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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File Number EB-05-PO-029
)
TravelCenters of America NAL/Acct. No. 200532920002
)
Troutdale, Oregon FRN # 0013411665
)
)
FORFEITURE ORDER
Adopted: June 27, 2006 Released: June 29, 2006
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 TravelCenters of
America ("TravelCenters") in Troutdale, Oregon, for willfully and
repeatedly violating Section 302(b) of the Commissions Act of 1934, as
amended ("Act"), and Section 2.803(a)(1) of the Commission's Rules
("Rules"). On July 27, 2005, the Enforcement Bureau's Portland
Resident Agent Office issued a Notice of Apparent Liability for
Forfeiture ("NAL") after determining that TravelCenters offered for
sale a non-certified Citizens Band ("CB") transceiver. In this Order,
we consider TravelCenters' argument that the type of transceivers it
offered for sale are not covered by the Commission's definition of CB
transmitter.
II. BACKGROUND
2. On October 25, 2001, an agent from the Enforcement Bureau's Portland
Resident Agent Office ("Portland Office") visited TravelCenters'
retail store in Troutdale, Oregon. The agent observed that the store
displayed and offered for sale six models of CB transceivers,
specifically, one Delta Force transceiver and five Galaxy transceivers
models DX33HML, DX44V, DX66V, 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 19, 2001, the Portland Office issued a Citation to
TravelCenters' retail store in Troutdale, Oregon 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. The Citation warned
TravelCenters that future violations may subject TravelCenters to
civil monetary forfeitures not to exceed $11,000 for each violation or
each day of a continuing violation, seizure of equipment through in
rem forfeiture action, and criminal sanctions including fines and
imprisonment.
4. In a response dated December 3, 2001, counsel for TravelCenters
disputed the Citation, stating that the transceivers listed in the
Citation were legal to sell. Counsel for TravelCenters further
requested that the Portland Office withdraw the Citation within 30
days from December 3, 2001. In a letter to the Portland Office, dated
January 18, 2002, counsel for TravelCenters indicated that he would
advise his client to resume selling the referenced non-certified CB
transceivers. In a response to TravelCenters, dated February 6, 2002,
the Portland Office reaffirmed the violation and warned that the
marketing of the non-certified CB transceivers should cease
immediately.
5. On February 9, 2005, an agent from the Portland Office went to
TravelCenters' retail store in Troutdale, Oregon. The agent observed
and took photographs of non-certified Galaxy CB transceivers that were
displayed at the store. The agent asked a salesperson at the store if
he could purchase one of the transceivers and the salesperson
responded that she would sell the transceiver to the agent. The agent
also interviewed the store manager. The store manager acknowledged
that his store once received a Citation from the FCC but that he
believed the above Galaxy CB transceivers were legal to sell. After
talking with the agent, the store manager indicated that he would pull
the transceivers off the shelves.
6. On July 27, 2005, the Enforcement Bureau's Portland Resident Agent
Office issued a NAL in the amount of $7,000 to Travel Centers. In the
NAL, the Portland Office found that TravelCenters apparently willfully
and repeatedly violated Section 302(b) of the Act, and Section
2.803(a)(1) of the Rules by offering for sale a non-certified CB
transceiver. TravelCenters filed a response on August 31, 2005
("Response"). In its Response, TravelCenters argues that the Galaxy
transceivers are not CB transceivers. Specifically, TravelCenters
argues that the Galaxy transceivers are not covered by the
Commission's definition of CB transmitter, and that the Commision's
effort to clarify this definition was a violation of the
Administrative Procedures Act ("APA").
III. DISCUSSION
7. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines. 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.
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." 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 . . . ."
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. 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." 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). 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. Additionally,
the Commission's Office of Engineering and Technology ("OET")
evaluated the Galaxy models at issue here and determined that these
devices could easily be altered for use as CB transceivers.
10. TravelCenters argues that the Galaxy transceivers that it offered for
sale are ARS transmitters, which do not require certification, and not
CB transceivers. TravelCenters states that the Galaxy transceivers do
not come under the definition of CB transmitters, pursuant to Section
95.603 of the Rules, because these Galaxy transceivers do not operate
on CB frequencies and are not intended for use as CB transceivers.
These transceivers, argues TravelCenters, transmit exclusively on the
ARS 10 meter band as manufactured. In addition, TravelCenters argues
that it does not intend for the Galaxy transceivers to be used as CB
transceivers, as evidenced by the fact that when TravelCenters markets
these transceivers, it posts a notice near its display case stating
that the Galaxy transceivers are not CB transceivers, that they are
intended for use as ARS transceivers, and that a license is required
for use of ARS equipment. TravelCenters, however, 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. Consistent with
Sections 95.603(c) and the OGC Letter, and as stated in the NAL, OET
evaluated the Galaxy transceiver models at issue here, and determined
they were non-certified CB transceivers. TravelCenters provides no
evidence to show that the Galaxy models it offered for sale were not
easily modified. Therefore, we find that the subject Galaxy models
were CB transmitters pursuant to Section 95.603(c), regardless of the
signs TravelCenters placed near the point of purchase. Consequently,
we find this argument to be without merit.
11. TravelCenters also argues that over ten years ago, OET issued a public
notice, "trying to expand the definition of a CitizenBand transmitter
to transceiver capable of being "easily modified" to work on the
Citizen Band service." TravelCenters 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 TravelCenters'
liability in the NAL, the Portland Office relied on the OGC Letter and
its interpretation of Section 95.603(c), as well as OET's specific
determination concerning the Galaxy models at issue, and did not rely
on the public notice cited to by TravelCenters. We note that
TravelCenters does not argue that the enactment of Section 95.603(c)
violated the APA nor does TravelCenters object to the clarification
offered by the OGC Letter. Therefore, we find no merit to this
argument either.
12. TravelCenters 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. Second, the OGC Letter explains the concept of "easily
modified" as including moving or removing a jumper plug or cutting a
single wire. Third, TravelCenters 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
19, 2001, 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 Portland Office, on February 6, 2002, warning that it should no
longer offer for sale the Galaxy transceivers at issue. Despite these
notices and warnings, TravelCenters 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 TravelCenters
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, TravelCenters of
America 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.
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. 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. Requests for full payment under an installment plan should be
sent to: Associate Managing Director - Financial Operations, Room
1A625, 445 12th Street, S.W., Washington, D.C. 20554.
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 Travel
Centers of America 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
47 U.S.C. S 302a(b).
47 C.F.R. S 2.803(a)(1).
Citation to TravelCenters of America, Inc., released November 19, 2001
("Citation").
See 47 C.F.R. S 1.80(b)(3).
See 47 C.F.R. S 501, 503(b), 510.
In a response letter to the Portland Office, dated February 13, 2002,
Counsel for TravelCenters again disputed the Citation and requested that
the Citation to be withdrawn by the Portland Office within 30 days.
The models available for sale included the Galaxy Model DX66V and the
Galaxy Model DX99V.
On January 20, 2005, the Commission's Detroit District Office issued a
Citation for selling non-certified CB transceivers to a TravelCenters
retail store in Dexter, Michigan. In a response dated February 4, 2005,
TravelCenters stated that they disagreed with the legal and factual
contentions in the Citation, but that they would remove the transceivers
from the Dexter, Michigan retail store. On April 5, 2005, the Commission's
New York District Office issued a Citation for selling non-certified CB
transceivers to a TravelCenters retail store in Bloomsbury, New Jersey. In
a response dated April 14, 2005, TravelCenters again stated that they
disagreed with the legal and factual contentions contained in the Citation
but that they would remove the transceivers from the Bloomsbury, New
Jersey retail store.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200532920002
(Enf. Bur., Western Region, Portland Resident Agent Office, released July
27, 2005). We note that in the NAL, the Portland Office inadvertently
listed an incorrect NAL Account Number. The correct NAL Account Number is
listed above and in the caption of this Order.
47 U.S.C. S 302a(b).
47 C.F.R. S 2.803(a)(1).
5 U.S.C. S 553(b).
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 302a(b).
47 C.F.R. S 2.803(a)(1).
See 47 C.F.R. SS 2.907, 2.927(a).
47 C.F.R. S 95.603(c). See Pilot Travel Centers, 19 FCC Rcd 23113, 23114
(2004).
47 C.F.R. S 95.655(a).
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").
Pilot Travel Centers, 19 FCC Rcd at 23119.
14 FCC Rcd 7797.
NAL at para. 8, and para 9, n.18.
Response at 4.
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. S 0.445(e). See HighTech CB Shop,
Memorandum Opinion and Order, DA 05-3125, 2005 WL 3274371 (rel. December
2, 2005).
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).
14 FCC Rcd 7797.
TravelCenters states in its Response that after the follow-up notice from
the Portland Office, it again questioned the illegality of the
transceivers in letters dated February 13, 2002 and April 1, 2002, and,
hearing no reply from the Portland Office, it assumed that "the FCC agreed
with TravelCenter's position that the transceivers were legal." We find
TravelCenter's logic to be simply irrational. See HighTech CB Shop,
Forfeiture Order, DA 05-2069, 2005 WL 1773762 (rel. July 27, 2005), recon.
denied, HighTech CB Shop, Memorandum Opinion and Order, DA 05-3125, 2005
WL 3274371 (rel. December 2, 2005). We also find that TravelCenters
received more than adequate notice, pursuant to Section 503(b)(5) of the
Act, 47 U.S.C. S 503(b)(5), prior to the issuance of the NAL.
47 U.S.C. SS 302a(b), 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4),
2.803(a)(1).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-1334
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Federal Communications Commission DA 06-1334