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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
)
)
MEMORANDUM OPINION AND ORDER
Adopted: December 17, 2008 Released: December 19, 2008
By the Deputy 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 dismiss as untimely a Petition for
Reconsideration ("Petition") filed on July 25, 2008, by AMERI-KING
Corporation ("AMERI-KING"), in Huntingdon Beach, California.
AMERI-KING seeks reconsideration of a Memorandum Opinion and Order,
issued by the Enforcement Bureau, which upheld 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"). As discussed below, we dismiss
AMERI-KING's Petition because it does not comply with the Act and the
Rules, and is therefore procedurally defective. We also find that even
if AMERI-KING had timely filed its Petition, the Petition would fail
on the merits.
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 (hereinafter 406
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 argued that it did not willfully
violate Section 301, that it did not repeatedly violate Section 301,
that it had taken remedial measures to ensure future compliance, and
that it had 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.
8. On March 24, 2008, AMERI-KING filed a petition for reconsideration of
the Forfeiture Order, which reiterated all of the arguments which were
addressed by the Region in the Forfeiture Order. The Bureau reviewed
the petition for reconsideration and the entire record, and found no
material error or omission in the Forfeiture Order. The Bureau noted
that AMERI-KING re-asserted 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. The Bureau
determined that the fact that AMERI-KING may have used an approved
test protocol did 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. The Bureau
therefore affirmed 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. The Bureau also
affirmed 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, did not warrant a downward adjustment of the
forfeiture, but that its previous history of compliance with the
Commission's rules did warrant a reduction of the forfeiture from
$10,000 to $8,000.
III. DISCUSSION
9. Section 405(a) of the Act and Section 1.106(f) of the Rules provide
that a petition for reconsideration be filed within thirty days from
the date of public notice of the final action. In this case, public
notice of the 2008 Memorandum Opinion and Order occurred on June 24,
2008, upon its release. The thirtieth day after June 24, 2008, was
July 24, 2008. Thus to have been timely, any request for
reconsideration was due to be filed with the Commission no later than
July 24, 2008. AMERI-KING's submission was received by the Commission
on July 25, 2008. Accordingly, we find that AMERI-KING did not timely
file its petition for reconsideration and that dismissal is warranted.
10. We further find that even if AMERI-KING had timely filed its Petition,
the Petition would fail on the merits. We have reviewed AMERI-KING's
most recent Petition and we find that it again reiterates arguments it
raised in its Response to the Forfeiture Order and in its initial
petition for reconsideration. All of these arguments have been
previously considered in the Forfeiture Order and the 2008 Memorandum
Opinion and Order. Therefore, we find that AMERI-KING's Petition
provides no basis which warrants reduction or cancellation of the
monetary forfeiture assessed against AMERI-KING, even if its Petition
had had been timely filed.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i), 4(j), 405
of the Act and Section 1.106 of the Rules, that the Petition for
Reconsideration filed by AMERI-KING Corporation, IS DISMISSED, and the
Bureau's 2008 Memorandum Opinion and Order IS AFFIRMED.
12. Payment of the forfeitures ordered by the Region and the Bureau
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. AMERI-KING Corporation shall also send
electronic notification on the date said payment is made to
WR-Response@fcc.gov.
13. 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
Deputy Chief, Enforcement Bureau
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
AMERI-KING Corporation, 23 FCC Rcd 9916 (EB 2008) ("2008 Memorandum
Opinion and Order").
47 U.S.C. S:301. See AMERI-KING Corporation, 23 FCC Rcd 2616 (EB 2008)
("Forfeiture Order").
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.
2008 Memorandum Opinion and Order, 23 FCC Rcd at 9916 - 9919. 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. 47 U.S.C. S: 301. 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." 47 U.S.C. S: 153(33).
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." 47 C.F.R. S: 87.473(b). 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." 47 C.F.R. S: 87.475(d). See Forfeiture
Order, 23 FCC Rcd at 2617 - 2618.
2008 Memorandum Opinion and Order, 23 FCC Rcd at 9918.
2008 Memorandum Opinion and Order, 23 FCC Rcd at 9919.
2008 Memorandum Opinion and Order, 23 FCC Rcd at 9919.
47 U.S.C. S: 405(a).
47 C.F.R. S: 1.106(f).
See 47 C.F.R. S: 1.4(b).
See 47 C.F.R. S: 1.4(j).
See 47 C.F.R. S:S: 1.106(f), 1.4(j).
See Washington Broadcast Management Co., Inc., 15 FCC Rcd 6607 (2000); Bay
Broadcasting Corporation, 15 FCC Rcd 23449 (EB 2000).
47 U.S.C. S:S: 154(i), 154(j), 405.
47 C.F.R. S: 1.106.
47 U.S.C. S: 504(a).
Federal Communications Commission DA 08-2715
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Federal Communications Commission DA 08-2715