*Pages 1--8 from Microsoft Word - 56967.doc* Federal Communications Commission FCC 06- 53 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Pilot Travel Centers LLC Knoxville, Tennessee ) ) ) ) ) ) File No. EB- 03- DL- 099 NAL/ Acct. No. 200532500001 FRN # 0006096010 ORDER Adopted: May 1, 2006 Released: May 11, 2006 By the Commission: 1. In this Order, we adopt the attached Consent Decree entered into between the Commission and Pilot Travel Centers LLC (“ Pilot”). The Consent Decree terminates the forfeiture proceeding initiated by the Commission against Pilot for its apparent violation 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 by offering for sale radio frequency devices without the required Commission equipment authorization. 3 2. The Commission and Pilot have negotiated the terms of a Consent Decree that would resolve this matter and terminate the forfeiture proceeding. A copy of the Consent Decree is attached hereto and incorporated by reference. 3. After reviewing the terms of the Consent Decree and evaluating the facts before us, we find that the public interest would be served by approving the Consent Decree and terminating the forfeiture proceeding. 4. Accordingly, IT IS ORDERED that, pursuant to Sections 4( i) and 503( b) of the Communications Act of 1934, as amended, 4 the Consent Decree attached to this Order IS ADOPTED. 5. IT IS FURTHER ORDERED that the Commission’s forfeiture proceeding against Pilot IS TERMINATED. 6. IT IS FURTHER ORDERED that Pilot Travel Centers LLC shall make its voluntary contribution to the United States Treasury, as specified in the Consent Decree, by mailing a check or similar instrument, payable to the order of the 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 1 47 U. S. C. § 302a( b). 2 47 C. F. R. § 2.803( a)( 1). 3 See Pilot Travel Centers LLC, Notice of Apparent Liability, 19 FCC Rcd 23113 (2004), erratum (rel. Nov. 23, 2004). 4 47 U. S. C. §§ 4( i) and 503( b). 1 Federal Communications Commission FCC 06- 53 2 may be made to ABA Number 043000261, receiving bank Mellon Bank, and account number 911- 6106. The payment, regardless of how sent, must include the NAL/ Acct. No. and FRN No. referenced above. 7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree shall be sent by first class mail and certified mail, return receipt requested, to counsel for Pilot, Wayne V. Black, Keller & Heckman, LLP, 1001 G Street, N. W., Washington, D. C. 20001 and Pilot at its address of record. FEDERAL COMMUNICATIONS COMMISSION Marlene H. Dortch Secretary 2 Federal Communications Commission FCC 06- 53 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Pilot Travel Centers LLC Knoxville, Tennessee ) ) ) ) ) ) File No. EB- 03- DL- 099 NAL/ Acct. No. 200532500001 FRN # 0006096010 CONSENT DECREE The Federal Communications Commission (“ Commission”) and Pilot Travel Centers LLC, (“ Pilot”) hereby enter into this Consent Decree regarding possible violations of Section 302( b) of the Communications Act of 1934, as amended (“ Act”), 5 and Section 2.803( a)( 1) of the Commission’s Rules (“ Rules”) 6 concerning Pilot’s offering for sale certain radio frequency devices. Background 1. Section 302 of the Act authorizes the Commission to make reasonable regulations, consistent with the public interest, governing the interference potential of equipment that emits radio frequency energy, 7 and prohibits, inter alia, the offering for sale of radio frequency devices to the extent such activity does not comply with those regulations. The purpose of this section is to ensure that radio transmitters and other electronic devices meet certain standards to control interference before they reach the market. 2. The Commission carries out its responsibilities under Section 302 in two ways. First, the Commission establishes technical regulations for transmitters and other equipment to minimize their potential for causing interference to radio services. Second, the Commission administers an equipment authorization program to ensure that equipment reaching the market complies with the technical requirements. 8 The equipment authorization program requires that equipment be tested either by the manufacturer or at a private test laboratory to ensure that it complies with the technical requirements. For a large number of devices, including Citizens Band (“ CB”) radio transmitting equipment, 9 equipment may not be marketed within the United States unless it has been tested and found to comply with Commission technical requirements, granted Commission Certification, and properly labeled. 10 “Marketing” includes the sale or lease, offer for sale or lease (including advertising for sale or lease), importing, shipping, and/ or distribution for the purpose of selling or leasing or offering for sale or lease. 11 3. Unlike CB radio transmitting equipment, radio transmitting equipment that transmits 5 47 U. S. C. § 302a( b). 6 47 C. F. R. § 2.803( a)( 1). 7 47 U. S. C. § 302a. 8 47 C. F. R. Part 2, Subpart J. 9 CB radio operation is confined to forty specified channels from 26.965 MHz to 27. 405 MHz (carrier frequency). 10 See 47 C. F. R. § 2.927( a). 11 47 C. F. R. § 2.803( a). 3 Federal Communications Commission FCC 06- 53 4 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.” 12 4. Despite these changes to the definition of a CB transmitter, Commission enforcement agents continued to encounter non- certified CB transmitters marketed as ARS transmitters. On May 13, 1996, the Commission’s Office of Engineering and Technology (“ OET”) released a Public Notice “to clarify the Commission’s Rules regarding equipment that is intended to operate in various radio services in the high frequency radio spectrum, including ’10- Meter’ Amateur Radio Service (ARS) equipment.” 13 The Notice stated that transmitters intended for operation on non- amateur frequencies must be approved prior to manufacture, importation or marketing. The Notice specifically included 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 and other non- amateur radio services among those devices subject to equipment authorization procedures. The Notice also stated that the Commission considers these transceivers as intended to be operated on frequencies where the use of type accepted equipment is required “because of the simplicity of modifying them to extend their operating frequency range.” 14 The Commission’s Office of General Counsel (“ OGC”) later released a letter on the importation and marketing of ARS transmitters, which clarified that such 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” under Section 95.603( c) of the Rules and therefore require certification prior to marketing or importation. 15 5. As a result of agent inspections of Pilot retail stores from December 2, 1999 to September 6, 2002, Enforcement Bureau Field Offices issued nine Citations to Pilot for marketing non- certified CB transmitters. Pilot’s responses to the Citations essentially stated that the radios in question were marketed as amateur radios, operated on the 10- meter amateur band, and did not require certification. From December 11, 2003 to July 3, 2004, Enforcement Bureau field agents observed Pilot offer for sale 13 non-certified CB transmitters. All of the devices in question that were offered for sale by Pilot were tested by the Commission and found to be non- certified CB transmitters. 6. On November 22, 2004, the Commission released a Notice of Apparent Liability for Forfeiture 16 (“ NAL”) to Pilot in the amount of $125,000 for apparent willful and repeated violations of Section 302( b) of the Act and Section 2.803( a)( 1) of the Rules. The Commission increased the proposed forfeiture above the base amount for the violations ($ 91, 000) based on Pilot’s pattern of apparent violations. Definitions 12 47 C. F. R. § 95.603( c) [FCC 88- 256], amended changing “type acceptance” to “certification” [FCC 98- 58]. 13 Extended Coverage High Frequency Transceivers, Public Notice 62882, 1996 WL 242469, available at << http:// www. fcc. gov/ Bureaus/ Engineering_ Technology/ Public_ Notices/ 1996/ pnet6023. txt>> (OET, rel. May 13, 1996) (“ Notice”). 14 Id. 15 Letter from Christopher Wright, General Counsel, FCC to John Atwood, Chief Intellectual Property Rights, US Customs Service, 14 FCC Rcd 7797 (OGC, 1999). 16 Pilot Travel Centers LLC, 19 FCC Rcd 23113 (2004). 4 Federal Communications Commission FCC 06- 53 5 7. For the purposes of this Consent Decree the following definitions shall apply: (a) “Commission” means the Federal Communications Commission; (b) “Bureau” means the Enforcement Bureau of the Federal Communications Commission; (c) “Pilot” means Pilot Travel Centers LLC; (d) “Parties” means Pilot and the Commission; (e) “Enforcement Proceeding” means the investigation of the alleged Rule violations by Pilot culminating in the Notice of Apparent Liability for Forfeiture; (f) Notice of Apparent Liability for Forfeiture or “NAL” means Pilot Travel Centers LLC, 19 FCC Rcd 23113 (2004); (g) “Adopting Order” means an order of the Commission adopting the terms and conditions of this Consent Decree, in the form attached hereto; (h) “Effective Date” means the date the Adopting Order is released by the Commission; (i) “Rules” means the Commission’s Rules found in Title 47 of the Code of Federal Regulations; (j) “Act” means the Communications Act of 1934, as amended U. S. C. §§ 151 et seq.; and (k) “Compliance Plan” means the processes and procedures developed by Pilot in an effort to ensure compliance with the Communications Act and the Commission’s Rules regarding the sale or offering for sale of radio frequency devices, as summarized in this Consent Decree. Terms of Settlement 8. The Parties agree that the provisions of this Consent Decree shall be subject to final approval by the Commission by incorporation of such provisions by reference in the Adopting Order. 9. The Parties agree that this consent Decree shall become binding on the Parties on the Effective Date. Pilot and the Commission represent and warrant that its signatory is duly authorized to enter into this Consent Decree on its behalf. Upon release, the Adopting Order and this Consent Decree shall have the same force and effect as any other final order of the Commission and any violation of the terms or conditions of this Consent Decree shall constitute a violation of a Commission order. 10. Pilot acknowledges that the Commission has jurisdiction over the matters contained in this Consent Decree and the authority to enter into and adopt this Consent Decree. 11. The Parties waive any rights they may have to seek administrative or judicial reconsideration, review, appeal or stay, or to otherwise challenge or contest the validity of this Consent Decree and the Adopting Order, provided that the Adopting Order adopts the Consent Decree without change, addition or modification. 12. Pilot waives any rights it may have under any provision of the Equal Access to Justice Act, 5 U. S. C. § 504 and 47 C. F. R. § 1.1501 et seq., relating to the matters discussed in this Consent Decree. 13. The Parties agree that this Consent Decree does not constitute either an adjudication on the merits or a factual or legal finding or determination of any compliance or noncompliance with the Act or the Rules. The Parties further agree that this Consent Decree is for settlement purposes only and that by agreeing to the Consent Decree, Pilot does not admit or deny any liability for violating the Act or the Rules in connection with the matters that are the subject of this Consent Decree. 14. In express reliance on the covenants and representations in this Consent Decree, the Commission agrees to terminate the Enforcement Proceeding. 5 Federal Communications Commission FCC 06- 53 6 15. Pilot agrees that, as of the Effective Date of this Consent Decree: i. CB transmitters offered for sale or sold by Pilot will be FCC certified. ii. Prior to the sale or marketing of Amateur Radio Service transmitters, Pilot will ensure that the transmitters have been reviewed by the Technical Department Laboratory of the American Radio Relay League, Inc. (“ ARRL”) and found to transmit only in Amateur Radio Service bands. iii. It will remove all Galaxy Model Number DX33HML, DX66V or DX99V transceivers and any other Amateur Radio Service transmitters that have not been reviewed by the Technical Department Laboratory of the ARRL and found to transmit only in Amateur Radio Service bands from all retail areas of Pilot Travel Centers; iv. It will ensure that CB transmitters offered for sale or sold by entities leasing space on the premises of any Pilot owned or operated property are certified. It will ensure that all Amateur Radio Service transmitters offered for sale or sold by entities leasing space on the premises of any Pilot owned or operated property are reviewed by the Technical Department Laboratory of the ARRL and found to transmit only in Amateur Radio Service bands; v. If Pilot markets or offers for sale Amateur Radio Service transmitters, it will advise all store managers and employees involved in purchasing store inventory that Amateur Radio Service transmitters that have a built- in capability to operate on CB frequencies and can easily be altered to activate that capability fall within the definition of “CB transmitter” under Section 95.603( c) of the Rules and cannot be certified or sold. If Pilot offers for sale or markets CB transmitters, these employees will be instructed that CB transmitters offered for sale or sold on the premises of Pilot owned or operated property must be certified. If Pilot offers for sale or markets Amateur Radio Service transmitters, these employees will be instructed that, prior to the sale or marketing of Amateur Radio Service transmitters, the transmitters must be reviewed by the Technical Department Laboratory of the ARRL and found to transmit only in Amateur Radio Service bands. The terms of this Consent Decree will be made available to these employees. If applicable, Pilot further agrees to review these FCC requirements with these employees at least semi- annually for two years following the Effective Date; and vi. It will place compliance with this Consent Decree under the direct supervision of Pilot’s Director of Marketing, Mr. Ed Leddy, or, in the event Mr. Ed Leddy is no longer with the company, his successors. If applicable, Mr. Leddy or his successors will ensure that store managers and employees involved in purchasing store inventory are advised of the FCC requirements described in paragraph v and the terms of this Consent Decree at least on a semi- annual basis for two years following the Effective Date. Mr. Leddy shall ensure that a copy of the ARRL product review shall be obtained by Pilot prior to purchasing models of Amateur Radio Service transmitters as store inventory and retained by Pilot for at least two years. If applicable, Mr. Leddy shall also implement, within thirty days of the Effective Date of this Consent Decree, internal procedures to ensure that only certified CB transmitters or ARRL reviewed Amateur Radio Service transmitters are purchased for sale in Pilot Travel Centers. 16. The Parties acknowledge that this Consent Decree shall constitute a final and binding settlement between Pilot and the Commission regarding possible violations of Section 302( b) of the Act and Section 2.803( a)( 1) of the Rules specified in the NAL. In consideration for termination by the 6 Federal Communications Commission FCC 06- 53 7 Commission of the Enforcement Proceeding and in accordance with the terms of this Consent Decree, Pilot agrees to the terms set forth herein. 17. The Commission agrees that it will not entertain, or institute on its own motion, any new proceeding, formal or informal, or take any action on its own motion against Pilot for the possible violations of Section 302( b) of the Act or Section 2.803( a) of the Rules committed prior to this Consent Decree. Nothing in this Consent Decree shall prevent the Commission from instituting investigations or enforcement proceedings against Pilot in the event of any other alleged misconduct that violates this Consent Decree or that violates any provision of the Act or the Rules. 18. The Parties agree that each is required to comply with each individual condition of this Consent Decree. Each specific condition is a separate condition of the Consent Decree as approved. To the extent that Pilot fails to satisfy any condition, in the absence of Commission alteration of the condition, it will be deemed noncompliant and may be subject to possible future enforcement action with respect to such failure to satisfy the condition. 19. The Parties also agree that any provision of this Consent Decree which conflicts with any subsequent rule, order of general applicability or other decision of general applicability adopted by the Commission will be superseded by such Commission rule, order or other decision. 20. Pilot agrees to make a voluntary contribution to the United States Treasury in the amount of ninety thousand dollars ($ 90,000) within thirty (30) days of the Effective Date. Such contribution shall be made, without further protest or recourse, by mailing a check or similar instrument, payable to the order of the Federal Communications Commission, P. O. Box 358340, Pittsburgh, PA 15251- 8340. The payment should reference NAL/ Acct. No. 200532500001 and FRN 0006096010. 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. 21. If any Party (or the United States on behalf of the Commission) brings a judicial action to enforce the terms of the Adopting Order, neither Pilot nor the Commission shall contest the continuing validity of the Consent Decree or Adopting Order. The Parties agree to comply with, defend and support the validity of this Consent Decree and the Adopting Order in any proceeding seeking to nullify, void or otherwise modify the Consent Decree or the Adopting Order. 22. The Parties agree that in the event that any court of competent jurisdiction renders this Consent Decree invalid, this Consent Decree shall become null and void and may not be used in any manner in any legal proceeding. 7 Federal Communications Commission FCC 06- 53 8 23. This Consent Decree cannot be modified without the advance written consent of all of the Parties. 24. This Consent Decree may be signed in counterparts. For the Commission: By: ________________________ Marlene Dortch Secretary For Pilot Travel Centers LLC By: __________________________ 8