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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
Documentation # 511130
Memorandum opinion and order
Adopted: May 2, 2012 Released: May 2, 2012
By the Chief, Enforcement Bureau:
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
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
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.
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
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:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
Princess K shall also send electronic notification to
WR-Response@fcc.gov 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
FEDERAL COMMUNICATIONS COMMISSION
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