Radar Solutions v. U.S. Fed. Communications Com'n
| Citation | 628 F.Supp.2d 714 |
| Decision Date | 24 June 2009 |
| Docket Number | Civil Action No. EP-07-CV-0344-KC. |
| Parties | RADAR SOLUTIONS, LTD. d/b/a Rocky Mountain Radar, Inc., Plaintiff, v. The UNITED STATES FEDERAL COMMUNICATIONS COMMISSION, Defendant. United States of America, Counterclaimant, v. Radar Solutions, Ltd. d/b/a Rocky Mountain Radar, Inc., Counterclaim Defendant. |
| Court | U.S. District Court — Western District of Texas |
H. Christopher Mott, Gordon Mott & Davis PC, El Paso, TX, Kim J. Seter, Greenwood Village, CO, for Plaintiff/Counterclaim Defendant.
James F. Gilligan, Assistant United States Attorney, San Antonio, TX, for Defendant/Counterclaim Defendant.
On this day, the Court considered Defendant United States Federal Communications Commission's ("FCC") "Motion to Dismiss, and/or, in the Alternative, Motion for Summary Judgment" ("Government's Motion") (Doc. No. 42); Plaintiff Radar Solutions, Ltd., doing business as Rocky Mountain Radar, Inc.'s "Response to Defendant's Motion to Dismiss and/or, in the Alternative, Motion for Summary Judgment" ("Plaintiffs Response") (Doc. No. 47); and the Government's "Reply in Support of Defendant's Motion to Dismiss and/ or, in the Alternative, Motion for Summary Judgment" ("Government's Reply") (Doc. No. 48). For the reasons set forth herein, the Government's Motion is GRANTED.
The Court also considered Plaintiff's "Motion for Judgment on the Pleadings or Alternatively for Summary Judgment on the Counterclaim of Defendant FCC and Related Relief" ("Plaintiffs Motion") (Doc. No. 41); the Government's "Response to Plaintiffs Motion for Judgment on the Pleadings or Alternatively, for Summary Judgment on the Counterclaim of Defendant FCC and Related Relief;" ("Government's Response") (Doc. No. 43); and Plaintiffs "Amended Reply to Response of FCC to Plaintiffs Motion for Judgment on the Pleadings or Alternatively for Summary Judgment on the Counterclaim of Defendant FCC and Related Relief" ("Plaintiffs Reply") (Doc. No. 46). For the reasons set forth herein, Plaintiff's Motion is DENIED.
The following facts are derived from the parties' pleadings, the exhibits attached to the parties' motions and responsive briefs, the Government's "Proposed Undisputed Facts" in the Appendix to its Motion ("Government's Facts"); Plaintiffs "Response to [the Government's] Proposed Undisputed Facts," Exhibit I of its Response ("Plaintiffs Facts"); and Plaintiffs "Proposed Undisputed Facts" in the Appendix to its Motion ("Plaintiffs Facts II").
Plaintiff is a Nevada corporation qualified to do business in the State of Texas with its principal offices and manufacturing facilities in El Paso, Texas. Pl.'s Facts II ¶ 1; Pl.'s Compl. ¶ 1. Plaintiff manufactured, marketed, offered for sale, and sold the two devices at issue in this case—the RMR-C450 and the RMR-S201. Gov't's Facts ¶ 17; Pl.'s Facts ¶ 17.
The Federal Communications Commission ("FCC") is an agency of the United States that was created pursuant to the Communications Act of 1934, 48 Stat. 1064, as amended ("the Communications Act" or "the Act"). See also 47 U.S.C. § 151. The purpose of this Act is "to maintain the control of the United States over all the channels of radio transmission; and to provide for the use of such channels, but not the ownership thereof, by persons for limited periods of time, under licenses granted by Federal authority[.]" Id. § 301. Congress created the FCC to "execute and enforce the provisions" of the Act, id. § 151, and granted the FCC authority to promulgate regulations "governing the interference potential of 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," id. § 302a(a). Congress also granted the FCC authority to promulgate regulations that are "applicable to the manufacture, import, sale, offer for sale . . . and to the use of such devices." Id.1
Pursuant to its authority granted by Congress, the FCC has created a comprehensive set of regulations "under which an intentional, unintentional, or incidental radiator may be operated without an individual license." 47 C.F.R. § 15.1(a). An "intentional radiator" is "[a] device that intentionally generates and emits radio frequency energy by radiation or induction." Id. § 15.3(o). With certain exceptions not relevant to the instant case, "all intentional radiators operating under the provisions of this part" must be licensed by the FCC "prior to marketing." 47 C.F.R. § 15.201(b). The regulations further state that "no person shall sell or lease . . . any radio frequency device unless . . . such device has been authorized by the [FCC] in accordance with the rules in this chapter" or "such device complies with all applicable administrative . . . technical, labeling and identification requirements specified in this chapter." 47 C.F.R. § 2.803(a). The regulations further state that "[u]nless specifically exempted, the operation or marketing of an intentional or unintentional radiator that is not in compliance" with the relevant provisions of 47 C.F.R. Part 15 is prohibited under the Act. Id. § 15.1(b).
Under its "General conditions of operation," the FCC requires that "no harmful interference [be] caused" by the operation of an intentional radiator, "and that interference must be accepted that may be caused by the operation of an authorized radio station, by another intentional or unintentional radiator, by industrial, scientific and medical (ISM) equipment, or by an incidental radiator." Id. § 15.5(b). "Harmful interference" is defined as "[a]ny emission, radiation or induction that endangers the functioning of a radio navigation service or of other safety services or seriously degrades, obstructs or repeatedly interrupts a radiocommunications service operating in accordance with this chapter." Id. § 15.3(m). This prohibition on harmful interference further carries out Congress' command that "[n]o person shall willfully or maliciously interfere with or cause interference to any radio communications or any station licensed or authorized by or under the Act." 47 U.S.C. § 333.
Police radar uses a narrowly defined portion of the radio spectrum. Police Radar is authorized and regulated by the FCC as a radiolocation service. See 47 C.F.R. §§ 90.101, 90.103; see also Gov't's Facts ¶ 6; Pl.'s Facts ¶ 6. Police radar works by emitting a radio signal toward a moving car that reflects off the car and is received by the radar unit, which can calculate the speed of the car based on the Doppler Shift in the reflected signal. Gov't's Facts ¶ 7; Pl.'s Facts ¶ 7.
On February 12, 1997, the FCC issued an Official Citation to Plaintiff advising that the manufacture and marketing of its Rocky Mountain Spirit II radar jammer violated 47 U.S.C. § 302a2 and 47 C.F.R. § 2.803. See Pl.'s Resp. Ex. G (Official Citation, Feb. 13, 1997). On February 24, 1997, Plaintiff filed a response to the FCC's Official Citation, arguing that the device was not an "intentional radiator" and thus not covered by the FCC's authorization rules. See In re Rocky Mountain Radar, 12 FCC Red. 22453 ¶ 3 (Dec. 10, 1997) (Memorandum Opinion and Order) ("1997 FCC Order"). Both the FCC's Office of Engineering Technology (OET) and Compliance Information Bureau (CIB) reviewed Plaintiffs response and documentation, and they rejected Plaintiffs arguments. Id. ¶ 4. These offices determined that the Spirit II constituted an "intentional radiator" under 47 C.F.R. 15.3(o) and did not qualify for any exemption. Id. Plaintiff filed an Emergency Petition for Stay of Official Citations on August 15, 1997, and an Application for Review and Request for Expedited Action on August 18, 1997. Id. ¶ 5. In both of these documents, Plaintiff argued that the Spirit II was not an "intentional radiator" because "it does not and physically cannot generate or emit radio frequency energy." Id. ¶ 5.
On December 10, 1997, the FCC rejected Plaintiffs arguments that the Spirit II was not an "intentional radiator." Specifically, the FCC stated that:
[The Spirit II] 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 ["radio frequency"] energy,[3] 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 II 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.
The FCC also noted that Plaintiff's own tests demonstrated that the Spirit II contained RF circuitry which was designed "for the generation and emission of radio frequency energy." Id. This circuitry consisted specifically of "a mixer diode inside a wave guide cavity with ridged antenna and matching screw," which "to have any purpose" must be designed to interact with "incident radiation at microwave frequencies." Id. Accordingly, given that the Spirit II was designed to generate and emit RF energy, the FCC held that "the Spirit II, and any other similar device, meet the definition of an intentional radiator contained in Section 15.3(o) of the rules" and that "marketing of the Spirit II and any other similar device without FCC equipment authorization is in violation of [47 C.F.R. §§ 15.201(a), 2.803]." Id. (emphasis added).
On October 19, 1998, the Court of Appeals for the Tenth Circuit affirmed the 1997 FCC Order. Rocky Mountain Radar, Inc. v. FCC, 158 F.3d...
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