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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File Number: EB-08-PO-044
Michael T. Kersnowski
) NAL/Acct. No.: 200832920002
d/b/a www.radioactiveradios.com
) FRN: 0017594524
Salem, Oregon
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 28, 2008
By the Resident Agent, Portland Resident Agent Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Michael T. Kersnowski ("Kersnowski"), d/b/a
www.radioactiveradios.com, in Salem, Oregon, 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 non-certified Citizens Band ("CB")
transceivers. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Kersnowski is
apparently liable for a forfeiture in the amount of seven thousand
dollars ($7,000).
II. BACKGROUND
2. On November 28, 2006, the Enforcement Bureau's Portland Resident Agent
Office ("Portland Office") conducted an investigation and determined
that Kersnowski was operating an Internet-based store, via an Internet
website www.radioactiveradios.com, which marketed both non-certified
CB transceivers, specifically Galaxy models DX99V and DX66V (also know
as Galaxy 99V and Galaxy 66V, respectively), and non-certified
external radio frequency power amplifiers.
3. On February 23, 2007, the Portland Office issued a Citation to
Kersnowski for violation of Section 302(b) of the Act and Sections
2.803(a)(1), 2.815(b), and 2.815(c) of the Rules for selling
non-certified CB transceivers and external radio frequency power
amplifiers. The Citation warned Kersnowski that future violations may
subject Kersnowski to civil monetary forfeitures not 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 letter dated March 6, 2007, counsel representing Kersnowski
disputed the Citation stating that all the radios identified in the
Citation, including the Galaxy models DX99V and DX66V were legal to
sell, and cited to an email from a Commission staffer and an interview
with another, concerning "radios substantially similar to the radios
involved herein . . . ." In addition, regarding the external radio
frequency power amplifiers advertised in the referenced website above,
counsel for Kersnowski advised that the Palomar and Dave amplifiers
were no longer made and the pictures were on the website for
information purposes only. Counsel for Kersnowski also stated that he
expected the Portland Office to withdraw the Citation within 30 days
of the date of his response.
5. On February 21, 2008, an agent from the Portland Office visited
Kersnowski's Internet -based store at Internet website
www.radiocativeradios.com and found that Kersnowski continued
advertising for sale non-certified CB transceivers, specifically,
Galaxy models DX99V and DX66V.
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 Models at issue here and determined that they
could easily be altered for use as a CB transceiver.
9. On February 23, 2007, the Portland Office issued a Citation to
Kersnowski for violation of Section 302(b) of the Act and Section
2.803(a)(1) of the Rules. Specifically, the Portland Office determined
that Kersnowski was selling non-certified Galaxy CB transceivers
through an Internet-based store, via an Internet website
www.radioactiveradios.com. We find no merit in Kersnowski's response
to the Citation which alleges that two Commission staffers determined
that similar CB transceiver models are legal to sell. First, the
opinions Kersnowski relies on do not specifically mention the two
Galaxy models at issue here. Second, the Commission has consistently
held that regulatees are responsible for compliance with the
Commission's Rules and that they should not rely on informal opinions
from Commission staff. Additionally, "[w]hen the staff advice is
contrary to the Commission's rules, the Commission may still enforce
its rules despite any reliance by the public." As indicated above, the
Commission's OET has determined that the Galaxy models DX99V and DX66V
could be easily altered for use as CB transceivers, and, consequently,
Galaxy models DX99V and DX66V must be certified by the Commission
prior to being marketed in the United States. On February 21, 2008, a
subsequent inspection by the Portland Office revealed that the
Internet website, www.radioactiveradios.com, continued to sell
non-certified galaxy CB transceivers.
10. Because Kersnowski received the Portland Office's Citation, dated
February 23, 2007, Kersnowski was aware he was violating Section
302(b) of the Act and Section 2.803(a)(1) of the Rules, but continued
to offer for sale the non-certified Galaxy CB transceivers, via
Internet website www.radioactiveradios.com. 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
Kersnowski 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 importation 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)(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 Kersnowski 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, Michael T. Kersnowski is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of seven thousand dollars ($7,000) for violations of Sections
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, Michael T. Kersnowski
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/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help
Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any
questions regarding payment procedures.
15. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Portland Resident
Agent Office, P.O. Box 61469, Vancouver, Washington 97666-1469 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. 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 Michael T. Kersnowski, and Michael
Olson, his counsel of record.
FEDERAL COMMUNICATIONS COMMISSION
Binh Nguyen
Resident Agent
Portland Resident Agent 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).
Citation C20073292003 to Michael T. Kersnowski, d/b/a RadioActive Radio,
released February 23, 2007 ("Citation").
47 C.F.R. S:S: 2.803(a)(1), 2.815(b), 2.815(c) (2006).
See 47 C.F.R. S: 1.80(b)(3).
See 47 C.F.R. S:S: 501, 503(b), 510.
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). 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) ("OGC Letter"). See also, Ramko Distributors, Inc., 22 FCC Rcd 7161
(2007).
Pilot Travel Centers, 19 FCC Rcd at 23119. See also, TravelCenters of
America, 21 FCC Rcd 6978 (EB Western Region 2006).
Texas Media Group, Inc. 5 FCC Rcd 2851, 2852 (1990) aff'd sub nom Malkan
FM Associates v. FCC, 935 F.2d 1313 (D.C. Cir. 1991).
Hinton Telephone Company, 10 FCC Rcd 11625, 11637 (1995). See also, Malkan
FM Associates v. FCC, 935 F.2d 1313 (D.C. Cir 1991); Schweiker v. Hansen,
450 U.S. 785, 790 (1981) (petitioner's reliance on erroneous staff advice
does not estop agency from requiring compliance with valid regulation).
Pilot Travel Centers, 19 FCC Rcd at 23119.
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: 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