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                                   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 Corporation (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) and Sections 15.1(b) and 15.1(c) of the Commission's
       rules (Rules) by operating an intentional radiator without a license
       and in a manner inconsistent with Part 15 of the Rules 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. Such devices must be
       authorized and operated in accordance with the Part 15 Rules. For
       example, Section 15.1(c) of the Rules provides that intentional
       radiators must operate 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 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 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. 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. 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. 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 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. 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 Sections 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. 

   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. An exception to the license requirement under
       Section 301 is found in Part 15 of the Rules, 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 ... ." 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.

    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. The U-NII
       system utilized a transceiver module model Canopy 5700BH20, an
       intentional radiator manufactured by Motorola, Inc. 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.
       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.

    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 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. 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 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.

    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. 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. 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.

   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.

   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.

   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. 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.  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. 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 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

   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).

   47 U.S.C. S:S: 301, 302a(b).

   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 3493 (1989).

   See 47 C.F.R. S: 15.1(c). Section 15.201(b) of the Rules provides that all
   intentional radiators operating under Part 15 of the Rules shall be
   certificated by the Commission. 47 C.F.R. S: 15.201(b). The Commission
   issues equipment authorizations for such devices, setting for the relevant
   conditions to the grant.

   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).

   47 C.F.R. S: 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.

   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.

   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).

   See 47 C.F.R. S: 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).

   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), recons. denied,
   7 FCC Rcd 3454 (1992).

   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).

   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." See Callais Cablevision, Inc., 16 FCC Rcd  at
   1362.

   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)(emphasis added).

   See  supra note 6.

   See supra note 8.

   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.

   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).

   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.

   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: 15.1(c).

   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. S: 1.80.

   47 U.S.C. S: 503(b)(2)(E).

   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).

   47 U.S.C. S:S: 301, 302a(b), 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311,
   0.314, 1.80, 15.1(b), 15.1 (c).

   An FCC Form 159 and detailed instructions for completing the form may be
   obtained at http://www.fcc.gov/Forms/Form159/159.pdf.

   See 47 C.F.R. S: 1.1914.

   47 C.F.R. S:S: 1.16, 1.80(f)(3).

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 12-1549

                                       7

   Federal Communications Commission DA 12-1549