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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
David P. Pace Jr.
) File Number: EB-06-LA-252
d/b/a Pacetronics / Pace Marketing
) NAL/Acct. No.: 200732900008
d/b/a/ 4:13 Electronics /
Pacetronics ) FRN: 0016467359
Nacogdoches, TX 75961 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 23, 2007
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 David P. Pace Jr. d/b/a/ Pacetronics / Pace Marketing and 4:13
Electronics / Pacetronics ("Pace"), in Nacogdoches, Texas, 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, Pace is apparently liable for a forfeiture in the
amount of seven thousand dollars ($7,000).
II. BACKGROUND
2. In September and December of 2006, and in January of 2007, an
investigation by the Enforcement Bureau's Los Angeles Office revealed
that Pace was operating an Internet-based store, via an Internet
website [1]www.pacetronics.com, which marketed both uncertified CB
transceivers, specifically Galaxy Model DX 99V, and uncertified radio
frequency power amplifiers.
3. On February 14, 2007, the Los Angeles Office issued a Citation to Pace
for violation of Section 302(b) of the Act and Sections 2.803(a)(1)
and 2.815(c) of the Rules for selling non-certified CB transceivers.
The Citation warned Pace that future violations may subject Pace 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. On March 6, 2007, Pace replied to the Citation stating that the radios
he markets are Amateur radios that operate solely on amateur
frequencies and that he does not offer any type of modification or
tuning that would make these radios capable of transmitting on the CB
band. Pace also stated that "[v]irtually any Amateur radio that
operates on the 10-meter band can be modified to operate on the CB
band" and that he was aware of an interview and an email message from
Commission staff supporting his views. Pace concluded that he expected
the Los Angeles Office to withdraw the Citation within 30 days of the
date of his response.
5. On April 18, 2007, a Los Angeles agent visited Pace's Internet-based
store at Internet website [2]www.pacetronics.com and found that Pace
continued to market uncertified CB transceivers, specifically, Galaxy
Model DX 99V.
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")
evaluated the Galaxy model at issue here and determined that these
devices could easily be altered for use as CB transceivers.
9. On February 14, 2007, the Los Angeles Office issued a Citation to Pace
for violation of Section 302(b) of the Act and Section 2.803(a)(1) of
the Rules. Specifically, the Los Angeles Office determined that Pace
was selling non-certified Galaxy CB transceivers through an
Internet-based store, via an Internet website [3]www.pacetronics.com.
Regardless of Pace's claims in his March 2007 response to the Los
Angeles Office's Citation, that he does not offer modification of the
Galaxy Model DX99V, OET has determined that this Galaxy model could be
easily altered for use as CB transceivers. Consequently, pursuant to
the Rules, as detailed above, this model must be certified by the
Commission prior to being marketed in the United States. Despite any
informal advice Pace may be aware of from Commission staff, the
Commission has determined that this Galaxy model transceiver requires
certification. On April 18, 2007, a subsequent inspection by a Los
Angeles agent revealed that the Internet website,
[4]www.pacetronics.com, continued to sell non-certified Galaxy CB
transceivers.
10. Pace previously received a Citation concerning the sale of
non-certified Galaxy CB transceivers, via the Internet website
[5]www.pacetronics.com, but continued to sell the transceivers.
Therefore, Pace's violation was willful. The violation occurred on
more than one day. Therefore, it was repeated. Based on the evidence
before us, we find that Pace 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 CB transceivers.
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 importing or marketing of unauthorized
equipment is 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, 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 Pace 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, David P. Pace Jr. is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
seven thousand dollars ($7,000) for violations 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 days of the release date of this
Notice of Apparent Liability for Forfeiture, David P. Pace Jr. 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, Los Angeles Office,
18000 Studebaker Rd., Suite 660, Cerritos, CA 90703 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, 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 David P. Pace, Jr., at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director
Los Angles 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 502(b).
47 C.F.R. Part 2, Subpart J.
Citation to David Pace, Jr., d/b/a 4:13 Electronics, released February 14,
2007 ("Citation").
47 C.F.R. SS 2.803(a)(1), 2.815(c). 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 . . ." According to his response to
the Citation, Pace no longer markets uncertified radio frequency power
amplifiers.
See 47 C.F.R. S 1.80(b)(3).
See 47 C.F.R. S 501, 503(b), 510. Previously, on July 7, 2003, the
Enforcement Bureau's Dallas Office issued a Citation to Pace d/b/a
Pacetronics for marketing uncertified CB transceivers in violation of
Section 302(b) of the Act and Section 2.803(a)(1) of the Rules. In his
response to that Citation, Pace also reported that he had terminated his
business and would no longer be selling radio equipment of any kind.
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). See Pilot Travel Centers, 19 FCC Rcd 23113, 23114
(2004).
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.
As the Commission has consistently held, "parties who rely on staff advice
or interpretations do so at their own risk." Hinton Telephone Company, 10
FCC Rcd 11625 (1995).
Pilot Travel Centers, 19 FCC Rcd at 23119.
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)(E).
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
2
Federal Communications Commission
References
Visible links
1. http://www.pacetronics.com/
2. http://www.pacetronics.com/
3. http://www.pacetronics.com/
4. http://www.pacetronics.com/
5. http://www.pacetronics.com/