Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File Number: EB-06-LA-346    |
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| AMERI-KING Corporation           | ) | NAL/Acct. No.: 200732900009  |
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| Huntington Beach, CA             | * | FRN: 0016212938              |
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## 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"),[^1] and
    Section 1.106 of the Commission's rules,[^2] 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,*[^3] 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").[^4] 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.[^5] 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.[^6]

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.[^7] 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,[^8] 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,[^9] 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.[^10] The Region also determined that AMERI-KING's violations
    were repeated, pursuant to Section 312(f)(2) of the Act,[^11]
    because AMERI-KING tested ELTs, which created emissions on 406 MHz
    in unshielded environments on two days, December 26, 2006, and
    December 28, 2006.[^12] Because AMERI-KING had no license to operate
    on 406 MHz, the Region concluded that AMERI-KING repeatedly violated
    Section 301 of the Act.[^13] 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.[^14] 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.[^15]

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*. [^16] 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.[^17] 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.[^18]
    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.[^19]

**III. DISCUSSION**

9.  Section 405(a) of the Act[^20] and Section 1.106(f) of the
    Rules[^21] 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.[^22] The
    thirtieth day after June 24, 2008, was July 24, 2008.[^23] Thus to
    have been timely, any request for reconsideration was due to be
    filed with the Commission no later than July 24, 2008.[^24]
    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.[^25]

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.

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IV. **ORDERING CLAUSES**

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11. Accordingly, **IT IS ORDERED** that, pursuant to Sections 4(i),
    4(j), 405 of the Act[^26] and Section 1.106 of the Rules,[^27] 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.[^28]
    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

[^1]: 47 U.S.C. § 405.

[^2]: 47 C.F.R. § 1.106.

[^3]: *AMERI-KING Corporation,* 23 FCC Rcd 9916 (EB 2008) ("*2008
    Memorandum Opinion and Order*").

[^4]: 47 U.S.C. §301. *See AMERI-KING Corporation,* 23 FCC Rcd 2616 (EB
    2008) ("*Forfeiture Order*").

[^5]: ELTs operating on 406.0 -- 406.1 MHz must be registered with the
    National Oceanographic and Atmospheric Administration ("NOAA").
    *See* 47 C.F.R. § 87.199.

[^6]: *See* 47 C.F.R. § 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. § 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.).

[^7]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200732900009 (Enf. Bur., Western Region, Los Angeles Office,
    released May 23, 2007) ("*NAL*").

[^8]: 47 U.S.C. § 312(f)(1).

[^9]: *See* 47 C.F.R. § 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).

[^10]: *Forfeiture Order*, 23 FCC Rcd at 2618.

[^11]: 47 U.S.C. § 312(f)(2).

[^12]: *Forfeiture Order*, 23 FCC Rcd at 2618 -- 2619.

[^13]: 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.

[^14]: *Forfeiture Order*, 23 FCC Rcd at 2619. *See AT&T Wireless
    Services, Inc.* 17 FCC Rcd 21866, 21871-76 (2002).

[^15]: *Forfeiture Order*, 23 FCC Rcd at 2619.

[^16]: *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. § 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. §
    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. § 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. § 87.475(d). *See*
    *Forfeiture Order*, 23 FCC Rcd at 2617 -- 2618.

[^17]: *2008 Memorandum Opinion and Order,* 23 FCC Rcd at 9918.

[^18]: *2008 Memorandum Opinion and Order,* 23 FCC Rcd at 9919.

[^19]: *2008 Memorandum Opinion and Order,* 23 FCC Rcd at 9919.

[^20]: 47 U.S.C. § 405(a).

[^21]: 47 C.F.R. § 1.106(f).

[^22]: *See* 4*7* C.F.R. § 1.4(b).

[^23]: *See* 4*7* C.F.R. § 1.4(j).

[^24]: *See* 4*7* C.F.R. §§ 1.106(f), 1.4(j).

[^25]: *See Washington Broadcast Management Co., Inc.*, 15 FCC Rcd 6607
    (2000); *Bay Broadcasting Corporation*, 15 FCC Rcd 23449 (EB 2000).

[^26]: 47 U.S.C. §§ 154(i), 154(j), 405.

[^27]: 47 C.F.R. § 1.106.

[^28]: 47 U.S.C. § 504(a).