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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-06-LA-346
AMERI-KING Corporation ) NAL/Acct. No.: 200732900009
Huntington Beach, CA ) FRN: 0016212938
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 23, 2007
By the District Director, Los Angeles Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that AMER-KING Corporation ("AMERI-KING"), in Huntington Beach,
California, apparently willfully and repeatedly violated Section 301
of the Communications Act of 1934 ("Act") by operating a radio
transmitter without a license. We conclude, pursuant to Section 503(b)
of the Communications Act of 1934, as amended ("Act"), that AMERI-KING
is apparently liable for a forfeiture in the amount of ten thousand
dollars ($10,000).
II. BACKGROUND
2. On December 22, 2006, the Enforcement Bureau's Los Angeles Office
received a request for assistance from the Air Force Rescue
Coordination Center ("AFRCC") regarding interference to the 406 MHz
Search and Rescue Satellite ("SARSAT") System. Investigation by the
Los Angeles Office revealed that the interference was caused by the
activation of an unregistered, emergency locator transmitter ("ELT")
by AMERI-KING Corporation at an open field testing laboratory near
Mission Viejo, California. After the ELT was turned off, a Los Angeles
agent admonished personnel from AMERI-KING and the testing laboratory
working with AMERI-KING that ELTs tested in the United States must be
operated in accordance with the Commission's Rules.
3. On December 26, 2006, a Los Angeles agent contacted, via a three-way
conference call, the manager of the testing laboratory, and a
representative from AMERI-KING and explained that the Commission's
rules had no provisions for open air operation of an ELT on 406.025
MHz.
4. On December 28, 2006, the Los Angeles Office again responded to a
request from AFRCC to locate and secure an unregistered ELT which was
interfering with the SARSAT system on 406.025 MHz. This investigation
revealed that AMERI-KING was testing a second ELT at a different
testing laboratory, without the protection of a radio frequency
shielded enclosure even though the operations manual for the ELT
testing apparatus warned that operation without a shielded enclosure
could cause a false distress alert.
5. On March 1, 2007, the Los Angeles Office sent a Letter of Inquiry
("LOI") to AMERI-KING regarding its activation of ELTs in December of
2006 and asking AMERI-KING how it complied with the Commission's Rules
when testing ELTs. In its response to the LOI, AMERI-KING stated that
the ELT in question is model AK-450, with an FCC identifier of
L79AK-450. AMERI-KING stated that this model was certified by the FCC
on July 24, 1995, as a licensed non-broadcast station transmitter.
AMERI-KING further stated that it is in the process of upgrading model
AK-450 from 121.5/243 MHz to 121.5/243/406 MHz. AMERI-KING also stated
that it had applied for an aircraft radio station license in 1995 but
that the application was returned because it was not required.
AMERI-KING further stated that it applied for an experimental radio
service license with the Commission on January 15, 2007. AMERI-KING
also stated its tests had not been coordinated with the National
Oceanographic and Atmospheric Administration ("NOAA") because the test
purpose was not a satellite qualitative test, and that its ELT
terminated into a beacon tester, which is a "50 ohms dummy load."
AMERI-KING also acknowledged that all future testing in an open field
had been disapproved by NOAA, until AMERI-KING's ELT is "fully
Cospas-Sarat type approved." AMERI-KING's response also included
copies of a packing slip and invoice dated January 5, 2007 for a radio
frequency shielded enclosure, and a statement that all future testing
of ELTs will be conducted inside the shielded chamber.
III. DISCUSSION
6. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
7. Section 301 of the Act states that no person shall use or operate any
apparatus for the transmission of energy, or communications or signals
by radio within the united States except under and in accordance with
the Act and with a license granted under the provisions of the Act.
Section 87.473(b) of the Commission's Rules requires that "[l]icenses
for ELT test stations will be granted only to applicants to train
personnel in the operation and location of ELTs, or for testing
related to the manufacturer or design of ELTs." Section 87.475(d) of
the Rules states the frequencies available for ELT test stations are
121.600, 121.650, 121.700, 121.750, 121.800, 121.850, and 121.900 MHz
and also states that ELT test station licensees must "[n]ot cause
harmful interference to voice communications on these frequencies or
any harmonically related frequency," and must "[c]oordinate with the
appropriate FAA Regional Spectrum Management Office prior to the
activation of each transmitter."
8. A false ELT activation has the potential to severely impact the search
and rescue network, resulting in responder resources being wasted and
misdirected. According to the United States Coast Guard ("USCG"), air
searches for false ELT activations cost the USCG thousands of dollars
per search hour. Additional costs are incurred by rescue coordination
centers, support personnel, and ground search and rescue responders.
False activations also can cause harmful interference to the Search
and Rescue Satellite system and to airplanes and vessels in the
vicinity of the signal. Additionally, a false activation may conceal
or prevent timely response to a legitimate distress signal.
9. On December 22, 2006, the AFRCC notified the FCC Los Angeles Office of
interference to its SARSAT operations on 406 MHz. A Los Angeles agent
confirmed that the interfering signal was caused by AMERI-KING's
activation of an ELT on 406.025 MHz. On December 22 and December 26,
2006, the Los Angeles agent warned AMERI-KING regarding its
unauthorized operation of the ELT on 406.025 MHz in an open field. On
December 28, 2006, the Los Angeles Office, again responding to an
interference complaint from AFRCC, determined that AMERI-KING again
activated an ELT on 406.025 MHz in an unshielded environment.
AMERI-KING has produced no license authorizing its testing of an ELT
on 406.025 MHz. Even if AMERI-KING has obtained an ELT testing station
license prior to its December 2006 ELT activations, such a license
would not have given it authority to test an ELT on 406 or 406.025 MHz
in an open field or an unshielded environment.
10. AMERI-KING was on notice from a Los Angeles agent, and from its
equipment authorization for the subject ELT, that it had no authority
to operate its ELT on 406.025 MHz in an open field or unshielded
environment. Therefore, AMERI-KING's violation was willful.
AMERI-KING's violation occurred on more than one day, therefore, it
was repeated. Based on the evidence before us, we find that AMERI-KING
apparently willfully and repeatedly violated Section 301 of the Act of
the Rules by operating an ELT on 406.025 MHz without the appropriate
authorization from the Commission.
11. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for operating without a license is $10,000. In
assessing the monetary forfeiture amount, we must also take into
account the statutory factors set forth in Section 503(b)(2)(D) of the
Act, which include the nature, circumstances, extent, and gravity of
the violations, and with respect to the violator, the degree of
culpability, and history of prior offenses, ability to pay, and other
such matters as justice may require. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the instant
case, we conclude that AMERI-KING is apparently liable for a $10,000
forfeiture.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, AMERI-KING Corporation is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for violations of Section
301 of the Communications Act.
13. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, AMERI-KING Corporation
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
14. 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.
15. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Los Angeles Office,
18000 Studebaker Rd., Suite 660, Cerritos, CA 90703 and must include
the NAL/Acct. No. referenced in the caption.
16. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
17. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director - Financial Operations, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
18. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to AMERI-KING Corporation.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director
Los Angeles Office
Western Region
Enforcement Bureau
47 U.S.C. S 301.
47 U.S.C. S 503(b).
ELTs operating on 406.0 - 406.1 MHz must be registered with the National
Oceanographic and Atmospheric Administration. See 47 C.F.R. S 87.199.
See 47 C.F.R. S 87.197 (ELT testing must avoid outside radiation. Bench
and ground tests conducted outside of an RF-shielded enclosure must be
conducted with the ELT terminated into a dummy load) and 47 C.F.R. S
87.475(d) (The frequencies available for assignment to ELT test stations
are 121.600, 121.650, 121.700, 121.750, 121.800, 121.850, and 121.900
MHz.).
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', when used with reference to the
commission or omission of any act, 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).
Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he 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 C.F.R. S 87.473(b).
47 C.F.R. S 87.475(d).
In the Grant of Equipment Authorization issued to AMERI-King in 1995, the
Commission specifically referenced the limited use of the AMERI-KING ELT
Model AK-450 as an ELT test station requiring that such use comply with
Section 87.475(d) of the Rules.
Grant Lam, Forfeiture Order, DA 07-1472, 2007 WL 967181 (rel. March 30,
2007).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(E).
47 U.S.C. SS 301, 503(b); 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80.
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission