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Before the
Federal Communications Commission
Washington, D.C. 20554
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)
)
In the Matter of File Number: EB-06-LA-346
)
AMERI-KING Corporation NAL/Acct. No.: 200732900009
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Huntington Beach, CA FRN: 0016212938
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)
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MEMORANDUM OPINION AND ORDER
Adopted: June 20, 2008 Released: June 24, 2008
By the Associate Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order, issued pursuant to Section 405
of the Communications Act of 1934, as amended ("Act"), and Section
1.106 of the Commission's rules, we deny a Petition for
Reconsideration ("Petition") filed on March 24, 2008, by AMERI-KING
Corporation ("AMERI-KING"), in Huntington Beach, California, of a
Forfeiture Order issued by the Western Region ("Region") of the
Enforcement Bureau, imposing an eight thousand dollar ($8,000)
monetary forfeiture penalty against AMERI-KING for willful and
repeated violation of Section 301 of the Communications Act of 1934,
as amended ("Act"). The noted violation concerned AMERI-KING's
operation of a radio transmitter without a license. As discussed
below, we deny AMERI-KING's Petition and affirm the forfeiture.
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-SARSAT 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.
6. On May 23, 2007, the Los Angeles Office issued a NAL in the amount of
$10,000 to AMERI-KING. In the NAL, the Los Angeles Office found that
AMERI-KING apparently willfully and repeatedly violated Section 301
of the Act by operating a radio transmitter without a license.
AMERI-KING filed a response to the NAL on June 25, 2007 ("Response")
and then filed a supplement to that response on July 5, 2007. In the
Response and supplement, AMERI-KING argues that it did not willfully
violate Section 301, that it did not repeatedly violate Section 301,
that it has taken remedial measures to ensure future compliance, and
that it has a history of compliance with the Commission's Rules.
7. In the Forfeiture Order, the Region determined, pursuant to Section
312(f)(1) of the Act, which applies to violations for which
forfeitures are assessed under Section 503(b) of the Act, that
AMERI-KING's violations were willful because AMERI-KING tested an ELT,
which created emissions on 406 MHz, in an open field, in violation of
the Commission's Rules, was warned about its violation, and then
proceeded to test another ELT, which created emissions on 406 MHz
again, in an unshielded environment, a few days later. The Region also
determined that AMERI-KING's violations were repeated, pursuant to
Section 312(f)(2) of the Act, because AMERI-KING tested ELTs, which
created emissions on 406 MHz in unshielded environments on two days,
December 26, 2006, and December 28, 2006. Because AMERI-KING had no
license to operate on 406 MHz, the Region concluded that AMERI-KING
repeatedly violated Section 301 of the Act. The Region also found that
AMERI-KING's efforts to ensure compliance with the Rules, by ceasing
testing of the two ELTs after the warnings from the Los Angeles agent,
did not justify a downward adjustment because the Commission has
determined that it expects the entities it regulates to correct errors
when they are brought to the regulated entity's attention. Finally,
the Region determined that AMERI-KING had a history of compliance with
the Commission's Rules, and reduced the forfeiture amount to $8,000.
III. DISCUSSION
8. 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. In its Petition, AMERI-KING
reiterates all of the arguments that it previously raised in its
Response to the NAL and which were addressed by the Region in the
Forfeiture Order. Therefore, we deny the Petition and affirm the
Forfeiture Order. As the Region stated, 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 3(33) of the Act
defines "communications by radio" as "the transmission by radio of
writing, signs, signals, pictures, and sounds of all kinds, including
all instrumentalities, facilities, apparatus, and services (among
other things the receipt, forwarding, and delivery of communications)
incidental to such transmission." 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."
9. Upon review of the Petition and the entire record, we find no material
error or omission in the Forfeiture Order. AMERI-KING re-asserts that
it did not willfully or repeatedly violate Section 301 because it
utilized an approved test protocol for each of the tests it conducted
at each of the two test facilities, so the transmissions were not real
distress message codes. That AMERI-KING may have used an approved test
protocol does not alter the underlying finding of the Region that
AMERI-KING twice tested transmissions using unregistered equipment in
an unshielded environment, in violation of the Commission's Rules,
which created, however inadvertently, unauthorized emissions on the
406 MHz distress search and rescue frequency, and which were reported
to the FCC as interference to the COSPAS/SARSAT system. Accordingly,
we affirm the Region's determination that AMERI-KING willfully and
repeatedly violated Section 301 of the Act by operating radio
transmitters on 406 MHz without authorization. We further reiterate
the advice the Commission's Office of Engineering and Technology
provided to AMERI-KING subsequent to these two occurrences, that any
test of an ELT, prior to certification must be done in an RF-shielded
enclosure and into dummy loads, and any over-the-air test of an ELT
after certification by a recognized COSPAS/SARSAT test facility must
be coordinated with NOAA/SARSAT's procedures for established test
signals. We also affirm the Region's findings that AMERI-KING's
subsequent efforts to ensure compliance with the Commission's Rules,
after the warnings from the Los Angeles agent, do not warrant a
downward adjustment of the forfeiture, but that its previous history
of compliance with the Commission's does warrant a reduction of the
forfeiture from $10,000 to $8,000.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
Communications Act of 1934, as amended, and Section 1.106 of the
Commission's Rules, AMERI-KING Corporation's Petition for
Reconsideration, filed March 24, 2008, IS DENIED, and the Region's
Forfeiture Order IS AFFIRMED.
11. Payment of the forfeiture ordered by the Region and affirmed by this
Memorandum Opinion and Order 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/Account Number and FRN Number 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.
12. IT IS FURTHER ORDERED that this Order shall be sent by regular mail
and by certified mail, return receipt requested, to AMERI-KING
Corporation, at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Associate Chief, Enforcement Bureau
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
AMERI-KING's filing is not captioned as a petition for reconsideration and
is in letter form. However, because it was timely filed, we are treating
it as a petition for reconsideration of the Forfeiture Order pursuant to
47 U.S.C. S: 405 and 47 C.F.R. S: 1.106.
AMERI-KING Corporation, 23 FCC Rcd 2616 (EB 2008) ("Forfeiture Order").
47 U.S.C. S: 301.
ELTs operating on 406.0 - 406.1 MHz must be registered with the National
Oceanographic and Atmospheric Administration ("NOAA"). 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.).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732900009
(Enf. Bur., Western Region, Los Angeles Office, released May 23, 2007)
("NAL").
47 U.S.C. S: 312(f)(1).
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).
Forfeiture Order, 23 FCC Rcd at 2618.
47 U.S.C. S: 312(f)(2).
Forfeiture Order, 23 FCC Rcd at 2618 - 2619.
In its Response to the NAL, AMERI-KING also argued that it confirmed with
the Commission's Office of Engineering and Technology ("OET") that it did
not need to obtain an experimental license to upgrade its ELTs to 406 MHz.
The Region noted that OET, in its correspondence, also informed AMERI-KING
that "ELTs are regulated . . . and are required to be tested under the
FCC's equipment verification procedure . . . and be certified by a
recognized COSPAS/SARSAT test facility. All tests done prior to
certification must be done in an RF-shielded enclosure and into dummy
loads (87/197)." Forfeiture Order, 23 FCC Rcd at 2619 n.18.
Forfeiture Order, 23 FCC Rcd at 2619. See AT&T Wireless Services, Inc. 17
FCC Rcd 21866, 21871-76 (2002).
Forfeiture Order, 23 FCC Rcd at 2619.
See 47 C.F.R. S: 1.106(c); EZ Sacramento, Inc., 15 FCC Rcd 18257, (EB
2000), citing WWIZ, Inc., 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 (1966).
EZ Sacramento, Inc., 15 FCC Rcd at 18257.
47 U.S.C. S: 301.
47 U.S.C. S: 153(33).
47 C.F.R. S: 87.473(b).
47 C.F.R. S: 87.475(d). Forfeiture Order, 23 FCC Rcd at 2617 - 2618. We
also reiterate the Region's caution to AMERI-KING concerning false ELT
activation and its potential to severely impact the search and rescue
network, resulting in responder resources being wasted and misdirected. As
the Region indicates, air searches for false ELT activations cost the
United States Coast Guard 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 and a false activation
may conceal or prevent timely response to a legitimate distress signal.
Forfeiture Order, 23 FCC Rcd at 2618.
Forfeiture Order, 23 FCC Rcd at 2619 n.18; Response at Attachment 20.
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
47 U.S.C. S: 504(a).
Federal Communications Commission DA 08-1461
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Federal Communications Commission DA 08-1461