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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File Number: EB-05-DT-131
Gambler's CB & Ham Radio Sales &
Service ) NAL/Acct. No: 200632360001
Pinconning, Michigan ) FRN 0014 2684 94
)
)
FORFEITURE ORDER
Adopted: December 19, 2006 Released: December 21, 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 seven thousand dollars ($7,000) to Gambler's CB & Ham
Radio Sales & Service ("Gambler") for willfully and repeatedly
violating Section 302(b) of the Communications Act of 1934, as amended
("Act"), and Section 2.803(a)(1) of the Commission's Rules (the
"Rules"), by offering for sale non-certified Citizens Band ("CB")
transceivers.
II. BACKGROUND
2. On April 5, 2004, the FCC Enforcement Bureau's Detroit Field Office
("Detroit Office") received information that Gambler was marketing
illegal, non-FCC certified devices. Agents from the Detroit Office
visited Gambler in Pinconning, Michigan on April 9, 2004, and observed
that Gambler displayed and offered for sale non-certified CB
transceivers marketed as Amateur Radio Service ("ARS") transmitters,
including Galaxy models DX33HML and DX66V, which the Commission's
Office of Engineering and Technology ("OET") previously had tested and
determined to be non-certified CB transceivers. As a result of the
inspection, the Detroit Office issued Gambler a Citation on April 13,
2004, for marketing non-certified CB tansceivers in violation of
Section 302(b) of the Act and Section 2.803(a)(1) of the Rules. The
Citation specifically cited Galaxy models DX33HML and DX66V and warned
Gambler that future violations may subject Gambler to substantial
civil monetary forfeitures 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.
3. On April 30, 2004, the Detroit Office received a response from
Gambler's attorney, which stated that "all of the radios in question
are marketed as Amateur radios . . .and [a]s sold, operate only on the
Amateur bands . . . [and] as such, these radios are governed by Part
97 . . . , [which] does not require type acceptance of Amateur radios.
The letter further stated that "[w]e expect that your office will
withdraw the notice of citation within 14 days from the date of this
letter." The Detroit Office received a second letter from Gambler's
attorney on May 10, 2004, stating that because "[w]e have not heard
anything from your office in response to our letter of April 22, 2004.
. . we assume you agree with our position that the radios in question
are legal and that the FCC is withdrawing the citation."
4. On May 17, 2004, the Detroit Office sent a letter to Gambler's
attorney addressing the response to the Citation. The letter advised
Gambler that the devices referred to in the Citation are intended for
use on CB as well as ARS frequencies because they have built-in design
features which facilitate their operation on CB frequencies by the
exercise of simple, end-user accessible modifications to the devices.
Accordingly, the letter advised, such devices are considered CB
transmitters pursuant to Section 95.603(c) of the Rules, irrespective
of any labeling purporting the devices to be "Amateur Radio
Transceivers." Gambler's attorney sent a third letter, dated May 22,
2004, stating his continued disagreement with the position set forth
in the Citation.
5. In response to a complaint that Gambler continued to sell non-FCC
certified CB transceivers, an agent from the Detroit Office visited
Gambler's store on April 13, 2005 and found that the store displayed
and offered for sale non-certified CB transceivers, including Galaxy
Models DX-33HML and DX44V. OET previously had tested these models and
determined them to be non-certified CB transceivers.
6. On March 31, 2006, the Detroit Office issued a Notice of Apparent
Liability of Forfeiture to Gambler for apparently willfully and
repeatedly violating Section 302(b) of the Act and Section 2.803(a)(1)
of the Rules by offering for sale non-certified CB transceivers. As
discussed more fully below, Gambler filed a response to the NAL,
seeking cancellation of the proposed forfeiture.
III. Discussion
7. 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.
8. 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) of the Rules provides that: "Except 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 such device has been
authorized by the Commission. . . ."
9. 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 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). Further, 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.
10. We reject Gambler's claim in its response to the NAL that the Galaxy
transceivers that it offered for sale do not need to be certified
because they do not constitute "CB transmitters," as defined in
Section 95.603(a) of the Rules. Gambler states that the Galaxy
transceivers at issue are manufactured solely for operation on the ARS
10 meter bands. Gambler further states that it did not intend for the
Galaxy transceivers to be used as CB transceivers, as evidenced by the
notices posted in the vicinity of its display case stating that an
Amateur license is required for use of the Amateur equipment and that
the transceivers are intended for use as Amateur transceivers. The OGC
Letter, however, as discussed above and in the NAL, clarified that ARS
transmitters that can be easily altered to operate on CB transmitter
channel frequencies fall within the definition of "CB transmitter"
under Section 95.603(c) of the Rules. Moreover, consistent with the
Rules and the OGC Letter, OET evaluated the Galaxy models at issue
here and determined they were non-certified CB transceivers. Gambler
provides no evidence to show that the Galaxy models it offered for
sale were not easily modified. In addition, although Gambler claims it
did not intend for the transceivers to be used as CB transceivers, the
Commission never has stated that the intent to operate in the CB bands
can be determined through the actions of a seller of an ARS
transceiver. We therefore find that the subject Galaxy models are CB
transmitters pursuant to Section 95.603(c), regardless of the signs
Gambler placed near the point of purchase.
11. We are not persuaded by Gambler's claim that we cannot enforce Section
95.603(c) of the Rules because the Commission's actions with regard
defining "CB transmitters" violated the Administrative Procedure Act
("APA"). Gambler claims that Section 95.603(c) of the Rules does not
specifically require certification of amateur equipment that is easily
modifiable to operate in the CB band and that the addition of such a
requirement through issuance of a public notice violated the APA.
Gambler does not argue that the Commission's adoption of Section
95.603(c) or the subsequent clarification in the OGC Letter violated
the APA. In assessing Gambler's liability in the NAL, however, we
relied on the OGC Letter and its interpretation of Section 95.603(c),
as well as OET's specific determination concerning the Galaxy models
at issue here; we did not rely on the public notice cited by Gambler.
It is entirely appropriate to rely on the interpretation of Section
95.603(c) in the OGC Letter, which was published in the FCC Record.
Section 0.445(e) of the Rules provides that 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. We therefore find no merit to Gambler's
request for cancellation of the forfeiture on this basis.
12. We likewise find no merit in Gambler's claim, for which it relies on
an e-mail from a Commission staffer, that whether a transceiver can be
"easily modified" is one of degree and that such a standard is so
vague as to be unconstitutional. First, 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. Second, the OGC Letter explains the
concept of "easily modified" as including moving or removing a jumper
plug or cutting a single wire. Third, for years prior to the issuance
of the NAL, Gambler had actual notice that the Galaxy transceivers it
was offering for sale were considered to be "easily modified" and,
therefore, non-certified CB transceivers. Gambler received a Citation
on April 13, 2004, explaining that if it continued to offer these
transceivers for sale, it would be subject to civil monetary
forfeitures. After its attorney questioned the Citation, it received a
follow-up notice from the Detroit Office, on May 17, 2004, warning
that it should no longer offer for sale the Galaxy transceivers at
issue. Despite these notices and warnings, Gambler continued to sell
the non-certified CB transceivers.
13. We have examined Gambler'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 Gambler willfully and repeatedly violating Section
302(b) of the Act and Sections 2.803(a)(1) of the Rules by offering
for sale non-certified CB transceivers. Considering the entire record
and the factors listed above, we find that neither reduction nor
cancellation of the proposed $7,000 forfeiture is warranted.
IV. ORDERING CLAUSES
14. 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, Gambler's CB & Ham Radio Sales & Service 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)(1) of the Rules.
15. 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.
16. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by Certified Mail, Return Receipt Requested, and regular mail, to
Gambler's CB & Ham Radio Sales & Service at its address of record and
its counsel of record, Michael C. Olson.
FEDERAL COMMUNICATIONS COMMISSION
Russell Monie, Jr.
Regional Director, Northeast Region
Enforcement Bureau
47 U.S.C. S 302(b).
47 C.F.R S 2.803 (a)(1).
See Citation issued to Gambler's C.B. & Ham Radio Sales and Services,
Citation No. C20043236004, released April 13, 2004 ("Citation"). The
Detroit Office also cited Gambler for selling CB linear amplifiers, in
violation of Sections 2.803(a) and 2.815(b) of the Rules. During
subsequent visits to Gambler's store, FCC agents did not observe linear
amplifiers being offered for sale.
See Letter from Michael C. Olson, Counsel for Gambler's, to James A.
Bridgewater, District Director, Federal Communications Commission, dated
April 26, 2004.
See Letter from Michael C. Olson, Counsel for Gambler's, to James A.
Bridgewater, District Director, Federal Communications Commission, dated
May 7, 2004.
See Letter from James A. Bridgewater, District Director, Detroit Office,
to Michael C. Olson, dated May 17, 2004.
See Letter from Michael C. Olson, Counsel for Gamblers, to James A.
Bridgewater, District Director, Federal Communications Commission, dated
May 22, 2004.
Gambler's CB & Ham Radio Sales & Service, Notice of Apparent Liability for
Forfeiture, NAL/Acct. No. 200632360001 (Enf. Bur., Detroit Office, March
31, 2006) ("NAL").
See Petition to Cancel Proposed Forfeiture (Filed May 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).
47 U.S.C. S 302(b).
47 C.F.R. S 2.803(a).
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) ("OGC Letter").
14 FCC Rcd 7797.
The public notice to which Gambler's refers was released by OET in 1996
and clarified 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. See Extended Coverage High Frequency
Transceivers, Public Notice 62882, 1996 WL 242469, available at
<>
(OET, rel. May 13, 1996).
47 C.F.R. S 0.445(e). See HighTech CB Shop, Memorandum Opinion and Order,
DA 05-3125, 2005 WL 3274371 (rel. December 2, 2005).
Hinton Telephone Company, Memorandum Opinion and Order on Reconsideration,
10 FCC Rcd 11625, 11637 (1995); see also Texas Media Group, Inc.,
Memorandum Opinion and Order, 5 FCC Rcd 2851, 2852 (1990) aff'd sub nom.
Malkan FM Associates v. FCC, 935 F.2d 1313 (D.C. Cir. 1991) ("It is the
obligation of interested parties to ascertain facts from official
Commission records and files and not rely on statements or informal
opinions by the staff.").
OGC Letter, 14 FCC Rcd 7797.
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.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 06-2549
5
Federal Communications Commission DA 06-2549