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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                  )
                                                           )
BFT Training Unlimited, Inc.      )          File No. EB-05-
                                 ) SE-246
                                 )

                  MEMORANDUM OPINION AND ORDER

Adopted:  February 23, 2006             Released:   February  27, 
2006

By the Chief, Spectrum Enforcement Division, Enforcement Bureau:

I.  INTRODUCTION

     1.   In this Memorandum Opinion and Order, we admonish BFT 
Training Unlimited, Inc.  (``BFT''), an FCC-certified Commercial 
Operator License Examination Manager (``COLEM'' or ``COLE 
Manager''), for conducting commercial operator telegraphy 
examinations over the telephone in violation of Part 13 of the 
Commission's Rules (``Rules'')1 and its Memorandum of Agreement 
(``MOA'')2 with the Commission.  
II.  BACKGROUND

     2.   In April 1999, the Commission entered into an MOA with 
BFT which authorized BFT to administer commercial operator 
license examinations.  In August 2005, the Commission staff 
received a complaint alleging that BFT may have facilitated 
cheating and otherwise undermined the integrity of commercial 
operator license examinations it has been entrusted to administer 
pursuant to its MOA.  The complaint alleged, in part, that BFT 
administered telegraphy examinations by telephone.  On September 
1, 2005, the Enforcement Bureau issued a Letter of Inquiry 
(``LOI'')3 to BFT.
     3.   In its September 21, 2005 response, BFT admitted that 
it has ``under certain controlled circumstances,'' administered 
telegraphy examinations over the telephone to examinees.4  BFT 
stated that Telegraphy Elements 1 and 25 were administered over 
the phone for those students who had traveled significant 
distances to attend commercial operator classes and had passed a 
written examination, so that they would not incur an additional 
expense of returning to the test location for the telegraphy 
examination.6  BFT claimed that it has no knowledge of a 
particular rule prohibiting this practice.7  BFT further stated 
that prior to administering an examination, each examinee was 
identified by voice recognition and telephone number recognition 
through Caller ID and then asked to affirm over the telephone: 
``I am taking these tests on my own, and without assistance of 
any kind or from anyone.''8
     1.   III. DISCUSSION
     4.   Section 13.203(b) of the Rules provides that ``a 
telegraphy examination must prove that the examinee has the 
ability to send correctly by hand and to receive correctly by ear 
texts in the international Morse Code at not less than the 
prescribed speed ....''9  Section 13.209(a) of the Rules provides 
that ``each examination for a commercial radio operator license 
must be administered at a location and a time specified by the 
COLEM.  The COLEM is responsible for the proper conduct and 
supervision of each examination.''10  Section 13.211(d) provides 
that ``the COLEM may prohibit from the examination area items the 
COLEM determines could compromise the integrity of an examination 
or distract examinees.''11  Section 13.213 provides that ``no 
entity may serve as a COLEM unless it has entered into a written 
agreement with the FCC.  In order to be eligible to be a COLEM, 
the entity must: (a) Agree to abide by the terms of the agreement 
....''12  
     2.   5.        The MOA states that ``having submitted a 
request for certification as a COLEM that includes... the 
procedures it will use for administering examinations ... BFT 
hereby agrees that it will abide by the terms of its request.''13  
The MOA also states that ``any changes to the terms specified in 
BFT's request for certification must be agreed to in writing by 
both parties.''14  Additionally, the MOA requires BFT to ``comply 
... with instructions issued by the FCC.''15  The MOA further 
states that ``BFT certifies that it will comply with the 
applicable provisions of Part 13 ... and with the following terms 
concerning the administration of examinations.  BFT must verify 
the identity of each examinee....''16  
     3.   6.        In addition, at the time the MOA was 
executed, the Commission provided BFT written COLE Manager 
Standards which provide detailed instructions for the 
administration of commercial operator license examinations.17  
The COLE Manager Standards issued by the Commission require the 
COLE Manager to administer each examination in a responsible and 
professional manner.18  Specifically, the COLE Manager Standards 
provide that ``each examination must be administered fairly and 
in such a manner as to ensure the integrity of the examination 
process.''19  Before administering the examination, the COLE 
Manager is required to make positive identification of the 
examinee.20  The COLE Manager Standards list the types of 
documents that may be used to establish identity.21  The COLE 
Manager is also required to prevent cheating during the 
examination.22  Cheating includes, but is not limited to, ``using 
or attempting to use unauthorized examination aids, obtaining 
answers from other examinees (with or without their knowledge), 
or taking an examination for another person.''23  Finally, the 
COLE Manager is explicitly required to ``prohibit any examinee 
from bringing into the examination room or using during the 
examination any programmable or printing calculators, books or 
other reference material, radios, or cameras.''24 
     4.   7.        Neither the Part 13 Rules, nor the MOA and 
COLE Manager Standards explicitly address the administration of 
telegraphy examinations over the telephone.  Nevertheless, we 
find that this practice is patently inconsistent with the general 
provisions of Part 13, the MOA and COLE Manager Standards making 
the COLEM responsible for ensuring the integrity of the 
examination process25 and violates several specific requirements 
of Part 13, the MOA and COLE Manager Standards as well.  
Specifically, BFT is required to abide by the procedures for 
administering examinations specified in its request for 
certification.26  BFT's request for certification did not state 
that it intended to administer telegraphy examinations over the 
telephone.  In addition, BFT is required to make positive 
identification of each examinee before administering the 
examination by using documents such as those listed in the COLE 
Manager Standards.27  BFT's use of voice recognition and 
telephone number recognition to identify an examinee does not 
comply with this requirement and in any event is clearly 
inadequate to establish positive identification of the examinee 
since BFT has no way of knowing who is actually completing the 
examination over the telephone.  Moreover, BFT is required to 
take steps to prevent cheating and the use of unauthorized aids 
during examinations.28  Again, BFT has no way of knowing who is 
actually completing an examination or whether the examinee is 
using any unauthorized aids when administering an examination 
over the telephone.29  
     5.   8.        Accordingly, we conclude that BFT violated 
Sections 13.209(a), 13.211(d) and 13.213 of the Rules and the 
terms of the MOA by conducting telegraphy examinations over the 
telephone.  We admonish BFT for these violations.  In addition, 
we caution BFT that future violations of Part 13 or the MOA may 
result in further sanctions, including monetary forfeiture or its 
decertification as a COLEM. 
     6.   9.        Finally, we note that we are requiring each 
of the examinees to whom BFT administered the telegraphy 
examination over the telephone to retake the test with another 
COLEM.  
IV.   ORDERING CLAUSES

     7.   10.       Accordingly, IT IS ORDERED that BFT Training 
Unlimited, Inc. IS ADMONISHED for conducting commercial operator 
telegraphy examinations over the telephone in violation of Part 
13 of the Commission's Rules and its Memorandum of Agreement with 
the Commission.
     8.   11.       IT IS FURTHER ORDERED that copies of this 
Memorandum Opinion and Order shall be sent by Certified Mail, 
Return Receipt Requested, to the attention of Mr. J. David Byrd, 
CEO, BFT Training Unlimited, Inc., 1318 Redwood Way, Suite 220, 
Petaluma, California 94954.


                              FEDERAL COMMUNICATIONS COMMISION




                             Joseph P. Casey
                             Chief, Spectrum Enforcement 
Division
                             Enforcement Bureau

_________________________

1 47 C.F.R. Part 13.

2 See Memorandum Of Agreement between The United States 
Government, The Federal Communications Commission and BFT 
Training Unlimited, Inc., executed by J. David Byrd, CEO, BFT 
Training Unlimited, Inc. on April 5, 1999 and D'wana R. Terry, 
Chief, Public Safety and Private Wireless Division, Wireless 
Telecommunications Bureau, on April 8, 1999.

3 See Letter from Kathryn S. Berthot, Deputy Chief, Spectrum 
Enforcement Division, Enforcement Bureau, Federal Communications 
Commission, to J. David Byrd, CEO, BFT Training Unlimited, Inc. 
(September 1, 2005).

44 See Letter from J. David Byrd, CEO, BFT Training Unlimited, 
Inc. to the Federal Communications Commission, Spectrum 
Enforcement Division, Enforcement Bureau (September 21, 2005) 
(``BFT Response'').  BFT indicated that it had administered 
telegraphy examinations by telephone to ten examinees.  BFT 
Response at 3.

5 Telegraphy Element 1 consists of sending and receiving 
correctly texts in the international Morse code at not less than 
16 code groups per minute.  Telegraphy Element 2 consists of 
sending and receiving correctly texts in the international Morse 
code at not less than 20 words per minute.  47 C.F.R. § 
13.203(b)(1) and (2). 

6 BFT Response at 2.

7 BFT Response at 1.

8 BFT Response at 2 .

9 47 C.F.R. § 13.203(b).

10 47 C.F.R. § 13.209(a).

11 47 C.F.R. § 13.211(d).

12 47 C.F.R. § 13.213(a).

13 MOA at paragraph 1.

14 MOA at paragraph 2.

15 MOA at paragraph 3.

16 MOA at paragraph 3.

17 Commercial Operator License Examination Manager Standards, 
Revision 4, effective December 31, 2002 (``COLE Manager 
Standards'').  In May 2005, the Commission sent BFT revised COLE 
Manager Standards.  Commercial Operator License Examination 
Manager Standards, Revision 5, effective June 1, 2005.  The COLE 
Manager Standards cited herein are the Revision 4 Standards, 
which were in effect at the time that BFT administered the 
telegraphy examinations over the telephone.  

18 COLE Manager Standards at paragraph 5.

19 COLE Manager Standards at paragraph 5A.

20 COLE Manager Standards at paragraph 5D.

21 COLE Manager Standards at paragraph 5D(2) and 5D(3).

22 COLE Manager Standards at paragraph 5J.

23 Id. 

24 COLE Manager Standards at paragraph 5K.

25 See 47 C.F.R. § 13.209(a) and COLE Manager Standards at 
paragraph 5A.

26 See  47 C.F.R. § 13.213(a) and MOA at paragraph 1.

27 See  COLE Manager Standards at paragraph 5D. 

28 See 47 C.F.R. §§ 13.209(a) and 13.211(d) and COLE Manager 
Standards at paragraphs 5J and 5K.

29 We note that numerous Internet web sites translate Morse code 
to text and vice versa.  Portable devices that translate Morse 
code also are available.