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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File Number: EB-05-TP-330
Ben Metzger dba 1 Stop )
Communications / 1 Stop CB Shop NAL/Acct. No.: 200732700004
)
Titusville, Florida FRN:0015839350
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 12, 2006
By the District Director, Tampa Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Ben Metzger dba 1 Stop Communications / 1 Stop CB Shop in
Titusville, Florida 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 Citizens Band ("CB") transceivers. We
conclude, pursuant to Section 503(b) of the Act, that Mr. Metzger is
apparently liable for a forfeiture in the amount of seven thousand
dollars ($7,000).
II. BACKGROUND
2. On March 21, 2006, the Commission's Tampa Office of the Enforcement
Bureau ("Tampa Office") issued Mr. Metzger / 1 Stop Communications / 1
Stop CB Shop a Citation for marketing at his store in Titusville
non-certified CB transceivers, including Connex models 3300, CX
3300HP, CX 4400HP and Galaxy models DX44 and DX88HL, in violation of
Section 302(b) of the Act and Section 2.803(a)(1) of the Rules.
3. In a response dated March 31, 2006, Mr. Metzger stated that the radio
models listed in the Citation were Amateur Radio Service ("ARS")
radios, which do not require type acceptance. On May 11, 2006, the
Tampa Office responded that the models were 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."
4. In a response dated May 16, 2006, Mr. Metzger stated he removed the
Connex and Galaxy radios mentioned in the Citation from his store, the
1 Stop CB Shop. On June 6, 2006, the Tampa Office received a letter
from his attorney, which requested that the Citation be withdrawn,
because the radios were marketed and sold as ARS radios, not CB
radios. The Citation was not withdrawn.
5. On June 22, 2006, agents from the Tampa Office revisited the 1 Stop CB
Shop in Titusville and observed a "40 Channel" Connex CX 3300HP
amateur transceiver along with other uncertified radios in the display
case. The Commission's Office of Engineering and Technology ("OET")
previously tested Connex models very similar to the CX 3300HP and
determined them to be non-certified CB transceivers because they could
be easily modified to operate on CB frequencies. The agents inquired
whether this particular Connex could operate on both CB channels and
amateur bands. Mr. Metzger stated that there were easy directions on
the Internet which show how to modify the radio to operate on CB
frequencies. He also stated that he could easily modify the radio to
operate on the CB channels for a small "tune-up" charge. The agents
paid him for the radio and the "tune-up." Mr. Metzger handed them the
modified Connex CX 3300HP transceiver about 15-20 minutes later and
then demonstrated how to use the different toggle switches on the
radio to switch from the amateur band to the different CB channels.
The agents later determined that the modified Connex radio purchased
from the 1 Stop CB Shop was capable of operating on frequencies from
25.615 MHz to 28.305 MHz with an output power that varied from 2.4
watts to 15 watts.
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 . . . ."
8. CB radio transceivers are subject to the equipment authorization
procedure known as Certification 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).
9. On March 21, 2006, Mr. Metzger received a Citation for violation of
Section 302(b) of the Act and Section 2.803(a)(1) of the Rules, by
offering for sale various non-certified CB transceivers, including
Connex model CX 3300HP. On June 22, 2006, an agent purchased a Connex
CX 3300HP from the 1 Stop CB Shop. Mr. Metzger specifically told the
agent that this ARS transceiver could be easily modified to operate on
CB frequencies. He also performed those modifications within 20
minutes for the agent for a small fee and demonstrated how the radio,
modified by him, could be operated on CB frequencies. Accordingly, the
Connex CX 3300HP sold by 1 Stop CB Shop on June 22, 2006 was a
non-certified CB transceiver, i.e. an ARS transceiver that could be
easily altered and was in fact modified for use on CB frequencies.
OET previously tested models very similar to the Connex CX 3300HP and
determined that they too were ARS transceivers that could be easily
altered for use on CB frequencies.
10. Based on the evidence before us, we find that Mr. Metzger apparently
willfully and repeatedly violated Section 302(b) of the Act and
Section 2.803(a)(1) of the Rules by offering for sale and selling
non-certified CB transceivers at the 1 Stop CB Shop, his store in
Titusville, Florida.
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 Mr. Metzger 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, Ben Metzger dba 1 Stop
Communications / 1 Stop CB Shop 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, Ben Metzger dba 1 Stop
Communications / 1 Stop CB Shop, 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, South Central Region, Tampa Office,
Suite 1215, 2203 N. Lois Avenue, Tampa, FL 33607-2356, 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 Ben Metzger dba 1 Stop Communications
/ 1 Stop CB Shop, at his address of record and to his counsel, Michael
C. Olson, 4400 MacArthur Boulevard, Suite 230, Newport Beach, CA
92660.
FEDERAL COMMUNICATIONS COMMISSION
Ralph Barlow
District Director
Tampa Office
South Central Region
Enforcement Bureau
47 U.S.C. S 302a(b).
47 C.F.R. S 2.803(a)(1).
CB radio operation is confined to forty specified channels from 26.965 MHz
to 27.405 MHz (carrier frequency).
47 U.S.C. S 503(b).
47 C.F.R. S 95.603(c).
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).
See 47 C.F.R. SS 2.907, 2.927(a).
47 C.F.R. S 95.603(c) [FCC 88-256], amended changing "type acceptance" to
"certification" [FCC 98-58]. See also Letter from Christopher Wright,
General Counsel, FCC to John Atwood, Chief Intellectual Property Rights,
US Customs Service, 14 FCC Rcd 7797 (OGC, 1999) ("OGC Letter"); Extended
Coverage High Frequency Transceivers, Public Notice 62882, 1996 WL 242469,
available at
>
(OET, rel. May 13, 1996); and Love's Travel Stops, Forfeiture Order, DA
06-1936 (Enf. Bur. September 29, 2006).
47 C.F.R. S 95.655(a).
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).
See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission