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:

# I. INTRODUCTION

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\"),[^1] and Section 2.803(a)(1) of the
    Commission\'s Rules (\"Rules\").[^2] 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
    certification.

# II. BACKGROUND

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.[^3] 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,[^4] seizure of equipment through *in rem* forfeiture
    action, and criminal sanctions including fines and imprisonment.[^5]

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.[^6]

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.[^7] In the *NAL*, the Denver Office found
    that CB Shop apparently willfully and repeatedly violated Section
    302(b) of the Act,[^8] and Section 2.803(a)(1) of the Rules[^9] 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.[^10]

# III. DISCUSSION

7.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Act,[^11] Section 1.80 of the
    Rules,[^12] and *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines*.[^13] 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.[^14]

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."[^15]
    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 . . . ."[^16]

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.[^17] 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."[^18] 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).[^19] 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.[^20]
    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.[^21]

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.[^22] 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.[^23] 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.[^24] 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
    DX99V.

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."[^25] 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.*[^26] 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.[^27] 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."[^28] Second, the *OGC
    Letter* explains the concept of "easily modified" as including
    moving or removing a jumper plug or cutting a single wire.[^29]
    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.

# IV. ORDERING CLAUSES

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.[^30]

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.[^31] 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:
    <ARINQUIRIES@fcc.gov> 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.

**FEDERAL COMMUNICATIONS COMMISSION**

Rebecca L. Dorch

Regional Director, Western Region

Enforcement Bureau

[^1]: 47 U.S.C. § 302a(b).

[^2]: 47 C.F.R. § 2.803(a)(1).

[^3]: Citation to CB Shop & More, LLLP, released November 26, 2002
    (\"Citation\").

[^4]: *See* 47 C.F.R. § 1.80(b)(3).

[^5]: *See* 47 U.S.C. §§ 501, 503(b), 510.

[^6]: 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.

[^7]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200732800008 (Enf. Bur., Western Region, Denver Office, released
    August 28, 2007).

[^8]: 47 U.S.C. § 302a(b).

[^9]: 47 C.F.R. § 2.803(a)(1).

[^10]: 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.

[^11]: 47 U.S.C. § 503(b).

[^12]: 47 C.F.R. § 1.80.

[^13]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999).

[^14]: 47 U.S.C. § 503(b)(2)(E).

[^15]: 47 U.S.C. § 302a(b).

[^16]: 47 C.F.R. § 2.803(a)(1).

[^17]: *See* 47 C.F.R. §§ 2.907, 2.927(a).

[^18]: 47 C.F.R. § 95.603(c). *See* *Pilot Travel Centers*, 19 FCC Rcd
    23113, 23114 (2004).

[^19]: 47 C.F.R. § 95.655(a).

[^20]: 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 (2007).

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

[^22]: 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.

[^23]: 14 FCC Rcd 7797.

[^24]: *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.

[^25]: *Response* at 2 - 3.

[^26]: 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. § 0.445(e). *See*
    *TravelCenters of America*, 21 FCC Rcd at 6981. *See also, HighTech
    CB Shop*, 20 FCC Rcd 19269, 192671 (EB 2005).

[^27]: *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).

[^28]: *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). 

[^29]: 14 FCC Rcd 7797.

[^30]: 47 U.S.C. §§ 302a(b), 503(b), 47 C.F.R. §§ 0.111, 0.311,
    1.80(f)(4), 2.803(a)(1).

[^31]: 47 U.S.C. § 504(a).