**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

**In the Matter of** )

)

**THE TWO WAY SHOP** ) File No. EB-99-ST-439

220 Columbia Dr. E. )

Kennewick, Washington 99336 ) **NAL/Acct. No. 915ST0007**

**FORFEITURE ORDER**

**Adopted:** April 6, 2000 **Released:** April 7, 2000

By the Chief, Enforcement Bureau:

# I. INTRODUCTION

1\. In this Forfeiture Order ("Order"), we issue a monetary forfeiture
in the amount of seven thousand dollars (\$7,000) against the Two Way
Shop ("Two Way") for willful and repeated violations of Section 302 of
the Communications Act of 1934, as amended ("Act"),[^1] and Sections
2.803 and 2.815 of the of the Commission's Rules ("Rules").[^2] These
violations involve Two Way's offer for sale of linear amplifiers capable
of operation in the 26.965 to 27.405 MHz frequency band.

2.  On July 14, 1999, the Commission's Seattle, Washington, Field
    Office, issued the referenced Notice of Apparent Liability for
    Forfeiture ("NAL") for a monetary forfeiture in the amount of seven
    thousand dollars (\$7,000) to Two Way for the noted violations.[^3]
    Patrick Cleppe, owner and operator of Two Way, filed a response to
    the NAL on July 26, 1999.

    **II. BACKGROUND**

3\. Two Way is a consumer electronics dealer in Kennewick, Washington.
On March 19, 1999, an FCC agent from the Commission's Seattle Field
Office, who was posing as a member of the general public, visited Two
Way's place of business at 220 Columbia Drive E., Kennewick, Washington.
During that visit, a salesman who the agent believes is named Gary
Greenfield offered to sell an external radio frequency power amplifier
\-- commonly known as a "linear amplifier" \-- to the agent. The linear
amplifier offered to the agent was capable of operation in the 26.965 to
27.405 MHz frequency band, which is assigned to citizens band radio
("CB") operators. Such a linear amplifier is used to increase the power
of CB stations beyond the authorized level. On May 15, 1999, two FCC
agents from the Commission's Seattle Field Office, who were posing as
members of the general public, visited Two Way's place of business. On
this occasion, a salesman, who the agents believe to be Mr. Cleppe,
showed the agents Galaxy XL350 and Palomar 80 linear amplifiers and told
the agents that an additional model (Galaxy XL250) was expected to be in
stock later that day. The salesman offered to sell these linear
amplifiers, which were capable of operation in the 26.965 to 27.405 MHz
frequency band, to the agents. Section 302 of the Act, and Sections
2.803 and 2.815 of the Rules prohibit the sale or offer for sale of
linear amplifiers that are capable of operation in the 26.965 to 27.405
MHz frequency band. On July 14, 1999, the District Director, Seattle
Field Office, issued an NAL to Two Way in the amount of \$7,000 for
willful and repeated violations of Section 302 of the Act, which
prohibits the sale or offer for sale of transmitting equipment not in
compliance with the FCC rules, and Sections 2.803 and 2.815 of the
Rules, which prohibit the sale or offer for sale of linear amplifiers
that are capable of operation in the 26.965 to 27.405 MHz frequency
band.

4\. On July 26, 1999, the Commission received the response to the NAL,
in which Two Way requests the cancellation of the proposed forfeiture.
Two Way asserts: that Gary Greenfield was not an employee of Two Way at
any time during March 1999; that Two Way is a proprietorship which has
never had any employees;[^4] that its business records indicate it never
purchased any linear amplifiers; and that Two Way collects sales taxes
and charges \$38.50 for installation and tuning.[^5] In addition, Two
Way states, if its response does not close this matter, it is making a
"motion for Discovery."

# III. DISCUSSION

5\. As the NAL explicitly states, the forfeiture amount in this case was
assessed in accordance with Section 503 of the Act,[^6] Section 1.80 of
the Rules, [^7] and *The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines*, 12 FCC Rcd 17087 (1997), *recon. denied*, FCC 99-407,
(Released Dec. 28, 1999) ("*Policy Statement*"). In examining Two Way's
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]

6\. The claims made in Two Way's attack upon the factual basis for the
NAL are either immaterial or are directly contradicted by the
observations of FCC agents. The agents who went to Two Way's place of
business observed linear amplifiers on the premises and received offers
to sell linear amplifiers from salespersons believed to be Mr.
Greenfield and Mr. Cleppe. This is sufficient to establish the
violations alleged in the NAL and contradicts the claim that Two Way did
not possess any linear amplifiers. It is not material whether the
persons who made the offers to sell were employees of Two Way or
proprietors.

7\. Discovery is available in Commission adjudication proceedings that
have been designated for hearing.[^9] Since this case has not been
designated for hearing, Two Way's discovery motion is inappropriate.

8\. We have examined Two Way's response to the NAL pursuant to the
statutory factors above, and in conjunction with the *Policy Statement*
as well. As a result of our review, we conclude that Two Way has failed
to justify cancellation or reduction of the proposed forfeiture amount.
Therefore, we affirm the forfeiture of seven thousand dollars (\$7,000).

# IV. ORDERING CLAUSES

9\. **ACCORDINGLY, IT IS ORDERED** that, pursuant to Section 503(b) of
the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^10] the
Two Way Shop, **IS LIABLE FOR A MONETARY FORFEITURE** in the amount of
seven thousand (\$7,000) for the repeated and willful violation of
Section 302 of the Act, which prohibits the sale or offer for sale of
transmitting equipment not in compliance with the FCC rules, and
Sections 2.803 and 2.815 of the Rules, which prohibit the sale or offer
for sale of linear amplifiers that are capable of operation in the
26.965 to 27.405 MHz frequency band.

10\. 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 specified period,
the case may be referred to the Department of Justice for collection
pursuant to Section 504(a) of the Act.[^11] Payment may be made by
credit card through the Commission's Credit and Debt Management Center
at (202) 418-1995 or by mailing a check or similar instrument, payable
to the order of the "Federal Communications Commission," to the Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment should note the NAL/Acct. No. 915ST0007. Requests for full
payment under an installment plan should be sent to: Chief, Credit and
Debt Management Center, 445 12^th^ Street, S.W., Washington, D.C. 20554.

11\. **IT IS FURTHER ORDERED** that a copy of this Order shall be sent
by certified mail, return receipt requested, to Mr. Patrick Cleppe, the
Two Way Shop, 220 Columbia Drive E., Kennewick, Washington 99336.

**FEDERAL COMMUNICATIONS COMMISSION**

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 U.S.C. § 302.

[^2]: 47 C.F.R. §§ 2.803 and 2.815.

[^3]: *Notice of Apparent Liability for Forfeiture*, NAL Acct. No.
    915ST0007 (Compl. & Inf. Bur., Seattle Office Released July 16,
    1999).

[^4]: The NAL states that an employee of Two Way made offers to sell on
    May 15, 1999.

[^5]: The NAL states that Two Way proposed a cash only transaction with
    no sales tax and offered installation and tuning for \$20.00.

[^6]: 47 U.S.C. § 503(b).

[^7]: 47 C.F.R. § 1.80.

[^8]: 47 U.S.C. § 503(b)(2)(D).

[^9]: *See* 47 C.F.R. §§ 1.311-1.325.

[^10]: 47 C.F.R. §§ 0.111, 0.311 and 1.80(f)(4).

[^11]: 47 U.S.C. § 504(a).