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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No. EB-03-DL-099
)
Pilot Travel Centers LLC NAL/Acct. No. 200532500001
)
Knoxville, Tennessee FRN # 0006096010
)
)
ORDER
Adopted: May 1, 2006 Released: May 11, 2006
By the Commission:
1. In this Order, we adopt the attached Consent Decree entered into
between the Commission and Pilot Travel Centers LLC ("Pilot"). The
Consent Decree terminates the forfeiture proceeding initiated by the
Commission against Pilot for its apparent violation of 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
radio frequency devices without the required Commission equipment
authorization.
2. The Commission and Pilot have negotiated the terms of a Consent Decree
that would resolve this matter and terminate the forfeiture
proceeding. A copy of the Consent Decree is attached hereto and
incorporated by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
approving the Consent Decree and terminating the forfeiture
proceeding.
4. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 503(b)
of the Communications Act of 1934, as amended, the Consent Decree
attached to this Order IS ADOPTED.
5. IT IS FURTHER ORDERED that the Commission's forfeiture proceeding
against Pilot IS TERMINATED.
6. IT IS FURTHER ORDERED that Pilot Travel Centers LLC shall make its
voluntary contribution to the United States Treasury, as specified in
the Consent Decree, by mailing a check or similar instrument, payable
to the order of the 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. The payment, regardless of how sent, must include the
NAL/Acct. No. and FRN No. referenced above.
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to counsel for Pilot, Wayne V. Black, Keller & Heckman,
LLP, 1001 G Street, N.W., Washington, D.C. 20001 and Pilot at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No. EB-03-DL-099
)
Pilot Travel Centers LLC NAL/Acct. No. 200532500001
)
Knoxville, Tennessee FRN # 0006096010
)
)
CONSENT DECREE
The Federal Communications Commission ("Commission") and Pilot Travel
Centers LLC, ("Pilot") hereby enter into this Consent Decree regarding
possible violations of Section 302(b) of the Communications Act of 1934,
as amended ("Act"), and Section 2.803(a)(1) of the Commission's Rules
("Rules") concerning Pilot's offering for sale certain radio frequency
devices.
Background
1. Section 302 of the Act authorizes the Commission to make reasonable
regulations, consistent with the public interest, governing the
interference potential of equipment that emits radio frequency energy,
and prohibits, inter alia, the offering for sale of radio frequency
devices to the extent such activity does not comply with those
regulations. The purpose of this section is to ensure that radio
transmitters and other electronic devices meet certain standards to
control interference before they reach the market.
2. The Commission carries out its responsibilities under Section 302 in
two ways. First, the Commission establishes technical regulations for
transmitters and other equipment to minimize their potential for
causing interference to radio services. Second, the Commission
administers an equipment authorization program to ensure that
equipment reaching the market complies with the technical
requirements. The equipment authorization program requires that
equipment be tested either by the manufacturer or at a private test
laboratory to ensure that it complies with the technical requirements.
For a large number of devices, including Citizens Band ("CB") radio
transmitting equipment, equipment may not be marketed within the
United States unless it has been tested and found to comply with
Commission technical requirements, granted Commission Certification,
and properly labeled. "Marketing" includes the sale or lease, offer
for sale or lease (including advertising for sale or lease),
importing, shipping, and/or distribution for the purpose of selling or
leasing or offering for sale or lease.
3. Unlike CB radio transmitting equipment, 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."
4. Despite these changes to the definition of a CB transmitter,
Commission enforcement agents continued to encounter non-certified CB
transmitters marketed as ARS transmitters. On May 13, 1996, the
Commission's Office of Engineering and Technology ("OET") released a
Public Notice "to clarify the Commission's Rules regarding equipment
that is intended to operate in various radio services in the high
frequency radio spectrum, including '10-Meter' Amateur Radio Service
(ARS) equipment." The Notice stated that transmitters intended for
operation on non-amateur frequencies must be approved prior to
manufacture, importation or marketing. The Notice specifically
included 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 and other non-amateur radio services among
those devices subject to equipment authorization procedures. The
Notice also stated that the Commission considers these transceivers as
intended to be operated on frequencies where the use of type accepted
equipment is required "because of the simplicity of modifying them to
extend their operating frequency range." The Commission's Office of
General Counsel ("OGC") later released a letter on the importation and
marketing of ARS transmitters, which clarified that such 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" fall within the
definition of "CB transmitter" under Section 95.603(c) of the Rules
and therefore require certification prior to marketing or importation.
5. As a result of agent inspections of Pilot retail stores from December
2, 1999 to September 6, 2002, Enforcement Bureau Field Offices issued
nine Citations to Pilot for marketing non-certified CB transmitters.
Pilot's responses to the Citations essentially stated that the radios
in question were marketed as amateur radios, operated on the 10-meter
amateur band, and did not require certification. From December 11,
2003 to July 3, 2004, Enforcement Bureau field agents observed Pilot
offer for sale 13 non-certified CB transmitters. All of the devices in
question that were offered for sale by Pilot were tested by the
Commission and found to be non-certified CB transmitters.
6. On November 22, 2004, the Commission released a Notice of Apparent
Liability for Forfeiture ("NAL") to Pilot in the amount of $125,000
for apparent willful and repeated violations of Section 302(b) of the
Act and Section 2.803(a)(1) of the Rules. The Commission increased the
proposed forfeiture above the base amount for the violations ($91,000)
based on Pilot's pattern of apparent violations.
Definitions
7. For the purposes of this Consent Decree the following definitions shall
apply:
(a) "Commission" means the Federal Communications Commission;
(b) "Bureau" means the Enforcement Bureau of the Federal Communications
Commission;
(c) "Pilot" means Pilot Travel Centers LLC;
(d) "Parties" means Pilot and the Commission;
(e) "Enforcement Proceeding" means the investigation of the alleged Rule
violations by Pilot culminating in the Notice of Apparent Liability for
Forfeiture;
(f) Notice of Apparent Liability for Forfeiture or "NAL" means Pilot
Travel Centers LLC, 19 FCC Rcd 23113 (2004);
(g) "Adopting Order" means an order of the Commission adopting the terms
and conditions of this Consent Decree, in the form attached hereto;
(h) "Effective Date" means the date the Adopting Order is released by the
Commission;
(i) "Rules" means the Commission's Rules found in Title 47 of the Code of
Federal Regulations;
(j) "Act" means the Communications Act of 1934, as amended U.S.C. SS 151
et seq.; and
(k) "Compliance Plan" means the processes and procedures developed by
Pilot in an effort to ensure compliance with the Communications Act and
the Commission's Rules regarding the sale or offering for sale of radio
frequency devices, as summarized in this Consent Decree.
Terms of Settlement
8. The Parties agree that the provisions of this Consent Decree shall be
subject to final approval by the Commission by incorporation of such
provisions by reference in the Adopting Order.
9. The Parties agree that this consent Decree shall become binding on the
Parties on the Effective Date. Pilot and the Commission represent and
warrant that its signatory is duly authorized to enter into this Consent
Decree on its behalf. Upon release, the Adopting Order and this Consent
Decree shall have the same force and effect as any other final order of
the Commission and any violation of the terms or conditions of this
Consent Decree shall constitute a violation of a Commission order.
10. Pilot acknowledges that the Commission has jurisdiction over the
matters contained in this Consent Decree and the authority to enter into
and adopt this Consent Decree.
11. The Parties waive any rights they may have to seek administrative or
judicial reconsideration, review, appeal or stay, or to otherwise
challenge or contest the validity of this Consent Decree and the Adopting
Order, provided that the Adopting Order adopts the Consent Decree without
change, addition or modification.
12. Pilot waives any rights it may have under any provision of the Equal
Access to Justice Act, 5 U.S.C. S 504 and 47 C.F.R. S 1.1501 et seq.,
relating to the matters discussed in this Consent Decree.
13. The Parties agree that this Consent Decree does not constitute either
an adjudication on the merits or a factual or legal finding or
determination of any compliance or noncompliance with the Act or the
Rules. The Parties further agree that this Consent Decree is for
settlement purposes only and that by agreeing to the Consent Decree, Pilot
does not admit or deny any liability for violating the Act or the Rules in
connection with the matters that are the subject of this Consent Decree.
14. In express reliance on the covenants and representations in this
Consent Decree, the Commission agrees to terminate the Enforcement
Proceeding.
15. Pilot agrees that, as of the Effective Date of this Consent Decree:
i. CB transmitters offered for sale or sold by Pilot will be FCC
certified.
ii. Prior to the sale or marketing of Amateur Radio Service transmitters,
Pilot will ensure that the transmitters have been reviewed by the
Technical Department Laboratory of the American Radio Relay League,
Inc. ("ARRL") and found to transmit only in Amateur Radio Service
bands.
iii. It will remove all Galaxy Model Number DX33HML, DX66V or DX99V
transceivers and any other Amateur Radio Service transmitters that
have not been reviewed by the Technical Department Laboratory of the
ARRL and found to transmit only in Amateur Radio Service bands from
all retail areas of Pilot Travel Centers;
iv. It will ensure that CB transmitters offered for sale or sold by
entities leasing space on the premises of any Pilot owned or operated
property are certified. It will ensure that all Amateur Radio Service
transmitters offered for sale or sold by entities leasing space on the
premises of any Pilot owned or operated property are reviewed by the
Technical Department Laboratory of the ARRL and found to transmit only
in Amateur Radio Service bands;
v. If Pilot markets or offers for sale Amateur Radio Service transmitters,
it will advise all store managers and employees involved in purchasing
store inventory that Amateur Radio Service transmitters that have a
built-in capability to operate on CB frequencies and can easily be
altered to activate that capability fall within the definition of "CB
transmitter" under Section 95.603(c) of the Rules and cannot be
certified or sold. If Pilot offers for sale or markets CB transmitters,
these employees will be instructed that CB transmitters offered for
sale or sold on the premises of Pilot owned or operated property must
be certified. If Pilot offers for sale or markets Amateur Radio Service
transmitters, these employees will be instructed that, prior to the
sale or marketing of Amateur Radio Service transmitters, the
transmitters must be reviewed by the Technical Department Laboratory of
the ARRL and found to transmit only in Amateur Radio Service bands. The
terms of this Consent Decree will be made available to these employees.
If applicable, Pilot further agrees to review these FCC requirements
with these employees at least semi-annually for two years following the
Effective Date; and
vi. It will place compliance with this Consent Decree under the direct
supervision of Pilot's Director of Marketing, Mr. Ed Leddy, or, in the
event Mr. Ed Leddy is no longer with the company, his successors. If
applicable, Mr. Leddy or his successors will ensure that store
managers and employees involved in purchasing store inventory are
advised of the FCC requirements described in paragraph v and the terms
of this Consent Decree at least on a semi-annual basis for two years
following the Effective Date. Mr. Leddy shall ensure that a copy of
the ARRL product review shall be obtained by Pilot prior to purchasing
models of Amateur Radio Service transmitters as store inventory and
retained by Pilot for at least two years. If applicable, Mr. Leddy
shall also implement, within thirty days of the Effective Date of this
Consent Decree, internal procedures to ensure that only certified CB
transmitters or ARRL reviewed Amateur Radio Service transmitters are
purchased for sale in Pilot Travel Centers.
16. The Parties acknowledge that this Consent Decree shall constitute a
final and binding settlement between Pilot and the Commission regarding
possible violations of Section 302(b) of the Act and Section 2.803(a)(1)
of the Rules specified in the NAL. In consideration for termination by the
Commission of the Enforcement Proceeding and in accordance with the terms
of this Consent Decree, Pilot agrees to the terms set forth herein.
17. The Commission agrees that it will not entertain, or institute on its
own motion, any new proceeding, formal or informal, or take any action on
its own motion against Pilot for the possible violations of Section 302(b)
of the Act or Section 2.803(a) of the Rules committed prior to this
Consent Decree. Nothing in this Consent Decree shall prevent the
Commission from instituting investigations or enforcement proceedings
against Pilot in the event of any other alleged misconduct that violates
this Consent Decree or that violates any provision of the Act or the
Rules.
18. The Parties agree that each is required to comply with each individual
condition of this Consent Decree. Each specific condition is a separate
condition of the Consent Decree as approved. To the extent that Pilot
fails to satisfy any condition, in the absence of Commission alteration of
the condition, it will be deemed noncompliant and may be subject to
possible future enforcement action with respect to such failure to satisfy
the condition.
19. The Parties also agree that any provision of this Consent Decree which
conflicts with any subsequent rule, order of general applicability or
other decision of general applicability adopted by the Commission will be
superseded by such Commission rule, order or other decision.
20. Pilot agrees to make a voluntary contribution to the United States
Treasury in the amount of ninety thousand dollars ($90,000) within thirty
(30) days of the Effective Date. Such contribution shall be made, without
further protest or recourse, by mailing a check or similar instrument,
payable to the order of the Federal Communications Commission, P.O.
Box 358340, Pittsburgh, PA 15251-8340. The payment should reference
NAL/Acct. No. 200532500001 and FRN 0006096010. 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.
21. If any Party (or the United States on behalf of the Commission) brings
a judicial action to enforce the terms of the Adopting Order, neither
Pilot nor the Commission shall contest the continuing validity of the
Consent Decree or Adopting Order. The Parties agree to comply with, defend
and support the validity of this Consent Decree and the Adopting Order in
any proceeding seeking to nullify, void or otherwise modify the Consent
Decree or the Adopting Order.
22. The Parties agree that in the event that any court of competent
jurisdiction renders this Consent Decree invalid, this Consent Decree
shall become null and void and may not be used in any manner in any legal
proceeding.
23. This Consent Decree cannot be modified without the advance written
consent of all of the Parties.
24. This Consent Decree may be signed in counterparts.
For the Commission:
By: ________________________
Marlene Dortch
Secretary
For Pilot Travel Centers LLC
By: __________________________
47 U.S.C. S 302a(b).
47 C.F.R. S 2.803(a)(1).
See Pilot Travel Centers LLC, Notice of Apparent Liability, 19 FCC Rcd
23113 (2004), erratum (rel. Nov. 23, 2004).
47 U.S.C. SS 4(i) and 503(b).
47 U.S.C. S 302a(b).
47 C.F.R. S 2.803(a)(1).
47 U.S.C. S 302a.
47 C.F.R. Part 2, Subpart J.
CB radio operation is confined to forty specified channels from 26.965 MHz
to 27.405 MHz (carrier frequency).
See 47 C.F.R. S 2.927(a).
47 C.F.R. S 2.803(a).
47 C.F.R. S 95.603(c) [FCC 88-256], amended changing "type acceptance" to
"certification" [FCC 98-58].
Extended Coverage High Frequency Transceivers, Public Notice 62882, 1996
WL 242469, available at
<>
(OET, rel. May 13, 1996) ("Notice").
Id.
Letter from Christopher Wright, General Counsel, FCC to John Atwood, Chief
Intellectual Property Rights, US Customs Service, 14 FCC Rcd 7797 (OGC,
1999).
Pilot Travel Centers LLC, 19 FCC Rcd 23113 (2004).
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