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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