Petition for Writ of Certiorari — Rocky Mountain Radar, Inc. v. Federal Communications Commission

LU Supreme Couct, US.

FLL ED

981 Ha 4 Jan 19:08

No.

Obie OE THE LEE.

In the

Supreme Court of the United States

October Term, 1998

ROCKY MOUNTAIN RADAR, INC.,

Petitioner,

FEDERAL COMMUNICATIONS COMMISSION,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

T. EDWARD ICENOGLE, ESQUIRE

Counsel of Record

KIM J. SETER, ESQUIRE

TAMARA GILIDA, ESQUIRE

Ankele, Icenogle, Norton &

Seter, P.C.

5690 DTC Boulevard

Greenwood Village

Suite 300

Denver, CO 80111

303-773-1666

Appellate Service: Curry Jor (800) 222-8738/Appellate@webtv.com

RECEIVED

JAN 19 1999

OFFICE OE THE CLERK

SUPREME COURT, U.S.

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QUESTIONS PRESENTED FOR REVIEW

WHETHER THE INTERPRETATION OF THE

PHRASE "...GENERATES AND EMITS RADIO

FREQUENCY ENERGY..." TO INCLUDE A DE-

VICE THAT ONLY REFLECTS RADIO FRE-

QUENCY ENERGY GENERATED AT OTHER

SOURCES AND WHICH IS INCAPABLE OF GEN-

ERATING ANY ENERGY ON ITS OWN REN-

DERS 47 C.F.R. §15.3(6) SO VAGUE AND

UNCERTAIN THAT IT NO LONGER APPRISES

THOSE TO WHOM IT IS DIRECTED OF THE DU-

TIES IMPOSED ON THEM IN VIOLATION OF

THE DUE PROCESS REQUIREMENTS OF THE

UNITED STATES CONSTITUTION.

WHETHER THE FCC'S INTERPRETATION

CHANGING THE SCOPE OF THE REGULATION

TO INCLUDE BEHAVIOR NOT PREVIOUSLY

WITHIN ITS PURVIEW WITHOUT ENTERING

INTO A STATUTORY RULE MAKING PRO-

CEEDING VIOLATES THE DUE PROCESS

RIGHTS OF THE PETITIONER AND THE PUBLIC

IN GENERAL.

WHETHER THE COURT ERRED IN MISQUOT-

ING ITS OWN AUTHORITIES AND GIVING DEF-

ERENCE TO AN AGENCY'S INTERPRETATION

OF ITS OWN REGULATIONS THAT IS PLAINLY

ERRONEOUS AND INCONSISTENT WITH THE

PLAIN LANGUAGE OF THE REGULATION.

il

TABLE OF CONTENTS

QUESTIONS PRESENTED) 3.5 ccc cccoxconssceves

STATEMENT OF THE BASIS OF JURISDIC-

TIGN OF THE SUPREME COURT ..............

CONSTITUTIONAL, STATUTORY, ORDI-

NANCE AND REGULATORY PROVISIONS ...

STATEMENT OF THE CABE oc jicccccvaicsceves

ARASLIBGEING 66 65ki cceucdiehb cena ee

I. THE INTERPRETATION OF THE PHRASE "...GEN-

ERATES AND EMITS RADIO FREQUENCY EN-

ERGY..." TO INCLUDE A DEVICE THAT ONLY

REFLECTS RADIO FREQUENCY ENERGY GENER-

ATED AT OTHER SOURCES AND WHICH IS INCAPA-

BLE OF GENERATING ANY ENERGY ON ITS OWN

RENDERS 47 C.F.R. §15.3(6) SO VAGUE AND UNCER-

TAIN THAT IT NO LONGER APPRISES THOSE TO

WHOM IT IS DIRECTED OF THE DUTIES IMPOSED

ON THEM IN VIOLATION OF THE DUE PROCESS RE-

QUIREMENTS OF THE UNITED STATES

COMET EFU ERY Si nea Sask eeewedss bok okuncauesesss

ll. THE FCC'S INTERPRETATION CHANGING THE

SCOPE OF THE REGULATION TO INCLUDE BEHAV-

IOR NOT PREVIOUSLY WITHIN ITS PURVIEW WITH-

OUT ENTERING INTO A STATUTORY RULE MAKING

PROCEEDING VIOLATES THE DUE PROCESS RIGHTS

OF THE PETITIONER AND THE PUBLIC IN GENERAL.

lll. THE FCC'S INTERPRETATION CHANGING THE

SCOPE OF THE REGULATION TO INCLUDE BEHAV-

1OR NOT PREVIOUSLY WITHIN ITS PURVIEW WITH-

OUT ENTERING INTO A STATUTORY RULE MAKING

PROCEEDING VIOLATES THE DUE PROCESS RIGHTS

OF THE PETITIONER AND THE PUBLIC IN GENERAL.

CANON a b's ons cee

Creu Comt Onision (35 6 ies ee

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TABLE OF AUTHORITIES

Cases

Brennan v. Occupational Safety and

Health Review Commission, 505 F.2d

Ee i ss voc bt nvanenus 10, 11

Cheshire Hospital v. new Hampshire-

Vermont Hospitalization Service, Inc.,

OUP ae BRUTE Oe TIE neg ccd lheeccanesecepuss 11

Colton v. Commonwealth of Kentucky,

407 U.S. 104, 92 S.Ct. 1953, L.Ed.2d

UN CRED Sone ag oa ois se Sues tver ni hedkeea ns 10

Downtown Medical Center v. Bowen,

We Fe Fe PED oki oo vos hii cic edness cctcwn 16

Franklin v. First Money, Inc. , 427 F.

Supp. 66, Affirmed 599 F.2d 615

Fame, BE ohn cd ek caked he cease ci 10, 11

In Re M & L Business Mach. Co., Inc.,

FO ee eS icin. Saw aE dh 5 4d ob de xensawhin se 16

NLRB vy. Bell Aerospace Co., 416 U.S.

267, 94 S.Ct. 1757, 40 L.Ed.2d 134

Bi | RE RB RR SARE S ir tie PaO pe oN rip 14

NLRB v. Wyman-Gordon Co., U.S.

Mass. 1969, 89 S.Ct. 1426, 394 U.S.

Fae Me Me I ik ova iN ea iv dé duteeesvasiss 15

Spano v. Western Fruit Growers, 83

Gk 8 Ca UG UD en's kik bade cakives ce caceands 16

Ward vy. Allstate Ins. Co., 45 F.3d 353

CURIA, SONU oa on tenn hc nba vn oiksv cecuscacnnueness 16

Wilder v. Prokop, 846 F.2d 613 (10th

COs SOUND oo kevcs6cbsn sn anemaes iss cameesaen csi cs 16

Vv

Winterfield v. Hardin County Rural

Electric, 226 lowa 806, 285 N.W. 219

ROWE 42255 bec nekdareusoeesdasine oss ees de 17

Constitutional Provisions

United States Constitution, Constitu-

Cnt PION, Sk hss Si is RH 13

OtherAuthorities

Random House Unabridged Dictionary,

RESIDE NR re Rr reg Fe Bye Ee 17

The American Heritage Dictionary,

So IGS cede rk chiro ass 17

The Barnhart Dictionary of New Eng-

NE IY cos 5 cs ht sa eh dchanes ts tcibiv rth 18

The Chambers Dictionary, New Edi-

NN SUE eeacicnte 3 695 666500550054 co ch dan nak icine 18

The Morrow Book of New Words, N.H.

ON nc Is ecg ae 17

The Reader's Digest Great Encyclope-

dic Dictionary, 2nd Edition, 1966 ....................... 17

Webster's 3rd Annual New Dictionary,

Peer sahara s 05s nik n ca nao kos ts i 17

Webster's New Reference Library, 1984 ................. 17

Webster's Third New International

i eR aa Po omy ERR pL ORE aly gE 11,18

Rules and Regulations

Be CF Mc Be vn ko passe ian tee ia 1, 8, 14, 18

DF CFs SAND sos bce bbivdns themes ceeneaxtenessoei 8

OT Le ic OE ss oh whk bev ckcdetedeiguies kere 2

BEF von 5s cate onndeareersis beans eee 2

G7 UES GAG ov cccetcciissetascssschscisaroeen 3

Statutes

TO UE. BEF I ais xin vain soto se knsacivgencce vei ngines 1,4

DE US CUBIS os voeninscktesrsnneecavivnsasuwenssaes l

POU GAP) coc saccccsccccvensatbiseckewiabees a

RT UIA BO: bab divest senda ctvacsidscovneletexsatas 8

BTU. GID ovis eos cede ccodssneveracdessvassaeeeeen l

Bik say Pere pT eer re ssacdisibebeee ae

SUA eae a vinciucccdocdcscssusuassdavesuhstereipes 15

S UB OSS HAO) ovdcicckcicecscctvencenscvaseesesas 5

|

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Tenth Circuit is set forth in the Appendix, at page 1. The

December 10, 1997 Order of the Federal Communications

Commission affirmed by the Court of Appeals is set forth in

the Appendix at page 1 Sa.

STATEMENT OF THE BASIS OF JURISDICTION OF

THE SUPREME COURT

Jurisdiction in this Court is authorized by 47 U.S.C.

§402(j), 28 U.S.C. §2350(a) and 28 U.S.C. §1254 by writ of

certiorari granted upon the petition of any party after the ren-

dition of judgment in the courts of appeals. 28 U.S.C.

§1254(1). The United States Court of Appeals for the Tenth

Circuit issued its opinion on October 19, 1998. This Petition

was timely filed within 90 days of the judgment.

CONSTITUTIONAL, STATUTORY, ORDINANCE

AND REGULATORY PROVISIONS

l. 47 C.F.R. §15.3(0) provides:

§15.3(0) Intentional radiator

A device that intentionally generates and emits radio

frequency energy by radiation or induction.

to

47 C.F.R. §15.3(u) provides:

§15.3(u) Radio frequency (RF) energy

2

Electromagnetic energy at any frequency in the radio

spectrum between 9 kHz and 3,000,000 MHz.

47 C.F.R. §2.801 provides:

§2.801 Radio frequency device defined

As used in this part, a radio frequency device

is any device which in its operation is capable of emit-

ting radio frequency energy by radiation, conduction,

or other means. Radiofrequency devices include, but

are not limited to:

(a) The various types of radio communication

transmitting devices described throughout this

chapter.

(b) The incidental, unintentional and inten-

tional radiators defined in part 15 of this chapter.

(c) The industrial, scientific, and medical

equipment described in part 18 of this chapter.

(d) Any part of component thereof which in

use emits radiofrequency energy by radiation, conduc-

tion, or other means.

47 C.F.R. §2.803 provides:

§2.803 Equipment requiring Commission approval

In the case of a radio frequency device, which, in ac-

cordance with the rules in this chapter must be type

approved, type accepted, certificated or notified prior

to use, no person shall sell or lease, or offer for sale or

lease (including advertising for sale or lease) or im-

port, ship or distribute for the purpose of selling or

labs laa bt 8s Seniesa

3

leasing or offering for sale or lease, any such radio

frequency device, unless, prior thereto, such devices

shall have been type approved, type accepted, certifi-

cated or notified as the case may be: Provided, how-

ever, That the advertising or display of a device,

which has not been granted type approval, type accep-

tance, certification or notification, will not be deemed

to be an offer for sale if such advertising contains, and

the display is accompanied by, conspicuous notice

worded as follows:

This device has not been approved by the Federal

Communications Commission. This device is not,

and may not be, offered for sale or lease, or sold or

leased until the approval of the FCC has been

obtained.

This provision does not apply to radio frequency de-

vices that could not be granted an equipment authori-

zation or be legally operated under our current rules.

Such devices shall not be advertised or displayed or

offered for sale or lease or sold or leased. Provided

further, That any non-approved device displayed un-

der the terms of the above provision may not be acti-

vated or operated.

47 U.S.C. §402(a) provides:

§402(a) Judicial review of Commission's orders

and decisions

(a) Procedure. Any proceeding to enjoin,

set aside, annul, or suspend any order of the Commis-

sion under this chapter (except those appealable under

4

the subsection (b) of this section) shall be brought as

provided by and in the manner prescribed in chapter

158 of

Title 28.

47 U.S.C. §402(j) provides:

§402(j) Judicial review of Commission's orders

and decisions; Finality of decision; review by Su-

preme Court

The court's judgment shall be final, subject, however.

to review by the Supreme Court of the United States

upon writ of certiorari on petition therefor under sec-

tion 1254 of Title 28, by the appellant, by the Com-

mission, or by any interested party intervening in the

appeal, or by certification by the court pursuant to the

provisions of that section.

28 U.S.C. §1254 provides:

§1254 Courts of appeals; certiorari; certified

questions

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods:

(1) By writ of certiorari granted upon the peti-

tion of any party to any civil or criminal case, before

or after rendition of judgment or decree;

(2) By certification at any time by a court of

appeals of any question of law in any civil or criminal

case as to which instructions are desired, and upon

such certification the Supreme Court may give

5

binding instructions or require the entire record to be

sent up for decision of the entire matter in

controversy.

5 U.S.C. §551(4) provides:

§551(4) Definitions; rule

"rule" means the whole or a party of an agency state-

ment of general or particular applicability and future

effect designed to implement, interpret, or prescribe

law or policy or describing the organization, proce-

dure, or practice requirements of an agency and in-

cludes the approval or prescription for the future of

rates, wages, corporate or financial structures or reor-

ganizations thereof, prices, facilities, appliances, serv-

ices or allowances therefor or of valuations, costs, or

accounting, or practices bearing on any of the

foregoing;

5 U.S.C. §553(b) — (e) provides:

§553(b) Rule making

(b) General notice of proposed rule making

shall be published in the Federal Register, unless per-

sons subject thereto are named and either personally

served or otherwise have actual notice thereof in ac-

cordance with law. The notice shall include -

(1) a statement of the time, place, and

nature of public rule making proceedings;

(2) reference to the legal authority un-

der which the rule is proposed; and

6

(3) either the terms or substance of the

proposed rule or a description of the subjects

and issues involved.

Except when notice or hearing is required by statute,

this subsection does not apply

(A) to interpretative rules, general

statements of policy, or rules of agency organi-

zation, procedure, or practice; or

(B) when the agency for good cause

finds (and incorporates the finding and a brief state-

ment of reasons therefor in the rules issued) that no-

tice and public procedure thereon are impracticable,

unnecessary, or contrary to the public interest.

(c) After notice required by this section, the

agency shall give interested persons an opportunity to

participate in the rule making through submission of

written data, views, or arguments with or without op-

portunity for oral presentation. After consideration of

the relevant matter presented, the agency shall incor-

porate in the rules adopted a concise general statement

of their basis and purpose. When rules are required

by statute to be made on the record after opportunity

for an agency hearing, sections 556 and 557 of this ti-

tle apply instead of this subsection.

(d) The required publication or service of a

substantive rule shall be made not less than 30 days

before its effective date, except -

(1) a substantive rule which grants or

recognizes an exemption or relieves a restriction;

(2) interpretative rules and statements

of policy; or

(3) as otherwise provided by the

agency for good cause found and published with the

rule.

’

(¢) Each agency shall give an interested per-

son the right to petition for the issuance, amendment,

or repeal of a rule.

10. 28 U.S.C. §2350(a) provides:

§2350(a) Review in Supreme Court on certiorari

or certification

(a) An order granting or denying an interlocu-

tory injunction under section 2349(b) of this title and

a final judgment of the court of appeals in a proceed-

ing to review under this chapter are subject to appeals

in a proceeding to review under this chapter are sub-

ject to review by the Supreme Court on a write of cer-

tiorari as provided by section 1254(1) of this title.

Application for the write shall be made within 45 days

after entry of the order and within 90 days after entry

of the judgment, as the case may be. The United

States, the agency, or an aggrieved party may file a

petition for a writ of certiorari.

+ * * * %

STATEMENT OF THE CASE

I. Basis of Jurisdiction in the Court of Appeals.

This case began as an appeal of a final decision of the

FCC ruling that Rocky Mountain Radar's (Petitioner" or

"RMR") "Spirit Il" product is an "intentional radiator" of

electromagnetic energy subject to FCC regulation and licens-

ing requirements. Appendix 1 Sa.

8

Petitioner's president, Michael B. Churchman, pre-

sented evidence to the FCC staff on August 14, 1997.

Churchman presented test reports from FCC-approved labo-

ratories stating that the Spirit II does not, and cannot, meet

the definition of an “intentional radiator" set forth in the

FCC's regulations. See, 47 C.F.R. §15.3(0). The report of

HVB Consulting Group concluded not only that the Spirit Il

did not generate RF Energy but that it was incapable of doing

so based upon its component parts. The FCC refused to

change its original findings.

On August 18, 1997, Petitioner filed an Application

for Review by the entire Commission. The Memorandum

Opinion and Order of the Commission released December 10,

1997, upheld jurisdiction and restated the determination that

the Spirit II is an "intentional radiator" because it reflects RF

Energy; not because it generates RF Energy. Appendix at

19a.

On December 23, 1997 Petitioner filed a Petition for

Review of the FCC's actions with the Tenth Circuit Court of

Appeals. The FCC challenged the Circuit Court's jurisdiction

over the matter. The Circuit Court upheld jurisdiction pursu-

ant to 47 U.S.C. §402(a).

Il. Statement of facts relevant to the issues presented for

The Spirit Il radar scrambler does not, and cannot,

generate and emit "radio frequency energy" defined by the

FCC as electromagnetic energy between 9KHz and 3,000,000

MHz. See, 47 C.F.R. §15.3(u). This fact was not contro-

verted by any evidence in the record.

9

The FCC did not deny the Spirit II's inability to create

or produce its own energy. Rather, it asserted that the ability

to "reflect" energy received from another source is the "gen-

eration and emission" of electromagnetic energy required for

regulation. Appendix 19a. Therefore, the FCC concluded

that the Spirit II is an "intentional radiator" as defined by 47

C.F.R. §15.3(0) and is subject to the FCC's equipment

authorization rules. Appendix 19a-20a.

The Circuit Court recognized the need to give defer-

ence to the FCC's interpretation of its own regulations. The

Court then determined that,

The FCC's decision to give "generate"

a more expansive treatment than that advo-

cated by RMR is consistent with the ordinary

meaning of the term as in "create," "produce,"

or "propagate." Webster's Third New

International Dictionary at 945; see also id. at

1817 (defining "propagate" as "to cause to

continue").

Appendix at 11. The Circuit Court Affirmed the Order of the

FCC based upon this determination.

10

ARGUMENT

I. THE INTERPRETATION OF THE PHRASE

"...GENERATES AND EMITS RADIO FRE-

QUENCY ENERGY ..."" FOUND IN 47 C.F.R.

§15.3(0) TO INCLUDE A DEVICE THAT ONLY

REFLECTS ENERGY GENERATED AT

OTHER SOURCES AND WHICH IS INCAPA-

BLE OF GENERATING ANY ENERGY ON ITS

OWN RENDERS 47 C.F.R. §15.3 SO VAGUE

AND UNCERTAIN THAT IT NO LONGER AP-

PRISES THOSE TO WHOM IT IS DIRECTED

OF THE DUTIES IMPOSED ON THEM IN VIO-

LATION OF THE DUE PROCESS REQUIRE-

MENTS OF THE UNITED’ STATES

CONSTITUTION.

Due process requires that statutes and regulations

promulgated pursuant to statutory authority be sufficiently

clear to enable persons whom they affect to be reasonably

certain of the duties they impose. Franklin v. First Money,

Inc. , 427 F. Supp. 66, Affirmed 599 F.2d 615 (D.C.E.D.La.

1976). The fundamental purpose of this requirement is to

prevent capricious and unforeseeable enforcement of the law,

and to require its application in a fair and reasonable manner.

Colton v. Commonwealth of Kentucky, 407 U.S. 104, 92

S.Ct. 1953, L.Ed.2d 584 (1972).

Incomplete, vague, and indefinite administrative regu-

lations violate due process. Brennan v. Occupational Safety

and Health Review Commission, 505 F.2d 869 (10" Cir.

1974). The test of whether a particular administrative regula-

tion is void for vagueness is whether the regulation delineates

1]

its reach in words of common understanding. Franklin, 427

F.Supp.66; Brennan, 505 F.2d 869. This due process princi-

ple applies with equal force to new agency interpretations of

existing regulations which cause application of the regula-

tions to unsuspecting parties. Cheshire Hospital v. new

Hampshire-Vermont Hospitalization Service, Inc., 689 F.2d

1112 (1* Cir. 1982). In the event of a challenge to an agency

interpretation of its own regulation, the court has a duty to de-

termine whether the interpretation is plainly erroneous, or in-

consistent with the plain language of the regulation in

question. /d. Though agency interpretations are given great

deference by the courts, the deference given should not

equate to a “rubber-stamp,” and should not be used to avoid

the courts’ duty. /d.

The FCC concluded that the Spirit II's ability to reflect

Energy that is generated at another source, is the "generation"

of Energy required to place the Spirit li within the purview of

its regulations. The FCC stated "[t]he Fact that the original

source of the radio frequency energy is external to the device

does not place the Spirit II beyond the Commission's jurisdic-

tion." Appendix at 19a. The Circuit Court deferred to the

FCC’s conclusion that the definition is consistent with the or-

dinary meaning of the word "generate." Appendix at 11.

The Court relied on the definition of "generate" in

Webster's Third New International Dictionary, at page 945,

which provides: "1: to cause to be"; and "2: to originate"; "3:

to define"; "4: to form" and "5: to be the cause of." The

word "propagate" is listed as a synonym when the intended

meaning is to produce offspring." The Court then utilized a

portion of the definition of the word "propagate" to support

its conclusion. Appendix at 15.

1?

—

The deleted portion of the definition completely

changes the meaning that the Court purports to rely upon.

The dictionary definition does not say "to cause to continue"

as asserted by the Court. Rather, it states: "1: to cause to

continue or increase by natural reproduction <~a breed of

horses><a plant unable to ~ itself in a region><~a tree vege-

tatively>." The Court's determination that the "reflection of

energy” can be reasonably included in the ordinary meaning

of the term "generate energy" is based upon erroneous defini-

tion of the terms and renders the regulation vague and

indefinite.

Every metallic or reflective object will reflect a RF

Energy signal. Every moving object will modulate a RF En-

ergy signal. Neither of these events is the equivalent of gen-

erating radio frequency energy. The FCC's interpretation of

its regulation, if upheld, would outlaw all moving automo-

biles (indeed, any moving object) on the grounds that it modi-

fies and reflects a RF radio signal when irradiated with radar.

Obviously, the FCC's regulations would not be useful in guid-

ing the behavior of electronics manufacturers if they iead to

such an unreasonable result.

Although we would not anticipate that the FCC would

exercise this authority in an unreasonable or silly manner;

that is not the issue. The interpretation creates a situation in

which men of common intelligence must guess at the mean-

ing of the word “generate” because the interpretation adopted

by the FCC includes every moving object. No one knows

where the line is now drawn between generators of energy

and non-generators. In fact, in its ruling of December 10,

1997, the FCC demonstrates that its reinterpretation of the

regulation cannot be consistently applied. In paragraph 7 of

that ruling the Spirit II is said to be an Intentional Radiator

13

that generates and emits RF energy; but, in paragraph 8 of the

same ruling the FCC states that the device "does not generate

pulses greater than 9,000 pulses per second" which is the

FCC's definition of RF energy produced by an intentional ra-

diator. Appendix at 19a-20a. As a result of the new interpre-

tation, the FCC has been able to conclude that the Spirit II

device IS a RF generator AND is NOT a RF generator in the

same breath.

"The question is," said Alice, "whether

you can make words mean so many different

things.”

"The question is," said Humpty

Dumpty, "which is to be the master—that's all."

Lewis Carroll, Through the Looking Glass

The interpretation renders the regulation unconstitu-

tionally vague and uncertain in its application. It no longer

provides guidance to those who are to be governed by it. Ac-

cordingly, the ruling of the Circuit Court must be reconsid-

ered, or, the regulation should be declared unenforceable as it

is in violation of the due process requirements of the United

States Constitution, Constitutional Amendment 5.

14

il. THE COURT'S AFFIRMATION OF THE FCC'S

REINTERPRETATION CHANGES THE SCOPE

OF THE REGULATION TO INCLUDE BEHAV-

1OR NOT PREVIOUSLY WITHIN ITS PUR-

VIEW WITHOUT ENTERING INTO A

STATUTORY RULEMAKING PROCEEDING

IN VIOLATION OF THE DUE PROCESS

RIGHTS OF PETITIONER AND ALL

CITIZENS.

It is clear from the plain language of the FCC's ena-

bling legislation and its own regulations that its legal influ-

ence extends only to devices that generate electromagnetic

energy in the RF spectrum. See, 47 C.F.R. §15.3(0). All par-

ties concede that the Spirit II device does not create or pro-

duce any electromagnetic energy but operates by reflecting

the energy from other sources. As discussed in Section I. of

this petition, the plain and logical meaning of the term "Gen-

erate" does not, without significant contortion, include the re-

flection of energy. The FCC demonstrated its knowledge of

this fact when in 1996 it issued a notice that "TRANSMIT-

TERS," i.e. generators of RF Energy, that scramble police ra-

dar are prohibited. Nevertheless, the terms of the regulation

have been reinterpreted to include the reflection of energy.

The reinterpretation sweeps many previously unregulated

products within the scope of the FCC's jurisdiction without

warning, without notice and without any opportunity to

comment.

Though administrative agencies, including the FCC,

possess a good degree of discretion in determining whether to

announce policy via rules or orders, NLRB v. Bell Aerospace

Co.. 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974),

does set forth criteria limiting the ability of administrative

ad Bea 7% .

AA A Ae ed EIT A

15

agencies to use an order to accomplish what is appropriately

undertaken by formal rulemaking proceedings. These criteria

are: whether the diversity and complexity of the problem jus-

tifies proceeding on a case-by-case basis, whether the com-

plainant placed any great reliance on the earlier and

inconsistent agency actions, whether the policy change in-

volves new liability suffered by the complainant because of

good faith reliance on the previous policy and whether the

complainant faces fines and damages because of its reliance

on the old policy.

Interpreting a simple word in an existing regulation in

an outlandish manner creates a significant impact on entities

not previously subject to the regulation. Here, it will cause

RMR, which relied in good faith upon the plain language of

the FCC’s Rules, to suffer new liability and face fines and

damages. The FCC’s action in this matter is at its heart a

rulemaking but the FCC is hiding behind the more FCC-

friendly adjudication process. The Administrative Proce-

dures Act defines “rule” in 5 U.S.C., §551(4) as, “. . . an

agency statement of general or particular applicability and fu-

ture effect designated to implement, interpret or prescribe law

or policy. ...”

The FCC should have followed the notice and com-

ment procedures set forth in the Administrative Procedures

Act at 5 U.S.C., §553, as the minimum required for due proc-

ess. The rule making provisions of §553 may not be avoided

by the process of making rules in the course of adjudicatory

proceedings. NLRB v. Wyman-Gordon Co., U.S. Mass. 1969,

89 S.Ct. 1426, 394 U.S. 759, 22 L.Ed.2d 709 (1969).

Here, the Court upheld the FCC’s legislative decision

to include previously unregulated products that reflect energy

16

within the scope of regulations governing products that gen-

erate energy. This legislative act was performed in a

judicial/fact finding proceeding in violation of the require-

ments of the Administrative Procedures Act and the require-

ment of minimal due process for legislative actions. As such,

the actions of the FCC and the Circuit Court must be declared

invalid.

lll. THE COURT ERRED IN GIVING DEFERENCE

TO THE FCC'S INTERPRETATION OF ITS

OWN REGULATION, WHICH WAS PLAINLY

ERRONEOUS AND INCONSISTENT WITH ITS

PLAIN LANGUAGE.

Deference should be given to an agency's interpreta-

tion of its own regulation, but not if the interpretation is

plainly erroneous or inconsistent with the clear meaning of

the terms employed or is unreasonable. See, Downtown

Medical Center v. Bowen, 944 F.2d 756 (10th Cir. 1991);

Wilder v. Prokop, 846 F.2d 613 (10th Cir. 1988).

Neither the enabling statutes, nor the regulations con-

tain a definition of the term "generate." As in any case, a

regulation, rule or statute should be interpreted based upon

the ordinary meaning of the terms employed. See, In Re M

& L Business Mach. Co., Inc., 75 F.3d 586 (10th Cir. 1996),

Ward y. Allstate Ins. Co., 45 F.3d 353 (10th Cir. 1994);

Spano v,. Western Fruit Growers, 83 F.2d 150 (C.C.A. Colo.

1936). This rule of interpretation insures that those governed

by a regulation will be apprised of its meaning consistent

with the requirements of due process. In plain English, the

terms "generate" and "emit" cannot be construed in the man-

ner attempted by the FCC and affirmed by the Circuit Court.

17

In Winterfield v. Hardin County Rural Electric, 226

lowa 806, 285 N.W. 219 (1989) the Court noted that "'Gener-

ate’ means to beget, produce, to cause to be, to produce an

electric current." Dictionary definitions support the notion

that "generate" means to create or bring into existence.

1) Webster's 3rd Annual New Dictionary, 1993

To beget, create, to cause to be, to

bring into existence, to originate by physical

or chemical process, to produce, to form with

theoretical accuracy, to come into existence,;

originate, arise.

2) Webster's New Reference Library, 1984: Funk

and Wagnall's New Standard Dictionary of the English

Language:

To produce or cause to be; be the cause

of; to bring into being; to originate, create.

Similar definitions are found in the following sources:

The American Heritage Dictionary, Third Edition,

1985;

The Reader's Digest Great Encyclopedic Dictionary,

2nd Edition, 1966;

Random House Unabridged Dictionary, 2nd Edition;

The Morrow Book of New Words, N.H. and S.K.

Mager, 1982;

18

The Barnhart Dictionary of New English Since 1963;

The Chambers Dictionary, New Edition, 1993;

and many others.

The Circuit Court notes these common definitions in

its ruling. Appendix at 11. However, even though everyone

seems to agree that the Spirit II operates by reflection of en-

ergy, there is no effort made to show how any of these terms

could encompass the term reflect. Most significantly, the

Circuit Court reaches beyond the common words used to de-

fine "generate." The Court lends credence to its conclusion

that "generate can encompass reflection by noting that

"propagate" is defined in Webster's Third New International

Dictionary as 'to cause to continue." Incredibly, the Court

does not complete the definition contained in the dictionary,

which in its entirety states: "to cause to continue or increase

by natural reproduction" as in "propagate a breed of horses."

Petitioner has becn unable to successfully breed Spirit II's.

The FCC's statement that "[t]he fact that the original

source of the radio frequency energy is external to the device

does not' transform it into one that does not ‘generate’ radio

energy" (Appendix at 19a.) is absurd in light of these com-

mon definitions. As clearly demonstrated in the definitions

of the plain language of §15.3(0), the device that originates

the RF energy generates the RF energy.

The FCC's new interpretation of the term " generate” is

not reasonable. The FCC argues that the Spirit Il modifies or

modulates the signal it receives and reflects it back as a modi-

fied signal. RMR admits that the Spirit II operates in this

manner but, so does every moving object. Nowhere in the

RAIL AAAS GPL LALA PREM

19

English language is changing, altering or modulating a signal

analogous to creating or generating radio frequency energy.

The deference given by the Court to the FCC's inter-

pretation of its regulation in this instance was misplaced. The

common language of the regulation cannot support the inter-

pretation and this matter must be returned to the Circuit Court

for reconsideration of the common language of the provisions

of the regulation.

CONCLUSION

The Court should grant certiorari to review this im-

portant matter. The consistent and sensible interpretation of

agency regulations is necessary to advise manufacturers and

others of the rules by which their behavior is to be governed

thereby assuring due process. Without judicial oversight the

agencies may attempt, as here, to expand the definitions in

common use in their regulations beyond the bounds of com-

mon sense in order to suppress behavior the agency does not

like without following the precedures required by the Admin-

istrative Procedures Act. The FCC cannot be allowed to in-

terpret its own regulations in a manner that is so inconsistent

with the words used that it chills economic activity by creat-

ing uncertainty. Furthermore, the FCC cannot be allowed to

expand the common definitions of words to the point that

they become meaningless. If the FCC is concerned about a

certain product or activity, congress has granted it procedural

means to change its regulations to encompass activity not al-

ready encompassed by the words of its regulations. The FCC

should be required to utilize those procedures to accomplish

its ends after hearing public comment on the wording and

working of its regulation.

20

In short, the Circuit Court has sanctioned actions of

the FCC that so depart from the accepted and usual course of

adjudicative proceedings as to call for an exercise of this

Court's supervisory power.

Respectfully submitted,

T. Edward Icenogle, Esq.

Kim J. Seter, Esq.

Tamara K. Gilida, Esq.

Ankele, Icenogle, Norton & Seter, P.C.

5690 DTC Boulevard,

Suite 300

Greenwood Village, CO 80111-3232

(303) 773-1666

ATTORNEYS FOR

PETITIONER

ROCKY MOUNTAIN RADAR, INC.

la

(any footnotes, trail opinion)

No. 97-9579

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

ROCKY MOUNTAIN RADAR, INC., Petitioner, v.

FEDERAL COMMUNICATIONS COMMISSION,

Respondent.

October 19, 1998, Filed

COUNSEL: Submitted on the briefs:

Kim J. Seter and Tamara K. Gilida of Ankele, Icenogle,

Norton & Seter, P.C., Greenwood Village, Colorado, for

Petitioner.

Joel I. Klein, Assistant Attorney General, Robert B.

Nicholson and John P. Fonte, Attorneys, United States

Department of Justice, and Christopher J. Wright, General

Counsel, Daniel M. Armstrong, Associate General Counsel,

and Joel Marcus, Counsel, Federal Communications

Commission, Washington, D.C., for Respondent.

JUDGES: Before BRORBY, McKAY, and BRISCOE,

Circuit Judges.

OPINIONBY: MCKAY

OPINION:

McKAY, Circuit Judge.

2a

After examining the briefs and appellate record, this panel

has determined unanimously that oral argument would not

materially assist the determination of this appeal. See Fed. R.

App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Petitioner Rocky Mountain Radar, Inc. (RMR) appeals the

determination of the Federal Communications Commission

(FCC) that the marketing and sale of RMR's product, a radar

jammer, is prohibited by FCC rules interpreting the

Communications Act of 1934, as amended. We determine

that we have jurisdiction over this appeal, and affirm the FCC

order.

|. SUMMARY OF THE FACTS

RMR manufactures and distributes the Spirit II radar jammer,

a device advertised as making the user's automobile

"electronically invisible" to "all radar bands used by police."

Appellant's App. at 144. In an advertisement, consumers were

advised that the Spirit Il “receives a radar signal," then

"blends the signal with white noise," and "confuses the

computer inside the radar gun." Id. n]

The FCC issued a public notice stating that the intentional

use of jammers constitutes "malicious interference" with

radar units used by FCC-licensed police and public safety

agencies to measure vehicle speeds. Appellant's App. at

96-97 (informing the public that the FCC regulates radar

jammers, which are designed to interfere with radar, but not

radar detectors, which "are radio receivers tuned to receive

radar signals and are used by motorists to provide a warning

of an’ ~adar activity in the vicinity"). The agency warned that

3a

"anyone using a jammer risks such penalties as losing an FCC

license[], paying a fine, or facing criminal prosecution " Id.

On February 13, 1997, the Compliance and Information

Bureau of the FCC issued an official citation to RMR

prohibiting the marketing, manufacturing, or importing of the

Spirit II. Id. at 13-14. RMR complied with the directive, but

also contested the validity of the bureau's findings. It claimed,

among other things, that the Spirit II is not covered by FCC

rules regulating radiators of radio frequency energy because

the device merely reflects a police radar signal and, by itself,

cannot produce radio frequency energy. n2 See id. at 16, 21.

In support of its theory, RMR provided test reports from

independent laboratories. See id. at 40 (report of Diversified

T.E.S.T. Technologies, Inc. opining that the Spirit II itself

emits no radio frequency energy, and that without the use of a

radar gun, the laboratory could not determine whether the

device reflects RF energy); id. at 57-58 (report of HVB

Consulting, Inc., stating that the Spirit II has no parts that

"generate" radio frequency energy, but has the capability to

reflect back "RF radiation"): id. at 105 (report of Ronald R.

DeLyser, Ph.D., stating that the device mixes the radar signal

"with either white noise or an FM chirp signal,” then

transmits back a "composite signal").

The Compliance and Information Bureau and the FCC Office

of Engineering Technology reviewed the RMR submissions

and rejected its arguments. In terms of FCC rules, the agency

determined that the Spirit [I is an "intentional radiator" that

generates and emits radio frequency energy, as defined in 47

C.F.R. § 15.3(0). n3 Accordingly, the product cannot be

marketed without FCC certification, because it is designed to

"receive, modulate and emit a modulated signal." Appellant's

App. at 36-37; see also 47 C.F.R. § 15.201(b). n4 The FCC,

4a

however, could not certify the device, in that its intended

purpose is interference with police communications, a

violation of 47 C.F.R. § 15.5(b). n5

RMR applied for full Commission review of this

determination, see 47 C.F.R. § 1.115, again contending that

the Spirit II may not be prohibited under FCC rules because it

is not an “intentional radiator" that "generates" radio

frequency energy. Appellant's App. at 28-31. In an order on

review dated December 10, 1997, the Commission

recognized that the Spirit Il is "designed to function only

when it is illuminated by a police radar signal," but reasoned

that it uses "the radar signal as a source of RF [(radio

frequency)] energy, modulates the signal electronically to

generate a different RF signal, and emits that RF signal to

cause interference to police radars." Appellant's App. at 100.

Thus. the Commission concluded, "the fact that the original

source of the radio frequency energy is external to the device

does not place [it] beyond the Commission's jurisdiction." Id.

The Commission also observed that, "irrespective of the

definitional issues addressed above, Section 15.5 of the

Commission's Rules, 47 C.F.R. § 15.5, expressly states that

operation of an intentional, unintentional, or incidental

radiator is subject to the condition that it may not cause

harmful interference," and that the Spirit II "interferes with

police radars which are devices properly authorized by the

Commission." Appellant's App. at 101.

For both the above reasons, the FCC denied RMR's

application for review. See id. at 102. In addition, its

chairman issued a press statement announcing that the RMR

decision "sends a message to all manufacturers that the FCC

will strictly enforce its rules to prevent harmful interference

Te Re

td anil acta wo a CANE Sat! AN Mrtt Mum iay Shae Em aN uate oC 9! Siem

Sa

to police radar." Id. at 104. RMR filed a timely petition for

review of the FCC determination.

ll. JURISDICTION

Initially, we must address the FCC's claim that, at this stage

in the proceedings, we lack jurisdiction to review its order.

According to the FCC, judicial review is unavailable until

and unless RMR continues to market the Spirit II, and the

FCC imposes a penalty after completing the administrative

process.

The general rule is that an agency action is reviewable. See

Abbott Labs. v. Gardner, 387 U.S. 136, 140, 18 L. Ed. 2d

681, 87 S. Ct. 1507 (1967). There are, however, exceptions to

this rule. Judicial review is unavailable when (1) review is

precluded by the agency's organic statute, see Block v.

Community Nutrition Inst., 467 U.S. 340, 345, 81 L. Ed. 2d

270, 104 S. Ct. 2450 (1984); or (2) the matter is not ripe for

court consideration, see Abbott Labs., 387 U.S. at 148-49.

Contrary to the FCC's contentions, neither exception applies

to this appeal.

A. STATUTORY PRECLUSION

The Supreme Court has "often noted" that courts should

"restrict access to judicial review" only upon "a showing of

clear and convincing evidence of a contrary legislative

intent." Lindahl v. Office of Personnel Management, 470

U.S. 768, 778, 84 L. Ed. 2d 674, 105 S. Ct. 1620 (1985)

(quoting Abbott Labs., 387 U.S. at 141). The reviewing court

examines the statute as a whole, together with its legislative

history, in order to determine whether judicial review of a

particular agency action would frustrate the statutory scheme

6a

devised by Congress. Lindahl, 470 U.S. at 779 (citing Block,

467 U.S. at 345).

The statutory scheme for the FCC generally vests the courts

of appeals with jurisdiction over appeals from final orders.

See 47 U.S.C. § 402(a). n6 The district courts, however, have

"a sliver of the jurisdictional pie" for enforcement of FCC

orders imposing a monetary forfeiture penalty. Action for

Childrens [*9] Television v. FCC, 827 F. Supp. 4, 10

(D.D.C. 1993), affid, 313 U.S. App. D.C. 261, 59 F.3d 1249

(D.C. Cir. 1995); see also 47 U.S.C. § 503(b) (providing for

forfeiture procedures); § 503(b)(3)(B) (establishing district

court as forum for government collection actions); § 504

(same). In the "maze of jurisdictional rules governing the

review of FCC matters," Action for Children's Television,

827 F. Supp. at 10, we discern no Congressional design to bar

our consideration of RMR's appeal. n7

The FCC has no explicit legislative or judicial authority for

its argument that the establishment of a multi-step

enforcement mechanism for FCC enforcement actions,

standing alone, demonstrates an intent to forestall review

unless and until the forfeiture process is completed. The

legislative history cited by the FCC sheds no light on the

issue. In 1978, Congress amended the Communications Act

"to unify, simplify, and enlarge the scope of the forfeiture

provisions," but made no attempt to limit judicial review. S.

Rep. No. 95-580, at 1 (1978), reprinted in 1978 U.S.C.C.A.N.

109. It simply added an alternative approach, giving the FCC

the option of holding an adjudicatory hearing in "the

exceptional forfeiture case, where urgency, precedent value,

or convenience of the Commission warrants a proceeding

exclusively under the Commission's control until a final

judgment on appeal is obtained." Id. at 4, 1978 U.S.C.C.A.N.

7a

at 112. We fail to see how this background information

demonstrates a Congressional intent to bar our review under

the circumstances existing in this case.

Furthermore, the case law on appellate review of FCC

determinations contradicts the agency's argument. For

instance, in Straus Communications, Inc. v. FCC, 174 U.S.

App. D.C. 149, 530 F.2d 1001 (D.C. Cir. 1976), the court

found jurisdiction to review an FCC letter ruling which held

that a broadcast licensee had violated a rule but, at the same

time, rescinded the monetary sanction based on the violation.

The court determined that review was appropriate, in spite of

the lack of a forfeiture, because the existence of the letter

could result in harsher treatment for further violations by the

licensee. See 530 F.2d at 1005-07. See also Illinois Citizens

Comm. for Broad. v. FCC, 169 U.S. App. D.C. 166, 515 F.2d

397, 402 (D.C. Cir. 1974) (finding jurisdiction to review an

FCC order denying reconsideration of a notice of apparent

liability, even though licensee had paid the proposed

forfeiture upon receipt of the notice, so that no further

administrative proceedings ‘were necessary and no district

court action filed).

In the absence of direct support, the FCC calls our attention

to rulings in cases involving other statutes, with varying

purposes and enforcement provisions. Because these cases

generally recount the clear and convincing evidence of

Congressional intent to exclude review, we are not persuaded

that they are germane to the instant case. See, e.g., Thunder

Basin Coal Co. v. Reich, 510 U.S. 200, 207-12, 127 L. Ed. 2d

29, 114 S. Ct. 771 (1994) (holding judicial review of a

pre-enforcement ruling precluded by the Federal Mine Safety

and Health Amendments Act of 1977 where the aggrieved

mine owner could initiate an administrative challenge and the

8a

legislative history demonstrates a recognition that prompt

abatement of violations was essential to avoid "frequent and

tragic mining disasters"); Solar Turbines Inc. v. Seif, 879

F.2d 1073, 1076-78 (3d Cir. 1989) (holding judicial review of

a pre-enforcement ruling unavailable under the Clean Air Act

because early intervention would interfere with

statutorily-required efforts at negotiation and compromise);

see also Laguna Gatuna, Inc. v. Browner, 58 F.3d 564, 566

(10th Cir. 1995) (holding that case law from other circuits

"squarely precluded" jurisdiction over pre-enforcement ruling

under the Clean Air Act).

We determine that nothing in the Communications Act itself

bars our review, and therefore turn to the issue of whether the

FCC order is ripe for judicial resolution.

B. RIPENESS

"The familiar two-part ripeness inquiry requires us to

evaluate both the fitness of the issue for judicial resolution

and the hardship to the parties of withholding judicial

consideration. In applying this test, we must caution against a

rigid or mechanical application of a flexible and often

context-specific doctrine." Harvey E. Yates Co. v. Powell, 98

F.3d 1222, 1237 (10th Cir. 1996) (quotations and citations

omitted).

The "fitness for judicial resolution" prong requires the court

to consider "the legal nature of the question presented and the

finality of the administrative action. . . ." Id. at 1237-38

(quotations omitted). Both of these factors favor the exercise

of jurisdiction ever RMR's claims. The challenge to the FCC

order presents primarily a legal question: whether the FCC

properly interpreted the term ‘generate’ as used in 47 C.F.R. §

9a

15.3(0). See Hoover & Bracken Energies, Inc. v. United

States Dep't of Interior, 723 F.2d 1488, 1489 (10th Cir. 1983)

(stating that agency interpretation of statutes and regulations

is a question of law).

Moreover, the FCC's action was final, in that it was

"formalized and its effects felt in a concrete way" by RMR.

Abbott Labs., 387 U.S. at 148. The order was promulgated

by the full Commission and announced in a press release.

Under the order, the marketing of RMR's product was

permanently prohibited. We therefore conclude that RMR's

challenge to the FCC order is "fit for judicial resolution’

under the first prong of the Abbott Labs. ripeness test."

Harvey E. Yates Co., 98 F.3d at 1238.

In evaluating potential hardship under the second prong of

Abbott Labs., we consider "'the possible harm to the parties

of delaying judicial consideration.” Id. (quoting Powder

River Basin Resource Council v. Babbitt, 54 F.3d 1477, 1484

(10th Cir. 1995) (further citation omitted)). From the record,

it is apparent that a delay of review would confront RMR

with a Hobson's choice between obeying the order, and thus

foreclosing review of the FCC determination, or "incurring

the risks attendant upon noncompliance." Friends of

Keeseville, Inc. v. Federal Energy Regulatory Comm'n, 859

F.2d 230, 236 (D.C. Cir. 1988). We therefore hold that

RMR's appeal is ripe for review.

Ill. DISCUSSION OF THE MERITS

The FCC, the agency charged with executing the

Congressional policy of maintaining control over all channels

of radio transmission, see 47 U.S.C. §§ 151, 301, has the

authority to promulgate regulations "governing the

10a

interference potential of devices which in their operation are

capable of emitting radio frequency energy . . . in sufficient

degree to cause harmful interference to radio

communications." 47 U.S.C. § 302a(a). In our review of the

FCC's determination that its regulations prohibit the

marketing of the Spirit II, we must give substantial deference

to [its] interpretation of its own regulations. Our task is not to

decide which among several competing interpretations best

serves the regulatory purpose. Rather, the agency's

interpretation must be given controlling weight unless it is

plainly erroneous or inconsistent with the regulation. In other

words, we must defer to the [agency's] interpretation unless

an alternative reading is compelled by the regulation’s plain

language or by other indications of . . . intent at the time of

the regulation's promulgation. This broad deference is all the

more warranted. when, as here, the regulation concerns a

complex and highly technical regulatory program . . . .

Thomas Jefferson Univ. v. Shalala, 512 [*16] U.S. 504, 512,

129 L. Ed. 2d 405, 114 S. Ct. 2381 (1994) (quotations and

citations omitted). See also Santa Fe Energy Prod. Co. v.

McCutcheon. 90 F.3d 409, 413 (10th Cir. 1996). When an

agency applies its "regulation to complex or changing

circumstances,” the Court has explained, this "calls upon the

agency's unique expertise and policymaking prerogatives

and courts must "presume that the power authoritatively to

interpret its own regulations is a component of the agency's

delegated lawmaking powers." Martin v. Occupational Safety

& Health Review Comm'n, 499 U.S. 144, 151, Tit B42.

1171, 113 L. Ed. 2d 117 (1991).

RMR's argument on appeal directly challenges the FCC's

interpretation of its regulations. Its syllogism is: (1) the

regulations apply only to devices that "generate" radio

lla

frequency energy, see 47 C.F.R. § 15.3(n) (defining incidental

radiator); § 15.3(0) (defining intentional radiator); § 15.3(z)

(defining unintentional radiator); (2) the Spirit II reflects the

signal from a radar gun, and does not "generate" radio

frequency energy as that term is commonly understood; and,

therefore, (3) the Spirit II is not subject to the FCC equipment

authorization requirements for intentional radiators, see 47

C.F.R. § 15.201(b), or ban on intentional, unintentional, or

incidental radiators that cause harmful interference to another

source of radio frequencies, see 47 C.F.R. § 15.5(b).

According to RMR's view, the FCC's basic error was in

determining that the Spirit II's reflection and modification of

a radar signal amounted to the generation of radio frequency

energy.

In analyzing this contention, we begin with the plain language

of the regulations. The FCC's decision to give "generate" a

more expansive treatment than that advocated by RMR is

consistent with the ordinary meaning of the term as in

"create," "produce," or "propagate." Webster's Third New

International Dictionary at 945; see also id. at 1817 (defining

"propagate" as "to cause to continue"). Moreover, a broad

reading of the word furthers a stated aim of the

Communications Act, which is to "govern[{] the interference

potential of devices which in their operation are capable of

emitting radio frequency energy." 47 U.S.C. § 302(a); see

also id. at § 333 (prohibiting willful or malicious interference

with licensed or authorized radio communications). It can

also be reconciled with the purpose of the regulations, which

is to regulate and minimize interference between users of the

electromagnetic spectrum.

We conclude, therefore, that the FCC's interpretation of the

term "generate" is neither "plainly erroneous nor inconsistent

l2a

with the regulation." Thomas Jefferson Univ., 512 U.S. at

512 (quoting Udall v. Tallman, 380 U.S. 1, 17, 13 L. Ed. 2d

616, 85 S. Ct. 792 (1965)). The order of the FCC, released

December 10, 1997, is AFFIRMED. The FCC's motion to

dismiss is DENIED.

nl Radar is a radio device or system for locating an object by

means of emitting radio signals usually in the form of pulses

of an ultrahigh frequency and observing and analyzing the

minute signals reflected from the object and received at or

near the point of transmission in such a way that range,

bearing, and other characteristics of the object may be

determined.

Webster's Third New International Dictionary at 1871 (1993).

See also 47 C.F.R. § 2.1(c) (defining radar as a

"radiodetermination system based on the comparison of

reference signals with radio signals reflected, or

retrainsmitted [sic], from the position to be determined").

n2 FCC rules define radio frequency (RF) energy as

"electromagnetic energy at any frequency in the radio

spectrum between 9 kHz and 3,000,000 MHZ." 47 C.F.R. §

15.3(u).

n3 FCC rules define an intentional radiator as "[a] device that

intentionally generates and emits radio frequency energy by

radiation or induction." 47 C.F.R. § 15.3(0).

l3a

n4 Except for exempted devices not involved in this matter,

“all intentional radiators operating . . . shall be certificated by

the Commission . . . prior to marketing." 47 C.F.R. §

15.201(b).

n5 § 15.5(b) provides, in pertinent part, that " operation of an

intentional, unintentional, or incidental radiator is subject to

the condition{] that no harmful interference is caused. . . ."

n6 Section 402(a) provides: "Any proceeding to enjoin, set

aside, annul, or suspend any order of the Commission under

this chapter [except in inapplicable situations] shall be

brought as provided by and in the manner prescribed in" the

Administrative Orders Review Act, see 28 U.S.C. §§

2341-49, which governs judicial review of rules, regulations,

and final orders of several agencies. Section 2342 of that act

vests the courts of appeals with jurisdiction to review a final

agency order.

n7 In forfeiture proceedings, the FCC first issues "a citation

of the violation charged" and provides "a reasonable

opportunity for a personal interview with an official of the

Commission." 47 U.S.C. § 503(b)(5); 47 C.F.R. § 1.80(d).

The RMR administrative process terminated at this point

because RMR stopped marketing the Spirit II.

If an alleged violator subsequently engages in the prohibited

conduct, however, the FCC may proceed to impose a

monetary forfeiture, under either of two separate tracks, each

with its own set of procedures and provisions for judicial

review. In the more commonly-used track, the FCC issues a

notice of apparent liability. See 47 U.S.C. § 503(b)(4); 47

C.F.R. § 1.80(f). The suspected violator may either pay the

penalty or respond in writing to show why a lesser penalty, or

l4a

none at all, should be imposed. See 47 C.F.R. § 1.80()(3).

Upon consideration of the record, the FCC "will issue an

order canceling or reducing the proposed forfeiture or

requiring that it be paid in full." 47 C.F.R. § 1.80(f)(4). To

enforce the order, the FCC is to bring a collection action in

the district court for trial de novo. See 47 U.S.C. § 504(a).

Under the alternative hearing approach, the FCC may impose

a penalty after notice and a full evidentiary hearing. See 47

U.S.C. § 503(b)(3(A); 47 C.F.R. § 1.80(g). Forfeitures

assessed through this procedure are reviewable in the court of

appeals. See 47 U.S.C. § 402(a). To collect after judicial

review or lapse of time for such review, the FCC may bring a

lawsuit in the district court, in which action "the validity and

appropriateness of the final order imposing the forfeiture

penalty shall not be subject to review." 47 U.S.C. §

503(b)(3)(B).

15a

Federal Communications Commission

ECC 97-404

Before the

Federal Communications Commission

Washington D.C. 20554

In the Matter of

Rocky Mountain Radar

Application for Review, and

Request for Expedited Action

and Emergency Petition for

Stay of Official Citations

i

MEMORANDUM OPINION AND ORDER

Adopted: December 4, 1997

Released: December 10, 1997

By the Commission

I. INTRODUCTION

I. In this Memorandum Opinion and Order we

address an Application for Review and Request for Expedited

Action filed pursuant to 47 C.F.R. 1.115, and an Emergency

Petition for Stay of Official Citations filed by Rocky

Mountain Radar. By these documents, Rocky Mountain

Radar seeks review and stay of the citations issued by the

Compliance and Information Bureau (CIB) informing Rocky

l6a

Mountain Radar that the marketing of the Spirit II radar

jammer device was in violation of Commission rules and that

continued marketing could subject Rocky Mountain Radar to

monetary forfeitures. For the reasons noted below, we deny

the Application for Review and the Petition for Stay.

Il. BACKGROUND

2. On February 12, 1997, the Director, Investigations

Group, CIB, issued an official citation’ to Rocky Mountain

Radar advising it that the manufacture and marketing of the

Rocky Mountain Spirit II radar jammer violated provisions of

the Communications Act of 1934, as amended (the Act). 47

U.S.C. 302,’ relating to the manufacturing and marketing of

devices that interfere with radio transmissions and the

commission’s equipment authorization provisions of Section

2.803 of the commission’s Rules, 47 C.F.R. § 2.803.

3. In its February 24, 1997, response to the initial

citation, Rocky Mountain Radar contended that its device

was not an intentional radiator and thus was not covered by

the Commission’s authorization rules. It noted that Section

15.3(u) of the rules, 47 C.F.R. § 15.3(u). defines “radio

frequency energy (RF) as electromagnetic energy at any

frequency in the radio spectrum between 9 kHz and

3,000,000 MHz, and contended that its device fell outside

these frequencies. Rocky Mountain Radar further argued that

the device is exempt from the equipment authorization

process because it falls within the exemption allowed under

Section 15.103(a). 47 C.F.R. § 15.103(a), for digital devices

that are unintentional radiators used exclusively in any

transportation vehicle including motor vehicle and aircraft.

4. Both the Office of Engineering and Technology

(OET) and CIB reviewed the documentation and response

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submitted by Rocky Mountain Radar and, by letter dated July

22, 1997. OET and CIB rejected the arguments made by

Rocky Mountain Radar. On the same date, CIB advised

Damark International Inc. (Damark) a distributor of the Spirit

Il, that the device was not authorized and should not be

marketed. The OET and CIB examined a report of testing

performed on the device by Rocky Mountain Radar’s

consultant. The report did not rebut CIB’s initial

determination that the Spirit II radar jammer device is

designed to receive, modulate and emit a modulated signal at

_ microwave frequencies. After reviewing the documentation;

CIB and OET determined that the device emitted RF energy

on frequencies between 9 kHz and 3,000,000 MHz, and was

not an exempt device under Section 15.103(a) of the rules, 47

C.F.R. § 15.103(a), but instead, constituted an “intentional

radiator” under Section 15.3(0). See 47 C.F.R.. § 15.3(0). For

this reason, CIB and OET concluded that the device did not

qualify for the exemption from the authorization

requirements in Section 15.103(a). CIB and OET also

concluded that, inasmuch as the intended purpose of the

device is to interfere with licensed police communications, it

could not be certified and its continued sale is a violation of

Sections 15.201(b). See 47 C.F.R. § 15.201(b). CIB,

therefore, warned Rocky Mountain Radar that continued

marketing of the Spirit II radar scrambler device would be in

violation of Commission rules.

5. On August 15, 1997, Rocky Mountain Radar

filed the instant Emergency Petition for Stay of Official

Citations (Petition). On August 18, 1997, Rocky Mountain

filed an Application for Review and Request for Expedited

Action (Application) by the Qommission of the citations

issued by the Bureau. In its Petition, Rocky Mountain Radar

requests a stay based upon its argument that (1) the FCC has

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no jurisdiction over the device because “it does not and

physically cannot generate or emit radio frequency energy.”

and thus, the Bureau’s characterization of the device as an

“intentional radiator” is based on a misstatement of fact. (2)

Rocky Mountain Radar will sustain irreparable financial

injury if it is not allowed to market this device: (3) it is up to

each state, rather than the Commission, to determine whether

the Spirit II device presents a danger or harm to the public or

public safety agencies and prohibit the sales of the device in

their states; and (4) that a Stay would be in the public interest

because the public has an interest in limiting governmental

conduct to the existing rules and laws. In its Application,

Rocky Mountain Radar essentially raises the same arguments.

Rocky Mountain Radar also requesis a Stay of Cm’s Official

Citations to Damark.

Il]. DISCUSSION

6. We first address Rocky Mountain Radar’s

argument that the FCC has no jurisdiction because the device

at issue does not and cannot generate or emit radio frequency

energy. Section 153(0) of the rules, 47 C.F.R. § 15.3(0),

defines an intentional radiator as a device that intentionally

generates and emits radio frequency energy by radiation or

induction. Section 15.3(u) of the rules, 47 C.F.R. I 15.3(u), in

turn, defines radio frequency energy as electromagnetic

energy at any frequency in the radio spectrum between 9 kHz

and 3,000,000 MHz. Rocky Mountain Radar contends that

“{t]here is no current FCC rule that permits the Commission

to prohibit the marketing or sale of a device that does not

generate nd emit RF energy.” (emphasis in original). In

particular, Rocky Mountain Radar maintains that Section

15.3(0) of the rules requires both the generation and emission

of RF energy for a device to fall within the definition of an

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“intentional radiator.” In support of its argument, Rocky

Mountain Radar submits the results of measurements

performed by a consultant showing that the Spirit II does not

generate or emit any radio frequencies.

7. The Commission’s authority under Section

302(a) of the Act, 47 U.S.C. § 302(a). extends to “devices

which in their operation are capable of emitting radio

frequency energy by radiation, conduction, or other means in

sufficient degree to cause harmful interference to radio

communications.” In this regard, we observe that the Rocky

Mountain Radar Spirit II device is designed to function only

when it is illuminated by a police radar signal. The Spirit II

device uses the radar signal as a source of RF energy,

modulates the signal electronically to generate a different RF

signal, and emits that RF signal to cause interference to

police radars. Thus, we disagree with Rocky Mountain

Radar’s assertion that the device does not generate and emit

RF energy. The fact that the original source of the radio

frequency energy is external to the device does not place the

Spirit If beyond the Commission’s jurisdiction. When the

device is in operation, it uses a source of RF energy to itself

generate a new RF signal and emit this signal into space to

cause interference. Rocky Mountain Radar provided tests

conducted by one consulting finn while the device was not

subject to any RF input signal as it would be when operating

near a police radar. The opinion offered by this consulting

firm regarding the emissions characteristics of the device

when it was not subject to normal or intended operation is

therefore not dispositive of the issue whether the device is

covered by the Commission’s authorization ruless.’ Further,

contrary to Rocky Mountain Radar’s assertions that its device

contained no RF circuitry whatsoever, its consultant, Hugh

V.H. Bishop, states that “[t]here are no RF devices in the

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Spirit I] other than a mixer diode inside a wave guide cavity

with ridged antenna and matching screw.” Mr. Bishop goes

on to conclude that “since the mixer is not on it’s (sic) own

an active device for the mixer to have any purpose there must

be incident radiation at microwave frequencies.” Mr.

Bishop’s conclusions are therefore contrary to Rocky

Mountain Radar’s assertion that the device contains no RF

circuitry for the generation and emission of radio frequency

energy. In light of the foregoing discussion, we conclude that

the Spirit II, and any other similar device, meet the definition

of an intentional radiator contained in Section 15.3(0) of the

rules and therefore we hold that marketing of the Spirit II and

any other similar device without FCC equipment

authorization is in violation of Sections 15.201(a) and 2.803

of the Commission’s Rules. See 47 C.F.R. §§ 15.201(a),

2.803.

8. We also reject Rocky Mountain Radar’s argument

that its device qualifies as exempt from equipment

authorization under Section 15.103(a). We find that this

exemption is not applicable in this case. The exemption

applies only to digital devices utilized exclusively in any

transportation vehicle including motor vehicles and aircraft.

Section 15.3(k) defines a digital device, in relevant part, as an

unintentional radiator (device or system) that generates and

uses timing signals or pulse rates at a rate in excess of 9.000

pulses (cycles) per second and uses digital techniques. 47

C.F.R. § 15.3(k). The Spirit II is not an unintentional radiator

and does not generate pulse rates in excess of 9,000 pulses

per second, Further, Rocky Mountain Radar has not

demonstrated that its device would be used exclusively in

transportation vehicles. Accordingly, we reject Rocky

Mountain Radar’s argument that the Spirit II is exempt from

equipment authorization pursuant to Section 15.103(a).

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9. We also observe that irrespective of the

definitional issues addressed above, Section 15.5 of the

Commission’s Rules, 47 C.F.R. § 15.5, expressly states that

Operation of an intentional, unintentional, or incidental

radiator is subject to the condition that it may not cause

harmful interference. The Spirit II device directly conflicts

with this requirement because it interferes with police radars

which are devices properly authorized by the Commission. In

this connection, we have specifically alerted the public that

the intentional use of radar januners is considered “malicious

interference” and is strictly prohibited by the Section 333 of

the Act. 47 U.S.C. § 333."

10. We find that it would be contrary to the public

interest to permit continued marketing of a device that is

designed to deliberately cause radio frequency interference to

authorized radio services in violation of the Communications

Act and our rules. Rocky Mountain Radar has offered no

persuasive reason why we should refrain from enforcing our

rules, therefore, we reject Rocky Mountain Radar’s Petition

for Stay of Official Citations.

IV. ORDERING CLAUSES

11. ACCORDINGLY, IT IS ORDERED, that

pursuant to Section 4(i) of the Communications Act of 1934,

47 U.S.C. § 154 (i) and 47 C.F.R. §1.115, and 47 C.F.R. §

141, et. seq. the Application for Review and Emergency

Petition for a Stay of Official Citations filed by Rocky

Mountain Radar are DENIED.

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12. IT IS FURTHER ORDERED that Rocky

Mountain Radar’s petition to stay the Official Citation issued

to Damark International. Inc. IS DENIED.

13. IT IS FURTHER ORDERED that a copy of copy

of this Order shall be sent by certified mail, return-receipt

requested, to Rocky Mountain Radar and counsel.

FEDERAL

COMMUNICATIONS

COMMISSION

Magalie Roman Salas

Secretary

Footnotes

' The citation was issued pursuant to 47 U.S.C. § 503(b)(5).

> Section 302 of the Act authorizes the Commission to make

reasonable regulations governing the interference potential of

devices “which in their operation are capable of emitting

radio frequency by radiation, conduction, or other means in

sufficient degree to cause harmful interference to radio

communications.” 47 U.S.C. §302(a)

* Under the Commission’s rules governing testing procedures

for emissions measurements of conducted and radiated

emissions shall be performed with all radiating sources

emitting. See 47 CF.R. § 1551.

* See FCC Public Notice entitled “FCC Regulates Radar

Transmitters. But Not Radar Detectors”, 11 FCC Red 17268

(1996). Section 333 of the Act. 47 U.S.C. § 333. states that

no person shall willfully or maliciously interfere with or

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cause interference to any radio communications of any station

licensed or authorized by or under the Act.