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VPNet to Pay $9,000 to Settle U-NII Operation Investigation

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Released: November 21, 2013

Federal Communications Commission

DA 13-2099

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
VPNet, Inc.
) File No: EB-11-SJ-0025
) NAL/Acct. No.: 201232680003
San Juan, PR
) FRN: 0021234265

ORDER

Adopted: November 21, 2013

Released: November 21, 2013

By the Regional Director, South Central Region, Enforcement Bureau:
1.
In this Order, we adopt the attached Consent Decree entered into between the
Enforcement Bureau of the Federal Communications Commission (Bureau) and VPNet, Inc. (VPNet).
The Consent Decree terminates the investigation and Notice of Apparent Liability for Forfeiture issued by
the Bureau of possible violations of Sections 301 and 302(b) of the Communications Act of 1934, as
amended (Act),1 and Section 15.1(b)–(c) of the Commission’s rules (Rules)2 concerning the operation of an
intentional radiator without a license and in a manner inconsistent with Part 15 of the Rules3 and the
device’s equipment authorization.
2.
The Bureau and VPNet have negotiated the terms of a Consent Decree that resolves this
matter. A copy of the Consent Decree is attached hereto and incorporated herein by reference.
3.
After reviewing the terms of the Consent Decree and evaluating the facts before us, we
find that the public interest would be served by adopting the Consent Decree, terminating the
investigation.
4.
Accordingly,

IT IS ORDERED

, pursuant to Section 4(i) and 503(b) of the
Communications Act of 1934, as amended,4 and Sections 0.111 and 0.311 of the Commission’s rules,5 the
Consent Decree attached to the Order

IS ADOPTED

.
5.

IT IS FURTHER ORDERED

that the above-captioned investigation

IS

TERMINATED

.


1 47 U.S.C. §§ 301, 302a(b); see also 47 C.F.R. § 15.407.
2 47 C.F.R. § 15.1(b)–(c).
3 47 C.F.R. §§ 15.1 et seq.
4 47 U.S.C. §§ 154(i), 503(b).
5 47 U.S.C. §§ 0.111, 0.311.

Federal Communications Commission

DA 13-2099

6.

IT IS FURTHER ORDERED

that a copy of this Order and Consent Decree shall be
sent by first class mail and certified mail, return receipt requested to VPNet, Inc. at POB 193780, San
Juan, PR 00919.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director
South Central Region
Enforcement Bureau
2

Federal Communications Commission

DA 13-2099

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
VPNet, Inc.
) File No: EB-11-SJ-0025
) NAL/Acct. No.: 201232680003
San Juan, PR
) FRN: 0021234265

CONSENT DECREE

1.
The Enforcement Bureau of the Federal Communications Commission (Bureau) and
VPNet, Inc. (VPNet), by their authorized representatives, hereby enter into this Consent Decree for the
purpose of terminating the Bureau’s investigation into whether VPNet violated Sections 301 and 302(b)
of the Communications Act of 1934, as amended, and Section 15.1(b)–(c) of the Commission’s rules,1 by
operating an intentional radiator without a license and in a manner inconsistent with Part 15 of the Rules2
and the device’s equipment authorization.

I.

DEFINITIONS

2.
For the purposes of this Consent Decree, the following definitions shall apply:
(a) “Act” means the Communications Act of 1934, as amended, 47 U.S.C. § 151 et seq.
(b) “Adopting Order” means an order of the Bureau adopting the terms of this Consent
Decree without change, addition, deletion, or modification.
(c) “Bureau” means the Enforcement Bureau of the Federal Communications
Commission.
(d) “Commission” and “FCC” mean the Federal Communications Commission and all of
its bureaus and offices.
(e) “Communications Laws” means collectively, the Act, the Rules, and the published
and promulgated orders and decisions of the Commission to which VPNet is subject
by virtue of its business activities, including but not limited to, the U-NII Rules.
(f) “Compliance Plan” means the compliance obligations, programs, and procedures
described in this Consent Decree at paragraphs 11, 12, 13, and 14.
(g) “Effective Date” means the date on which the Bureau releases the Adopting Order.


1 47 U.S.C. §§ 301, 302a(b); 47 C.F.R. § 15.1(b)–(c).
2 47 C.F.R. §§ 15.1 et seq.
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DA 13-2099

(h) “Investigation” means the investigation initiated by the Bureau on May 11, 2011 of
possible violations of Section 301 and 302(b) of the Act and Section 15.1(b)–(c) of
the Rules regarding VPNet’s operation of U-NII transmitters and culminating in the
Notice of Apparent Liability for Forfeiture and Order, DA 12-450.
(i) “Parties” means VPNet and the Bureau, and each of which is a “Party.”
(j) “Rules” means the Commission’s regulations found in Title 47 of the Code of
Federal Regulations.
(k) “U-NII” means Unlicensed National Information Infrastructure devices and services.
(l) “U-NII Rules” means collectively, Section 302(b) of the Act, 47 U.S.C. § 302a(b),
the Rules contained in Part 15, Subparts A, C, and E , 47 C.F.R. § 15.1 et seq.,
governing the use of unlicensed intentional radiators in U-NII frequency bands, and
other related Communications Laws.
(m) “VPNet” means VPNet, Inc.

II.

BACKGROUND

3.
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.3 An exception to the license requirement under Section
301 is found in Part 15 of the Rules,4 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 . . . .”5
Thus, if an intentional radiator fails to comply with the conditions set forth in its equipment authorization,
the operation is no longer covered by the unlicensed provisions of Part 15 and must be licensed pursuant
to Section 301 of the Act.
4.
Section 15.201(b) of the Rules6 provides that all intentional radiators operating under Part
15 shall be certificated by the Commission. Section 15.1(c) of the Rules7 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.”8 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.
5.
On May 11, 12, and 16, 2011, an agent from the Enforcement Bureau’s San Juan Office
observed VPNet operate a Part 15 intentional radiator–a Motorola Canopy–on the center frequency of
5637 MHz from the roof of the south tower of the Capitol Building Center complex in San Juan, Puerto
Rico. The Motorola Canopy used by VPNet is not certified for use with an external antenna connector or


3 47 U.S.C. § 301.
4 See 47 C.F.R. §§ 15.1 et seq.

5 47 C.F.R. § 15.1(b) (emphasis added).
6 47 C.F.R. § 15.201(b).
7 47 C.F.R. § 15.1(c).
8 47 U.S.C. § 302a(b).
2

Federal Communications Commission

DA 13-2099

with reflectors or lenses with antenna gains of more than 18 dBi. On May 16 and 17, 2011, agents from
the San Juan Office observed that the Motorola Canopy used by VPNet had an external antenna connector
and an external high-gain antenna.
6.
VPNet cooperated fully with agents from the Enforcement Bureau’s San Juan Office to
resolve this and other interference investigations. VPNet also has received no written violations prior to
the Notice of Apparent Liability issued as part of this Investigation.

III.

TERMS OF AGREEMENT

7.

Adopting Order.

The Parties agree that the provisions of this Consent Decree shall be
subject to final approval by the Bureau by incorporation of such provisions by reference in the Adopting
Order.
8.

Jurisdiction.

VPNet agrees that the Bureau has jurisdiction over it and the matters
contained in this Consent Decree and has the authority to enter into and adopt this Consent Decree.
9.

Effective Date; Violations.

The Parties agree that this Consent Decree shall become
effective on the Effective Date. Upon release, the Adopting Order and this Consent Decree shall have the
same force and effect as any other order of the Bureau. Any violation of the Adopting Order or of the
terms of this Consent Decree shall constitute a separate violation of a Bureau order, entitling the Bureau
to exercise any rights and remedies attendant to the enforcement of a Commission order.
10.

Termination of Investigation.

In express reliance on the covenants and representations
in this Consent Decree and to avoid further expenditure of public resources, the Bureau agrees to
terminate the Investigation. In consideration for the termination of the Investigation, VPNet agrees to the
terms, conditions, and procedures contained herein. The Bureau further agrees that in the absence of new
material evidence, the Bureau will not use the facts developed in this Investigation through the Effective
Date of the Consent Decree, or the existence of this Consent Decree, to institute, on its own motion, any
new proceeding, formal or informal, or take any action on its own motion against VPNet concerning the
matters that were the subject of the Investigation. The Bureau also agrees that it will not use the facts
developed in this Investigation through the Effective Date of this Consent Decree, or the existence of this
Consent Decree, to institute on its own motion any proceeding, formal or informal, or take any action on
its own motion against VPNet with respect to VPNet’s basic qualifications, including its character
qualifications, to be a Commission licensee or to hold Commission licenses or authorizations.
11.

Compliance Officer

. Within thirty (30) calendar days after the Effective Date, VPNet
shall designate a senior corporate manager with the requisite corporate and organizational authority to
serve as Compliance Officer and to discharge the duties set forth below. The person designated as the
Compliance Officer shall be responsible for developing, implementing, and administering the Compliance
Plan and ensuring that VPNet complies with the terms and conditions of the Compliance Plan and this
Consent Decree. In addition to the general knowledge of the Communications Laws necessary to
discharge his/her duties under this Consent Decree, the Compliance Officer shall have specific knowledge
of the U-NII Rules prior to assuming his/her duties.
12.

Compliance Plan.

For purposes of settling the matters set forth herein, VPNet agrees
that it shall within sixty (60) calendar days after the Effective Date, develop and implement a Compliance
Plan designed to ensure future compliance with the Communications Laws and with the terms and
conditions of this Consent Decree. With respect to the U-NII Rules, VPNet shall implement the
following procedures:

3

Federal Communications Commission

DA 13-2099

(a)
Inventory Assessment. VPNet shall review the specifications for all of its U-NII devices
in use to ensure that its U-NII devices are being operated consistent with those
specifications prior to submission of the second and third Compliance Reports. This
review shall include, but not be limited to, ensuring that only certified antennas are in
use, that devices are operating only on certified frequencies, that any required dynamic
frequency selection capabilities are in place, that the devices are operating with the
proper country code, and that the devices are deployed with current operating software
releases. New devices deployed after the review shall be checked prior to deployment to
ensure compliance with the U-NII Rules. VPNet shall include the results of its inventory
assessment in its second and third Compliance Reports and certify that it is checking new
devices for compliance prior to deployment.
(b)
Compliance Training Program. VPNet shall establish and implement a Compliance
Training Program on compliance with the U-NII Rules. As part of the Compliance
Training Program, employees who perform, supervise, oversee or manage the
performance of duties that relate to VPNet’s responsibilities under the U-NII Rules shall
be advised of VPNet’s obligation to report any noncompliance with the U-NII Rules
under paragraph 13 of this Consent Decree and shall be instructed on how to disclose
noncompliance to the Compliance Officer. All such employees shall be trained pursuant
to the Compliance Training Program within sixty (60) calendar days after the Effective
Date, except that any person who is assigned to a position with duties related to VPNet’s
compliance with the U-NII Rules any time after the Effective Date shall be trained within
thirty (30) calendar days after the date such person’s responsibilities relating to the U-NII
Rules begin. VPNet shall repeat the compliance training on an annual basis, and shall
periodically review and revise the Compliance Training Program as necessary to ensure
that it remains current and complete and to enhance its effectiveness.
13.

Reporting Noncompliance

. VPNet shall report any noncompliance with the U-NII
Rules and with the terms and conditions of this Consent Decree within fifteen (15) calendar days after
discovery of such noncompliance. Such reports shall include a detailed explanation of (i) each instance of
noncompliance; (ii) the steps that VPNet has taken or will take to remedy such noncompliance; (iii) the
schedule on which such remedial actions will be taken; and (iv) the steps that VPNet has taken or will
take to prevent the recurrence of any such noncompliance. All reports of noncompliance shall be
submitted to the Regional Counsel, South Central Region, Enforcement Bureau, Federal Communications
Commission, Atlanta Office, 3575 Koger Blvd. Suite 320, Duluth, GA 30096, with a copy submitted
electronically to SCR-Response@fcc.gov. The obligations set forth in this paragraph 13 shall expire
thirty-six (36) months after the Effective Date.
14.

Compliance Reports

. VPNet shall file Compliance Reports with the Commission within
ninety (90) days of the Effective Date, twelve (12) months after the Effective Date, twenty-four (24)
months after the Effective Date, and thirty-six (36) months after the Effective Date.
(a)
Each Compliance Report shall include a detailed description of VPNet’s efforts during
the relevant period to comply with the terms and conditions of this Consent Decree and
the U-NII Rules. In addition, each Compliance Report shall include a certification by the
Compliance Officer, as an agent of and on behalf of VPNet, stating that the Compliance
Officer has personal knowledge that VPNet (i) has established and implemented the
Compliance Plan; and (ii) is not aware of any instances of noncompliance with the terms
and conditions of this Consent Decree, including the reporting obligations set forth in
paragraph 13 hereof.
4

Federal Communications Commission

DA 13-2099

(b)
The Compliance Officer’s certification shall be accompanied by a statement explaining
the basis for such certification and must comply with Section 1.16 of the Rules, 47 C.F.R.
§ 1.16, and be subscribed to as true under penalty of perjury in substantially the form set
forth therein.
(c)
If the Compliance Officer cannot provide the requisite certification, the Compliance
Officer, as an agent of and on behalf of VPNet, shall provide the Commission with a
detailed explanation of the reason(s) why and describe fully (i) each instance of
noncompliance; (ii) the steps that VPNet has taken or will take to remedy such
noncompliance, including the schedule on which proposed remedial actions will be taken;
and (iii) the steps that VPNet has taken or will take to prevent the recurrence of any such
noncompliance, including the schedule on which such preventive action will be taken.
(d)
All Compliance Reports shall be submitted to the Regional Counsel, South Central
Region, Enforcement Bureau, Federal Communications Commission, Atlanta Office,
3575 Koger Blvd. Suite 320, Duluth, GA 30096, with a copy submitted electronically to
SCR-Response@fcc.gov.
15.

Termination Date.

Unless stated otherwise, the obligations set forth in paragraphs 11-
14 of this Consent Decree shall expire thirty-six (36) months after the Effective Date.
16.

Voluntary Contribution.

VPNet agrees that it will make a voluntary contribution to the
United States Treasury in the amount of nine thousand dollars ($9,000) (Voluntary Contribution), with
such Voluntary Contribution to be made in installments (each an Installment Payment). The first
Installment Payment in the amount of five hundred sixty two dollars and fifty cents ($562.50) is due
within thirty (30) calendar days of the Effective Date. The balance of the Voluntary Contribution will be
made in fifteen consecutive monthly payments of five hundred sixty two dollars and fifty cents ($562.50)
payable on the first day of each month beginning with the second month following the Effective Date.
The final payment is due on the first day of sixteenth month following the Effective Date (Maturity
Date). VPNet acknowledges and agrees that upon execution of this Consent Decree, the Voluntary
Contribution and each Installment Payment shall become a “Claim “ or “Debt” as defined in 31 U.S.C. §
3701(b)(1). Upon an Event of Default, all procedures for collection permitted by law may, at the
Commission’s discretion, be initiated. In addition, VPNet agrees that it will make the first and all
subsequent Installment Payments in United States Dollars without further demand or notice by the dates
specified above. Installment Payments must be made by check or similar instrument, payable in United
States Dollars to the order of the Federal Communications Commission. The payments must include the
Account Number and FRN referenced in the caption to the Adopting Order. Payments by check or
money order may be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payments by overnight mail may be sent to U.S. Bank – Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payments by wire transfer may be made
to ABA Number 021030004, receiving bank TREAS/NYC, and Account Number 27000001. Regardless
of form of payment, an FCC Form 159 (Remittance Advice) must be submitted. 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). VPNet shall also send electronic notification to
SCR-Response@fcc.gov on the date each Installment Payment is made.
17.

Event of Default

. VPNet agrees that an Event of Default shall occur upon the failure by
VPNet to pay the full amount of any Installment Payment on or before the due date specified in this
Consent Decree.
5

Federal Communications Commission

DA 13-2099

18.

Interest, Charges for Collection, and Acceleration of Maturity Date

. After an Event
of Default has occurred under this Consent Decree, the then unpaid amount of the Voluntary Contribution
shall accrue interest, computed using the U.S. Prime Rate in effect on the date of the Event of Default
plus 4.75 percent, from the date of the Event of Default until payment in full. Upon an Event of Default,
the then unpaid amount of the Voluntary Contribution, together with interest, as aforesaid, any penalties
permitted and/or required by the law, including but not limited to 31 U.S.C. § 3717 and administrative
charge(s), plus the costs of collection, litigation, and attorneys’ fees, shall become immediately due and
payable, without notice, presentment, demand, protest, or notice of protest of any kind, all of which are
waived by VPNet.
19.

Waivers.

VPNet waives any and all rights it may have to seek administrative or judicial
reconsideration, review, appeal, or stay, or to otherwise challenge or contest the validity of this Consent
Decree and the Adopting Order, provided the Bureau issues an Adopting Order as described herein.
VPNet shall retain the right to challenge Commission interpretation of the Consent Decree or any terms
contained herein. If either Party (or the United States on behalf of the Commission) brings a judicial
action to enforce the terms of the Adopting Order, neither VPNet nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and VPNet shall waive any statutory right to a trial
de novo. VPNet hereby agrees to waive any claims it may otherwise have under the Equal Access to
Justice Act, 5 U.S.C. § 504 and 47 C.F.R. § 1.1501 et seq., relating to the matters addressed in this
Consent Decree.
20.

Invalidity.

In the event that this Consent Decree in its entirety is rendered invalid by a
court of competent jurisdiction, it shall become null and void and may not be used in any manner in any
legal proceeding.
21.

Subsequent Rule or Order.

The Parties agree that if any provision of the Consent
Decree conflicts with any subsequent Rule or order adopted by the Commission (except an order
specifically intended to revise the terms of this Consent Decree to which VPNet does not expressly
consent) that provision will be superseded by such Rule or Commission order.
22.

Successors and Assigns.

VPNet agrees that the provisions of this Consent Decree shall
be binding on its successors, assigns, and transferees.
23.

Final Settlement.

The Parties agree and acknowledge that this Consent Decree shall
constitute a final settlement between the Parties. The Parties further agree that this Consent Decree does
not constitute either an adjudication on the merits or a factual or legal finding or determination regarding
any compliance or noncompliance with the requirements of the Communications Laws.
24.

Modifications.

This Consent Decree cannot be modified without the advance written
consent of both Parties.
25.

Paragraph Headings

. The headings of the paragraphs in this Consent Decree are
inserted for convenience only and are not intended to affect the meaning or interpretation of this Consent
Decree.
26.

Authorized Representative.

Each Party represents and warrants to the other that it has
full power and authority to enter into this Consent Decree. Each person signing this Consent Decree on
behalf of a Party hereby represents that he or she is fully authorized by the Party to execute this Consent
Decree and to bind the Party to its terms and conditions.
6

Federal Communications Commission

DA 13-2099

27.

Counterparts.

This Consent Decree may be signed in any number of counterparts
(including by facsimile), each of which, when executed and delivered, shall be an original, and all of
which counterparts together shall constitute one and the same fully executed instrument.
______________________________
Dennis P. Carlton
Regional Director
South Central Region
Enforcement Bureau
________________________________
Date

VPNet, Inc.

________________________________
Felipe J. Hernandez
President
VPNet, Inc.
________________________________
Date
7

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