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 Federal  Communications  Commission  DA  03-  3541 
 1 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 OMNITRONICS,  LLC 
 Request  for  Waiver 


 )  ) 
 )  ) 
 ) 


 ORDER  ON  RECONSIDERATION 
 Adopted:  November  3,  2003  Released:  November  6,  2003 
 By  the  Chief,  Public  Safety  and  Private  Wireless  Division,  Wireless  Telecommunications  Bureau: 
 1.  Introduction.  On  January  16,  2003,  Omnitronics,  LLC  (Omnitronics)  filed  a  petition  for  reconsideration  1  of  the  December  19,  2002,  action  2  by  the  Wireless  Telecommunications  Bureau,  Public 
 Safety  and  Private  Wireless  Division  (Division),  denying  Omnitronics  request  for  waiver  of  Section  95.419(  a)  of  the  Commissions  Rules.  3  For  the  reasons  stated  below,  we  deny  Omnitronics  Petition. 


 2.  Background.  On  December  10,  2001,  Omnitronics  submitted  a  request  for  waiver  of  Section  95.419(  a)  of  the  Commissions  Rules,  which  prohibits  the  operation  of  a  CB  station  transmitter 
 by  radio  remote  control.  4  Omnitronics,  a  manufacturer  of  accessories  to  be  used  in  the  Citizens  Band  (CB)  Radio  Service,  stated  that  it  sought  to  bring  to  market  a  new  product  that  would  use  900  MHz 
 spread  spectrum  cordless  telephone  technology  to  allow  wireless  hands-  free  operation  of  a  CB  radio  transmitter.  5  The  product  would  consist  of  an  earphone  and  microphone  connected  to  a  belt  pack,  and  a 
 relay  to  be  connected  to  a  separately  sold  CB  radio.  6  Omnitronics  states  that  the  chance  of  an  interfering  signal  keying  the  CB  radio  is  virtually  impossible,  and  that  the  CB  radio  will  be  remotely  keyed  only 
 when  four  conditions  were  met:  (1)  correct  spread  spectrum  PN  codes;  (2)  correct  scrambling  seed;  (3)  correct  unique  22  bit  user  I.  D.  number;  and  (4)  correct  8  bit  code  that  is  transmitted  when  the  belt  pack 
 VOX  circuit  has  detected  radio.  7 
 1  Petition  for  Reconsideration  by  Omnitronics,  LLC  (filed  Jan.  16,  2003)  (Petition).  Omnitronics  supplemented 
 its  petition  on  April  8,  2003.  Letter  dated  April  3,  2003  from  Martin  O.  Risso,  Omnitronics,  LLC  to  Marlene  H.  Dortch,  Secretary,  Federal  Communications  Commission  (filed  April  8,  2003)  (Supplement). 


 2  Letter  dated  December  19,  2002  from  Dwana  R.  Terry,  Chief,  Public  Safety  and  Private  Wireless  Division, 
 Wireless  Telecommunications  Bureau  to  Martin  Risso,  Omnitronics,  LLC  (Division  Letter).  3 
 47  C.  F.  R.    95.419(  a).  Remote  control  means  operation  of  a  CB  transmitter  from  any  place  other  than  the  location  of  the  CB  transmitter.  47  C.  F.  R.    95.  419(  c). 


 4  Letter  dated  December  10,  2001  from  Martin  Risso,  Senior  Design  Engineer,  Omnitronics,  LLC  to  Mary  Shultz, 
 Chief,  Licensing  and  Technical  Analysis  Branch,  Public  Safety  and  Private  Wireless  Division,  Wireless  Telecommunications  Bureau  (Request  for  Waiver). 


 5  Id.  at  1. 
 6  Id. 
 7  Id. 
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 Federal  Communications  Commission  DA  03-  3541 
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 3.  On  December  19,  2002,  the  Division  denied  Omnitronics  request.  The  Division  gave  two  reasons  for  its  decision.  First,  the  Division  noted  that  Section  95.607  of  the  Commission  Rules  8 
 specifically  provides  that  only  the  holder  of  the  grant  of  authorization  of  the  particular  certified  CB  transmitter  may  make  modifications  to  the  transmitter,  including  the  addition  of  any  accessory  or  device 
 not  specified  in  the  certification,  or  the  addition  of  any  switch,  control,  or  external  connection.  9  Because  Omnitronics  is  not  the  holder  of  the  grants  of  authorization  for  the  CB  transmitters  to  which  Omnitronics 
 product  would  be  attached,  the  Division  concluded  that  Omnitronics  was  not  eligible  to  seek  a  waiver  of  Section  95.419(  a)  for  Omnitronics  proposed  product.  10  In  addition,  the  Division  held  that  grant  of  a 
 waiver  of  the  rule  at  this  time  could  circumvent  the  Commissions  rulemaking  process  by  inviting  numerous  similar  requests,  and  would  undermine  the  purpose  of  Section  95.419,  which  is  to  ensure  that 
 adequate  means  are  available  to  the  operator  to  render  the  transmitter  inoperative  should  improper  operation  occur.  11  On  January  16,  2003,  Omnitronics  filed  the  Petition  seeking  reconsideration  of  the 
 Divisions  decision. 
 4.  Discussion.  First,  Omnitronics  argues  that  Section  95.607  does  not  apply  to  accessories  or  devices  that  connect  to  existing  connectors  on  the  CB  transmitter  and  does  not  enable  new  functions 
 that  were  not  covered  in  the  original  grant  of  authorization.  12  For  example,  Omnitronics  contends  that  Section  95.420  of  the  Commissions  Rules  13  allows  the  connection  of  a  phone  patch  to  a  CB  transmitter.  14 
 Omnitronics  argues  that  the  technical  specifications  of  Sections  95.637(  d)  and  95.669  of  the  Commissions  Rules  15  guarantee  that  accessories  or  devices  connected  to  existing  connectors  will  not 
 cause  improper  operation  of  the  CB  transmitter,  and  states  that  the  product  it  proposes  to  market  would  connect  to  the  same  existing  connectors  on  a  CB  transmitter  to  which  a  phone  patch  would  connect.  16 
 Omnitronics  argues  that  the  Part  95  rules  imply  that  accessories  may  be  used  with  a  CB  station  transmitter  provided  that  the  accessories  only  connect  to  existing  external  connectors  on  the  CB  transmitter,  the 
 accessory  or  device  does  not  increase  the  radio  frequency  output  of  the  CB  transmitter,  and  the  accessory  or  device  does  not  cause  the  CB  transmitter  to  operate  on  any  radio  frequency  that  is  not  specified  in  CB 
 Rule  7.  17 


 8  See  47  C.  F.  R.    95.  607(  a),  (b).  See  also  Amendment  of  Parts  2  and  95  of  the  Commissions  Rules  to  Require  Type 
 Acceptance  of  Transmitters  Used  by  Class  B  and  Class  D  Stations  in  the  Citizens  Radio  Service,  Report  and  Order,  Docket  No.  17196,  43  FCC  2d  (1973)  (  no  additional  accessory  device,  switch,  or  external  control  may  be 


 provided,  except  by  the  manufacturer).  9 
 Division  Letter  at  1.  10 
 Id.  11 
 Id.  at  1-  2.  12 
 Petition  at  1;  Supplement  at  1.  13 
 47  C.  F.  R.    95.420.  14 
 Petition  at  1;  Supplement  at  2-  3.  15 
 47  C.  F.  R.    95.  637(  d),  95.  669.  16 
 Petition  at  1-  2.  17 
 Supplement  at  3-  4.  CB  Rule  7  is  Section  95.407  of  the  Commissions  Rules,  47  C.  F.  R.    95.  407. 
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 5.  We  disagree  with  Omnitronics  analysis  of  the  CB  rules.  While  the  Rules  may  not  expressly  define  the  terms  device  or  accessory,  we  see  no  reason  not  to  afford  these  terms  their  plain 
 meaning,  which  would  clearly  encompass  Omnitronics  proposed  product.  We  also  note  that  Omnitronics,  in  its  original  request,  describes  itself  as  a  manufacturer  of  accessories  to  be  used  in  the 
 Citizens  Radio  Service  .  .  .  .  18  Nor  do  we  find  Omnitronics  analysis  of  the  Rules,  maintaining  that  there  is  a  distinction  between  internal  and  external  connectors  to  CB  transmitters,  to  be  persuasive.  We  further 
 note  that  though  Section  95.420  permits  connection  of  a  CB  station  transmitter  to  a  telephone  by  means  of  a  phone  patch  device  which  has  been  registered  with  the  Commission,  19  the  rule  does  not  permit  remote 
 operation.  20  Thus,  pursuant  to  Section  95.607,  because  Omnitronics  is  not  the  holder  of  the  grant  of  authorization  for  the  CB  transmitters  to  which  Omnitronics  product  would  be  attached,  Omnitronics  is 
 ineligible  to  seek  a  waiver  of  Section  95.  419(  a)  for  the  product. 
 6.  Moreover,  even  if  Omnitronics  interpretation  of  Section  95.  607  is  correct,  we  continue  to  believe  that  granting  a  waiver  of  Section  95.419(  a)  under  these  circumstances  would  undermine  the 
 rule  or  circumvent  the  rulemaking  process.  Omnitronics  argues  that  the  Commission  has  granted  a  similar  waiver  request  of  the  Family  Radio  Service  (FRS)  rules  on  the  proviso  that  a  rulemaking  proposal 
 be  submitted,  and  states  that  it  will  submit  a  rulemaking  proposal  in  a  timely  manner  should  the  instant  waiver  request  be  granted.  21  In  the  case  cited  by  Omnitronics,  the  Division  denied  the  petitioners  initial 
 waiver  request.  22  A  subsequent  request  for  temporary  waiver  was  granted.  23  In  that  case,  however,  the  petitioner  provided  more  detail  and  more  safeguards  than  Omnitronics  currently  offers,  and  the  petitioner 
 sought  waiver  for  an  explicit  limited  duration.  Similarly,  in  seeking  a  waiver  of  Section  90.20(  e)(  6)  of  the  Public  Safety  Radio  Pool  rules,  24  LoJack  Corporation  sought  its  waiver  pending  resolution  of  LoJacks 
 simultaneously  filed  rulemaking  petition.  25  While  Omnitronics  offers  to  submit  a  rulemaking  proposal  at  an  unspecified  time,  Omnitronics  is  currently  seeking  an  open-  ended  waiver.  Thus,  we  believe  that  the 
 precedent  cited  by  Omnitronics  is  distinguishable. 


 18  Request  for  Waiver  at  1. 
 19  47  C.  F.  R.    95.420(  c). 
 20  47  C.  F.  R.    95.420(  a)(  1). 
 21  Petition  at  2  (citing  GARMIN  International,  Inc.,  Order  on  Reconsideration,  16  FCC  Rcd  7753  (WTB  PSPWD 
 2001)).  22 
 See  Letter  dated  February  28,  2000  from  Dwana  R.  Terry,  Chief,  Public  Safety  and  Private  Wireless  Division,  to  Andrew  R.  Etkind,  General  Counsel,  GARMIN  International,  Inc. 


 23  GARMIN  International,  Inc.  Order,  15  FCC  Rcd  19143  (WTB  PSPWD  2000).  This  temporary  waiver  was 
 extended  for  the  duration  of  the  associated  rulemaking  proceeding.  GARMIN  International,  Inc.,  Order  on  Reconsideration,  16  FCC  Rcd  7753  (WTB  PSPWD  2001);  GARMIN  International,  Inc.,  Order,  17  FCC  Rcd  16108 


 (WTB  PSPWD  2002).  24 
 47  C.  F.  R.    90.20(  e)(  6).  25 
 LoJack  Corporation,  Order,  15  FCC  Rcd  18939  (WTB  PSPWD  2000). 
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 Federal  Communications  Commission  DA  03-  3541 
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 7.  Accordingly  IT  IS  ORDERED  that  pursuant  to  Sections  4(  i)  and  405  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    154(  i),  405,  and  Section  1.106  of  the 
 Commissions  Rules,  47  C.  F.  R.    1.106,  the  petition  for  reconsideration  filed  by  Omnitronics,  LLC  on  January  16,  2003  IS  DENIED. 


 8.  This  action  is  taken  under  delegated  authority  pursuant  to  Sections  0.131  and  0.331  of  the  Commissions  Rules,  47  C.  F.  R.    0.131,  0.331. 


 FEDERAL  COMMUNICATIONS  COMMISSION 
 Dwana  R.  Terry  Chief,  Public  Safety  and  Private  Wireless  Division 
 Wireless  Telecommunications  Bureau 
4