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 Federal  Communications  Commission  DA  02-  287 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


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


 )  ) 
 )  ) 
 )  ) 
 ) 


 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  Teks  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  vessels  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 


 1  47  C.  F.  R.    80.1055(  a)(  3)(  4). 
 2  See  Letter  to  Dwana  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  Dwana  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. 
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 Federal  Communications  Commission  DA  02-  287 
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 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  Teks  ORCA  could  not  be  certified  for 
 operation  under  Part  80  of  the  Commissions  Rules.  Specifically,  Briar  Teks  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 
 Teks  waiver  request.  10  One  party  filed  comments  supporting  Briar  Teks  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  Commissions  Rules  would  further  the  underlying  purpose  of  the 
 Commissions  EPIRB  rules.  EPIRBs  are  stations  in  the  maritime  mobile  service  the  emissions  of  which 
 are  intended  to  facilitate  search  and  rescue  operations.  13  The  Commissions  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. 


 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 
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 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  Teks  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  Teks  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  Commissions  Rules,  47  C.  F.  R.    1.  925, 
 Briar  Teks  request  for  waiver  of  Sections  80.1055(  a)(  3)  18  and  80.1055(  a)(  4)  of  the  Commission's  Rules, 


 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  Teks  request  for 
 waiver  of  the  requirements  of  47  C.  F.  R.    80.  1053(  a)(  4)  through  (7),  (a)(  14),  (e). 
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 Federal  Communications  Commission  DA  02-  287 
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 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 
4