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 Federal  Communications  Commission 
 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  Joes  Radio  Electronics  ) 
 and  GI  Joes  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  Joes  Radio  Electronics  and  GI  Joes  CB  Radio  (collectively  referred  to  herein  as  GI 
 Joes)  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  Joes  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  Joes  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  Bureaus  Detroit  Office  visited  the  GI  Joes  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 
 Commissions  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  Joes  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 

 1  According  to  a  search  of  the  LexisNexis  Business  Reports,  Noe  is  the  owner  of  GI  Joes  Radio  Electronics  and  GI  Joes  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). 
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 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  Joes  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  Joes  web  site  also  were  displayed  and  offered  for  sale  in  the  store.  The  agent  orally  warned  Noe  and  issued  written 
 warnings  to  GI  Joes  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  Joes  to  monetary  forfeitures  and/  or  criminal  sanctions. 

 5.  In  a  response  dated  July  24,  2003,  counsel  for  GI  Joes  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  Joes  counsel. 

 6.  On  April  21,  2005,  in  response  to  complaints  that  GI  Joes  continued  to  sell  non-  certified  CB  transceivers  and  illegal  external  RF  power  amplifiers,  agents  from  the  Detroit  Office  again  visited  GI 
 Joes  store  in  Richmond,  KY.  During  the  visit,  the  agents  observed  that  GI  Joes  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  Joes  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  Joes  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  Joes  web  site  and  observed  that  GI  Joes  continued  to  market  non-  certified  CB  transceivers  and  non-  certified  external  RF  power  amplifiers, 

 5  See  Citation  to  G.  I.  Joes  CB  &  Export  Radio,  released  June  25,  2003  (  Citation).  In  2003,  the  company  name  on  the  web  site 
 was  GI  Joes  CB  &  Export  Radio.  The  Citation  identified  the  Internet  domain  name  for  GI  Joes  CB  &  Export  Radio  as  www.  cbshop.  webtrix.  net,  which  is  still  valid  and  leads  to  the  GI  Joes  Radio  Electronics  web  site. 

 6  Letter  from  Wes  Noe,  GI  Joes  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  Joes  web  site  (see  infra  para.  8),  they  were  not,  at  the  time,  being  displayed  for  sale  at  the  store. 

 8  The  agent  visited  GI  Joes  web  site  at  http://  www.  gijoesradioelectronics.  com. 
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 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 
 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). 
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 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  Commissions  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  Joes  a  Citation  on  June  25,  2003,  and  written  warnings  on  July  21,  2003,  concerning  GI  Joes  marketing  of  non-  certified  CB  transceivers  and  external  radio 
 frequency  power  amplifiers.  During  a  visit  to  GI  Joes  store  in  Richmond,  Kentucky  on  April  21,  2005,  agents  from  the  Detroit  Office  observed  that  GI  Joes  offered  for  sale  non-  certified  CB  transceivers.  On 
 that  same  day,  an  agent  visited  GI  Joes  web  site  and  observed  that  GI  Joes  offered  for  sale  non-  certified  CB  transceivers  and  non-  certified  external  RF  power  amplifiers.  As  of  March  29,  2006,  the  GI  Joes  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  Joes  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  Commissions  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  Joes  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 
 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). 
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 Act,  as  amended,  and  Sections  0.111,  0.311,  0.314  and  1.80  of  the  Commissions  Rules,  Wesley  Noe,  d.  b.  a.  GI  Joes  Radio  Electronics  and  GI  Joes  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 
 Joes  Radio  Electronics  and  GI  Joes  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  petitioners 
 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 

 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. 
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