Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  |                              |
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| BRIARTEK INCORPORATED            | ** |                              |
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| Request for Waiver to Permit     | *  |                              |
| Type Certification of BriarTek   | *) |                              |
| ORCA DSC Personal Emergency      | ** |                              |
| Position Indicating Radio Beacon |    |                              |
| (EPIRB)                          | *  |                              |
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**ORDER**

**Adopted: October 25, 2006 Released: October 25, 2006**

By the Chief, Mobility Division, Wireless Telecommunications Bureau:

1.  *Introduction.* On March 16, 2005, BriarTek Incorporated (BriarTek)
    filed a request for waiver of Section 80.1055 of the Commission\'s
    Rules[^1] to permit type certification of a new Class B Emergency
    Position Indicating Radio Beacon (EPIRB), the Ocean Recovery
    Communication Apparatus (ORCA)[^2] Digital Selective Calling (DSC)
    beacon.[^3] For reasons set forth below, we grant BriarTek's request
    for waiver to the extent described herein.

2.  *Background*. EPIRBs are battery-powered transmitters generally used
    to send a distress signal when a ship is in danger. The distress
    signal is used both as an alarm to alert others that a ship is in
    distress and as a beacon to aid in its location by search and rescue
    personnel. In 2002, the Wireless Telecommunications Bureau's Public
    Safety and Private Wireless Division[^4] granted BriarTek a waiver
    to permit certification of its ORCA Personal Locator Beacon (ORCA
    PLB) as a Class B EPIRB, even though the unit did not meet the
    minimum operational performance standards for EPIRBs operating on
    121.5/243 MHz.[^5] The waiver was granted because, unlike other
    EPIRBs, the ORCA PLB was not intended primarily to activate rescue
    operations from satellites, overflying aircraft, or nearby ships,
    but instead to alert the home ship of a man overboard occurrence and
    then provide an accurate and rapid means to locate personnel once a
    search and rescue operation is underway.[^6] Subsequently, in 2004,
    the Commission decided to phase out Class B EPIRBs, because
    COSPAS/SARSAT, the international program that operates the satellite
    processors for EPIRBs, announced that it would turn off its
    121.5/243 MHz processors.[^7] The Commission stated, however, that
    the decision was not intended to preclude the continued manufacture
    and use of equipment certified in accordance with waivers such as
    was granted to BriarTek, because the use of such equipment did not
    pose the safety problems that led to the decision to phase out Class
    B EPIRBs generally.[^8]

3.  On December 10, 2004, Special Committee No. 119 of the Radio
    Technical Commission for Maritime Services (RTCM) adopted
    Recommended Standards for Maritime Survivor Locating Devices
    (MSLDs).[^9] The SC-119 Standards set forth various functional and
    technical requirements for MSLDs utilizing 156.525 MHz (VHF
    Channel 70) to transmit DSC alerts, and MSLDs utilizing 121.5 MHz to
    transmit alerts. The ORCA DSC beacon adds a DSC signaling alert on
    Channel 70 to the previously approved ORCA PLB, and complies with
    the SC-119 Standards.[^10]

4.  Because the Commission's rules prohibit new Class B EPIRBs, the ORCA
    DSC beacon cannot be certified without a waiver of Section 80.1055.
    BriarTek contends that such a waiver is appropriate because DSC
    alerts will provide additional information that will assist in
    directing the alert signal to the appropriate responders, which will
    increase the effectiveness of search and rescue operations.[^11] On
    May 2, 2006, we sought comment on BriarTek's waiver request. [^12]
    Four comments were filed supporting the request for waiver.[^13]

5.  *Discussion.* Section 1.925 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.[^14] 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.

6.  We note that the ORCA DSC beacon simply adds the DSC transmitting
    frequency 156.525 MHz to the currently certified ORCA PLB, and
    offers improvements to current man overboard recovery systems such
    as interoperability with existing DSC equipment, new location
    technology, and identification of the person overboard.[^15] Because
    the ORCA DSC beacon is primarily intended to alert the home ship of
    a man overbroad occurrence and then provide an accurate and rapid
    means to locate personnel once a search and rescue operation is
    underway---rather than to activate rescue operations from aircraft
    or other ships---we conclude that is not necessary to require the
    device to have the technical characteristics of the former Class B
    EPIRB, such as sufficient transmitter power to alert satellites,
    aircraft, and other ships; and long battery life. In addition, we
    conclude that grant of a waiver would not conflict with the
    Commission's decision to phase out Class B EPIRBs. Indeed, the
    Commission specifically stated, with respect to the waivers of the
    Class B requirements granted for the ORCA PLB and other similar
    units, that its decision was not "intended either to enlarge the
    relief granted in those earlier waiver decisions or to preclude
    modification or termination of the waivers at some later time if
    such action is justified by changed circumstances, such as the
    RTCM's adoption of standards for 121.5 MHz EPIRBs."[^16] We agree
    with BriarTek that a waiver would serve the public interest because
    use of the ORCA DSC beacon will facilitate recovery of lost
    mariners.[^17]

7.  Finally, we will impose the same conditions on this waiver grant as
    we imposed on the 2002 grant for BriarTek's ORCA PLB to address
    concerns of the U.S. Coast Guard.[^18] Specifically, the ORCA DSC
    beacon must be installed in a Personal Flotation Device (PFD)[^19]
    or otherwise kept with a person, and not be sold as a shipboard
    EPIRB or used as a personal locating beacon on land. In addition,
    use of the ORCA DSC beacon will be permitted only on a
    noninterference basis to the COSPAS/SARSAT satellite system.

8.  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,
    BriarTek's request for waiver, filed March 16, 2005, IS GRANTED to
    the extent set forth above.

9.  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

Roger S. Noel

Chief, Mobility Division

Wireless Telecommunications Bureau

[^1]: 47 C.F.R. § 80.1055.

[^2]: We note that ORCA also is often used as an abbreviation for Ocean
    Recovery Cuff Assembly.

[^3]: Letter dated Mar. 16, 2005 from Joseph S. Landa, Corporate
    Officer, BriarTek Incorporated, to Michael Wilhelm, Chief, Public
    Safety and Critical Infrastructure Division, Federal Communications
    Commission (Waiver Request).

[^4]: The Commission reorganized the Wireless Telecommunications Bureau
    effective November 13, 2003, and the relevant duties of the Public
    Safety and Private Wireless Division were assumed by the Public
    Safety and Critical Infrastructure Division. See Reorganization of
    the Wireless Telecommunications Bureau, Order, 18 FCC Rcd 25414,
    25414 ¶ 2 (2003).

[^5]: *See* BriarTek Incorporated, *Order*, 17 FCC Rcd 2204 (WTB PSPWD
    2002) (*ORCA PLB Order*). A waiver was required because the ORCA PLB
    did not meet the emission and power standards or battery requirement
    for Class B EPIRBs. *See id.* at 2205 ¶ 3.

[^6]: *See id.* at 2205 ¶ 6.

[^7]: *See* Amendment of Parts 13 and 80 of the Commission's Rules
    Concerning Maritime Communications, *Report and Order and Further
    Notice of Proposed Rule Making*, WT Docket No. 00-48, 17 FCC Rcd
    6741, 6761-62 ¶¶ 46-47 (2002) (*R&O*)*.*

[^8]: *See id.* at 6761-62 n.124.

[^9]: Version 1.0, RTCM Paper 240-2004/SC119-STD with Amendment 1
    (SC-119 Standards).

[^10]: *See* Waiver Request at 4.

[^11]: *See id.* at 5.

[^12]: Wireless Telecommunications Bureau Seeks Comment on Request for
    Waiver by BriarTek Incorporated for Type Certification of DSC
    Personal Emergency Position Indicating Radio Beacon (EPIRB), *Public
    Notice*, 21 FCC Rcd 5005 (WTB PSCID 2006).

[^13]: Comments were filed by Capt Robert F. Flannery Jr., President,
    Metro Pilots; Edward F. Burns, Port Engineer, United New York Sandy
    Hook Pilots\' Association and United New Jersey Sandy Hook Pilots\'
    Association; Capt D.M. Wheeler, President, United New York Sandy
    Hook Pilots\' Benevolent Association & Capt E.F. Sweeney President,
    United New Jersey Sandy Hook Pilots\' Benevolent Association; John
    H. Olthuis, Director of Training, United New York Sandy Hook
    Pilots\' Benevolent Association and United New Jersey Sandy Hook
    Pilots\' Benevolent Association.

[^14]: 47 C.F.R. § 1.925(b)(3); *see also WAIT Radio v FCC*, 418 F. 2d
    1153, 1159 (D.C. Cir. 1969).

[^15]: *See* Waiver Request at 4-5.

[^16]: *R&O*, 17 FCC Rcd at 6761-62 n.124.

[^17]: *See* Waiver Request at 4.

[^18]: *See ORCA PLB Order*, 17 FCC Rcd at 2206 ¶ 8.

[^19]: 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.