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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Wesley Noe ) File Number: EB-05-DT-047
d.b.a. GI Joe's Radio Electronics ) NAL/Acct. No: 200632360002
and GI Joe's CB Radio ) FRN 0014938096
Richmond, Kentucky )
)
FORFEITURE ORDER
Adopted: December 7, 2006 Released: December 11, 2006
By the Regional Director, Northeast Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of twenty-one thousand dollars ($21,000) to Wesley Noe,
d.b.a. GI Joe's Radio Electronics and GI Joe's CB Radio (collectively
referred to herein as "GI Joe's") for willfully and repeatedly
violating Section 302(b) of the Communications Act of 1934, as
amended, ("Act"), and Sections 2.803(a)(1), 2.815(b), and 2.815(c) of
the Commission's Rules ("Rules") by offering for sale non-certified
Citizens Band ("CB") transceivers and external radio frequency ("RF")
power amplifiers.
II. BACKGROUND
2. On April 19, 2006, the Detroit Office issued a Notice of Apparent
Liability for Forfeiture in the amount of $21,000 to GI Joe's. In the
NAL, the Detroit Office found that GI Joe's apparently willfully and
repeatedly violated Sections 2.803(a)(1), 2.815(b), and 2.815(c) of
the Rules by offering for sale non-certified CB transceivers and RF
power amplifiers on the GI Joe's Radio Electronics' web site. The
Detroit Office further found that GI Joe's apparently willfully
violated Section 2.803(a)(1) of the Rules by offering for sale
non-certified CB transceivers at the GI Joe's CB Radio store in
Richmond, KY. In response to the NAL, GI Joe's does not dispute the
findings, but requests a cancellation or reduction based on an
inability to pay. In support of the request, GI Joe's submitted
federal income tax returns.
III. Discussion
3. The forfeiture amount proposed in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
("Act"), Section 1.80 of the Rules, and the Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines. In assessing forfeitures,
Section 503(b)(2)(D) of the Act requires that we 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 such other matters as justice may
require.
4. We decline to grant GI Joe's request that we cancel or reduce the
proposed forfeiture. The Commission has determined that, in general,
an individual's or entity's gross revenues are the best indicator of
an ability to pay a forfeiture. After reviewing GI Joe's claim and
supporting documentation, we find that a cancellation or reduction of
the forfeiture based on an inability to pay is not warranted.
5. We have examined GI Joe's response to the NAL pursuant to the
statutory factors above and in conjunction with the Policy Statement.
As a result of our review, and based on the record before us, we
conclude that GI Joe's willfully and repeatedly violating Section
302(b) of the Act and Sections 2.803(a)(1), 2.815(b), and 2.815(c) of
the Rules by offering for sale non-certified Citizens Band ("CB")
transceivers and external radio frequency ("RF") power amplifiers.
Considering the entire record and the factors listed above, we find
that neither reduction nor cancellation of the proposed $21,000
forfeiture is warranted.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80(f)(4) of the Rules, Wesley Noe, d.b.a. GI Joe's Radio Electronics
and GI Joe's CB Radio, IS LIABLE FOR A MONETARY FORFEITURE in the
amount of twenty-one thousand dollars ($21,000) for willful and
repeated violation of Section 302(b) of the Act and Sections
2.803(a)(1), 2.815(b), and 2.815(c) of the Rules.
7. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) days of the release of
this Order. If the forfeiture is not paid within the period specified,
that case may be referred to the Department of Justice for collection
pursuant to Section 504(a) of the Act. 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.
8. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by Certified Mail, Return Receipt Requested, and regular mail, to
Wesley Noe, d.b.a. GI Joe's Radio Electronics and GI Joe's CB Radio,
at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Russell Monie, Jr.
Regional Director, Northeast Region
Enforcement Bureau
According to a search of the LexisNexis Business Reports, Noe is the owner
of GI Joe's Radio Electronics and GI Joe's CB Radio.
47 U.S.C. S 302(b).
47 C.F.R SS 2.803(a)(1), 2.815(b), 2.815(c).
Wesley Noe, d.b.a. GI Joe's Radio Electronics and GI Joe's CB Radio,
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632360002
(Enf. Bur., Detroit Office, April 19, 200) ("NAL").
GI Joe's submitted its initial response to the NAL on May 26, 2006. At the
request of FCC staff, GI Joe's submitted additional documentation with
regard to its federal income tax returns on November 1, 2006.
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
Policy Statement").
47 U.S.C. S 503(b)(2)(D).
PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 (1992)
(forfeiture not deemed excessive where it represented approximately 2.02
percent of the violator's gross revenues); Local Long Distance, Inc., 15
FCC Rcd 24385, 24389 P 11 (2000), recon. denied, 16 FCC Rcd 10023, 10025
P 6 (2001) (forfeiture not deemed excessive where it represented
approximately 7.9 percent of the violator's gross revenues); Hoosier
Broadcasting Corporation, 14 FCC Rcd 3356 (CIB 1999), recon. denied, 15
FCC Rcd 8640, 8641 (Enf. Bur. 2002) (forfeiture not deemed excessive where
it represented approximately 7.6 percent of the violator's gross
revenues). In this case, the forfeiture represents a smaller percentage
than those issued in the Local Long Distance, Inc., and Hoosier
Broadcasting Corp., cases, and only a nominally higher percentage compared
to the forfeiture issued in PJB Communications of Virginia, Inc.
47 U.S.C. S 503(b).
47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
47 U. S. C. S 504(a).
See 47 C.F.R. S 1.1914.
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(continued....)
Federal Communications Commission DA 06-2479
2
Federal Communications Commission DA 06-2479