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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File Number: EB-05-LA-238
Jason Kaltenbach )
NAL/Acct. No.: 200732900001
d/b/a/ Metamerchant )
FRN: 0004224713
Laguna Nigel, California )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: November 9, 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 Jason Kaltenbach ("Kaltenbach") d/b/a/ Metamerchant in Laguna
Nigel, California, apparently willfully and repeatedly violated
Section 302(b) of the Commissions Act of 1934, as amended ("Act"), and
Section 2.803(a)(1) of the Commission's Rules ("Rules") by offering
for sale non-certified VHF and UHF transceivers. We conclude, pursuant
to Section 503(b) of the Act, that Kaltenbach is apparently liable for
a forfeiture in the amount of fourteen thousand dollars ($14,000).
II. BACKGROUND
2. On September 1, 2005, an agent from the Enforcement Bureau's Los
Angeles Office ("Los Angeles Office") visited Ebay's website. The
agent observed two models of "KYD" brand VHF and UHF transceivers,
specifically, one capable of operating on 136 MHz - 174 MHz at three
watts, and the other, capable of operating on 400 MHz - 470 MHz at
four watts. A review of the Commission's records revealed these
devices had not received an equipment authorization from the
Commission, which is required for transceivers operating on these
frequencies.
3. On January 20, 2006, the Los Angeles Office issued a Citation to Jason
Kaltenbach d/b/a Metamerchant 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 General Mobile Radio ("GMRS") and Multi Use Radio
Service ("MURS") transceivers. In the Citation, the Los Angeles
Office warned Kaltenbach 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 February 1, 2006, Kaltenbach stated that the
equipment had been accidentally listed as GMRS and MURS- type radios and
that he "immediately removed those items and corrected [the] website pages
with the correct information."
5. On February 11, 2006, an agent from the Los Angeles Office revisited
Ebay's website. The agent observed keypad programmable unbranded FM
transceivers being offered for sale via an auction by Metamerchant. On
March 5, 2006, the Los Angeles agent purchased a VHF FM transceiver via
auction from Metamerchant. The item received by the agent, a "KYD TK-238
FM transceiver," capable of operating on 136 MHz - 174 MHz at four watts,
did not have a label indicating that it had been certificated by the
Commission. A search of the Commission's equipment database revealed no
equipment certification had been issued for the KYD TK-238 VHF FM
transceiver.
6. On July 11, 2006, an agent from the Enforcement Bureau's Seattle Office
received a complaint from a purchaser of equipment from Metamerchant on
Ebay. The complainant showed the Seattle agent a UHF FM transceiver he had
purchased which did not display an FCC identification number or any
indication that the device had been certificated by the Commission. The
transceiver was model "KYD TK-338" capable of operating on 400 MHz - 470
MHz at four watts. The Seattle agent researched the transceiver and then
sent this information to the Commission's Office of Engineering and
Technology which confirmed that this device was not certificated and could
not be certificated as operation in the 400 MHz MURS frequency range only
permits usage at two watts.
III. DISCUSSION
7. 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.
8. 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 . . . ."
9. Radio transceivers operating in the 136 MHz - 174 MHz and the 400 MHz -
470 MHz bands are subject to the equipment certification process and must
be certified and properly labeled prior to being marketed or sold in the
United States. On January 20, 2006, the Los Angeles Office issued a
Citation to Kaltenbach concerning his marketing of non-certified VHF and
UHF transceivers. Since the issuance of the Citation, however, Kaltenbach
has continued to offer for sale uncertified VHF and UHF transceivers.
Kaltenbach was aware the devices he is offering for sale are 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 Kaltenbach apparently willfully and repeatedly
violated Section 302(b) of the Act and Section 2.803(a)(1) of the Rules
by offering for sale non-certified VHF and UHF transceivers.
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. Kaltenbach offered for sale two models of
non-certified VHF and UHF transceivers, in violation of Section 302(b) of
the Act and Section 2.803(a)(1) of the Rules. Applying the Forfeiture
Policy Statement, Section 1.80, and the statutory factors to the instant
case, we find that Kaltenbach 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, Jason Kaltenbach d/b/a/ Metamerchant
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) 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, Jason Kaltenbach d/b/a/ Metamerchant
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 Jason Kaltenbach at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director
Los Angeles District Office
Western Region
Enforcement Bureau
47 U.S.C. S 302(b).
47 C.F.R. S 2.803(a)(1).
47 U.S.C. S 503(b).
Such devices are intentional radiators and must be certificated by the
Commission prior to marketing. See 47 C.F.R. S 15.201(a).
Citation to Jason Kaltenbach d/b/a Metamerchant, C2006329002, (Enf. Bur.,
Western Region, Los Angeles Office, released January 20, 2006)
("Citation").
See 47 C.F.R. S 1.80(b)(3).
See 47 C.F.R. SS 501, 503(b), 510.
See 47 C.F.R. S 95.639(h).
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).
See 47 C.F.R. SS 2.907, 2.927(a).
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 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.
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Federal Communications Commission
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Federal Communications Commission