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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File Number: EB-07-DV-058
)
CB Shop & More, LLLP NAL/Acct. No.: 200732800008
)
Loveland, Colorado FRN: 0016797623
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 28, 2007
By the District Director, Denver Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that CB Shop & More, LLLP ("CB Shop"), in Loveland, Colorado,
apparently willfully and repeatedly violated Section 302(b) of the
Communications Act of 1934, as amended ("Act"), and Section
2.803(a)(1) of the Commission's Rules ("Rules") by offering for sale a
non-certified Citizens Band ("CB") transceiver. We conclude, pursuant
to Section 503(b) of the Act, CB Shop is apparently liable for a
forfeiture in the amount of seven thousand dollars ($7,000).
II. BACKGROUND
2. On November 25, 2002, an agent from the Enforcement Bureau's Denver
Office inspected the CB Shop in Loveland, Colorado. The agent observed
that the store displayed and offered for sale twelve models of CB
transceivers, specifically, one Super Star 121 transceiver, one
General Longstreet transceiver, one Connex CX3300HP transceiver, one
Connex CX4400HP transceiver, and eight Galaxy transceivers models
DX33HML, DX44V, DX55V, DX66V, DX73, DX77HML, DX88HL, and DX99V. A
review of the Commission's records revealed that these devices had not
received an equipment authorization from the Commission.
3. On November 26, 2002, the FCC Denver Office issued a Citation to CB
Shop for violation of Section 302(b) of the Act and Section
2.803(a)(1) of the Commission's Rules by selling non-certified CB
transceivers. The Citation warned the CB Shop that future violations
may subject CB Shop 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 December 3, 2002, counsel for CB Shop disputed the
Citation, stating that the transceivers listed in the Citation were
legal to sell. Counsel for CB Shop further requested that the Denver
Office withdraw the Citation within 14 days from December 3, 2002. In
a response to the CB Shop, dated December 18, 2002, the Denver Office
reaffirmed the violation and warned that the marketing of the
non-certified CB transceivers should cease immediately.
5. On January 26, 2007, and March 8, 2007, the Denver Office received
complaints alleging that the CB Shop was selling non-certified CB
transmitters and modified 10-meter band radios. On March 30, 2007,
Denver agents visited the CB Shop. Agents noted that one of the CB
transceivers offered for sale was a Galaxy Model DX99V and asked if
they could purchase the transceiver. The Denver agents subsequently
identified themselves as FCC agents, and proceeded to interview the
owner of the CB Shop. The owner acknowledged that he once received a
Citation from the FCC, but he thought it was still legal for them to
sell the referenced 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. 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 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 Galaxy model at issue here and has determined that these
devices could easily be altered for use as a CB transceiver.
9. On November 26, 2002, the Denver Office issued a Citation to CB Shop's
retail store in Loveland, Colorado, for violation of Section 302(b) of
the Act and Section 2.803(a)(1) of the Rules. Specifically, the CB
Shop was selling non-certified Galaxy CB transceivers. On March 30,
2007, a subsequent inspection by two Denver agents revealed that the
CB Shop retail store in Loveland, Colorado, continued to sell
non-certified Galaxy CB transceivers, specifically a Galaxy Model
DX99V. At the time of the inspection, the owner of the store
acknowledged to the Denver agents that the store had previously
received a Citation from the Commission.
10. CB Shop previously received a Citation concerning the sale of
non-certified Galaxy CB transceivers in its Loveland, Colorado, store,
but continued to sell the transceivers. Therefore, its violation was
willful. The violation occurred on more than one day. Therefore, it
was repeated. Based on the evidence before us, we find that CB Shop
apparently willfully and repeatedly violated Section 302(b) of the Act
and Section 2.803(a)(1) of the Rules by offering for sale a
non-certified CB transceiver.
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 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)(E) 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 conclude that CB Shop 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, CB Shop & More, LLLP, is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of seven thousand dollars ($7,000) for willfully and repeatedly
violating 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 days of the release date of this
Notice of Apparent Liability for Forfeiture, CB Shop & More, LLLP,
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, Western Region, Denver Office, 215 S.
Wadsworth Blvd., Suite 303, Lakewood, Colorado 80226 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 under an installment plan should be sent to: Associate
Managing Director - Financial Operations, Room 1A625, 445 12th Street,
S.W., 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 CB Shop & More, LLLP, at its address
of record.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
District Director
Denver District Office
Western Region
Enforcement Bureau
47 U.S.C. S: 302a(b).
47 C.F.R. S: 2.803(a)(1).
47 U.S.C. S: 503(b).
47 C.F.R. Part 2, Subpart J.
Citation to CB Shop & More, LLLP, released November 26, 2002 ("Citation").
See 47 C.F.R. S: 1.80(b)(3).
See 47 U.S.C. S:S: 501, 503(b), 510.
In a response to the Denver Office, dated December 23, 2002, Counsel for
CB Shop again disputed the Citation and requested that the Citation be
withdrawn by the Denver Office within 14 days.
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. S:S: 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).
Pilot Travel Centers, 19 FCC Rcd at 23119.
The Galaxy transceiver found by the agent at the time of the inspection
has previously been evaluated by OET, which determined that it was a
non-certified CB transceiver.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S:1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S:S: 302a(b), 503(b), 47 C.F.R. S:S: 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