**Before the**

## Federal Communications Commission

## Washington, D.C. 20554

**In the Matter of** )

> ) File No. EB-05-DT-047

Wesley Noe )

d.b.a. GI Joe's Radio Electronics )

and GI Joe's CB Radio ) NAL/Acct. No. 200632360002

Richmond, Kentucky ) FRN: 0014938096

)

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Released: April 19, 2006**

By the District Director, Detroit Office, Northeast Region, Enforcement
Bureau:

# I. INTRODUCTION

1\. In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
find that Wesley ("Wes") Noe, d.b.a. GI Joe's Radio Electronics and GI
Joe's CB Radio (collectively referred to herein as "GI Joe's")[^1]
apparently willfully and repeatedly violated Section 302(b) of the
Communications Act of 1934 as amended, ("Act")[^2], and Sections
2.803(a)(1), 2.815(b), and 2.815(c) of the Commission\'s Rules
("Rules")[^3] by offering for sale non-certified Citizens Band ("CB")
transceivers and external radio frequency ("RF") power amplifiers.
Specifically, Noe willfully and repeatedly violated Sections
2.803(a)(1), 2.815(b), and 2.815(c) of the Rules by offering for sale
non-certified CB transceivers and RF power amplifiers on the GI Joe's
Radio Electronics' web site. Noe also willfully violated Section
2.803(a)(1) of the Rules by offering for sale non-certified CB
transceivers at the GI Joe's CB Radio store in Richmond, KY. We
conclude, pursuant to Section 503(b) of the Act,[^4] that Wesley Noe
apparently is liable for a forfeiture in the amount of twenty-one
thousand dollars (\$21,000).

## II. BACKGROUND

2.  On June 17, 2003, in response to a complaint, an agent from the
    Enforcement Bureau's Detroit Office visited the GI Joe's web site.
    The agent observed that the web site displayed and offered for sale
    multiple makes and models of non-certified CB transceivers,
    including Galaxy models DX55V and DX66V, as well as the Connex 3300
    model. These models previously had been tested by the Commission's
    Office of Engineering and Technology ("OET") and determined to be
    non-certified CB transceivers. The agent also observed numerous
    makes and models of external RF power amplifiers, including RM
    Costruzioni Elettroniche ("RM Italy") models KLV 60, KLV-200P, and
    KLV-300P.

3.  On June 25, 2003, the Detroit Office issued a Citation to GI Joe's
    for violation of Section 302(b) of the Act and Sections 2.803(a)(1)
    and 2.815 of the Rules by offering for sale non-certified CB
    transceivers and external RF power amplifiers.[^5] The Citation
    outlined the marketing rules that were being violated and the
    possible penalties for future violations of those rules. In a
    response received by the Detroit Office on July 9, 2003, Noe stated
    that "\[a\]ll 10 meter radios have been identified and labeled as 10
    meter radios and will only be sold as such in the United
    States."[^6] Noe further stated that he had discontinued the sale of
    the external RF power amplifiers that operate between 24 MHz and 35
    MHz.

4.  On July 21, 2003, an agent from the Detroit Office conducted an
    on-scene investigation with Noe at GI Joe's store in Richmond, KY.
    The agent observed that many of the same non-certified CB
    transceivers and external radio frequency power amplifiers offered
    for sale on the GI Joe's web site also were displayed and offered
    for sale in the store. The agent orally warned Noe and issued
    written warnings to GI Joe's regarding the sale of the non-certified
    CB transceivers and external radio frequency power amplifiers. Each
    warning letter stated that the sale of non-certified equipment must
    cease immediately and warned that future violations might subject GI
    Joe's to monetary forfeitures and/or criminal sanctions.

5.  In a response dated July 24, 2003, counsel for GI Joe's disputed
    "all of the legal and factual contentions set forth in the citation
    and notices" and stated the expectation that the Citation and the
    warnings would be withdrawn within fourteen days. The Detroit Office
    did not withdraw or otherwise cancel the Citation as requested by GI
    Joe's counsel.

6.  On April 21, 2005, in response to complaints that GI Joe's continued
    to sell non-certified CB transceivers and illegal external RF power
    amplifiers, agents from the Detroit Office again visited GI Joe's
    store in Richmond, KY. During the visit, the agents observed that GI
    Joe's displayed and offered for sale non-certified CB transceivers,
    including Galaxy models DX55V, DX66V and Connex model 3300, among
    others.[^7]

7.  During the April 21, 2005 visit, the agents also found and inspected
    two CB stations located in GI Joe's store. The CB stations used
    non-certified CB transceivers, Galaxy models DX99V and DX66V
    transceivers. The agents observed that both transceivers were
    equipped to operate on the frequencies assigned to the CB Radio
    Service as well as on other frequencies, including those assigned to
    the Amateur Radio Service ("ARS") and the United States Government.

8.  Also on April 21, 2005, an agent in the Detroit Office visited the
    GI Joe's web site and observed the following non-certified CB
    transceivers being offered for sale: Connex model 3300 and Galaxy
    models DX55V, DX66V, DX99V, among others. The web site also offered
    for sale the following RM Italy linear amplifiers models: KL-60,
    KLV-200P, KLV-300P, kl-250, and KL-550, among others. [^8]

9.  On March 29, 2006, an agent visited GI Joe's web site and observed
    that GI Joe's continued to market non-certified CB transceivers and
    non-certified external RF power amplifiers, including Galaxy models
    DX55V, DX66V, DX99V transceivers and RM Italy models KL-60,
    KLV-200P, KLV-300P external RF power amplifiers.

**III. DISCUSSION**

10. Section 503(b) of the Act provides that any person who willfully or
    repeatedly fails to comply substantially with the terms and
    conditions of any license, or willfully or repeatedly fails to
    comply with any of the provisions of the Act or of any rule,
    regulation or order issued by the Commission thereunder, shall be
    liable for a forfeiture penalty. The term "willful" as used in
    Section 503(b) has been interpreted to mean simply that the acts or
    omissions are committed knowingly.[^9] The term "repeated" means the
    commission or omission of such act more than once or for more than
    one day.[^10]

11. 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."[^11]
    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 . . . ."[^12] Section
    2.815(b) of the Rules states that "...no person shall manufacture,
    sell or lease, 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 external radio
    frequency power amplifier or amplifier kit capable of operation on
    any frequency or frequencies between 24 and 35 MHz."[^13] Section
    2.815(c) of the Rules provides that "\[n\]o person shall
    manufacture, sell or lease, 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
    external radio frequency power amplifier or amplifier kit capable of
    operation on any frequency below 144 MHz unless the device has
    received a grant of type acceptance \[now under certification\] . .
    . ."[^14]

12. 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.[^15] 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."[^16] 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).[^17] 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.[^18] Additionally, OET has evaluated the
    models at issue here and has determined that these devices could
    easily be altered for use as CB transceivers and therefore require
    certification.

13. The Detroit Office issued GI Joe's a Citation on June 25, 2003, and
    written warnings on July 21, 2003, concerning GI Joe's marketing of
    non-certified CB transceivers and external radio frequency power
    amplifiers. During a visit to GI Joe's store in Richmond, Kentucky
    on April 21, 2005, agents from the Detroit Office observed that GI
    Joe's offered for sale non-certified CB transceivers. On that same
    day, an agent visited GI Joe's web site and observed that GI Joe's
    offered for sale non-certified CB transceivers and non-certified
    external RF power amplifiers. As of March 29, 2006, the GI Joe's web
    site continued to market non-certified CB transceivers and
    non-certified external RF power amplifiers. Based on the evidence
    before us, we find that GI Joe's apparently willfully and repeatedly
    violated Section 302 of the Act and Sections 2.803(a)(1), 2.815(b)
    and 2.815(c) of the Rules by offering for sale non-certified CB
    transceivers and linear amplifiers.

14. Pursuant to The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines, ("Forfeiture Policy Statement"), and Section 1.80 of the
    Rules, the base forfeiture amount for importation or marketing of
    unauthorized equipment is seven thousand dollars (\$7,000).[^19] In
    assessing the monetary forfeiture amount, we must take into account
    the statutory factors set forth in Section 503(b)(2)(D) of the Act,
    which include the nature, circumstances, extent, and gravity of the
    violations, 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.[^20] Applying the
    Forfeiture Policy Statement, Section 1.80, and the statutory factors
    to the instant case, we find that GI Joe's offered for sale on its
    web site non-certified CB transceivers and non-certified RF power
    amplifiers in violation of Sections 2.803(a)(1), 2.815(b), and
    2.815(c) of the Rules and offered for sale at its store in Richmond,
    KY non-certified CB transceivers in violation of Section 2.803(a)(1)
    of the Rules. We therefore conclude that Wes Noe apparently is
    liable for a \$21,000 forfeiture.

**IV. ORDERING CLAUSES**

15\. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
the Communications Act, as amended, and Sections 0.111, 0.311, 0.314 and
1.80 of the Commission's Rules, Wesley Noe, d.b.a. GI Joe's Radio
Electronics and GI Joe's CB Radio, is hereby **NOTIFIED** of this
**APPARENT LIABILITY FOR A FORFEITURE** in the amount of twenty-one
thousand dollars (\$21,000) for violation of Section 302(b) of the Act
and Sections 2.803(a)(1), Section 2.815(b), and 2.815(c) of the Rules.
[^21]

16\. **IT IS FURTHER ORDERED** that, pursuant to Section 1.80 of the
Rules, within thirty (30) days of the release date of this Notice of
Apparent Liability for Forfeiture, Wesley Noe, d.b.a. GI Joe's Radio
Electronics and GI Joe's CB Radio, **SHALL PAY** the full amount of the
proposed forfeiture or **SHALL FILE** a written statement seeking
reduction or cancellation of the proposed forfeiture.

17\. 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.

18\. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, Detroit Office, 24897
Hathaway Street, Farmington Hills, MI 48335-1552, and must include the
NAL/Acct. No. referenced in the caption.

19\. The Commission will not consider reducing or canceling a forfeiture
in response to a claim of inability to pay unless the petitioner
submits: (1) federal tax returns for the most recent three-year period;
(2) financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.

20\. Requests for payment of the full amount of this Notice of Apparent
Liability under an installment plan should be sent to: Associate
Managing Director, Financial Operations, 445 12th Street, S.W., Room
1A625, Washington, D.C. 20554.[^22]

21\. **IT IS FURTHER ORDERED** that a copy of this Notice of Apparent
Liability for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail to Wesley Noe at his address of record and
to counsel for Wesley Noe at his address of record.

FEDERAL COMMUNICATIONS COMMISSION

James A. Bridgewater

District Director

Detroit Office

Northeast Region

Enforcement Bureau

[^1]: According to a search of the LexisNexis Business Reports, Noe is
    the owner of GI Joe's Radio Electronics and GI Joe's CB Radio.

[^2]: 47 U.S.C. § 302(b).

[^3]: 47 C.F.R § 2.803(a)(1), 2.815(b), 2.815(c).

[^4]: 47 U.S.C. § 503(b).

[^5]: *See* Citation to G.I. Joe's CB & Export Radio, released June 25,
    2003 ("Citation"). In 2003, the company name on the web site was GI
    Joe's CB & Export Radio. The Citation identified the Internet domain
    name for GI Joe's CB & Export Radio as
    [www.cbshop.webtrix.net](http://www.cbhop.webtrix.net/), which is
    still valid and leads to the GI Joe's Radio Electronics' web site.

[^6]: Letter from Wes Noe, GI Joe's CB Radio, to James A. Bridgewater,
    received July 9, 2003.

[^7]: The agents also observed RF power amplifiers at the store,
    including RM Italy models KL 60, KL 200-P, KL 300-P, and KLV 250.
    Although these amplifiers were being offered for sale on GI Joe's
    web site (*see infra* para. 8), they were not, at the time, being
    displayed for sale at the store.

[^8]: The agent visited GI Joe's web site at
    [http://www.gijoesradioelectronics.com](http://www.gijoesradioelectronics.com/).

[^9]: 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\', when
    used with reference to the commission or omission of any act, 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).

[^10]: Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also
    applies to violations for which forfeitures are assessed under
    Section 503(b) of the Act, provides that \"\[t\]he term
    \'repeated\', when used with reference to the commission or omission
    of any act, means the commission or omission of such act more than
    once or, if such commission or omission is continuous, for more than
    one day."

[^11]: 47 U.S.C. § 302 (b).

[^12]: 47 C.F.R. § 2.803(a)(1).

[^13]: 47 C.F.R. §2.815(b).

[^14]: 47 C.F.R. §2.815(c).

[^15]: *See* 47 C.F.R. §§ 2.907, 2.927(a).

[^16]: 47 C.F.R. § 95.603(c).

[^17]: 47 C.F.R. § 95.655(a).

[^18]: Letter from Christopher Wright, General Counsel, FCC to John
    Wood, Chief Intellectual Property Rights, US Customs Service, 14 FCC
    Rcd 7797 (OGC, 1999).

[^19]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^20]: 47 U.S.C. § 503(b)(2)(D).

[^21]: 47 U.S.C. §§ 503(b), 302(b); 47 C.F.R. §§ 0.111, 0.311, 0.314,
    1.80, 2.803(a)(1), 2.815(b) and 2.815(c).

[^22]: *See* 47 C.F.R. § 1.1914.