Federal Communications Commission
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Skybeam Acquisition Corporation
) File No: EB-FIELDWR-12-00002769
) NAL/Acct. No.: 201232800009
) FRN: 0021775820
Adopted: February 7, 2014
Released: February 7, 2014
By the Regional Director, Western Region, Enforcement Bureau:
In this Forfeiture Order (Order), we issue a monetary forfeiture in the amount of twelve
thousand dollars ($12,000) to Skybeam Acquisition Corporation (Skybeam), operator of an Unlicensed
National Information Infrastructure (U-NII) transmission system in Parker, Colorado, for willful and
repeated violation of Sections 301 and 302(b) of the Communications Act of 1934, as amended, (Act)1
and Sections 15.1(b) and 15.1(c) of the Commission’s rules (Rules).2 The violations involved Skybeam’s
operation of an intentional radiator not in accordance with Part 15 of the Rules3 and the device’s
As discussed in detail in the Notice of Apparent Liability for Forfeiture and Order in this
case,5 on September 29, 2011, while searching for the source of interference to the Federal Aviation
Administration’s (FAA) Terminal Doppler Weather Radar (TDWR) serving the Denver International
Airport, agents from Enforcement Bureau’s Denver Office (Denver Office) used direction-finding
techniques to determine that radio emissions on frequency 5610 MHz 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 system operated by
Skybeam and determined that Skybeam’s U-NII system utilized a transceiver module (a Motorola Canopy
5700BH20), which is an intentional radiator.6 The FCC Equipment Authorization for the Motorola
1 47 U.S.C. §§ 301, 302a(b).
2 47 C.F.R. § 15.1(b), (c).
3 47 C.F.R. §§ 15.1 et seq.
4 47 C.F.R. §§ 15.1, 15.407.
5 Skybeam Acquisition Corporation
, Notice of Apparent Liability for Forfeiture and Order, 27 FCC Rcd 11337,
11338–11339 (Enf. Bur. 2012) (NAL
). A comprehensive recitation of the facts and history of this case can be found
in the NAL
and is incorporated herein by reference.
6 The device was a Motorola Canopy model # BH5700BH20, FCC ID ABZ89FC5804 (Model 5700xx Canopy radio
(Wireless Ethernet)). On June 4, 2003, Motorola Solutions, Inc. received a Grant of Equipment Authorization for
Federal Communications Commission
Canopy 5700BH20 transceiver limits the device to operations within a frequency range of 5735 MHz to
5840 MHz.7 The agents determined that the transceiver had been operating on 5610 MHz and that the
device also was not operating with Dynamic Frequency Selection (DFS), a functionality which allows U-
NII transmitters operating in the 5.25-5.35 GHz and 5.47-5.725 GHz bands to detect the presence of FAA
radar systems and avoid co-channel operations with radar systems. In addition, 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 interference
with the Denver TDWR installation.8
On September 27, 2012, the Denver Office issued the NAL
to Skybeam for its operation of
an U-NII device on a frequency for which the device was not authorized and without a license. Skybeam
submitted a response to the NAL
requesting rescission or reduction of the proposed $15,000 forfeiture,9
because Skybeam deactivated the device the day after it was notified by the Denver agents;10 the device
cannot operate on the frequency 5875 MHZ and therefore the NAL
is incorrect;11 and its history of no
The proposed forfeiture amount in this case was assessed in accordance with Section
503(b) of the Act,13 Section 1.80 of the Rules,14 and the Forfeiture Policy Statement
.15 In examining
Skybeam’s response, Section 503(b)(2)(E) of the Act requires that the Commission take into account the
nature, circumstances, extent, and gravity of the violation 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.16
As discussed below, we have considered Skybeam’s response in light of these statutory factors, and find
that a reduction of the forfeiture based on its history of compliance is justified.
the Motorola 5700xx Canopy radio from Elite Electronic Engineering, Inc. under the authority of the FCC.
7 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).
8 The interference to the Denver TDWR ceased as a result of Skybeam’s adjustment to the transceiver’s operating
9 Response of Skybeam Acquisition Corporation and LP Broadband (Oct. 26, 2012) (on file in EB-FIELDWR-12-
00002769) (NAL Response
). We note that Skybeam does not object to, and has complied with, the directive in the NAL
ordering submission of a written statement, under penalty of perjury, stating that the U-NII system is operating
in compliance with FCC rules and applicable authorizations. See NAL,
27 FCC Rcd at 11341, and NAL Response
3 and 5. LP Broadband, Inc., a corporation affiliated with 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).
10 See NAL Response
11 See id.
12 See id.
13 47 U.S.C. § 503(b).
14 47 C.F.R. § 1.80.
15 The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the
, Report and Order, 12 FCC Rcd 17087 (1997), recons. denied
, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement
16 47 U.S.C. § 503(b)(2)(E).
Federal Communications Commission
We find that the evidence supports the Denver Office’s findings that, on September 29 and
September 30, 2011, Skybeam operated its Motorola Canopy 5700BH20 transceiver on frequencies for
which that device was not certified, and without DFS functionality. Skybeam argues that it corrected the
violation the day after it was notified by the Denver agents and that it should have received a warning rather
than the NAL
. 17 We find no merit in Skybeam’s argument. As licensees,18 Skybeam and its affiliated
companies are expected to comply with the Rules,19 and, in any event, the Commission is under no
obligation to warn any entity, whether a licensee or not, that it is operating without a license as required
under Section 301 of the Act, and then wait until the entity violates the Act again before proposing a
forfeiture against that entity.20 Corrective action taken to come into compliance with the Act or Rules is
expected and does not mitigate forfeitures assessed or proposed for violations of the Act or Rules.21
Skybeam also argues that the Motorola Canopy 5700BH20 transceiver was not capable of
operating on frequencies above 5850 MHz and that the NAL
is therefore factually inaccurate.22 We
disagree. Although Skybeam attaches to its NAL Response
a screenshot entitled “Device Information”
showing the device’s channel selections, ranging from “5600” to “5850,” we find that this information is
not dispositive.23 On September 30, 2011, the Denver agents captured on FCC equipment screenshots
that showed Skybeam operating on the frequency 5870/5875 MHz.24 In addition, on that same day,
17 NAL Response
at 2. Skybeam also alleges that “LP Broadband employees were prepared to deactivate the U-NII
equipment on the same day they received notice from the FCC [but] the FCC’s field agents directed LP Broadband’s
employees not to deactivate the equipment until the following day when additional inspections and testing would
at 2 n.2. There is no evidence, other than this allegation, that the Denver agents directed Skybeam’s
illegal operation. Despite repeated attempts, the Denver agents were unable to contact the Skybeam personnel by
phone on September 29, 2011, and had to leave them repeated messages about the interference and request for
inspection. Skybeam and its associated companies, on the other hand, were obviously in control of the device, had
willfully installed the device as a temporary backhaul when a link in their operations had gone down the prior
weekend, willfully operated the device on a frequency the device had no authority to operate on, willfully operated
on that frequency without notching out the TDWR frequencies, willfully changed the operating frequency of the
device to 5875 MHz the day after receiving notice of the interference and on the morning of the scheduled
inspection which eliminated the interference to the Denver International Airport TDWR while maintaining service
to customers, and willfully changed the operating frequency of the device during the inspection pending replacement
of the Motorola device.
18 See supra
note 9. Skybeam also alleges that although LP Broadband and Skybeam are affiliated, LP Broadband,
not Skybeam, was the actual operator of the U-NII device and, therefore, requests that Skybeam be removed from
the proceeding. NAL Response
at 1 n.1. Because the operator of the device (the Field Infrastructure Supervisor for
Northern Colorado) identified himself, with credentials, as being employed by Skybeam, we decline to remove
Skybeam from this proceeding. We note that Skybeam and LP Broadband are affiliated, and that according to a
recent filing made with the Commission, JAB Wireless, Inc., currently controls 100 percent of each entity. See FCC
Ownership Disclosure Information For The Wireless Telecommunications Services,
File No. 0005696269 (filed
March 18, 2013).
19 See Discussion Radio Incorporated
, Memorandum Opinion and Order and Notice of Apparent Liability for
Forfeiture, 19 FCC Rcd 7433 (2004) (a Commission licensee is charged with knowledge of the full range of its
obligations pursuant to the Act, the Rules and its authorization).
Section 1.80(d) of the Rules, 47 C.F.R. § 1.80(d) (the Commission is not required to issue a citation prior to
the issuance of a NAL if the non-licensee “is engaged in (and the violation relates to) activities for which a license,
permit, certificate, or other authorization is required”). See also
47 U.S.C. § 503(b)(5).
21 See Seawest Yacht Brokers
, Forfeiture Order, 9 FCC Rcd 6099 (1994) (declining to mitigate a forfeiture based on
subsequent compliance efforts).
22 NAL Response
at Attachment 1.
24 The reference to frequency 5870/5875 MHz refers to the same observation. Frequency 5870 MHz refers to the
lower edge to the spectrum capture, while frequency 5875 MHz refers to the center frequency.
Federal Communications Commission
Skybeam’s Field Infrastructure Supervisor for Northern Colorado performed the on/off tests with the
Denver agents and then gave the agents screen captures from his own equipment showing the Motorola
Canopy 5700BH20 in operation on frequency 5870/5875 MHz as well as on frequency 5610 MHz. Given
that Skybeam’s own contemporaneous evidence contradicts the statements in its NAL Response
, we find
no merit to Skybeam’s argument.
Skybeam also requests that the proposed forfeiture be reduced based on its history of
compliance with the Rules.25 We note that prior to this violation, Skybeam had no violations of the Act or
the Rules and, therefore, consistent with the adjustment factors,26 we find that reduction of the forfeiture
based on Skybeam’s history of compliance with the Rules is warranted and reduce the forfeiture by
$3,000.27 Therefore, after consideration of the entire record and the factors listed above, we find that a
forfeiture in the amount of $12,000 is warranted.28
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(f)(4) of the Commission’s
rules, Skybeam Acquisition Corporation
IS LIABLE FOR A MONETARY FORFEITURE
amount of twelve thousand dollars ($12,000) for violations of Sections 301 and 302(b) of the
Communications Act and Section 15.1(b) and 15.1(c) of the Commission’s rules.29
Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the
Rules within thirty (30) calendar days after the release date of this Forfeiture Order.30 If the forfeiture is
not paid within the period specified, the case may be referred to the U.S. Department of Justice for
enforcement of the forfeiture pursuant to Section 504(a) of the Act.31 Skybeam Acquisition Corporation
shall send electronic notification of payment to WR-Response@fcc.gov
on the date said payment is made.
The payment must be made by check or similar instrument, wire transfer, or credit card, and must include
the NAL/Account number and FRN referenced above. Regardless of the form of payment, a completed
25 NAL Response
26 47 C.F.R. § 1.80(b)(5), Note: Guidelines for Assessing Forfeitures, Section II, Adjustment Criteria for Section 503
Forfeitures (for forfeitures proposed and assessed under Section 503(b) of the Act, as this one is, the adjustment
factors included by the Commission in its downward adjustment criteria in Section 1.80 are: (1) minor violation; (2)
good faith or voluntary disclosure; (3) history of compliance; and (4) inability to pay).
27 We note that both JAB Wireless, Inc., and LP Broadband also have a history of compliance with the Act and the
Rules as well. See supra
28 We note that subsequent to the release of this NAL
, the Enforcement Bureau released a Notice of Apparent
Liability for Forfeiture and Order to Directlink, LLC, in the amount of $25,000, for operation of an intentional
radiator without a license and for operation inconsistent with Part 15 of the Rules, when the operation resulted in
interference to a TDWR installation. See Directlink, LLC
, Notice of Apparent Liability for Forfeiture and Order, 28
FCC Rcd 37 (Enf. Bur. 2013). The Commission then issued a Notice of Apparent Liability for Forfeiture and Order
in the amount of $202,000 to Towerstream Corporation for operating radio transmitters without a license and
causing harmful interference to TDWR installations. See Towerstream Corporation
, Notice of Apparent Liability
for Forfeiture and Order, 28 FCC Rcd 11604 (2013). With these sanctions, the Commission and the Bureau have
emphasized the critical nature of these violations and have put U-NII operators on notice that operation that deviates
from the requirements of the Rules and results in interference to TDWR installations will result in forfeitures of at
29 47 U.S.C. §§ 301, 302a(b), 503(b); 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80(f)(4), 15.1(b), 15.1(c).
30 47 C.F.R. § 1.80.
31 47 U.S.C. § 504(a).
Federal Communications Commission
FCC Form 159 (Remittance Advice) must be submitted.32 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
Any request for full payment over time 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. 20554.33 If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by
IT IS FURTHER ORDERED
that a copy of this Order shall be sent by both First Class
and Certified Mail, Return Receipt Requested, to Skybeam Acquisition Corporation, 400 Inverness
Parkway, Suite 330, Englewood, Colorado 80112, and to its counsel, K.C. Halm, Esquire, Davis Wright
Tremaine LLP, 1919 Pennsylvania Avenue, NW, Suite 800, Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
32 An FCC Form 159 and detailed instructions for completing the form may be obtained at http://www.fcc.gov/Forms/Form159/159.pdf
47 C.F.R. § 1.1914.