Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  |                              |
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| BRIAR TEK INCORPORATED           | ** |                              |
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| Request for Waiver to Permit     | *  |                              |
| Type Certification of an OCRA    | *) |                              |
| Personal Emergency Position      | ** |                              |
| Indicating Radio Beacon at 121.5 |    |                              |
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**ORDER**

**Adopted: February 6, 2002 Released: February 7, 2002**

By the Acting Chief, Public Safety and Private Wireless Division,
Wireless Telecommunications Bureau:

1.  *Introduction.* On October 31, 2001, Briar Tek Incorporated (Briar
    Tek) filed a request for waiver of Sections 80.1055(a)(3) and (4) of
    the Commission\'s Rules[^1] to permit the type certification for a
    Personal Emergency Position Indicating Radio Beacon (EPIRB)
    operating at 121.5 MHz.[^2] Briar Tek describes its new equipment as
    the ORCA Personal Locator Beacon (ORCA).[^3] For the reasons set
    forth below, we grant Briar Tek's request for waiver to the extent
    described herein.

2.  *Background*. The ORCA generally meets the description of a Class B
    EPIRB station.[^4] It is intended to be used as an automatic alert
    of a man overboard (MOB) occurrence and to locate personnel swept
    overboard in the event that he/she can no longer be tracked
    visually.[^5] In this connection, Briar Tek states that the ORCA is
    intended to be used to rescue personnel in close proximity of a
    vessel quickly and that the device is water-activated and signals a
    receiver installed on the vessel's bridge to allow local search and
    rescue to be initiated.[^6] Briar Tek notes that ORCA transmits an
    FM signal that is unique to the Briar Tek system and sends a unique
    identification number thereby reducing the probability of false
    alarms.[^7]

3.  Under Section 80.1055 of the Commission Rules, EPIRB stations must
    meet certain technical requirements.[^8] Absent a waiver of these
    standards, Briar Tek's ORCA could not be certified for operation
    under Part 80 of the Commission's Rules. Specifically, Briar Tek's
    seeks waiver of emission and power standards, and battery
    requirements[^9] to allow for certification of a personal EPIRB for
    personnel that have fallen overboard from a vessel. On November 15,
    2001, we sought comment on Briar Tek's waiver request. [^10] One
    party filed comments supporting Briar Tek's request for waiver.[^11]

4.  *Discussion.* Section 1.925(b)(3) of the Commission\'s Rules
    provides that we may grant a waiver if it is shown that (a) the
    underlying purpose of the rule(s) would not be served or would be
    frustrated by application to the instant case, and grant of the
    requested waiver would be in the public interest; or (b) in light of
    unique or unusual circumstances, application of the rule(s) would be
    inequitable, unduly burdensome, or contrary to the public interest,
    or the applicant has no reasonable alternative.[^12] We find that
    the waiver requested by Briar Tek is warranted under the
    circumstances presented. Specifically, we conclude that the
    underlying purpose of the subject rules would not be served by
    application to the instant case and grant of the requested waiver
    would be in the public interest.

5.  In light of the record in this proceeding and our analysis thereof,
    we believe that a waiver of Sections 80.1055(a)(3) - (4) of the
    Commission's Rules would further the underlying purpose of the
    Commission's EPIRB rules. EPIRBs are stations in the maritime mobile
    service the emissions of which are intended to facilitate search and
    rescue operations.[^13] The Commission's Rules for Class B EPIRBs
    envision distress signals----used to alert others of a distress
    situation and to assist search and rescue (SAR) personnel in
    locating those in distress----that are intended to be received by
    overflying aircraft, nearby ships, and satellites. Thus, to ensure
    that such signals are received, the Commission\'s Rules require that
    EPIRBs have a certain transmitter output power and emissions.
    Further, in light of the fact that it may be hours before help
    arrives, the Commission\'s Rules also require that EPIRBs have a
    long-lasting power supply. Because safety of life is involved and
    ships travel worldwide, the Commission\'s Rules specify minimum
    operational performance standards.

6.  We note that the ORCA is not intended primarily to activate rescue
    operations from aircraft or other ships, but instead to alert the
    home ship of a MOB occurrence then provide an accurate and rapid
    means to locate personnel once an SAR operation is underway. Thus,
    we conclude that is not necessary to require the device to have
    sufficient transmitter power to alert satellites, aircraft, and
    other ships. Also, because the ORCA is not intended as a normal
    EPIRB but rather will send a signal that is time encoded and contain
    a unique identification code, we conclude that it is not necessary
    to require A3X emission. Further, because assistance and/or rescue
    is intended to be provided within minutes rather than hours, we find
    it appropriate to permit a shorter battery life, and thus to waive
    the battery requirements. Specifically, we note that the ORCA will
    use a commercial nine-volt battery clip in a sealed compartment with
    an alkaline battery that has a useful life guaranteed to exceed
    twenty-four hours.[^14] In this connection, we find that requiring a
    larger, heavier battery to be unnecessary given the intended purpose
    of the device. We also waive the battery labeling requirements,
    which are intended to provide information regarding useful life of
    the battery stored in marine environment conditions based on the
    power and duration requirements, which we have concluded are not
    necessary in this case. Additionally, we note Briar Tek's statement
    that the nine-volt battery can be replaced by the user and that a
    periodic replacement schedule will be recommended in the instruction
    manual.[^15]

7.  Also, because the device is to be used for homing on persons lost
    overboard, we conclude that the requirement to operate on both 121.5
    MHz and 243 MHz is not necessary. The 121.5 MHz frequency, in
    addition to being used to alert rescue forces by communicating with
    the satellites, aircraft and other ships, is also used in search and
    rescue operations as a homing frequency to find a ship in distress.
    The 243 MHz frequency is generally used by military organizations
    for distress alerting purposes; thus, we are concerned that
    requiring the use of 243 MHz in this specific context could cause
    unnecessary harmful interference to other operations on this
    frequency.

8.  We have coordinated your request with the U.S. Coast Guard. The
    Coast Guard has indicated that they have no objection to granting
    Briar Tek\'s request for waiver, provided it is installed in a
    Personal Flotation Device (PFD)[^16] or otherwise kept with a
    person, and is not sold as a shipboard EPIRB or used as a personal
    locating beacon on land. We note that Briar Tek's description of the
    ORCA appears to meet these concerns and we clarify that satisfying
    these concerns is an ongoing condition of the instant waiver grant.
    We further note, however, that the Coast Guard raises concerns that
    the device may cause interference to the COSPAS/SARSAT Satellite
    system used for search and rescue. In view of these concerns we only
    will allow use of the ORCA on a noninterference basis to the
    COSPAS/SARSAT Satellite system.

9.  Finally, we note that the Commission has a pending proposal to phase
    out Class A, B and S EPIRBs. Specifically, the Commission has
    proposed that (1) certification of new Class A, B, and S EPIRBs
    cease immediately upon the effective date of the proposed rules; (2)
    sales and manufacture of these devices cease as of February 1, 2003;
    and (3) operation of these devices cease as of December 31,
    2006.[^17] Our grant of the instant waiver request should not be
    construed as bearing in any way on our resolution of the proposal to
    phase out Class A, B and S EPIRBs. Should that proposal be adopted,
    moreover, we retain the discretion to revisit the waiver to
    determine if it needs to be modified or terminated in light of the
    fact that it authorizes a Class B EPIRB.

10. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Section 1.925 of the Commission's Rules, 47 C.F.R. § 1.925, Briar
    Tek's request for waiver of Sections 80.1055(a)(3)[^18] and
    80.1055(a)(4) of the Commission\'s Rules, 47 C.F.R. §§
    80.1055(a)(3)(4), filed October 31, 2001, IS GRANTED, as described
    above, FOR AN INDEFINITE TERM and SUBJECT TO the outcome of WT
    Docket No. 00-48.

11. This action is taken under delegated authority pursuant to Sections
    0.131 and 0.331 of the Commission\'s Rules, 47 C.F.R. §§ 0.131 and
    0.331.

FEDERAL COMMUNICATIONS COMMISSION

Barry J. Ohlson

Acting Chief, Public Safety and Private Wireless Division

[^1]: 47 C.F.R. §§ 80.1055(a)(3)(4).

[^2]: *See* Letter to D'wana R. Terry, Chief, Public Safety and Private
    Wireless Division, FCC, from Wayne V. Black, Esq., counsel for Briar
    Tek, dated October 24, 2001 (transmittal letter). The waiver request
    is set forth in an earlier-dated letter, which enclosed four
    attachments, that were filed under the transmittal letter. *See*
    Letter to D'wana R. Terry, Chief, Public Safety and Private Wireless
    Division, FCC, from Charles K. Collins, Director of Operations,
    Briar Tek Incorporated, dated October 19, 2001 (Waiver request).

[^3]: *See*, *e.g.,* Waiver request at 1. We note that OCRA is often
    used as an abbreviation for Ocean Recovery Cuff Assembly.

[^4]: EPIRBs are stations in the maritime mobile service the emissions
    of which are intended to facilitate search and rescue operations.
    *See* 47 C.F.R. § 80.5.

[^5]: *See, e.g.*, Waiver request at 1 and Attachment D.

[^6]: *See* Waiver request at 1.

[^7]: *Id.* at 2.

[^8]: *See* 47 C.F.R. § 80.1055.

[^9]: *See* 47 C.F.R. §§ 80.1053(a)(4) -- (7). *See also*
    80.1053(a)(14)(e).

[^10]: Wireless Telecommunications Bureau Seeks Comment on Request for
    Waiver by Briar Tek Incorporated for Type Certification of Personal
    121.5 MHz Emergency Position Indicating Radio Beacon (EPIRB),
    *Public Notice*, DA 01-2662 (WTB PSPWD 2001).

[^11]: Comments were filed by Belle Haven Marina, Inc. No reply comments
    or *ex parte* submissions were filed in this matter.

[^12]: 47 C.F.R. § 1.925(b)(3). *See also WAIT Radio v FCC*, 418 F. 2d
    1153, 1159 (D.C. Cir. 1969).

[^13]: *See* 47 C.F.R. § 80.5

[^14]: *See* Waiver request at Attachment A, 1. The ERP is 25 mW. *Id*.

[^15]: Waiver request at Attachment A, 2.

[^16]: Personal Flotation Device is marine terminology for a lifesaving
    device that is used to provide buoyant support for one person in the
    water. *See* *generally* 33 C.F.R. § 175.13.

[^17]: *See* Amendment of Parts 13 and 80 of the Commission\'s Rules
    concerning Maritime Communications, *Notice of Proposed Rule Making
    and Memorandum Opinion and Order*, WT Docket No. 00-48, 15 FCC Rcd
    5942, 5957 ¶ 30 (2000).

[^18]: Section 80.1055(a)(3) provides that Class B EPIRB stations must
    meet the requirements of 47 C.F.R. §§ 80.1053(a) (4) through (8),
    (a)(14), and (c) through (i). In this connection, we are granting
    Briar Tek's request for waiver of the requirements of 47 C.F.R. §§
    80.1053(a)(4) through (7), (a)(14), (e).