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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

     In the Matter of       )     File Number: EB-07-DV-058  
     CB Shop & More, LLLP   )   NAL/Acct. No.: 200732800008  
     Loveland, Colorado     )               FRN: 0016797623  

                                FORFEITURE ORDER

   Adopted: March 19, 2008 Released: March 21, 2008

   By the Regional Director, Western Region, Enforcement Bureau:


    1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
       the amount of seven thousand dollars ($7,000) to CB Shop & More, LLLP
       ("CB Shop"), in Loveland, Colorado, for willful and repeated
       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"). On August 28, 2007, the Enforcement Bureau's Denver Office
       issued a Notice of Apparent Liability for Forfeiture ("NAL") to CB
       Shop after determining that CB Shop offered for sale a non-certified
       Citizens Band ("CB") transceiver. In this Order, we consider CB Shop's
       argument that the CB transceiver at issue did not require Commission


    2. On November 25, 2002, an agent from the Enforcement Bureau's Denver
       Office inspected the CB Shop in Loveland, Colorado. The agent observed
       that the store displayed and offered for sale twelve models of CB
       transceivers, specifically, one Super Star 121 transceiver, one
       General Longstreet transceiver, one Connex CX3300HP transceiver, one
       Connex CX4400HP transceiver, and eight Galaxy transceivers models
       DX33HML, DX44V, DX55V, DX66V, DX73, DX77HML, DX88HL, and DX99V. A
       review of the Commission's records revealed that these devices had not
       received an equipment authorization from the Commission.

    3. On November 26, 2002, the FCC Denver Office issued a Citation to CB
       Shop for violation of Section 302(b) of the Act and Section
       2.803(a)(1) of the Commission's Rules by selling non-certified CB
       transceivers. The Citation warned the CB Shop that future violations
       may subject CB Shop to civil monetary forfeitures not to exceed
       $11,000 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.

    4. In a response dated December 3, 2002, counsel for CB Shop disputed the
       Citation, stating that the transceivers listed in the Citation were
       legal to sell. Counsel for CB Shop further requested that the Denver
       Office withdraw the Citation within 14 days from December 3, 2002. In
       a response to the CB Shop, dated December 18, 2002, the Denver Office
       reaffirmed the violation and warned that the marketing of the
       non-certified CB transceivers should cease immediately.

    5. On January 26, 2007, and March 8, 2007, the Denver Office received
       complaints alleging that the CB Shop was selling non-certified CB
       transmitters and modified 10-meter band radios. On March 30, 2007,
       Denver agents visited the CB Shop. Agents noted that one of the CB
       transceivers offered for sale was a Galaxy Model DX99V and asked if
       they could purchase the transceiver. The Denver agents subsequently
       identified themselves as FCC agents, and proceeded to interview the
       owner of the CB Shop. The owner acknowledged that he once received a
       Citation from the FCC, but he thought it was still legal for them to
       sell the referenced CB transceivers.

    6. On August 28, 2007, the Denver Office issued a NAL in the amount of
       $7,000 to CB Shop. In the NAL, the Denver Office found that CB Shop
       apparently willfully and repeatedly violated Section 302(b) of the
       Act, and Section 2.803(a)(1) of the Rules by offering for sale a
       non-certified CB transceiver. CB Shop filed a response on September
       17, 2007 ("Response"). In its Response, CB Shop argues that Galaxy
       Model DX99V does not require certification by the Commission because
       it is not a CB transceiver. Consequently, CB Shop argues the
       forfeiture should be cancelled.


    7. The proposed forfeiture amount in this case was assessed in accordance
       with Section 503(b) of the 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 examining
       the Response, 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 other
       such 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)(1) of the Rules provides that "[e]xcept 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 in the case of a device
       subject to certification 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 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." 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). Also, 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. Additionally,
       the Commission's Office of Engineering and Technology ("OET")
       evaluated Galaxy Model DX99V here and determined that it could easily
       be altered for use as a CB transceiver.

   10. CB Shop argues that the Galaxy DX99V transceiver does not require
       Commission certification (type acceptance) because it is not a CB
       transceiver. CB Shop states that the Galaxy DX99V is manufactured to
       operate solely on the 10 meter amateur band, and its intent in selling
       the Galaxy DX99V was that the transceivers be used only as amateur
       equipment. Consequently, CB Shop argues that Section 95.603 of the
       Rules defines a CB transmitter as "a transmitter that operates or is
       intended to operate at a station authorized in the CB," therefore, the
       Galaxy DX99V, as manufactured by Galaxy and as marketed by CB Shop is
       not a CB transceiver, as defined by the Commission's Rules. We
       disagree. CB Shop fails to consider the OGC Letter, also discussed
       above and in the NAL, which clarified that ARS transmitters that can
       easily be altered to operate on CB transmitter channel frequencies
       fall within the definition of "CB transmitter" under Section 95.603(c)
       of the Rules. Consistent with Sections 95.603(c) and the OGC Letter,
       and as stated in the NAL, OET evaluated the Galaxy Model DX99V and
       determined that it was a non-certified CB transceiver. CB Shops
       provides no evidence to show that the Galaxy Model DX99V it offered
       for sale was not easily modified. Therefore, we find that Galaxy Model
       DX99V is a CB transmitter pursuant to Section 95.603(c), regardless of
       CB Shop's now stated intent regarding the sale of the Galaxy Model

   11. CB Shop also argues that over ten years ago, OET issued a public
       notice, "trying to expand the definition of a Citizen Band transmitter
       to transceivers capable of being `easily modified' to work on the
       Citizen Band service." CB Shop contends, however, that this was an
       amendment to the CB Rules, that the Commission cannot amend the Rules
       by merely putting out a public notice, and that its attempt to do so
       violates the APA and due process. In assessing CB Shop's liability in
       the NAL, the Denver Office relied on the OGC Letter and its
       interpretation of Section 95.603(c), as well as OET's specific
       determination concerning Galaxy Model DX99V, and did not rely on the
       public notice cited to by CB Shop. We note that CB Shop does not argue
       that the enactment of Section 95.603(c) violated the APA nor does CB
       Shop object to the clarification offered by the OGC Letter. 
       Therefore, we find no merit to this argument either.

   12. CB Shop further states that whether a transceiver can be "easily
       modified" is one of degree and cites to an email from a Commission
       staffer. We disagree. 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. Additionally, "[w]hen the staff advice is contrary to the
       Commission's rules, the Commission may still enforce its rules despite
       any reliance by the public." Second, the OGC Letter explains the
       concept of "easily modified" as including moving or removing a jumper
       plug or cutting a single wire. Third, CB Shop was on notice that the
       Galaxy transceivers it was offering for sale were considered to be
       "easily modified," and therefore, non-certified CB transceivers for
       years prior to the issuance of the NAL. It received a Citation on
       November 26, 2002, 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 Denver Office, on December 18, 2002, warning
       that it should no longer offer for sale the Galaxy transceiver at
       issue. Despite these notices and warnings, CB Shop continued to sell
       the non-certified CB transceivers.

   13. We have examined the Response to the NAL pursuant to the statutory
       factors above, and in conjunction with the Forfeiture Policy
       Statement. As a result of our review, we conclude that CB Shop
       willfully and repeatedly violated Section 302(b) of the Act, and
       Section 2.803(a)(1) of the Rules. Considering the entire record and
       the factors listed above, we find that neither reduction nor
       cancellation of the proposed $7,000 forfeiture is warranted.


   14. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
       Communications Act of 1934, as amended ("Act"), and Sections 0.111,
       0.311 and 1.80(f)(4) of the Commission's Rules, CB Shop & More, LLLP,
       IS LIABLE FOR A MONETARY FORFEITURE in the amount of $7,000 for
       willfully and repeatedly violating 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 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. 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/Account
       Number and FRN Number referenced above. Payment by check or money
       order may be mailed to Federal Communications Commission, P.O. Box
       979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
       sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
       Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
       made to ABA Number 021030004, receiving bank TREAS/NYC, and account
       number 27000001. For payment by credit card, an FCC Form 159
       (Remittance Advice) must be submitted.  When completing the FCC Form
       159, enter the NAL/Account number in block number 23A (call sign/other
       ID), and enter the letters "FORF" in block number 24A (payment type
       code). Requests for full payment under an installment plan should be
       sent to:  Chief Financial Officer -- Financial Operations, 445 12th
       Street, S.W., Room 1-A625, Washington, D.C.  20554.   Please contact
       the Financial Operations Group Help Desk at 1-877-480-3201 or Email: with any questions regarding payment procedures. 

   16. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
       Class Mail and Certified Mail Return Receipt Requested to CB Shop &
       More, LLLP, at its address of record, and its counsel of record,
       Michael C. Olson, Esquire.


   Rebecca L. Dorch

   Regional Director, Western Region

   Enforcement Bureau

   47 U.S.C. S: 302a(b).

   47 C.F.R. S: 2.803(a)(1).

   Citation to CB Shop & More, LLLP, released November 26, 2002 ("Citation").

   See 47 C.F.R. S: 1.80(b)(3).

   See 47 U.S.C. S:S: 501, 503(b), 510.

   In a response to the Denver Office, dated December 23, 2002, Counsel for
   CB Shop again disputed the Citation and requested that the Citation be
   withdrawn by the Denver Office within 14 days.

   Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732800008
   (Enf. Bur., Western Region, Denver Office, released August 28, 2007).

   47 U.S.C. S: 302a(b).

   47 C.F.R. S: 2.803(a)(1).

   As part of its Response, CB Shop includes and undated letter from a
   testing lab concerning the frequencies on which a "radio similar to the
   Galaxy DX99V" operates. Response at Exhibit 1. CB shop states that the
   report from the testing lab "shows that the radio does not require FCC
   Certification' or `Type Acceptance.'" Because the report does not include
   the Galaxy Model DX99V, we find that it has no relevance to the case
   before us.

   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).

   47 U.S.C. S: 503(b)(2)(E).

   47 U.S.C. S: 302a(b).

   47 C.F.R. S: 2.803(a)(1).

   See 47 C.F.R. S:S: 2.907, 2.927(a).

   47 C.F.R. S: 95.603(c). See Pilot Travel Centers, 19 FCC Rcd 23113, 23114

   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"). See also, Ramko Distributors, Inc., 22 FCC Rcd 7161

   Pilot Travel Centers, 19 FCC Rcd at 23119. See also, TravelCenters of
   America, 21 FCC Rcd 6978 (EB Western Region 2006).

   To support this claim of intent, CB Shop includes in its Response an
   affidavit from its owner stating that the "Subject Radios are intended by
   CB Shop & More, LLLP to only be used as Amateur Radios. Before selling any
   radio, the customer is required to acknowledge that the radio is a 10
   meter radio with no CB frequencies." Response - Declaration of Paul Tate
   at 1 - 2.

   14 FCC Rcd 7797.

   NAL at para. 8, and para 9, n.18. See also Pilot Travel Centers, 19 FCC
   Rcd at 23119; TravelCenters of America, 21 FCC Rcd at 6981.

   Response at 2 - 3.

   The OGC Letter was published in the FCC Record, and therefore "may be
   relied upon, used or cited as precedent by the Commission or private
   parties in any manner." 47 C.F.R. S: 0.445(e). See TravelCenters of
   America, 21 FCC Rcd at 6981. See also, HighTech CB Shop, 20 FCC Rcd 19269,
   192671 (EB 2005).

   Texas Media Group, Inc. 5 FCC Rcd 2851, 2852 (1990) aff'd sub nom Malkan
   FM Associates v. FCC, 935 F.2d 1313 (D.C. Cir. 1991).

   Hinton Telephone Company, 10 FCC Rcd 11625, 11637 (1995). See also, Malkan
   FM Associates v. FCC, 935 F.2d 1313 (D.C. Cir 1991); Schweiker v. Hansen,
   450 U.S. 785, 790 (1981) (petitioner's reliance on erroneous staff advice
   does not estop agency from requiring compliance with valid regulation). 

   14 FCC Rcd 7797.

   47 U.S.C. S:S: 302a(b), 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4),

   47 U.S.C. S: 504(a).

   Federal Communications Commission DA 08-597



   Federal Communications Commission DA 08-597