**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | File No. EB-04-SE-123        |
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| Gibson Tech Ed, Inc.             | ** | NAL/Acct. No. 200532100013   |
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| d/b/a/ Hobbytron.com             | *  | FRN: 0007050479              |
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| Orem, Utah                       | ** |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: August 25, 2006 Released: August 29, 2006**

By the Chief, Enforcement Bureau:

# introduction

1.  In this Memorandum Opinion and Order, we deny a petition for
    reconsideration filed by Gibson Tech Ed Inc., d/b/a/ Hobbytron.com
    ("Gibson"), of a *Forfeiture* *Order*[^1] imposing a forfeiture of
    fourteen thousand dollars (\$14,000) for willful and repeated
    violation of Section 302(b) of the Communications Act of 1934, as
    amended ("Act"),[^2] and Section 2.803(a) of the Commission's Rules
    ("Rules").[^3] The violations involved Gibson's marketing of two
    models (R-FM25B-WT) and (R-FM100B-WT) of unauthorized FM broadcast
    transmitters.

# BACKGROUND

2.  On June 30, 2004, the Enforcement Bureau (\"Bureau\") issued Gibson
    a Citation[^4] for marketing unauthorized FM broadcast transmission
    equipment manufactured by Veronica Ltd. (\"Veronica\"), in violation
    of Section 302(b) of the Act and Section 2.803(a) of the Rules, and
    for failing to respond to a letter of inquiry (\"LOI\").[^5]

3.  In connection with the investigation of Gibson's sale of Veronica
    equipment, Bureau staff observed that Gibson was also marketing FM
    transmitters identified on Gibson's website as "Ramsey"
    equipment.[^6] The Bureau subsequently investigated Gibson's
    marketing of Ramsey FM transmitters and determined that Gibson was
    offering for sale, on its Hobbytron.com website, fully assembled FM
    broadcast transmitters designated as R-FM25B-WT and R-FM100B-WT. The
    FCC's equipment authorization database indicated that neither Gibson
    nor Ramsey had received a grant of equipment certification[^7] for
    either the R-FM25B-WT or the R-FM100B-WT.[^8] The Bureau issued a
    *Notice of Apparent Liability*[^9] finding that Gibson apparently
    marketed two Ramsey models of uncertified FM broadcast transmitters
    in the United States, in willful[^10] and repeated[^11] violation of
    Section 302(b) of the Act and Section 2.803(a)(2) of the Rules.

4.  On March 21, 2006, believing incorrectly that Gibson had not filed a
    response to the *NAL*, the Bureau issued the *Forfeiture Order* to
    Gibson upholding the *NAL*. In response, Gibson filed a petition for
    reconsideration of the *Forfeiture Order*.[^12] In its petition for
    reconsideration, Gibson argues that, for the reasons discussed in
    its previous filings,[^13] the forfeiture should not have included
    liability for sale of Veronica items,[^14] refers the Commission to
    Ramsey if Ramsey's equipment is not certified, and in any event,
    states that Gibson Tech Ed, Inc. did "not have the financial
    capability to pay any fines" and "will cease operations as of the
    end of this month \[April, 2006\]."[^15]

# DISCUSSION

5.  Gibson makes various arguments pertaining to the Commission's
    observations in the *LOI* that Gibson was in violation of Section
    302(b) of the Act for marketing Veronica equipment.[^16] Gibson
    argues that the Commission used an "illegal secret shopper," and
    that Gibson had a form for purchasers to sign indicating they would
    be responsible for FCC registration. These arguments are moot,
    however, because Gibson has not been assessed a violation for its
    earlier marketing of Veronica equipment. Since Gibson stopped
    marketing the Veronica equipment upon the first notification by the
    Commission,[^17] it was not assessed a forfeiture for marketing the
    Veronica equipment.[^18] The two violations proposed in the *NAL*
    and assessed in the *Forfeiture Order* pertain to Gibson's marketing
    of Ramsey equipment on its web site.

6.  With respect to marketing Ramsey equipment, Gibson argues that it is
    selling US-manufactured Ramsey items that also are sold by hundreds
    of retail outlets nationwide. It states that it does "not understand
    any issues" with Ramsey equipment in view of Gibson's requirement
    that purchasers sign an agreement that they intend to export the
    transmitters.[^19] Gibson suggests the Commission contact Ramsey if
    we have concerns with its equipment. As discussed in the *NAL*,
    however, broadcast transmitters (with few exceptions not relevant
    here) must be certified in order to be marketed in the United
    States.[^20] The exception for sale of broadcast transmitters
    intended for export is available to the manufacturer of the
    transmitters, and the manufacturer must in fact export the
    devices.[^21] Gibson sells the devices within the United States, and
    thus is ineligible for the export exemption.[^22] Accordingly, the
    "export agreement" Gibson asks its customers to sign does not
    relieve Gibson of liability for marketing unlicensed
    transmitters.[^23] We conclude that Gibson was marketing
    unauthorized broadcast transmitters, as discussed in the *NAL* and
    *Forfeiture* *Order*, in violation of Section 302(b) of the Act.

7.  Gibson further states that it will cease operations at the end of
    April 2006 and lacks the financial resources to pay any fine. It
    adds that it does not have the financial capability to defend
    itself, and that it does not have legal counsel.[^24] A recent
    search of Gibson's Hobbytron.com website, however, shows that the
    web site is still functioning, and that the web site includes a link
    to Gibson Tech Ed, Inc., as well, which also has its own web site.
    Apparently, Gibson Tech Ed, Inc. is not out of business, and thus it
    remains liable for the assessed forfeiture. Moreover, there is no
    requirement that those who undertake business within the
    jurisdiction of the Commission must be represented by counsel before
    they are held responsible for complying with all the Commission's
    rules and regulations.[^25] Accordingly, it is irrelevant that
    Gibson is not represented by legal counsel. Finally, to the extent
    that Gibson claims inability to pay the forfeiture, it has failed to
    provide the required proof of its inability to pay in the form of
    "(1) federal tax returns for the most recent three-year period; (2)
    financial statements prepared according to generally accepted
    accounting; or (3) some other reliable and objective documentation
    that accurately reflects the petitioner\'s current financial
    status."[^26] Insolvency is not grounds to reduce or cancel a
    forfeiture if the party claiming a reduction for inability to pay
    does not provide adequate financial documentation.[^27]

    **IV. ORDERING CLAUSES**

8.  Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Act, and Section 1.106(j) of the Rules,[^28] the Petition for
    Reconsideration filed by Gibson Tech Ed, Inc. d/b/a/ Hobbytron.com,
    **IS DENIED.**

9.  **IT IS FURTHER ORDERED** that, pursuant to Section 503(b) of the
    Act[^29] and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^30]
    Gibson Tech Ed, Inc., d/b/a Hobbytron.com, **IS LIABLE FOR A
    MONETARY FORFEITURE** in the amount of \$14,000 for willful and
    repeated violation of Section 302(b) of the Act and Section 2.803(a)
    of the Rules.

10. 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.[^31] Payment may be made by
    credit card to 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, 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: Chief, Revenue and Receivables
    Operations Group, 445 12th Street, S.W., Washington, D.C.
    20554.[^32]

11. IT **IS FURTHER ORDERED** that a copy of this *Memorandum Opinion
    and Order* shall be sent by first class mail and certified mail
    return receipt requested to Gibson Tech Ed, Inc. d/b/a
    Hobbytron.com, 1053 South 1675 West, Orem, Utah 84058.

12. FEDERAL COMMUNICATIONS COMMISSION

13. 

14. 

15. 

16. Kris Anne Monteith

17. Chief, Enforcement Bureau

18. 

19. 

[^1]: *Gibson Tech Ed., Inc., Orem, Utah, Forfeiture Order,* 21 FCC Rcd
    2915 (Enf. Bur. 2006).

[^2]: 47 U.S.C. § 302a(b).

[^3]: 47 C.F.R. § 2.803(a).

[^4]: Citation issued on June 30, 2004, to Gibson Tech Ed, Inc., by
    Joseph P. Casey, Chief, Spectrum Enforcement Division, Enforcement
    Bureau.

[^5]: Letter from Joseph P. Casey, Chief, Spectrum Enforcement Division,
    Enforcement Bureau, to Gibson Tech Ed, Inc. (May 14, 2004).

[^6]: "Ramsey" refers to Ramsey Electronics, Inc., located in Victor,
    NY.

[^7]: A certification is an equipment authorization issued by the
    Commission, based on representations and test data submitted by the
    applicant. *See* 47 C.F.R. § 2.907(a).

[^8]: As discussed in the *NAL*, the Bureau conducted a separate
    investigation of Ramsey's sale of uncertified intentional FM
    radiators. *Ramsey Electronics, Inc.,* 21 FCC Rcd 458 (Enf. Bur.,
    Spectrum Enf. Div., 2006).

[^9]: *Gibson Tech Ed, Inc*., 20 FCC Rcd 14438 (Enf. Bur., Spectrum
    Enforcement Div., 2005)("*NAL*").

[^10]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
    applies to violations for which forfeitures are assessed under
    Section 503(b) of the Act, provides that "\[t\]he term 'willful,'
    ... means the conscious and deliberate commission or omission of
    such act, irrespective of any intent to violate any provision of
    this Act or any rule or regulation of the Commission authorized by
    this Act ...." *See Southern California Broadcasting Co.*, 6 FCC Rcd
    4387 (1991).

[^11]: Section 312(f)(2) of the Act provides that "\[t\]he term
    'repeated,' ... means the commission or omission of such act more
    than once or, if such commission or omission is continuous, for more
    than one day." 47 U.S.C. § 312(f)(2).

[^12]: Letter to Joseph P. Casey, Chief, Spectrum Enforcement Division,
    from Tim Gibson, Gibson Tech Ed, Inc., dated April 6, 2006, received
    April 19, 2006 ("*Petition for Reconsideration*").

[^13]: Letter to Mr. Brian Butler from Jim Royer, Gibson Tech Ed, Inc.,
    dated June 22, 2004; Letter to Mr. Brian Butler from Jim Royer,
    Gibson Tech Ed, Inc., dated July 20, 2004; Letter to Joseph P.
    Casey, Chief, Spectrum Enforcement Division, from Tim Gibson, Gibson
    Tech Ed, Inc., dated September 22, 2005 ("*Response to NAL*").

[^14]: The forfeiture was for marketing two uncertified Ramsey
    transmitters, and did not pertain to Veronica equipment; *see* ¶ 5,
    *infra*.

[^15]: *Petition for Reconsideration,* point 5.

[^16]: *Response to NAL*, *supra*.

[^17]: *Id*. at fourth unnumbered paragraph.

[^18]: 47 U.S.C. § 503(b)(5).

[^19]: *Petition for Reconsideration*, second unnumbered paragraph.

[^20]: 47 C.F.R. § 2.803(a).

[^21]: *See New Image Electronics*, 17 FCC Rcd 3594, 3596 (Enf. Bur.
    2002).

[^22]: To the extent that Gibson suggests the Commission acquiesced in
    this attempt to circumvent the Commission's rules, we note that the
    Commission is not required to develop corporate plans for Rule
    compliance by individual retail outlets. It is Gibson's
    responsibility to ensure its own compliance with the Rules. *See
    Eure Family Limited Partnership*, 17 FCC Rcd 21861, 21863-64 ¶¶ 6-7
    (2002); *Roadrunner Electronics, Inc.*, 8 FCC Rcd 6398, 6398 ¶ 6
    (Field Op. Bur. 1993).

[^23]: *See also* *NAL* at 3, ¶ 8.

[^24]: *Petition for Reconsideration*, numbered points 2, 5 and 6*.*

[^25]: *See Salzer v. FCC*, 778 F 2d 869, 875 n. 27 (D.C. Cir. 1985).

[^26]: *NAL* at 5, ¶ 19.

[^27]: *North American Broadcasting Co.,* 19 FCC Rcd 2769, 2770-71 ¶ 6
    (Enf. Bur. 2004).

[^28]: 47 C.F.R. § 1.106(f).

[^29]: 47 U.S.C. § 503(b).

[^30]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^31]: 47 U.S.C. § 504(a).

[^32]: *See* 47 C.F.R. § 1.1914.