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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File Number EB-05-TP-330
Ben Metzger dba 1 Stop Communications )
/ 1 Stop CB Shop NAL/Acct. No. 200732700004
)
Titusville, Florida FRN 0015839350
)
)
FORFEITURE ORDER
Adopted: February 28, 2007 Released: March 2, 2007
By the Regional Director, South Central 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 Ben Metzger dba 1
Stop Communications / 1 Stop CB Shop in Titusville, Florida for
willful and repeated violation of Section 302(b) of the Communications
Act of 1934, as amended ("Act"), and Section 2.803(a) of the
Commission's Rules ("Rules"). The noted violation involves Mr.
Metzger's offering for sale non-certified Citizens Band ("CB")
transceivers.
II. BACKGROUND
2. On March 21, 2006, the Commission's Tampa Office of the Enforcement
Bureau ("Tampa Office") issued Mr. Metzger / 1 Stop Communications / 1
Stop CB Shop a Citation for marketing at his store in Titusville
non-certified CB transceivers, including Connex models 3300, CX
3300HP, CX 4400HP and Galaxy models DX44 and DX88HL, in violation of
Section 302(b) of the Act and Section 2.803(a)(1) of the Rules.
3. In a response dated March 31, 2006, Mr. Metzger stated that the radio
models listed in the Citation were Amateur Radio Service ("ARS")
radios, which do not require type acceptance. On May 11, 2006, the
Tampa Office responded that the models were intended for use on CB as
well as ARS frequencies because they have built-in design features
which facilitate their operation on CB frequencies by the exercise of
simple, end-user accessible modifications to the devices. Accordingly,
the letter advised, such devices are considered CB transmitters
pursuant to Section 95.603(c) of the Rules, irrespective of any
labeling purporting the devices to be "Amateur Radio Transceivers."
4. In a response dated May 16, 2006, Mr. Metzger stated he removed the
Connex and Galaxy radios mentioned in the Citation from his store, the
1 Stop CB Shop. On June 6, 2006, the Tampa Office received a letter
from his attorney, which requested that the Citation be withdrawn,
because the radios were marketed and sold as ARS radios, not CB
radios. The Citation was not withdrawn.
5. On June 22, 2006, agents from the Tampa Office revisited the 1 Stop CB
Shop in Titusville and observed a "40 Channel" Connex CX 3300HP
amateur transceiver along with other uncertified radios in the display
case. The Commission's Office of Engineering and Technology ("OET")
previously tested Connex models very similar to the CX 3300HP and
determined them to be non-certified CB transceivers because they could
be easily modified to operate on CB frequencies. The agents inquired
whether this particular Connex could operate on both CB channels and
amateur bands. Mr. Metzger stated that there were easy directions on
the Internet which show how to modify the radio to operate on CB
frequencies. He also stated that he could easily modify the radio to
operate on the CB channels for a small "tune-up" charge. The agents
paid him for the radio and the "tune-up." Mr. Metzger handed them the
modified Connex CX 3300HP transceiver about 15-20 minutes later and
then demonstrated how to use the different toggle switches on the
radio to switch from the amateur band to the different CB channels.
The agents later determined that the modified Connex radio purchased
from the 1 Stop CB Shop was capable of operating on frequencies from
25.615 MHz to 28.305 MHz with an output power that varied from 2.4
watts to 15 watts.
6. On December 12, 2006, the Tampa Office issued a Notice of Apparent
Liability for Forfeiture to Mr. Metzger in the amount of seven
thousand dollars ($7,000) for the apparent willful and repeated
violation of Section 302(b) of the Act and Section 2.803(a) of the
Rules. Mr. Metzger submitted a response to the NAL requesting
cancellation of the proposed forfeiture.
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, 12 FCC Rcd
17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy
Statement"). In examining Mr. Metzger'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) of the Rules provides that: "Except 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 such device has been
authorized by the Commission."
9. CB radio transceivers are subject to the equipment authorization
procedure known as Certification 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), just above the
CB band (26.965 to 27.405 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. In an order, the Commission
adopted changes to its Rules regarding 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). OET has clarified that ARS
transceivers designed "such that they can easily be modified by the
users to extend the operating frequency range into the frequency
bands" of the CB are CB transmitters, because they are intended to
operate on the CB bands.
10. Mr. Metzger states that he sold the agents a Connex CX 3300HP ARS
radio, which does not require FCC certification. He provided test
results that state the radio as manufactured operates only on ARS
frequencies. He claims if he modified the radio to operate on CB
frequencies after selling it, a point which he does not concede, such
action does not violate the Rules. Mr. Metzger does not agree that he
sold the agents a non-certified CB transceiver and claims the
Commission cannot change its rules through changes in policy. Mr.
Metzger also claims that the Commission has not explained what an
easily modifiable ARS radio is, that almost all ARS radios can be
modified to operate on CB frequencies, and that it violates due
process to fine it for this violation.
11. As described in detail above, the Commission adopted Rules determining
that the definition of "CB transmitter" in Section 95.603(c) of the
Rules includes radios "intended to operate at a station authorized in
the CB." OET and the Office of General Counsel for the Commission
("OGC") have clarified that this definition includes ARS radios that
can be easily modified to operate on CB frequencies. OGC has stated
that transmitters that "have a built-in capability to operate on CB
frequencies and can easily be altered to activate that capability,
such as by moving or removing a jumper plug or cutting a single wire"
fall within the definition of "CB transmitter." Section 95.603 of the
Rules states that all CB transmitters must be certificated. Thus, the
Commission did not change its Rules merely by "making a policy change"
as Mr. Metzger alleges, and it does not violate due process to enforce
these Rules. Moreover, it is irrelevant whether it might be legal or
illegal to sell other models of non-certified ARS radios.
12. On March 21, 2006, Mr. Metzger received a Citation for violation of
Section 302(b) of the Act and Section 2.803(a)(1) of the Rules, by
offering for sale various models of radios that had been tested by OET
and found to be non-certified CB transceivers. On June 22, 2006, Mr.
Metzger offered for sale a Connex CX 3300HP radio, stated that it
could be easily modified to operate on CB frequencies, and offered to
make those modifications for a small fee. On June 22, 2006, Mr.
Metzger sold, in one financial transaction, the Connex CX 3300HP, a
non-certified radio, and modifications, which allowed it to operate on
CB frequencies. Therefore, he sold to the agents a non-certified CB
transceiver. Even assuming arguendo, that Mr. Metzger did not perform
the modifications or that the sale and the modifications were
performed in separate transactions, Mr. Metzger sold the agents a
non-certified radio, which he explicitly claimed could be easily
modified to operate on CB frequencies, i.e. a non-certified CB
transceiver. It is irrelevant that the radio, as manufactured,
operated solely on ARS frequencies, because it could be easily
modified to operate on CB frequencies. Mr. Metzger was specifically
informed of the Commission's Rules defining non-certified CB
transceivers in his prior Citation.
13. Finally, Mr. Metzger asserts that the modifications to the radio were
not easy to make because they took 15-20 minutes to perform. We
disagree. The agents do not know exactly how long it took Mr. Metzger
to make the modifications, because they left the store after Mr.
Metzger was handed the radio. They returned to the store 15-20 minutes
later, so the modifications took no longer than 15-20 minutes.
However, even if the modifications took 15-20 minutes, we find that
that amount of time does not mean that the modifications were
difficult to implement. Mr. Metzger took the radio to the back of the
store, removed the outer casing, cut the wire or moved or removed the
jumper plug, replaced the casing, and brought it back to the front of
the store. Such activities could reasonably take 15-20 minutes.
14. Based on the evidence before us, we find that Mr. Metzger apparently
willfully and repeatedly violated Section 302(b) of the Act and
Section 2.803(a) of the Rules by offering for sale non-certified CB
transmitters on March 21, and June 22, 2006.
15. We have examined Mr. Metzger's 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 find no basis for
cancellation of the $7,000 forfeiture proposed for this violation.
IV. ORDERING CLAUSES
16. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80(f)(4) of the Commission's Rules, Ben Metzger dba 1 Stop
Communications / 1 Stop CB Shop IS LIABLE FOR A MONETARY FORFEITURE
in the amount of seven thousand dollars ($7,000) for willfully and
repeatedly violating Section 302(b) of the Act and 2.803(a) of the
Rules.
17. 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: Chief, Revenue and Receivables Group, 445 12th
Street, S.W., Washington, D.C. 20554.
18. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Ben Metzger dba 1
Stop Communications / 1 Stop CB Shop at his address of record and to
his attorney, Michael C. Olson, 4400 MacArthur Boulevard, Suite 23C,
Newport Beach, California 92660.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 U.S.C. S 302a(b).
47 C.F.R. S 2.803(a).
CB radio operation is confined to forty specified channels from 26.965 MHz
to 27.405 MHz (carrier frequency).
47 C.F.R. S 95.603(c).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732700004
(Enf. Bur., Tampa Office, December 12, 2006) ("NAL").
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 302a(b).
47 C.F.R. S 2.803(a).
See 47 C.F.R. SS 2.907, 2.927(a).
47 C.F.R. S 95.603(c) [FCC 88-256], amended changing "type acceptance" to
"certification" [FCC 98-58]. See also Extended Coverage High Frequency
Transceivers, Public Notice 62882, 1996 WL 242469, available at
<>
(OET, rel. May 13, 1996) ("Public Notice").
47 C.F.R. S 95.655(a).
See Public Notice. See also Letter from Christopher Wright, General
Counsel, FCC to John Atwood, Chief Intellectual Property Rights, US
Customs Service, 14 FCC Rcd 7797 (OGC, 1999) ("OGC Letter") (noting that
ARS transmitters that "have a built-in capability to operate on CB
frequencies and can easily be altered to activate that capability, such as
by moving or removing a jumper plug or cutting a single wire" fall within
the definition of "CB transmitter").
OGC Letter.
47 C.F.R. S 95.603.
Section 312(f)(1) of the Act, 47 U.S.C. S 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,' ... 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).
The 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." 47 U.S.C. S 312(f)(2).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-881
4
Federal Communications Commission DA 07-881