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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File Number: EB-04-LA-133
Charles E. Vance III )
NAL/Acct. No.: 200632900005
d/b/a CB Candy Electronics )
FRN: 0014383509
Ontario, California )
)
FORFEITURE ORDER
Adopted: March 14, 2007 Released: March 16, 2007
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 fourteen thousand dollars ($14,000) to Charles E. Vance,
III d/b/a CB Candy Electronics ("Vance"), for willful and repeated
violation of Section 302(b) of the Commissions Act of 1934, as amended
("Act"), and Sections 2.803(a)(1) and 2.815(c) of the Commission's
Rules ("Rules"). On March 22, 2006, the Enforcement Bureau's Los
Angeles Office issued a Notice of Apparent Liability for Forfeiture
("NAL") in the amount of $14,000 to Vance for offering for sale
non-certified Citizens Band ("CB") transceivers and external RF power
amplifiers in Ontario, California. In this Order, we affirm the
findings of the Los Angeles Office.
II. BACKGROUND
2. On June 28, 2005, an agent from the Enforcement Bureau's Los Angeles
Office visited the CB Candy Electronics website. The agent downloaded
a sales catalog that displayed and offered for sale multiple makes and
models of non-certificated CB transceivers, including Galaxy models
DX-33, DX-66V and DX-99V, as well as the Connex 3300 model, among
others. The catalog also included numerous makes and models of
external radio frequency power amplifiers, specifically Skipper 350-B,
Palomar 1000, 450HD, 600HD; Red Devil 250R, 350 HD, and others. A
review of the Commission's records revealed that these devices had not
received an equipment authorization from the Commission.
3. On June 28, 2005, the Los Angeles Office issued a Citation to Vance
for violation of Section 302(b) of the Act, and Section 2.803(a)(1) of
the Commission's Rules by offering for sale, non-certified CB
transceivers and Section 2.815(c) of the Commission's Rules ("Rules")
by offering for sale external RF power amplifiers. The Citation
warned Vance that future violations might subject him 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 July 21, 2005, counsel for Vance disputed "all
legal and factual contentions set forth in the citation" and stated
that the transceivers listed in the Citation were legal to sell. The
response did not address the marketing of external power amplifiers
but stated the expectation that the Citation would be withdrawn within
14 days. The Los Angeles Office did not withdraw or otherwise cancel
the Citation within the 14 day period set forth by counsel for Vance.
5. On September 6, 2005, and again on February 3, 2006, an agent from the
Los Angeles Office again visited the CB Candy Electronics website. The
agent downloaded the identical catalog as found on the website on June
28, 2005. All of the non-certified CB transceivers and external RF
power amplifiers were still being offered for sale.
6. On March 22, 2006, the Los Angeles Office issued a NAL in the amount
of $14,000 to Vance, finding that Vance apparently willfully and
repeatedly offered for sale non-certified CB transceivers and external
RF power amplifiers in Ontario, California. Counsel for Vance filed a
response ("Response") on May 4, 2006, stating he was unable to obtain
a copy of the catalog referenced in the NAL from Commission staff and
argues that the refusal to provide him a copy of the catalog was a
denial of due process.
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
Vance's 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 . . . ." 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 . . . ."
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") has
evaluated the models at issue here and has determined that these
devices could easily be altered for use as CB transceivers.
10. In his Response, counsel for Vance indicated that he was unable to
open his copy of the catalog referenced in the NAL because it was
password protected. Counsel requested that the Commission staff give
him a copy of the catalog. Counsel was instructed to file a Freedom of
Information Act ("FOIA") request, because the material gathered as
part of the investigation was not routinely available to the public.
Alternatively, it was also suggested that counsel contact his client
for either a copy of the catalog or the password. Counsel argues that
the refusal to give him the catalog was a denial of due process. We
disagree. Sections 0.453 and 0.455 of the Rules detail the records
that are routinely available for public inspection at the Commission.
Unless a type of record is listed in Sections 0.453 and 0.455, a
request to inspect the record must be made pursuant to the
Commission's FOIA procedures, specifically Section 0.461 of the Rules.
The type of investigatory records compiled for this enforcement action
are not listed in Sections 0.453 and 0.455 and, therefore, counsel was
required to file a request pursuant to Section 0.461 of the Rules to
obtain them. Counsel filed no such request and, consequently, failed
to invoke the procedure mandated by the Commission to obtain such
records. We therefore find no merit to his allegation that he was
denied due process.
11. Counsel also states that he "assume[s] you will hear directly from
Charles E. Vance d/b/a CB Candy or any new attorney he might hire." We
have received no other response to the NAL. Consequently, based on the
information before us, having examined it according to the statutory
factors above, and in conjunction with the Forfeiture Policy
Statement, we find that neither reduction nor cancellation of the
proposed $14,000 forfeiture is warranted.
IV. ORDERING CLAUSES
12. 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, Charles E. Vance, III
d/b/a CB Candy Electronics IS LIABLE FOR A MONETARY FORFEITURE in the
amount of $14,000 for willfully and repeatedly violating Section
302(b) of the Act and Sections 2.803(a)(1) and 2.815(c) of the Rules.
13. 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.
14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Charles E.
Vance, III d/b/a CB Candy Electronics at his address of record and his
counsel of record, Michael C. Olson, at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 U.S.C. S 302a(b).
47 C.F.R. SS 2.803(a)(1), 2.815(c).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632900005
(Enf. Bur., Western Region, Los Angeles Office, released March 22, 2006).
See Pilot Travel Centers, 19 FCC Rcd 23113 (2004), Hightech CB Shop, 20
FCC Rcd 12514 (EB 2005).
Citation to Charles E. Vance, III d/b/a/ CB Candy Electronics, released
June 28, 2005 ("Citation").
See 47 C.F.R. S 1.80(b)(3).
See 47 C.F.R. SS 501, 503(b), 510.
Counsel for Vance requested, and was granted, an extension until May 15,
2006, to respond to the NAL.
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)(E).
47 U.S.C. S 302a(b).
47 C.F.R. S 2.803(a)(1).
47 C.F.R. S 2.815(c).
See 47 C.F.R. SS 2.907, 2.927(a).
47 C.F.R. S 95.603(c).
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).
5 U.S.C. 552(b).
See 47 C.F.R. S 0.461.
47 C.F.R. SS 0.453, 0.455. Section 0.453 of the Rules lists the
Commission's public reference rooms and the type of documents available
for public inspection at those reference rooms. Section 0.455 of the Rules
lists other locations at which records may be inspected, and the type of
records that are available for public inspection at those locations.
47 C.F.R. S 0.461.
See Octavio Sarmiento, Jr., 17 FCC Rcd 25277 (EB 2002). See also 47
C.F.R. S 0.457.
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), 2.815(c).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-1313
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Federal Communications Commission DA 07-1313