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Skybeam Acquisition Corporation

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Released: September 27, 2012

Federal Communications Commission

DA 12-1549

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
) File No.: EB-FIELDWR-12-00002769
Skybeam Acquisition Corporation
)
) NAL/Acct. No.: 201232800009
Englewood, Colorado
)
) FRN: 0021775820
)

NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER

Adopted: September 26, 2012

Released: September 27, 2012

By the District Director, Denver Office, Western Region, Enforcement Bureau:

I.

INTRODUCTION

1.
In this Notice of Apparent Liability for Forfeiture and Order (NAL), we find that Skybeam
Acquisition Corporation1 (Skybeam), operator of an Unlicensed National Information Infrastructure (U-
NII) transmission system in Parker, Colorado, apparently willfully and repeatedly violated Sections 301
and 302(b) of the Communications Act of 1934, as amended, (Act)2 and Sections 15.1(b) and 15.1(c) of
the Commission’s rules (Rules)3 by operating an intentional radiator without a license and in a manner
inconsistent with Part 15 of the Rules4 and the device’s equipment authorization. We conclude that
Skybeam is apparently liable for a forfeiture in the amount of fifteen thousand dollars ($15,000). In
addition, we direct Skybeam to submit, no later than thirty (30) calendar days from the date of this NAL,
a statement signed under penalty of perjury by an officer or director of the company stating that it is
currently operating its U-NII systems in compliance with FCC rules and applicable authorizations.

II.

BACKGROUND

2.
Part 15 of the Rules allows devices employing relatively low-level radiofrequency (RF)
signals to be operated without individual licenses, as long as their operation causes no harmful
interference to licensed services and the devices do not generate emissions or field strength levels greater
than a specified limit.5 Such devices must be authorized and operated in accordance with the Part 15
Rules.6 For example, Section 15.1(c) of the Rules provides that intentional radiators must operate


1 LP Broadband, Inc., a corporation wholly-owned by Skybeam, holds numerous FCC licenses, including Common
Carrier Fixed Point to Point Microwave (149 call signs), Microwave Industrial/Business Pool (five call signs),
Industrial/Business Pool, Conventional (two call signs), Millimeter Wave 70/80/90 GHz Service (one call sign), and
3650-3700 MHz (three call signs).
2 47 U.S.C. §§ 301, 302a(b).
3 47 C.F.R. § 15.1(b), (c).
4 47 C.F.R. §§ 15.1 et seq.
5 Revision of Part 15 of the Rules Regarding the Operation of Radio Frequency Devices Without an Individual
License
, First Report and Order, 4 FCC Rcd 3493 (1989).
6 See 47 C.F.R. § 15.1(c). Section 15.201(b) of the Rules provides that all intentional radiators operating under Part
(continued....)

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DA 12-1549

consistent with the terms of their equipment authorizations. Operating an RF device, such as an
intentional or unintentional radiator, that is not in compliance with its authorization or the Part 15 Rules is
a violation of Section 302(b) of the Act. Additionally, operating a Part 15 device in a manner that is
inconsistent with the Part 15 Rules requires a license pursuant to Section 301 of the Act. Such operation
without a license violates that provision.
3.
On September 29, 2011, in response to a complaint of interference from the FAA to the
Terminal Doppler Weather Radar (TDWR) at Denver International Airport, agents with the Enforcement
Bureau’s Denver District Office (Denver Office) used direction-finding techniques to determine that radio
emissions on the frequency 5610 MHz7 were emanating from the Hilltop Tower communications site in
Parker, Colorado. On September 30, 2011, the agents used those same techniques in combination with an
on/off test to confirm that the interference was emanating from the U-NII transmission system8 being
operated by Skybeam.
4.
The Skybeam U-NII system utilized a transceiver module, model Canopy 5700BH20,
which is an intentional radiator manufactured by Motorola, Inc.9 The FCC Equipment Authorization for
the Motorola Canopy 5700BH20 transceiver limits the device to operations within a frequency range of
5735 MHz to 5840 MHz.10 During the inspection, however, the agents determined that the transceiver
had been operating on 5610 MHz, a frequency outside the transceiver’s authorized frequency range. In
order to avoid interference to the FAA’s TDWR installations, the Commission requires that U-NII
devices operating in the 5.25 – 5.35 GHz and 5.47 – 5.725 GHz bands have Dynamic Frequency
Selection (DFS) radar detection functionality, which allows them to detect the presence of radar systems
and avoid co-channel operations with radar systems.11 As the inspection continued on September 30,
2011, the agents also observed that the transceiver was not operating with DFS functionality. The agents
determined that Skybeam had adjusted the transceiver’s operating frequency to the frequency 5875 MHz
– a frequency also outside the transceiver’s authorized frequency range - in an effort to cease any


(...continued from previous page)
15 of the Rules shall be certificated by the Commission. 47 C.F.R. § 15.201(b). The Commission issues equipment
authorizations for such devices, setting for the relevant conditions to the grant.
7 The unauthorized emissions on the frequency 5610 MHz impacted the Federal Aviation Administration’s (FAA)
Terminal Doppler Weather Radar (TDWR) system that serves the Denver International Airport. TDWR
installations exist at 45 major airports in the United States and Puerto Rico and assist air traffic controllers in
detecting low-altitude wind shear that can pose a risk to aircraft. See MIT Lincoln Laboratories,
http://www.ll.mit.edu/mission/aviation/faawxsystems/tdwr.html (last visited June 15, 2012).
8 47 C.F.R. § 15.403(s) (defining U-NII devices as “[i]ntentional radiators operating in the frequency bands 5.15-
5.35 GHz and 5.470-5.825 GHz that use wideband digital modulation techniques and provide a wide array of high
data rate mobile and fixed communications for individuals, businesses, and institutions.”). Although Skybeam’s
device was not authorized to operate in the U-NII bands, it was subject to the U-NII rules (47 C.F.R. 15.401-15.407)
because Skybeam operated it as a U-NII device.
9 The device was a Motorola Canopy model # BH5700BH20, FCC ID ABZ89FC5804 (Model 5700xx Canopy radio
(Wireless Ethernet)). Motorola Solutions, Inc., was issued a Grant of Equipment Authorization for the Motorola
5700xx Canopy radio by Elite Electronic Engineering, Inc., under the authority of the FCC, on June 4, 2003.
10 The Equipment Authorization for the Motorola Canopy 5700BH20 transceiver states that the device is certified
for use pursuant to Part 15, Subpart C of the Rules (Intentional Radiators).
11 See 47 C.F.R. § 15.407(h)(2). See also Memorandum from Julius Knapp, Chief, Office of Engineering and
Technology, FCC, and P. Michele Ellison, Chief, Enforcement Bureau, FCC, to Manufacturers and Operators of
Unlicensed 5 GHz Outdoor Network Equipment Re: Elimination of Interference to Terminal Doppler Weather
Radar (TDWR) (dated July 27, 2010), available at http://transition.fcc.gov/eb/uniidwr/pdf (last visited Aug. 31,
2012).
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DA 12-1549

interference with the Denver TDWR installation. The interference to the Denver TDWR ceased as a
result of Skybeam’s adjustment to the transceiver’s operating frequency.

III.

DISCUSSION

5.
Section 503(b) of the Act provides that any person who willfully or repeatedly fails to
comply substantially with the terms and conditions of any license, or willfully or repeatedly fails to comply
with any of the provisions of the Act or of any rule, regulation, or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty.12 Section 312(f)(1) of the Act defines “willful” as the
“conscious and deliberate commission or omission of [any] act, irrespective of any intent to violate” the
law.13 The legislative history to Section 312(f)(1) of the Act clarifies that this definition of willful applies to
both Sections 312 and 503(b) of the Act,14 and the Commission has so interpreted the term in the Section
503(b) context.15 The Commission may also assess a forfeiture for violations that are merely repeated,
and not willful.16 The term “repeated” means the commission or omission of such act more than once or for
more than one day.17

A.

Unlicensed Operation of U-NII Device

6.
Section 301 of the Act prohibits the use or operation of any apparatus for the
transmission of energy or communications or signals by radio within the United States except under and
in accordance with the Act and with a license.18 An exception to the license requirement under Section
301 is found in Part 15 of the Rules,19 which sets forth conditions under which intentional radiators may
operate without an individual license. Pursuant to Section 15.1(b) of the Rules, however, “operation of an
intentional … radiator that is not in accordance with the regulations in this part must be licensed … .”20
Thus, if an intentional radiator fails to comply with the conditions set forth in its equipment
authorization,21 the operation is no longer covered by the unlicensed provisions of Part 15 and must be
licensed pursuant to Section 301 of the Act.


12 47 U.S.C. § 503(b).
13 47 U.S.C. § 312(f)(1).
14 H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) (“This provision [inserted in Section 312] defines the terms
‘willful’ and ‘repeated’ for purposes of section 312, and for any other relevant section of the act (e.g., Section 503)
. . . . As defined[,] . . . ‘willful’ means that the licensee knew that he was doing the act in question, regardless of
whether there was an intent to violate the law. ‘Repeated’ means more than once, or where the act is continuous, for
more than one day. Whether an act is considered to be ‘continuous’ would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in Sections 312 and 503, and are consistent with
the Commission’s application of those terms . . . .”).
15 See, e.g., Application for Review of Southern California Broadcasting Co., Memorandum Opinion and Order, 6
FCC Rcd 4387, 4388 (1991), recons. denied, 7 FCC Rcd 3454 (1992).
16 See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359,
1362, para. 10 (2001) (Callais Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable television operator’s
repeated signal leakage).
17 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also applies to violations for which forfeitures are
assessed under Section 503(b) of the Act, provides that “[t]he term 'repeated', when used with reference to the
commission or omission of any act, means the commission or omission of such act more than once or, if such
commission or omission is continuous, for more than one day.” See Callais Cablevision, Inc., 16 FCC Rcd at 1362.
18 47 U.S.C. § 301.
19 See 47 C.F.R. §§ 15.1 et seq.
20 47 C.F.R. § 15.1(b)(emphasis added).
21 See supra note 6.
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DA 12-1549

7.
On September 29, 2011, agents from the Denver Office observed Skybeam operating a
Part 15 intentional radiator – a Motorola Canopy – on the center frequency of 5610 MHz from the Hilltop
Tower communications site in Parker, Colorado. On the following day, September 30, 2011, a
representative of Skybeam ran an on/off test for the agents to confirm that the identified interference
resulted from radio emissions emanating from the identified U-NII transmission system.22 The U-NII
system utilized a transceiver module model Canopy 5700BH20, an intentional radiator manufactured by
Motorola, Inc.23 The FCC Equipment Authorization for the Motorola Canopy 5700BH20 transceiver
limits the device to operations within a frequency range of 5735 MHz to 5840 MHz.24 During the
inspection, however, the FCC agents determined that the transceiver had been operating on 5610 MHz, a
channel outside the authorized frequency range. As the inspection continued on September 30, 2011, the
FCC agents also observed – and a Skybeam representative acknowledged – that the transceiver was not
operating with DFS functionality. Skybeam adjusted the device’s operating frequency to frequency 5875
MHz to cease any interference with the Denver TDWR installation.25
8.
Pursuant to its Equipment Authorization, the Motorola Canopy 5700BH20 transceiver is
an intentional radiator, certified for use pursuant to Part 15, Subpart C of the Rules (Intentional
Radiators). By operating on frequency 5610 MHz and later on frequency 5875 MHz, Skybeam’s
operations did not comply with the equipment authorization, and, as a result, the Part 15 exception for
unlicensed operation no longer applies, and a license is required under Section 301. According to
Commission records, Skybeam does not hold a license to operate on the frequencies 5610 MHz and 5875
MHz in Parker, Colorado. Thus, based on the evidence before us, we find that Skybeam apparently
willfully and repeatedly violated Section 301 of the Act and Section 15.1(b) of the Rules by operating by
operating an unlicensed radio transmitter.

B.

Use of Unauthorized U-NII Device

9.
Section 15.201(b) of the Rules26 provides that all intentional radiators operating under
Part 15 shall be certificated by the Commission. Section 15.1(c) of the Rules27 states that the operation of
an intentional radiator that is not in compliance with the administrative and technical provisions in this
part is prohibited. Section 302(b) of the Act provides that “[n]o person shall . . . use devices which fail to
comply with the regulations promulgated pursuant to this section.”28 Consequently, the operation of an
intentional radiator in a manner inconsistent with the Part 15 Rules is a violation of Section 302(b) of the
Act. As discussed above, the Motorola Canopy device used by Skybeam was found operating on a
frequency not authorized under the transceiver’s FCC Equipment Authorization and with no functioning
DFS radar detection mechanism as required under Section 15.407(h)(2) of the Rules. By operating in this
fashion, Skybeam’s operations did not comply with either the device’s equipment authorization or with


22 See supra note 8.
23 The device has FCC ID ABZ89FC5804 (Model 5700xx Canopy radio (Wireless Ethernet)). Motorola Solutions,
Inc., was issued a Grant of Equipment Authorization for the Motorola 5700xx Canopy radio by Elite Electronic
Engineering, Inc., under the authority of the FCC, on June 4, 2003.
24 The Equipment Authorization for the Motorola Canopy 5700BH20 transceiver states that the device is certified
for use pursuant to Part 15, Subpart C of the Rules (Intentional Radiators).
25 Skybeam changed the operating frequency of this system from 5610 MHz to 5875 MHz. As noted earlier, the
Motorola Canopy 5700BH20 transceiver is only authorized to operate within a frequency range of 5735 MHz to
5840 MHz.
26 47 C.F.R. § 15.201(b).
27 47 C.F.R. § 15.1(c).
28 47 U.S.C. § 302a(b).
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DA 12-1549

Part 15 requirements and thus were unauthorized. Therefore, based on the evidence before us, we find
that Skybeam apparently willfully and repeatedly violated Section 302(b) of the Act and Section 15.1(c)
of the Rules by operating its transmitter on unauthorized frequencies and operating a transceiver without
required DFS functionality on restricted frequencies.29

B.

Proposed Forfeiture Amount and Reporting Requirement

10.
Pursuant to the Commission’s Forfeiture Policy Statement and Section 1.80 of the Rules,
the base forfeiture amount for operation without an instrument of authorization is $10,000 and the base
forfeiture amount for operation of unauthorized equipment is $5,000.30 In assessing the monetary forfeiture
amount, we must also take into account the statutory factors set forth in Section 503(b)(2)(E) of the Act,
which include the nature, circumstances, extent, and gravity of the violations, and with respect to the
violator, the degree of culpability, any history of prior offenses, ability to pay, and other such matters as
justice may require.31 Applying the Forfeiture Policy Statement, Section 1.80 of the Rules, and the statutory
factors to the instant case, we conclude that Skybeam is apparently liable for a total forfeiture in the amount
of $15,000, consisting of the following: $10,000 for unlicensed operation in violation of Section 301 of the
Act and Section 15.1(b) of the Rules, and $5,000 for operating a U-NII transmitter on unauthorized
frequencies and with DFS functionality disabled in violation of Section 302(b) of the Act and Section
15.1(c) of the Rules.32
11.
We further order Skybeam to submit a written statement, pursuant to Section 1.16 of the
Rules, signed under penalty of perjury by an officer or director of Skybeam, stating that it is currently
operating its U-NII systems in compliance with FCC rules and applicable authorizations. This statement
must be provided to the Denver Office at the address listed in paragraph 14 within thirty (30) calendar days
of the release date of this Notice of Apparent Liability for Forfeiture and Order.

IV.

ORDERING CLAUSES

12.
Accordingly,

IT IS ORDERED

that, pursuant to Section 503(b) of the Communications
Act of 1934, as amended, and Sections 0.111, 0.204, 0.311, 0.314, and 1.80 of the Commission’s rules,
Skybeam Acquisition Corporation is hereby

NOTIFIED

of this

APPARENT LIABILITY FOR A
FORFEITURE

in the amount of fifteen thousand dollars ($15,000) for violations of Sections 301 and
302(b) of the Act and Sections 15.1 (b) and 15.1(c) of the Rules.33
13.

IT IS FURTHER ORDERED

that, pursuant to Section 1.80 of the Commission’s rules,
within thirty (30) calendar days of the release date of this Notice of Apparent Liability for Forfeiture and
Order, Skybeam Acquisition Corporation

SHALL PAY

the full amount of the proposed forfeiture or

SHALL FILE

a written statement seeking reduction or cancellation of the proposed forfeiture.


29 47 C.F.R. § 15.1(c).
30 The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines
, Report and Order, 12 FCC Rcd 17087 (1997) (Forfeiture Policy Statement), recons. denied,
15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80.
31 47 U.S.C. § 503(b)(2)(E).
32 See VPNet, Inc., Notice of Apparent Liability for Forfeiture, 27 FCC Rcd 2879 (Enf. Bur. 2012) (proposing a
forfeiture of $15,000 to the operator of one U-NII device for violations of Sections 301 and 302(b) of the Act, and
Sections 15.1(b) and 15.1(c) of the Rules); Utah Broadband, Notice of Apparent Liability for Forfeiture, 26 FCC
Rcd 1419 (Enf. Bur. 2011) (proposing a forfeiture of $25,000 to the operator of two U-NII devices for violations of
Sections 301 and 302(b) of the Act, and Sections 15.1(b) and 15.1(c) of the Rules).
33 47 U.S.C. §§ 301, 302a(b), 503(b); 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80, 15.1(b), 15.1 (c).
5

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DA 12-1549

14.

IT IS FURTHER ORDERED

that Skybeam Acquisition Corporation

SHALL SUBMIT

a written statement, as described in paragraph 11, within thirty (30) calendar days of the release date of
this Notice of Apparent Liability for Forfeiture and Order. The statement must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region, Denver District Office, 215 S.
Wadsworth Blvd., Suite 303, Lakewood, Colorado 80226. Skybeam shall also e-mail the written statement
to WR-Response@fcc.gov.
15.
Payment of the forfeiture must be made by check or similar instrument, wire transfer, or
credit card, and must include the NAL/Account number and FRN referenced above. Skybeam shall also
send electronic notification on the date said payment is made to WR-Response@fcc.gov. Regardless of
the form of payment, a completed FCC Form 159 (Remittance Advice) must be submitted.34 When
completing the FCC Form 159, enter the Account Number in block number 23A (call sign/other ID) and
enter the letters “FORF” in block number 24A (payment type code). Below are additional instructions
you should follow based on the form of payment you select:
·
Payment by check or money order must be made payable to the order of the Federal
Communications Commission. Such payments (along with the completed Form 159) must be
mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000,
or sent via overnight mail to U.S. Bank – Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101.
·
Payment by wire transfer must be made to ABA Number 021030004, receiving bank
TREAS/NYC, and Account Number 27000001. To complete the wire transfer and ensure
appropriate crediting of the wired funds, a completed Form 159 must be faxed to U.S. Bank at
(314) 418-4232 on the same business day the wire transfer is initiated.
·
Payment by credit card must be made by providing the required credit card information on FCC
Form 159 and signing and dating the Form 159 to authorize the credit card payment. The
completed Form 159 must then be mailed to Federal Communications Commission, P.O. Box
979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank – Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
16.
Any request for full payment under an installment plan should be sent to: Chief Financial
Officer—Financial Operations, Federal Communications Commission, 445 12th Street, S.W., Room 1-
A625, Washington, D.C. 20554.35 If you have questions regarding payment procedures, please contact
the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by e-mail,
ARINQUIRIES@fcc.gov.
17.
The written statement seeking reduction or cancellation of the proposed forfeiture, if
any, must include a detailed factual statement supported by appropriate documentation and affidavits
pursuant to Sections 1.16 and 1.80(f)(3) of the Rules.36 Mail the written statement to Federal
Communications Commission, Enforcement Bureau, Western Region, Denver District Office, 215 S.
Wadsworth Blvd., Suite 303, Lakewood, Colorado 80226. Skybeam shall also e-mail the written statement
to WR-Response@fcc.gov.
18.
The Commission will not consider reducing or canceling a forfeiture in response to a claim
of inability to pay unless the petitioner submits: (1) federal tax returns for the most recent three-year period;
(2) financial statements prepared according to generally accepted accounting practices (GAAP); or (3) some


34 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
35 See 47 C.F.R. § 1.1914.
36 47 C.F.R. §§ 1.16, 1.80(f)(3).
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DA 12-1549

other reliable and objective documentation that accurately reflects the petitioner’s current financial status.
Any claim of inability to pay must specifically identify the basis for the claim by reference to the financial
documentation submitted.
19.

IT IS FURTHER ORDERED

that a copy of this Notice of Apparent Liability for
Forfeiture and Order shall be sent by both Certified Mail, Return Receipt Requested, and regular mail to
Skybeam Acquisition Corporation at 400 Inverness Parkway, Suite 330, Englewood, Colorado 80112.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
District Director
Denver Office
Western Region
Enforcement Bureau
7

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