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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Grant V. Lam ) File No.: EB-06-HL-087
Licensee of Aircraft Radio Station ) NAL/Acct. No.: 200632860002
N4390Q
) FRN: 0015340128
Mililani, Hawaii
)
)
FORFEITURE ORDER
Adopted: March 28, 2007 Released: March 30, 2007
By the Regional Director, Western Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of two thousand dollars ($2,000) to Grant V. Lam ("Lam"),
licensee of aircraft radio station N4390Q, for repeatedly violating
Section 87.193 of the Commission's Rules ("Rules"). On August 22,
2006, the Enforcement Bureau's Honolulu Resident Agent Office issued a
Notice of Apparent Liability for Forfeiture ("NAL") in the amount of
$2,000 to Lam after determining that Lam apparently repeatedly allowed
the activation of his emergency locator transmitter ("ELT") on
distress and safety frequencies, when it was not required as a
locating aid for survival purposes. In this Order, we consider Lam's
arguments that the violation was not intentional and that Lam has
since ensured that the operation of the ELT is in compliance with the
Rules.
II. BACKGROUND
2. On April 16, 2006, a Honolulu agent responded to a complaint of
interference to the distress and safety frequencies, 121.5 MHz and 243
MHz, at the Honolulu International Airport. The Agent tracked the
signal to an ELT on board aircraft station N4390Q, located on the
south ramp of the Honolulu International Airport. Lam, the registered
owner of the aircraft, was working on the aircraft at the time of the
ELT activation. Lam deactivated the ELT at the request of the agent.
The agent explained to Lam that Lam was responsible for preventing
non-emergency activations of the ELT. A Notice of Violation ("Notice")
was issued to Lam on April 26, 2006. In the Notice, Lam was cited for
violation of Section 87.193 of the Rules, because of the activation of
the ELT on board aircraft N4390Q, in the absence of any actual
emergency situations. Lam replied to the Notice by letter dated May 3,
2006. The response from Lam acknowledged the violation, surmised that
the activation resulted from nearby turbulence, and stated that Lam
changed the ELT batteries.
3. On July 18, 2006, FCC Honolulu agents received a complaint of
interference to the distress and safety frequencies, 121.5 MHz and 243
MHz, at the Honolulu International Airport. The agents employed an FCC
direction finding vehicle to track the source of the signal to an ELT
installed on aircraft station N4390Q, located in Hangar 421-139, on
the south ramp of the Honolulu International Airport. Lam's wife, Tham
Lam, was in the hangar at the time of the inspection and deactivated
the ELT at the request of the agents. She explained to the agents that
the ELT activated earlier that day without apparent cause, so she was
aware that there was a problem with the ELT. The agents warned Ms. Lam
that the ELT appeared to be defective, and should be removed from
service until it could be repaired, or replaced. The ELT reactivated
as the agents were departing the hanger. The agents alerted Ms. Lam to
the reactivation, and advised her that the unit batteries should be
removed as soon as possible. Ms. Lam deactivated the ELT via the unit
toggle switch, and indicated to the agents that she would remove the
batteries to avoid further non-emergency activations.
4. On August 22, 2006, the Honolulu Office issued a NAL in the amount of
$2,000 to Lam. In the NAL, the Honolulu Office found that Lam
apparently repeatedly allowed the activation of his ELT on distress
and safety frequencies, when it was not required as a locating aid for
survival purposes. Lam filed a response to the NAL on September 8,
2006 ("Response"). In his Response, Lam argues that he did not
intentionally violate the Rules, and that he took steps after the
issuance of the Notice, and again after the issuance of the NAL, to
ensure that the operation of the ELT was in compliance with the Rules.
III. DISCUSSION
5. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines. In examining
the Response, Section 503(b) of the Act requires that the Commission
take into account the nature, circumstances, extent and gravity of the
violation and, with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay, and other
such matters as justice may require.
6. Pursuant to Section 87.18(b) of the Rules, "[a]n aircraft station is
licensed by rule, and does not need an individual license issued by
the FCC if the aircraft station is not required by statute, treaty or
agreement to which the United States is signatory to carry a radio,
and the aircraft station does not make international flights or
communications. Even though an individual license is not required, an
aircraft station licensed by rule must be operated in accordance with
all applicable operating requirements, procedures and technical
specifications . . . ." As the FAA Civil Aviation Registry lists Grant
V. Lam as the owner of aircraft N4390Q, he is responsible for the
aircraft ELT transmissions.
7. 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") Joint
Rescue Coordination Center in Honolulu, Hawaii, 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.
8. Section 87.193 of the Rules states that ELTs "are intended to be
actuated manually or automatically and operated automatically as part
of an aircraft station as a locating aid for survival purposes." The
ELT in Lam's aircraft, N4390Q, was activated on April 26, 2006, and
July 18, 2006. The activation of the ELT was not for use as a locating
aid for survival purposes on either day. Additionally, on both days,
the activation caused interference to transmissions on distress and
safety frequencies, 121.5 MHz and 243 MHz.
9. In his Response, Lam acknowledges that the ELT activated on the dates
listed above, but argues that the activations were not intentional. In
the NAL, the Honolulu Office determined that the violation was
repeated, not willful or intentional. Therefore, we find no merit to
this argument.
10. Lam also argues that after the first inadvertent activation, on April
16, 2006, he replaced the batteries to remedy the problem. After the
second inadvertent activation, on July 18, 2006, he removed the unit
from his plane and sent it back to the manufacturer. Consequently, he
argues that he has taken immediate corrective measures after each
inadvertent activation. While we appreciate Lam's efforts, we find
that on each date, they took place after he was approached by a
Honolulu agent about the activation. The Commission has consistently
held that a licensee is expected to correct errors when they are
brought to the licensee's attention and that such correction is not
grounds for a downward adjustment in the forfeiture. Therefore, we
find no merit to this argument. We also note that Lam has not claimed
an inability to pay the proposed forfeiture amount, and has produced
no financial documentation to support such a claim.
11. We have examined the Response to the NAL pursuant to the statutory
factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that Lam repeatedly
violated Section 87.193 of the Rules. Considering the entire record
and the factors listed above, we find that neither reduction nor
cancellation of the $2,000 forfeiture is warranted.
IV. ORDERING CLAUSES
12. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, Grant Lam IS LIABLE
FOR A MONETARY FORFEITURE in the amount of $2,000 for repeatedly
violating Section 87.193 of the Rules.
13. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within 30 days of the release of this Order.
If the forfeiture is not paid within the period specified, the case
may be referred to the Department of Justice for collection pursuant
to Section 504(a) of the Act. 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. Requests for full payment under an installment plan should be
sent to: Associate Managing Director - Financial Operations, Room
1A625, 445 12th Street, S.W., Washington, D.C. 20554.
14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Grant Lam,
at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 C.F.R. S 87.193.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632860002
(Enf. Bur., Western Region, Honolulu Resident Agent Office, released
August 22, 2006).
47 C.F.R. S 87.193.
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S 503(b)(2)(E).
47 C.F.R. S 87.18(b).
47 C.F.R. S 87.193.
AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21871-76 (2002).
In the NAL, the Honolulu Office stated that 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." NAL at para. 13.
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4), 87.193.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-1472
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Federal Communications Commission DA 07-1472