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-DT-047
Wesley Noe )
d.b.a. GI Joe's Radio Electronics )
and GI Joe's CB Radio ) NAL/Acct. No. 200632360002
Richmond, Kentucky ) FRN: 0014938096
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 19, 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 Wesley ("Wes") Noe, d.b.a. GI Joe's Radio Electronics and GI Joe's CB
Radio (collectively referred to herein as "GI Joe's") apparently willfully
and repeatedly violated Section 302(b) of the Communications Act of 1934
as amended, ("Act"), and Sections 2.803(a)(1), 2.815(b), and 2.815(c) of
the Commission's Rules ("Rules") by offering for sale non-certified
Citizens Band ("CB") transceivers and external radio frequency ("RF")
power amplifiers. Specifically, Noe willfully and repeatedly violated
Sections 2.803(a)(1), 2.815(b), and 2.815(c) of the Rules by offering for
sale non-certified CB transceivers and RF power amplifiers on the GI Joe's
Radio Electronics' web site. Noe also willfully violated Section
2.803(a)(1) of the Rules by offering for sale non-certified CB
transceivers at the GI Joe's CB Radio store in Richmond, KY. We conclude,
pursuant to Section 503(b) of the Act, that Wesley Noe apparently is
liable for a forfeiture in the amount of twenty-one thousand dollars
($21,000).
II. BACKGROUND
2. On June 17, 2003, in response to a complaint, an agent from the
Enforcement Bureau's Detroit Office visited the GI Joe's web site.
The agent observed that the web site displayed and offered for sale
multiple makes and models of non-certified CB transceivers, including
Galaxy models DX55V and DX66V, as well as the Connex 3300 model. These
models previously had been tested by the Commission's Office of
Engineering and Technology ("OET") and determined to be non-certified
CB transceivers. The agent also observed numerous makes and models of
external RF power amplifiers, including RM Costruzioni Elettroniche
("RM Italy") models KLV 60, KLV-200P, and KLV-300P.
3. On June 25, 2003, the Detroit Office issued a Citation to GI Joe's for
violation of Section 302(b) of the Act and Sections 2.803(a)(1) and
2.815 of the Rules by offering for sale non-certified CB transceivers
and external RF power amplifiers. The Citation outlined the marketing
rules that were being violated and the possible penalties for future
violations of those rules. In a response received by the Detroit
Office on July 9, 2003, Noe stated that "[a]ll 10 meter radios have
been identified and labeled as 10 meter radios and will only be sold
as such in the United States." Noe further stated that he had
discontinued the sale of the external RF power amplifiers that operate
between 24 MHz and 35 MHz.
4. On July 21, 2003, an agent from the Detroit Office conducted an
on-scene investigation with Noe at GI Joe's store in Richmond, KY. The
agent observed that many of the same non-certified CB transceivers and
external radio frequency power amplifiers offered for sale on the GI
Joe's web site also were displayed and offered for sale in the store.
The agent orally warned Noe and issued written warnings to GI Joe's
regarding the sale of the non-certified CB transceivers and external
radio frequency power amplifiers. Each warning letter stated that the
sale of non-certified equipment must cease immediately and warned that
future violations might subject GI Joe's to monetary forfeitures
and/or criminal sanctions.
5. In a response dated July 24, 2003, counsel for GI Joe's disputed "all
of the legal and factual contentions set forth in the citation and
notices" and stated the expectation that the Citation and the warnings
would be withdrawn within fourteen days. The Detroit Office did not
withdraw or otherwise cancel the Citation as requested by GI Joe's
counsel.
6. On April 21, 2005, in response to complaints that GI Joe's continued
to sell non-certified CB transceivers and illegal external RF power
amplifiers, agents from the Detroit Office again visited GI Joe's
store in Richmond, KY. During the visit, the agents observed that GI
Joe's displayed and offered for sale non-certified CB transceivers,
including Galaxy models DX55V, DX66V and Connex model 3300, among
others.
7. During the April 21, 2005 visit, the agents also found and inspected
two CB stations located in GI Joe's store. The CB stations used
non-certified CB transceivers, Galaxy models DX99V and DX66V
transceivers. The agents observed that both transceivers were equipped
to operate on the frequencies assigned to the CB Radio Service as well
as on other frequencies, including those assigned to the Amateur Radio
Service ("ARS") and the United States Government.
8. Also on April 21, 2005, an agent in the Detroit Office visited the GI
Joe's web site and observed the following non-certified CB
transceivers being offered for sale: Connex model 3300 and Galaxy
models DX55V, DX66V, DX99V, among others. The web site also offered
for sale the following RM Italy linear amplifiers models: KL-60,
KLV-200P, KLV-300P, kl-250, and KL-550, among others.
9. On March 29, 2006, an agent visited GI Joe's web site and observed
that GI Joe's continued to market non-certified CB transceivers and
non-certified external RF power amplifiers, including Galaxy models
DX55V, DX66V, DX99V transceivers and RM Italy models KL-60, KLV-200P,
KLV-300P external RF power amplifiers.
III. DISCUSSION
10. 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.
11. 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(b) of the Rules states that "...no
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 or frequencies between 24
and 35 MHz." 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 [now under certification] . . . ."
12. 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 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, OET has evaluated the models at issue here and has
determined that these devices could easily be altered for use as CB
transceivers and therefore require certification.
13. The Detroit Office issued GI Joe's a Citation on June 25, 2003, and
written warnings on July 21, 2003, concerning GI Joe's marketing of
non-certified CB transceivers and external radio frequency power
amplifiers. During a visit to GI Joe's store in Richmond, Kentucky on
April 21, 2005, agents from the Detroit Office observed that GI Joe's
offered for sale non-certified CB transceivers. On that same day, an
agent visited GI Joe's web site and observed that GI Joe's offered for
sale non-certified CB transceivers and non-certified external RF power
amplifiers. As of March 29, 2006, the GI Joe's web site continued to
market non-certified CB transceivers and non-certified external RF
power amplifiers. Based on the evidence before us, we find that GI
Joe's apparently willfully and repeatedly violated Section 302 of the
Act and Sections 2.803(a)(1), 2.815(b) and 2.815(c) of the Rules by
offering for sale non-certified CB transceivers and linear amplifiers.
14. 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 importation or marketing of unauthorized
equipment is seven thousand dollars ($7,000). In assessing the
monetary forfeiture amount, we must 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 find that GI Joe's
offered for sale on its web site non-certified CB transceivers and
non-certified RF power amplifiers in violation of Sections
2.803(a)(1), 2.815(b), and 2.815(c) of the Rules and offered for sale
at its store in Richmond, KY non-certified CB transceivers in
violation of Section 2.803(a)(1) of the Rules. We therefore conclude
that Wes Noe apparently is liable for a $21,000 forfeiture.
IV. ORDERING CLAUSES
15. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act, as amended, and Sections 0.111, 0.311, 0.314 and 1.80
of the Commission's Rules, Wesley Noe, d.b.a. GI Joe's Radio Electronics
and GI Joe's CB Radio, is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of twenty-one thousand dollars ($21,000) for
violation of Section 302(b) of the Act and Sections 2.803(a)(1), Section
2.815(b), and 2.815(c) of the Rules.
16. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
within thirty (30) days of the release date of this Notice of Apparent
Liability for Forfeiture, Wesley Noe, d.b.a. GI Joe's Radio Electronics
and GI Joe's CB Radio, SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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 Wesley Noe at his address of record and to counsel for
Wesley Noe at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
James A. Bridgewater
District Director
Detroit Office
Northeast Region
Enforcement Bureau
According to a search of the LexisNexis Business Reports, Noe is the owner
of GI Joe's Radio Electronics and GI Joe's CB Radio.
47 U.S.C. S 302(b).
47 C.F.R S 2.803(a)(1), 2.815(b), 2.815(c).
47 U.S.C. S 503(b).
See Citation to G.I. Joe's CB & Export Radio, released June 25, 2003
("Citation"). In 2003, the company name on the web site was GI Joe's CB &
Export Radio. The Citation identified the Internet domain name for GI
Joe's CB & Export Radio as [1]www.cbshop.webtrix.net, which is still valid
and leads to the GI Joe's Radio Electronics' web site.
Letter from Wes Noe, GI Joe's CB Radio, to James A. Bridgewater, received
July 9, 2003.
The agents also observed RF power amplifiers at the store, including RM
Italy models KL 60, KL 200-P, KL 300-P, and KLV 250. Although these
amplifiers were being offered for sale on GI Joe's web site (see infra
para. 8), they were not, at the time, being displayed for sale at the
store.
The agent visited GI Joe's web site at
http://www.gijoesradioelectronics.com.
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 302 (b).
47 C.F.R. S 2.803(a)(1).
47 C.F.R. S2.815(b).
47 C.F.R. S2.815(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.
S1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. SS 503(b), 302(b); 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80,
2.803(a)(1), 2.815(b) and 2.815(c).
See 47 C.F.R. S 1.1914.
Federal Communications Commission
5
Federal Communications Commission
References
Visible links
1. http://www.cbhop.webtrix.net/