See Letter from Michael C. Olson, Counsel for Gambler's, to James A.
Bridgewater, District Director, Federal Communications Commission, dated
April 26, 2004.
See Letter from Michael C. Olson, Counsel for Gambler's, to James A.
Bridgewater, District Director, Federal Communications Commission, dated
May 7, 2004.
See Letter from James A. Bridgewater, District Director, Detroit Office,
to Michael C. Olson, dated May 17, 2004.
See Letter from Michael C. Olson, Counsel for Gamblers, to James A.
Bridgewater, District Director, Federal Communications Commission, dated
May 22, 2004.
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).
47 U.S.C. S 302a(b).
47 C.F.R. S 2.803(a)(1).
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.
S1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. SS 302(b), 503(b); 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80,
2.803(a)(1).
See 47 C.F.R. S 1.1914.
Federal Communications Commission
3
Federal Communications Commission