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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Hightech CB Shop ) File Number EB-05-TP-066
8391 U.S. 301 South, ) NAL/Acct. No. 200532700009
Jacksonville, Florida 32234 ) FRN 0013520705
)
MEMORANDUM OPINION AND ORDER
Adopted: November 30, 2005 Released: December
2, 2005
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order (``Order''), we
deny the petition for reconsideration filed by
Hightech CB Shop (``Hightech'') of the Forfeiture
Order issued July 27, 2005.1 The Forfeiture Order
imposed a monetary forfeiture in the amount of $7,000
to Hightech for the willful and repeated violation of
Section 302(b) of the Communications Act of 1934, as
amended (``Act''),2 and Section 2.803(a) of the
Commission's Rules (``Rules'').3 The noted violation
involved Hightech's offering for sale a non-certified
Citizens Band (``CB'') transceiver.4
II. BACKGROUND
2. On May 9, 2001, the Commission's Tampa Office of the
Enforcement Bureau (``Tampa Office'') issued a
Citation to Hightech for violation of Section 302(b)
of the Act and Sections 2.803(a)(1)5 and 2.815(b)6 of
the Rules by offering for sale RF linear amplifiers
and non-certified CB transceivers at its CB shop
located at 8391 U.S. 301 S., Jacksonville, Florida.
3. In response to a complaint about the marketing of
illegal, non-FCC certified devices, on February 4,
2005, agents from the Tampa Office visited Hightech
and observed several radio transceivers offered for
sale. One of the agents examined one of the radios, a
Connex 3300 HP, and observed that the device did not
have any markings or labels that identified the radio
as an FCC certified device. The agent told a shop
employee that he was interested in making a purchase
and requested more information about the radio. The
shop employee identified the Connex 3300 HP
transceiver as a 10-Meter Amateur Radio and offered to
sell the device to the agent for $239.00. The shop
employee stated that the Connex models could be easily
modified to operate on CB frequencies, that the store
accepted credit card payments, and that the radio
could be delivered by mail.
4. On February 7, 2005, an agent from the Tampa Office
again visited the Hightech CB Shop and requested
information about the Connex 3300 HP transceiver.
Shop employees offered to sell the Connex 3300 HP to
the agent for $239.00.
5. On May 24, 2005, the Tampa Office issued a Notice of
Apparent Liability for Forfeiture to Hightech in the
amount of seven thousand dollars ($7,000) for the
apparent willful and repeated violation of Section
302(b) of the Act and Section 2.803(a) of the Rules.7
On June 17, 2005, Hightech submitted a response to the
NAL requesting a reduction or cancellation of the
proposed forfeiture. Hightech argued that it had not
received a Citation for selling the particular Connex
model transceivers listed in the NAL and that it was
legal to sell the non-FCC certified Connex models,
because they are Amateur Radios. On July 27, 2005,
the Enforcement Bureau rejected Hightech's arguments
and released the Forfeiture Order. The Enforcement
Bureau received Hightech's petition for
reconsideration on August 30, 2005, requesting
cancellation of the forfeiture.
III. DISCUSSION
6. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Act, 8 Section
1.80 of the Rules,9 and The Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the
Rules to Incorporate the Forfeiture Guidelines.10 In
examining Hightech's petition, Section 503(b) of the
Act requires that the Commission take into account the
nature, circumstances, extent and gravity of the
violation and, with respect to the violator, the
degree of culpability, any history of prior offenses,
ability to pay, and any other such matters as justice
may require.11
7. In the introduction to its petition for
reconsideration, Hightech again claims that it
believed the Commission had accepted its positions,
because the Commission failed to provide certain
enclosures to a letter dated June 11, 2001 and failed
to respond to a letter it sent dated June 13, 2001.
The assertions contained in the introduction were
raised in Hightech's response to the Notice of
Apparent Liability and addressed in the Forfeiture
Order. ``The Tampa Office states that it sent the
enclosures with its June 11, 2001 letter because,
following its normal practice, a copy of the letter
and the enclosures as sent to Hightech were in
Hightech's file. Assuming arguendo that the Tampa
Office did not send the enclosures, we find it
unreasonable for Hightech to have concluded that the
Tampa Office agreed with its positions. The Tampa
Office at no time stated orally or in writing that it
agreed with Hightech's positions. To the contrary,
the only written correspondence from the Tampa Office
- the Citation and letter dated June 11, 2001 -
unambiguously stated that Hightech violated Section
302(b) of the Act and 2.803(a) of the Rules.
Hightech's conclusion that the Tampa Office agreed
with it seems irrational.''12
8. In its petition for reconsideration, Hightech alleges
that it did not violate the Rules. Hightech states
that the Connex transceiver in question, as
manufactured, operates solely on Amateur Radio Service
(``ARS'') bands and, therefore, does not require FCC
certification. Hightech argues that the Rules only
require certification of transmitters that operate or
are intended to operate at a station authorized in the
CB and that it did not intend to sell this model for
operation on the CB bands. It claims that it posted a
sign in the vicinity of the display case advising
customers that an Amateur license is required to use
Amateur equipment and that the equipment is intended
for use as an Amateur transceiver. Moreover, it
claims each transceiver comes packaged with a warning
that it is illegal to transmit on the equipment
without the appropriate Amateur license. It asserts
that the CB Rules say nothing about the certification
of Amateur transceivers that can be easily modified to
operate on CB frequencies and that the Commission
cannot add a requirement covering such transceivers,
without first complying with the Administrative
Procedures Act. It also argues that the Commission
failed to define what ``easily modifiable'' means and
that such language is unconstitutionally vague.
Finally, it claims that almost all ARS radios may be
modified to operate on CB frequencies and, thus, the
Commission effectively subjected all ARS radios to
certification.
9. We reject Hightech's arguments and deny its petition
for reconsideration. Section 95.603(c) of the Rules
states that a CB transmitter is a ``transmitter that
operates or is intended to operate at a station
authorized in the CB'' and that such transmitters must
be certificated.13 The Office of General Counsel
(``OGC'') subsequently clarified that ARS transmitters
that ``have a built-in capability to operate on CB
frequencies and can easily be altered to activate that
capability, such as by moving or removing a jumper
plug or cutting a single wire'' are intended for use
in the CB frequencies as well as the amateur service
and fall within the definition of ``CB
transmitter.''14 Thus, the Commission clarified an
existing Rule that was adopted pursuant to a Notice
and Comment Rulemaking and did not change its Rules
merely by making a policy change, as Hightech alleges.
This Rule and the Commission's subsequent
interpretation of the Rule make clear that a device
manufactured to operate on ARS frequencies and labeled
an ARS transmitter may nevertheless be a CB
transmitter. The Commission also provided a clear
example of what it meant by easily alterable, i.e.,
moving or removing a jumper plug or cutting a single
wire. Moreover, the OGC Letter was published in the
FCC Record. Pursuant to Section 0.445(e) of the
Rules, interpretations designed to have general
applicability and legal effect that are published in
the FCC Record ``may be relied upon, used or cited as
precedent by the Commission'' in any manner.15
Although the Commission has clarified that a
transmitter intended to operate in the CB band
includes ARS transmitters that can be easily modified
to operate on CB frequencies, the Commission has never
stated that intent to operate in the CB bands can be
determined through the actions of a seller of an ARS
transceiver. Moreover, our Rules prohibit the sale or
lease or offering for sale or lease of non-certified
CB transmitters and do not prohibit the purchase of
such devices. Therefore, it is irrelevant whether
Hightech posted a sign that the transmitters in
question require an Amateur license, that similar
inserts were placed in the transmitter packaging, or
that other ARS transmitters might qualify as CB
transmitters.16 The Connex 3300 HP radio has been
tested by the Office of Engineering and Technology and
found to be a CB transmitter, because it has built-in
capability to operate on CB frequencies and can be
easily altered to activate that capability.
Accordingly, there is no basis for cancellation of the
forfeiture imposed in the Forfeiture Order.
V. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section
405 of the Communications Act of 1934, as amended,17
and Section 1.106 of the Commission's Rules,18
Hightech CB Shop's petition for reconsideration of the
July 27, 2005 Forfeiture Order IS hereby DENIED.
11. IT IS ALSO ORDERED that, pursuant to Section 503(b) of
the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Commission's Rules,19 Hightech CB Shop IS LIABLE
FOR A MONETARY FORFEITURE in the amount of seven
thousand dollars ($7,000) for willful and repeated
violation of Section 302(b) of the Act and Section
2.803(a) of the Rules.
12. Payment of the $7,000 forfeiture shall be made in the
manner provided for in Section 1.80 of the Rules
within 30 days of the release of this Order. If the
forfeiture is not paid within the period specified,
the case may be referred to the Department of Justice
for collection pursuant to Section 504(a) of the
Act.20 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. Requests for full
payment under an installment plan should be sent to:
Associate Managing Director, Financial Operations, 445
12th Street, S.W., Room 1A625, Washington, D.C.
20554.21
13. IT IS FURTHER ORDERED that this Order shall be sent by
regular mail and by certified mail, return receipt
requested, to Hightech CB Shop at its address of
record and its counsel, Michael C. Olson, 4400
MacArthur Boulevard, Suite 23C, Newport Beach,
California 92660.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
_________________________
1Hightech CB Shop, Forfeiture Order, 20 FCC Rcd 12514 (Enf. Bur.
South Central Region, 2005) (``Forfeiture Order'').
247 U.S.C. § 302a(b).
347 C.F.R. § 2.803(a).
4CB radio operation is confined to forty specified channels from
26.965 MHz to 27.405 MHz (carrier frequency).
547 C.F.R. § 2.803(a)(1).
647 C.F.R. § 2.815(b).
7Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200532700009 (Enf. Bur., Tampa Office, May 24, 2005) (``NAL'').
847 U.S.C. § 503(b).
947 C.F.R. § 1.80.
1012 FCC Rcd. 17087 (1997), recon. denied, 15 FCC Rcd. 303
(1999).
1147 U.S.C. § 503(b)(2)(D).
12Forfeiture Order at 12516.
1347 C.F.R. § 95.603(c).
14See 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''). See also
Extended Coverage High Frequency Transceivers, Public Notice
62882, 1996 WL 242469, available at
<> (OET, rel. May 13, 1996) (clarifying that
ARS transceivers designed ``such that they can easily be modified
by the users to extend the operating frequency range into the
frequency bands'' of the CB are CB transmitters, because they are
intended to operate on the CB bands).
1547 C.F.R. § 0.445(e).
16We note that the agents did not see this alleged sign in the CB
Shop.
1747 U.S.C. § 405.
1847 C.F.R. § 1.106.
19 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
2047 U.S.C. § 504(a).
21See 47 C.F.R. § 1.1914.