Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
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
)
)
FORFEITURE ORDER
Adopted: February 20, 2008 Released: February 22, 2008
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 eight thousand dollars ($8,000) to AMERI-KING
Corporation ("AMERI-KING"), in Huntington Beach, California, for
willful and repeated violation of Section 301 of the Communications
Act of 1934, as amended ("Act"). On May 23, 2007, the Enforcement
Bureau's Los Angeles Office issued a Notice of Apparent Liability for
Forfeiture ("NAL") in the amount of $10,000 to AMERI-KING after
determining that AMERI-KING apparently willfully and repeatedly
operated a radio transmitter without a license. In this Order, we
consider AMERI-KING's arguments 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 history of compliance with Commission's Rules.
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.
III. DISCUSSION
7. 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.
8. 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. 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.
10. AMERI-KING argues that it did not willfully violate Section 301 of the
Act because its ELT code messages were programmed as approved test
protocols which were not "real distress message code[s]," that these
"test protocol message decodes" were confirmed by COSPAS-SARSAT six
months after the incidents took place, that these tests protocol
message decodes were also confirmed by NOAA; that the purpose of the
test on December 22, 2006, was to measure the ELT on 121.5/243 MHz,
and was not intended as a 406 MHz satellite qualitative test; and that
the purpose of the test on December 28, 2006, was a temperature test.
While we acknowledge the difficultly that AMERI-KING apparently had in
testing its ELTs as it attempted to upgrade them from 121.5/243 MHZ to
121.5/243/406 MHz, we find that AMERI-KING willfully violated Section
301 of the Act.
11. Section 312(f)(1) of the Act, 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...." The Los Angeles Office established, and
AMERI-KING does not deny, that an unregistered ELT was activated by
AMERI-KING on 406 MHz at an open field, i.e. unshielded, testing
facility in Mission Viejo, California, on December 22, 2006. On
December 26, 2006, a Los Angeles agent informed AMERI-KING that the
Commission had no provisions for open air operation of an ELT on
406.025 MHz. AMERI-KING does not dispute that it received that
warning. On December 28, 2006, a Los Angeles agent again located an
unregistered ELT which was being tested by AMERI-KING at a different
testing facility. AMERI-KING does not dispute this second incident and
that it was testing the ELT without the protection of a radio
frequency shielded enclosure. In other words, 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.
AMERI-KING's contention that the emissions on 406 MHz during the
testing were accidental is unavailing. AMERI-KING intentionally tested
its ELTs, which were designed to operate on 406 MHz, in unshielded
environments twice, creating unauthorized emissions on 406 MHz on both
occasions.
12. AMERI-KING also argues that its violations were not repeated because
the two different incidents occurred at two different testing
facilities, during the testing of two different ELTs. Additionally,
after receiving warnings from the Los Angeles Office after each test,
AMERI-KING stopped testing each device. We find no merit to this
argument. Section 312(f)(2) of the Act, 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." As
detailed by the Los Angeles Office, AMERI-KING's actions consisted of
testing 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, we find that
AMERI-KING repeatedly violated Section 301 of the Act.
13. AMERI-KING also argues that it had taken steps to ensure compliance
with the Rules, by ceasing testing the two ELTs after the warnings
from the Los Angeles agent. AMERI-KING also states that it is
coordinating all future testing with NOAA and the FCC's Los Angeles
Office. These actions, while welcome given that AMERI-KING's previous
testing resulted in interference on multiple days to the AFRCC 406 MHz
Search and Rescue Satellite, do not justify a reduction in the
proposed forfeiture amount. The Commission has determined that it
expects the entities it regulates to correct errors when they are
brought to the regulated entity's attention and that such correction
is not grounds for a downward adjustment in the forfeiture.
14. Finally, AMERI-KING argues that the proposed forfeiture amount should
be reduced because it has a history of compliance with the
Commission's Rules. We have reviewed our records and we agree.
Consequently, we reduce the forfeiture amount to $8,000.
15. 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 AMERI-KING
willfully and repeatedly violated Section 301 of the Act. Considering
the entire record and the factors listed above, we find that reduction
of the proposed forfeiture from $10,000 to $8,000 is warranted.
IV. ORDERING CLAUSES
16. 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, AMERI-KING
Corporation, IS LIABLE FOR A MONETARY FORFEITURE in the amount of
$8,000 for willfully and repeatedly violating Section 301 of the Act.
17. 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/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.
18. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to AMERI-KING
Corporation, at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 U.S.C. S: 301.
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.).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732900009
(Enf. Bur., Western Region, Los Angeles Office, released May 23, 2007).
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)(D).
47 U.S.C. S: 153(33).
47 C.F.R. S: 87.473(b).
47 C.F.R. S: 87.475(d).
Grant Lam, 22 FCC Rcd 6341 (EB 2007).
AMERI-KING states that "[i]t is impossible to conduct [a] temperature test
in a RF shielded environment." AMERI-KING states that in this test the ELT
terminated into a 50 ohms dummy load. However, AMERI-KING did not avoid
outside radiation, as required by Section 87.197 of the Rules, given the
continuing interference this ELT caused on 406 MHz to the SARSAT system.
We do not dispute that the email messages sent by AMERI-KING to
COSPAS-SARSAT and NOAA containing test protocol message decodes were
confirmed by these agencies. However, the ELTs being tested by AMERI-KING
were not yet certified by a COSPAS-SARSAT recognized test facility and, as
such had to be conducted with the ELT terminated into a dummy load. 47
C.F.R. S:S: 87.197, 87.199.
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).
47 U.S.C. S: 312(f)(2).
AMERI-KING also argues that it confirmed with the Commission's Office of
Engineering and Technology ("OET") that it does not need to obtain an
experimental license to upgrade its ELTs to 406 MHz. We note 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)." Response at
Attachment 20.
AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21871-76 (2002).
47 U.S.C. S:S: 301, 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 08-402
1
2
Federal Communications Commission DA 08-402