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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No: EB-11-SJ-0003
Ayustar Corporation ) NAL/Acct. No.: 201132680002
San Juan, PR ) FRN: 0008739229
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: July 29, 2011 Released: July 29, 2011
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order ("NAL"),
we find that Ayustar Corporation ("Ayustar"), operator of an
Unlicensed National Information Infrastructure ("U-NII") transmission
system in Santurce, Puerto Rico, apparently willfully and repeatedly
violated sections 301 and 302(b) of the Communications Act of 1934, as
amended ("Act"), and sections 15.1(b) and 15.1(c) of the Commission's
rules ("Rules") by operating an intentional radiator not in accordance
with Part 15 of the Rules and the device's Equipment Authorization,
without a license. We conclude that Ayustar is apparently liable for a
forfeiture in the amount of twenty-five thousand dollars ($25,000). We
further order Ayustar to submit a sworn statement certifying that it
is now 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 level. Such devices must be
authorized and operated in accordance with the Part 15 Rules. For
example, section 15.5 of the Rules provides that operation of an
intentional radiator must not cause harmful interference. If harmful
interference occurs, the operation of the device must cease upon
notification of such interference.
3. 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.
4. As part of its ongoing coordination efforts with the Federal Aviation
Administration ("FAA"), the Enforcement Bureau received a complaint
about radio emissions causing interference to the FAA's Terminal
Doppler Weather Radar ("TDWR") installation serving the San Juan
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. 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.
5. On December 7, 2010, agents from the Enforcement Bureau's San Juan
Office ("San Juan Office") conducted an investigation on the roof of
the Miramar Plaza Condominium Building in Santurce, Puerto Rico. The
agents from the San Juan Office confirmed by direction-finding
techniques that radio emissions on the frequency 5626 MHz were
emanating from the building's roof, the location of one of Ayustar's
U-NII transmitters, a Motorola Canopy. The Canopy model is certified
for use as a Part 15E intentional radiator only in the 5745.0 - 5805.0
MHz band. The device also is not capable of DFS functionality.
6. On December 8, 2010, agents from the San Juan Office again confirmed
using direction- finding techniques that Ayustar's U-NII radio
transmitter on the roof of the Miramar Plaza Condominium Building was
operating on the frequency 5626 MHz. The agents conducted additional
tests and found that when Ayustar changed the frequency for its device
to 5748 MHz, the interference to the TDWR ceased, thereby confirming
that Ayustar's operations were the source of the interference.
According to Commission records, Ayustar does not hold a license to
operate on the frequency 5626 MHz from the Miramar Plaza Condominium
Building. Ayustar denied intentionally operating on the frequency 5626
MHz and asserted it did not know how such operation was possible.
III. DISCUSSION
7. 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. 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. The legislative
history to section 312(f)(1) of the Act clarifies that this definition
of willful applies to both section 312 and 503(b) of the Act and the
Commission has so interpreted the term in the section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. The term "repeated" means the
commission or omission of such act more than once or for more than one
day.
8. Section 301 of the Act requires that no person shall use or operate
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. Part 15 of the Rules,
however, sets forth conditions under which intentional radiators may
operate without an individual license. Pursuant to section 15.1(b) of
the Rules, "the operation of an intentional or unintentional radiator
that is not in accordance with the regulations in [Part 15] must be
licensed pursuant to the provisions of section 301 of the
Communications Act...." Thus, if an intentional radiator fails to
comply with all of the applicable conditions set forth in Part 15 of
the Rules, it is no longer covered by the unlicensed provisions of
those Rules and must obtain an individual license pursuant to section
301 of the Act.
9. On December 7 and 8, 2010, as described above, agents from the San
Juan Office observed an Ayustar Part 15E intentional radiator,
Motorola Canopy operating on the center frequency of 5626 MHz from the
roof of a building in Santurce, Puerto Rico. The device is not
certified for use on that frequency. Therefore, Ayustar's operations
did not comply with either the Part 15 requirements or the Equipment
Authorization and thus required a license. According to Commission
records, however, Ayustar does not hold a license to operate on the
frequency 5626 MHz in Santurce, Puerto Rico. Although Ayustar denies
knowing it was operating on the frequency 5626 MHz, Ayustar does not
deny knowingly operating its Part 15E intentional radiator, Motorola
Canopy on the building rooftop in Santurce, Puerto Rico. Thus, based
on the evidence before us, we find that Ayustar apparently willfully
and repeatedly violated section 301 of the Act and section 15.1(b) of
the Rules by operating an unlicensed radio transmitter on December 7
and 8, 2010.
10. Section 15.201(b) of the Rules provides that all intentional radiators
operating under Part 15 shall be certificated by the Commission.
Section 15.1(c) of the Rules 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."
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. Section 15.504(h)(2) of the Rules requires U-NII devices
operating in the 5.47 - 5.725 GHz band to employ DFS. Ayustar operated
a U-NII transmitter that was incapable of operating with the DFS radar
detection mechanism required under section 15.407(h)(2) of the Rules.
Thus, based on the evidence before us, we find that Ayustar apparently
willfully and repeatedly violated section 302(b) of the Act and
section 15.1(c) of the Rules by operating a U-NII transmitter without
DFS capability on a frequency for which it was required on December 7
and 8, 2010.
11. 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. 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.
12. Because Ayustar caused interference to the San Juan International
Airport's TDWR and posed a safety hazard to air traffic, we believe an
upward adjustment in the forfeiture amount for Ayustar's apparent
unlicensed operation is warranted. On March 11, 2009 and August 22,
2009, Ayustar operated Part 15 radio transmitters manufactured by
Motorola in the same unauthorized frequency band and caused
interference to the TDWR at the San Juan Airport, the very same
activity at issue today. Accordingly, we find Ayustar's apparent
violation to be egregious and deserving of an additional upward
adjustment. Based on these factors, we find that $10,000 is an
appropriate upward adjustment for Ayustar's apparent unlicensed
operation, resulting in a $20,000 proposed forfeiture for this
apparent violation. We propose the base forfeiture amount ($5,000) for
Ayustar's operation of unauthorized equipment in apparent violation of
section 302(b) of the Act and section 15.1(c) of the Rules.
13. Although we could impose larger upward adjustments for Ayustar's
apparent violations, we decline to do so based on the particular
circumstances of this case. We caution Ayustar and other U-NII service
providers, however, that we may do so in future cases if the
circumstances warrant or if our current approach does not serve as a
sufficient deterrent. Applying the Forfeiture Policy Statement,
section 1.80 of the Rules, and the statutory factors to the instant
case, we conclude that Ayustar is apparently liable for a total
forfeiture of $25,000 consisting of the following: $20,000 for
unlicensed operation in violation of section 301 of the Act and
section 15.1(b) of the Rules, and $5,000 for operation of unauthorized
equipment in violation of section 302(b) of the Act and section
15.1(c) of the Rules.
14. We direct Ayustar to submit a statement signed under penalty of
perjury by an officer or director of Ayustar stating that it is
currently operating its U-NII transmitter located on the rooftop of
the Miramar Plaza Building in Santurce, Puerto Rico consistent with
the Part 15 requirements and the Equipment Authorization. Ayustar
shall also provide the frequency on which its U-NII transmitter is
operating. This statement must be provided to the San Juan Office at
the address listed in paragraph 20 within thirty days of the release
date of this Notice of Apparent Liability for Forfeiture and Order.
IV. ORDERING CLAUSES
15. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Ayustar Corporation is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty-five thousand dollars ($25,000) for violations of
sections 301, and 302(b) of the Act and sections 15.1(b) and 15.1(c)
of the Rules.
16. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the
Commission's Rules, within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture and Order, Ayustar
Corporation SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
17. IT IS FURTHER ORDERED that, within thirty days of the release date of
this Notice of Apparent Liability for Forfeiture and Order, Ayustar
Corporation SHALL SUBMIT a sworn statement as described in paragraph
14 to the San Juan Office listed below.
18. Ayustar Corporation is HEREBY NOTIFIED that its operation of a
Motorola Canopy transceiver resulted in harmful interference to the
FAA's TDWR system that serves the San Juan International Airport.
Ayustar is HEREBY WARNED that any further operation of any U-NII
device, including the Motorola Canopy transceiver, on any frequency,
and at any location, that results in interference to the FAA's TDWR
system serving the San Juan International Airport may be considered a
willful violation of section 333 of the Act, which prohibits willful
or malicious interference to any radio communication of any station
licensed or authorized under the Act or operated by the United States
Government.
19. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the Account Number and FRN
referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. Ayustar shall send
electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
20. 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 1.80(f)(3) and 1.16 of the Rules. The written statement must
be mailed to Federal Communications Commission, Enforcement Bureau,
South Central Region, US Federal Building, Room 762, San Juan, PR,
00918-1731 and must include the NAL/Acct. No. referenced in the
caption. The statement should also be emailed to SCR-Response@fcc.gov.
21. 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 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.
22. 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 Ayustar at POB 16892, San
Juan, PR 00908-6892.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
47 U.S.C. S:S: 301, 302a(b); see also 47 C.F.R. S: 15.407.
47 C.F.R. S: 15.1(b), (c).
47 C.F.R. S:S: 15.1 et seq.
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 3491 (1989).
47 C.F.R. S:S: 15.1(a), 15.5.
47 C.F.R. S: 15.5.
Id.
47 C.F.R. S: 15.1(c); see also 47 U.S.C. S: 302a(b).
47 C.F.R. S: 15.1(b); see also 47 U.S.C. S: 301.
MIT Lincoln Laboratories,
http://www.ll.mit.edu/mission/aviation/faawxsystems/tdwr.html (last
visited Jan. 26, 2011).
See 47 C.F.R. S: 15.407(h)(2). See also 47 C.F.R. S: 15.407(h)(2)
(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."). 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://www.wi-fi.org/files/FCC_Memorandum_on_UNII_Device_Operation_2010_07_27-M.pdf
(last visited June 28, 2011).
The device was a Motorola Canopy model # 5700, FCC ID ABZ89FC4816.
Because this device is not authorized to be used on the 5.25 - 5.35 GHz
and 5.47 - 5.725 GHz frequency bands, the Rules do not require it to have
DFS functionality when manufactured. Devices operating on the 5.25 - 5.35
GHz and 5.47 - 5.725 GHz frequency bands, however, must have DFS
functionality. See supra note 10.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
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 ...").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) ("Southern
California Broadcasting Co.").
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10 (2001) ("Callais
Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 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."
47 U.S.C. S: 301.
See 47 C.F.R. S:S: 15.1 et seq.
47 C.F.R. S: 15.1(b).
47 C.F.R. S: 15.201(b).
47 C.F.R. S: 15.1(c).
47 U.S.C. S: 302a(b).
47 C.F.R. S: 15.407(h)(2).
47 C.F.R. S: 15.1(c).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S:1.80.
47 U.S.C. S: 503(b)(2)(E).
See Ayustar Corporation, Forfeiture Order, 25 FCC Rcd 945 (Enf. Bur.),
recon. denied, 25 FCC Rcd 16249 (Enf. Bur. 2010).
47 U.S.C. S:S: 301, 302a(b), 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314,
1.80, 15.1(b), 15.1(c).
47 U.S.C. S: 333.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.80(f)(3), 1.16.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 11-1313
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Federal Communications Commission DA 11-1313