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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

     In the Matter of                       )                                
     Princess K Fishing Corporation         )                                
     Licensee of Ship Radio Station         )   File No.: EB-08-HL-0044      
                                            )   NAL/Acct. No.: 200832860001  
     Fishing Vessel PRINCESS K                                               
                                            )   FRN: 0011032422              
     Honolulu, Hawaii                                                        
     Documentation # 511130                                                  

                          Memorandum opinion and order

   Adopted: May 2, 2012 Released: May 2, 2012

   By the Chief, Enforcement Bureau:

   I. Introduction

    1. In this Memorandum Opinion and Order (MO&O), issued pursuant to
       Section 405 of the Communications Act of 1934, as amended (Act), we
       dismiss as untimely the petition for reconsideration filed by Princess
       K Fishing Corporation, licensee of ship radio station WDB8248, in
       Honolulu, Hawaii (Princess K),  of the Forfeiture Order issued on
       February 27, 2009.  The Forfeiture Order imposed a monetary forfeiture
       in the amount of $5,500 for willful and repeated violation of Section
       80.89(a) of the Commission's rules (Rules), for falsely activating an
       Emergency Position Indicating Radio Beacon (EPIRB), thereby engaging
       in superfluous communications resulting in the transmission of false
       distress alerts.

   II. Background

    2. On February 25, 2008, the United States Coast Guard (USCG) launched a
       search and rescue mission in response to a Search and Rescue Satellite
       (SARSAT) system notification of an active 406.025 MHz EPIRB registered
       to the fishing vessel PRINCESS K. Princess K is the owner of the
       fishing vessel PRINCESS K, which was located in open seas
       approximately 150 nautical miles north by northeast of Oahu, Hawaii at
       the time. The USCG unsuccessfully sought to contact the vessel through
       urgent broadcasts on several HF frequencies. Ultimately, a USCG HC-130
       aircraft contacted a Princess K executive aboard the vessel after
       locating the PRINCESS K approximately 18 nautical miles from the
       EPIRB's location.

    3. The USCG reported the false activation to the Enforcement Bureau's
       Honolulu Office (Honolulu Office), advising that when the USCG
       contacted the fishing vessel on the VHF marine channel 16, the master
       of fishing vessel PRINCESS K stated that there was no actual distress
       or emergency. Instead, the crew had thrown the old EPIRB (the one
       detected by the SARSAT system) overboard because they had purchased
       and installed a new one. The USCG also reported to the Honolulu Office
       that the old EPIRB was not retrieved and continued transmitting until
       March 1, 2008, potentially masking an actual search and rescue alert.

    4. On March 26, 2008, when the PRINCESS K returned to port in Honolulu,
       agents from the Honolulu Office, along with USCG personnel,
       interviewed the Princess K Fishing Corporation executive who was
       onboard the fishing vessel during the February 25, 2008 incident. The
       Princess K executive stated that a new EPIRB had been purchased on
       Oahu and installed while they were docked in Hilo, Hawaii. The
       executive stated that he did not have time to return the old EPIRB, so
       he stored it in a plastic bag on the vessel. While at sea, he advised
       a crew member to take care of the bag and the crew member threw it
       overboard, thereby activating the unit. The executive stated that he
       did not realize this incident occurred until the Coast Guard aircraft,
       while hovering over his vessel, contacted him during their search. He
       explained to the Honolulu agents and the USCG personnel that he was
       not able to retrieve the old EPIRB even though the USCG advised him
       that the EPIRB was still continuing to transmit.

    5. In the Forfeiture Order, the Enforcement Bureau's Western Region
       (Region) considered Princess K's arguments that it did not willfully
       or repeatedly violate Section 80.89(a) of the Rules, that it was not
       responsible for the acts of its employee, and that it lacked the
       ability to pay the forfeiture. The Region found merit only in Princess
       K's argument concerning its ability to pay the $8,000 forfeiture
       proposed by the Honolulu Office, and consequently, assessed a reduced
       forfeiture of $5,500. In its Petition, Princess K reiterates its
       arguments that it did not willfully and repeatedly violate Section
       80.89(a) of the Rules and that there was no conscious and deliberate
       commission of an act. Consequently, Princess K argues, the assessed
       forfeiture should be reduced or cancelled.

   III. Discussion

    6. Section 405(a) of the Act and Section 1.106(f) of the Rules provide
       that a petition for reconsideration be filed with the Commission's
       Secretary in Washington, D.C. within thirty days from the date of
       public notice of the final action. In this case, public notice of the
       Forfeiture Order occurred upon release on February 27, 2009. The
       thirtieth day after February 27, 2009 was March 29, 2009. Thus,
       Princess K should have filed its timely request for reconsideration
       with the Commission no later than March 29, 2009. Princess K's
       submission, however, was not received by the Secretary of the
       Commission until June 4, 2009.  Accordingly, because Princess K failed
       to timely file its Petition, we dismiss the Petition on procedural

    7. We further find that even if Princess K's Petition was not
       procedurally defective, the Petition would fail on the merits.
       Reconsideration is appropriate only where the petitioner either
       demonstrates a material error or omission in the underlying order or
       raises additional facts not known or not existing until after the
       petitioner's last opportunity to present such matters. A petition for
       reconsideration that reiterates arguments that were previously
       considered and rejected will be denied.

    8. As explained in the Forfeiture Order, Section 312(f)(1) of the Act
       defines "willful" as "the conscious and deliberate commission or
       omission of [any] act, irrespective of any intent to violate" the law.
       The legislative history of Section 312(f)(1) of the Act clarifies that
       this definition of willful applies to both Sections 312 and 503(b) of
       the Act, and the Commission has so interpreted the term in the Section
       503(b) context. Section 312(f)(2) of the Act provides that "[t]he term
       `repeated,'... means the commission or omission of such act more than
       once or, if such commission or omission is continuous, for more than
       one day." The Commission has determined that the definition of
       "repeated" in Section 312(f) also applies to forfeitures assessed
       pursuant to Section 503(b) of the Act. Princess K's reiterated
       arguments and efforts to distinguish the federal legal precedent
       relied upon by the Region to interpret the Act, by referencing Hawaii
       state law and common law dictionary definitions, are unavailing and
       provide no basis for reconsideration of the Region's decision.

    9. Princess K also argues again that its employees did not deliberately
       engage in the act that generated the false alarm. As explained in the
       Forfeiture Order, the conscious and deliberate act in this case,
       irrespective of any intent to violate the law, was the disposal of the
       EPIRB into the ocean that resulted in continual false distress alerts
       from February 25, 2008 until March 1, 2008. This violation of Section
       80.89(a) of the Rules also was repeated because the discarded EPIRB's
       false distress alerts occurred over several days.

   10. Therefore, we find that the Petition provides no basis for further
       reduction or cancellation of the monetary forfeiture assessed against
       Princess K, even if its Petition had been timely filed, and affirm the
       Forfeiture Order.

   IV. ordering clauses

   11. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
       Communications Act of 1934, as amended, and Section 1.106 of the
       Rules, that the Petition for Reconsideration filed by Princess K
       Fishing Corporation IS DISMISSED and the Forfeiture Order IS AFFIRMED.

   12. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
       Sections 0.111, 0.311 and 1.80(f)(4) of the Rules, Princess K Fishing
       Corporation IS LIABLE FOR A MONETARY FORFEITURE in the amount of five
       thousand, five hundred dollars ($5,500) for violations of section
       80.89(a) of the Rules.

   13. Payment of the forfeiture shall be made in the manner provided for in
       Section 1.80 of the Rules within thirty (30) days of the release of
       this Memorandum Opinion and Order. If the forfeiture is not paid
       within the period specified, the case may be referred to the
       Department of Justice for enforcement pursuant to Section 504(a) of
       the Act. Payment of the forfeiture must be made by credit card, check,
       or similar instrument, payable to the order of the Federal
       Communications Commission. The payment must include the NAL/Account
       Number and FRN referenced above. Payment by check or money order may
       be mailed to Federal Communications Commission, P.O. Box 979088, St.
       Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S.
       Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza,
       St. Louis, MO 63101. Payment by wire transfer may be made to ABA
       Number 021030004, receiving bank TREAS/NYC, and account number
       27000001. For payment by credit card, an FCC Form 159 (Remittance
       Advice) must be submitted.  When completing the FCC Form 159, enter
       the NAL/Account number in block number 23A (call sign/other ID), and
       enter the letters "FORF" in block number 24A (payment type code).
       Requests for full payment under an installment plan should be sent
       to:  Chief Financial Officer -- Financial Operations, 445 12th Street,
       S.W., Room 1-A625, Washington, D.C.  20554.   Please contact the
       Financial Operations Group Help Desk at 1-877-480-3201 or Email: with any questions regarding payment procedures.
       Princess K shall also send electronic notification to on the date said payment is made.

   14. IT IS FURTHER ORDERED that this Memorandum Opinion and Order shall be
       sent by both regular mail and by certified mail, return receipt
       requested, to Princess K Fishing Corporation, 1617 Keeaumoku Street,
       Apt. 602, Honolulu, Hawaii, 96822, and its counsel of record Charles
       S. Lotsof, Esquire, 1188 Bishop Street, Suite 2711, Honolulu, HI


   P. Michele Ellison

   Chief, Enforcement Bureau

   See 47 U.S.C. S: 405.

   See Princess K Fishing Corporation, Petition for Reconsideration (filed
   June 4, 2009) (Petition).

   Princess K Fishing Corporation, Forfeiture Order, 24 FCC Rcd 2606 (Enf.
   Bur. Western Region 2009) (Forfeiture Order), aff'g Notice of Apparent
   Liability for Forfeiture, NAL/Acct. No. 200832860001 (Enf. Bur. Western
   Region, Honolulu Resident Agent Office, rel. May 29, 2008) (NAL).

   47 C.F.R. S: 80.89(a).

   Section 80.89(a) of the Rules states that "[s]tations must not: . . .
   [e]ngage in superfluous radiocommunications." 47 C.F.R. S: 80.89(a). An
   EPIRB station is "a station in the maritime mobile service the emissions
   of which are intended to facilitate search and rescue operations." 47
   C.F.R. S: 80.5. A distress alert, such as one from an EPIRB, is considered
   false "if it was transmitted without any indication that a mobile unit or
   person was in distress and required immediate assistance." 47 C.F.R. S:
   80.334. The Rules require that "[i]f for any reason an EPIRB is activated
   inadvertently [the licensee shall] immediately contact the nearest U.S.
   Coast Guard unit or appropriate rescue coordination center by telephone,
   radio or ship earth station and cancel the distress alert." 47 C.F.R. S:

   The Princess K is home ported in Honolulu, Hawaii, and is the licensee of
   ship radio station WDB8248.

   According to their report, the USCG expended 3.5 fixed wing aircraft hours
   and 6 Command Center hours at a cost of over $35,000 to determine that
   this was a false alert.

   See Forfeiture Order, 24 FCC Rcd at 2608-10.

   See id. at 2610.

   47 U.S.C. S: 405(a).

   47 C.F.R. S: 1.106(f).

   See 47 C.F.R. S: 1.106(i).

   See 47 C.F.R. S: 1.4(b).

   See 47 C.F.R. S:S: 1.106(f), 1.4(j).

   In the cover letter with the Petition, Princess K states that the Petition
   was originally filed on March 5, 2009; however, it produces no evidence to
   support this statement.

   See Washington Broadcast Management Co., Inc., Memorandum Opinion and
   Order, 15 FCC Rcd 6607 (2000); Bay Broadcasting Corporation, Memorandum
   Opinion and Order, 15 FCC Rcd 23449 (Enf. Bur. 2000).

   See 47 C.F.R. S: 1.106(c); EZ Sacramento, Inc., Memorandum Opinion and
   Order, 15 FCC Rcd 18257 (Enf. Bur. 2000), citing WWIZ, Inc., Memorandum
   Opinion and Order, 37 FCC 685, 686 (1964), aff'd sub. nom. Lorain Journal
   Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 383 U.S. 967

   EZ Sacramento, Inc., 15 FCC Rcd at 18257.

   Forfeiture Order, 24 FCC Rcd at 2608-10.

   47 U.S.C. S: 312(f)(1).

   H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).

   See Southern California Broadcasting Co., Memorandum Opinion and Order, 6
   FCC Rcd 4387, 4388 (1991), recons. denied, 7 FCC Rcd 3454 (1992) (Southern
   California). See also Forfeiture Order, 24 FCC Rcd at 2608.

   47 U.S.C. S: 312(f)(2).

   See Callais Cablevision, Inc., Notice of Apparent Liability for
   Forfeiture, 16 FCC Rcd 1359, 1362 (2001); Southern California, 6 FCC Rcd
   at 4388. See also Forfeiture Order, 24 FCC Rcd at 2608.

   Petition at 1-4.

   Forfeiture Order, 24 FCC Rcd at 2609 n.22.

   As mentioned above, the Forfeiture Order reduced the $8,000 forfeiture
   amount proposed in the NAL to $5,500 based on Princess K's financial
   submissions. Forfeiture Order, 24 FCC Rcd at 2610.

   47 U.S.C. S: 405.

   47 C.F.R. S: 1.106.

   47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 80.89(a).

   47 U.S.C. S: 504(a).

   (Continued from previous page)


   Federal Communications Commission DA 12-590


   Federal Communications Commission DA 12-590