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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Custom Computers d.b.a. Winchester Wireless Operator of
Wireless Internet Service Provider Winchester, VA ) ) ) ) ) ) ) File No.:
EB-FIELDNER-13-00009170 NAL/Acct. No.: 201432340001 FRN: 0023200199
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: March 10, 2014 Released: March 11, 2014
By the District Director, Columbia Office, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Custom Computers d.b.a. Winchester Wireless (Winchester
Wireless), a Wireless Internet Service Provider in Winchester,
Virginia, apparently willfully violated Section 301 of the
Communications Act of 1934, as amended (Act),^ and Section 15.1(b) of
the Commission's rules (Rules)^ by operating intentional radiators not
in accordance with Part 15 of the Rules^ and without a license. We
conclude that Winchester Wireless is apparently liable for a
forfeiture in the amount of twenty-five thousand dollars ($25,000).
In addition, we direct Winchester Wireless to submit, no later than
thirty (30) calendar days from the date of this NAL, a statement
signed under penalty of perjury stating that it is currently operating
its Wireless Internet Service 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.^ 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 Section 301 of the Act.^
3. On May 10, 2011, in response to a complaint, an agent from the
Enforcement Bureau's Columbia Office (Columbia Office) inspected a
transmitter device operated by Winchester Wireless on the roof of a
residence at Wardensville Grade in Winchester, Virginia. During the
inspection, the agent determined that the device was a Motorola Canopy
transmitter^ and that the transmitter was connected to two external RF
Linx 900 MHz amplifiers that were individually fed into two antennas.
When the agent later interviewed David Williamson, the owner of
Winchester Wireless, at Winchester Wireless's main office, Mr.
Williamson admitted to using the amplifiers. The agent subsequently
reviewed the FCC certification for the Motorola Canopy System, which
indicated that the Motorola Canopy System is not certified for use
with external amplifiers.^
4. On August 11, 2011, the Columbia Office issued a Notice of Unlicensed
Operation to Winchester Wireless regarding its unauthorized use of the
external amplifiers at Wardensville Grade.^ The 2011 Notice directed
Winchester Wireless to cease operating any transmitting devices until
its system could be brought into compliance with Part 15 of the Rules.
The 2011 Notice also warned Winchester Wireless that continued
unauthorized operation could result in severe penalties, including,
but not limited to, substantial monetary fines. In addition, the 2011
Notice directed Winchester Wireless to describe the steps it planned
to take to ensure that its operation at Wardensville Grade, as well as
other locations, complied with Part 15 of the Rules. On August 29,
2011, Mr. Williamson responded to the 2011 Notice and reported that
the amplifiers had been removed from the Wardensville Grade location;
Mr. Williamson did not provide any information regarding Winchester
Wireless's operations at other locations.^
5. On May 29, 2013, in response to two additional complaints, an agent
from the Columbia Office inspected two transmitter sites operated by
Winchester Wireless. The transmitter sites were located at residences
on Pepper Lane in Winchester, Virginia, and Shawnee Trail, also in
Winchester, Virginia.^ At both locations, the agent observed signals
emanating in the 902-928 MHz band. In addition, the agent observed the
same Motorola Canopy System and RF Linx equipment that he had observed
during the 2011 inspection.^ On July 29, 2013, the Columbia Office
issued a Notice of Unlicensed Operation to Winchester Wireless
regarding its continued unauthorized use of external amplifiers.^ On
July 31, 2013, Winchester Wireless responded to the 2013 Notice
indicating that it would inspect the two transmitter sites for
compliance with the Part 15 Rules.^
III. DISCUSSION
6. 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 Operations
7. 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.
8. On May 29, 2013, as described above, an agent from the Columbia Office
observed Winchester Wireless operate its Motorola Canopy Systems with
external amplifiers at two different locations. The Motorola Canopy
System is not certified to operate with an external amplifier.
Therefore, Winchester Wireless's operations did not comply with the
device's equipment authorization or Part 15 requirements and thus
required a license. According to Commission records, Winchester
Wireless does not hold a license to operate in the 900 MHz band in
Winchester, Virginia. Thus, based on the evidence before us, we find
that Winchester Wireless apparently willfully violated Section 301 of
the Act and Section 15.1(b) of the Rules by operating unlicensed radio
transmitters on May 29, 2013.
A. Proposed Forfeiture and Reporting Requirement
9. 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.^ 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, and history
of prior offenses, ability to pay, and other such matters as justice
may require.^ Because Winchester Wireless operated its Motorola Canopy
system with unauthorized amplifiers at two separate locations, we
propose a $10,000 forfeiture for operation without an instrument of
authorization at each location.
10. In addition, Winchester Wireless had the same type of violation less
than two years earlier. Indeed, the 2011 Notice expressly warned that
the equipment certification for the Motorola Canopy System did not
authorize the use of such amplifiers. Winchester Wireless's actions
demonstrate a deliberate disregard for the Commission's requirements
and we therefore find a $5,000 upward adjustment in the forfeiture is
warranted.^ Applying the Forfeiture Policy Statement, Section 1.80 of
the Rules, and the statutory factors to the instant case, we conclude
that Winchester Wireless is apparently liable for a forfeiture in the
amount of $25,000 for violations of Section 301 of the Act and Section
15.1(b) of the Rules. We caution Winchester Wireless that we may
impose larger forfeitures in future cases if the circumstances warrant
or if our current approach does not serve as a sufficient deterrent.
11. We further order Winchester Wireless to submit a written statement,
pursuant to Section 1.16 of the Rules, signed under penalty of perjury
by an officer or director of Winchester Wireless, stating that
Winchester Wireless is now operating all of its Part 15 devices in
compliance with their equipment authorizations and the Rules. This
statement must be provided to the Columbia Office at the address
listed in paragraph 14 within thirty (30) calendar days of the release
date of this NAL.
A. 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, Custom Computers
d.b.a. Winchester Wireless is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of twenty-five thousand
dollars ($25,000) for violations of Section 301 of the Act and Section
15.1(b) of the Commission's 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,
Custom Computers d.b.a. Winchester Wireless 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 Custom Computers d.b.a. Winchester Wireless
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,
Northeast Region, Columbia Office, 9200 Farm House Lane, Columbia,
Maryland, 21046. Winchester Wireless shall also e-mail the written
statement to [1]NER-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. Winchester Wireless shall also send
electronic notification on the date said payment is made to
[2]NER-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. Any request for making 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.^ 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.
16. 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, Northeast
Region, Columbia Office, 9200 Farm House Lane, Columbia, MD, 21046,
and include the NAL/Acct. No. referenced in the caption. Custom
Computers d.b.a. Winchester Wireless also shall e-mail the written
response to [3]NER-Response@fcc.gov.
17. 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 principles (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.
18. 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 first class mail to Custom Computers d.b.a.
Winchester Wireless at 2979 Valley Avenue, Winchester, Virginia,
22601.
FEDERAL COMMUNICATIONS COMMISSION
Salomon Satche
District Director
Columbia Office
Northeast Region
Enforcement Bureau
^ 47 U.S.C. SS 301, 302a(b).
^ 47 C.F.R. SS 15.1(b), (c), 15.204(a).
^ 47 C.F.R. SS 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).
^ 47 C.F.R. SS 15.1(a), 15.5.
^ 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 forth the
relevant conditions to the grant.
^ 47 C.F.R. S 15.1(b).
^ The transmitter was a Motorola Canopy, Model # 9000APC AP, FCC ID
ABZ89FC5809.
^ See FCC ID ABZ89FC5809.
^ Custom Computers d.b.a. Winchester Wireless, Notice of Unlicensed
Operation (Enf. Bur., Columbia Office August 11, 2011) (on file in
EB-FIELDNER-13-00009170) (2011 Notice).
^ E-mail from David Williamson, owner of Winchester Wireless, to Shannon
Gunter, FCC Agent, Columbia Office (August 29, 2011) (on file in
EB-FIELDNER-13-00009170).
^ Winchester Wireless previously identified these transmitter sites in an
e-mail to the FCC agent. Id. The agent also inspected a third site where
use of an amplifier could not be confirmed.
^ The transmitters and amplifiers observed by the agent during the
inspections on May 29, 2013 were mounted on towers and masts that were not
accessible by the agent.
^ Custom Computers d.b.a. Winchester Wireless, Notice of Unlicensed
Operation (July 29, 2013) (on file in EB-FIELDNER-13-00009170) (2013
Notice).
^ E-mail from David Williamson, Owner of Winchester Wireless, to Shannon
Gunter, FCC Agent, Columbia Office (Enf. Bur., Columbia Office July 31,
2013) (on file in EB-FIELDNER-13-00009170).
^ 47 U.S.C. S 503(b).
^ 47 U.S.C. S 312(f)(1).
^ H.R. Rep. No. 97-765, 97^th 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., 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. SS 15.1 et seq.
^ 47 C.F.R. S 15.1(b).
^ 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
^ 47 U.S.C. S 503(b)(2)(E).
^ See Argos Net, Inc., Notice of Apparent Liability for Forfeiture and
Order, 27 FCC Rcd 2786 (San Juan Office, Enf. Bur. 2012) (proposing total
forfeiture in the amount of $25,000 for violations of Section 301 of the
Act and Section 15.1(b) of the Rules, which included $20,000 for operation
of two unlicensed devices not in accordance with Part 15 of the Rules plus
a $5,000 upward adjustment for continuing the unlicensed operation after
receiving a warning) (NAL), Argos Net, Inc., Forfeiture Order, 28 FCC Rcd
1126 (Enf. Bur. 2013) (affirming findings in NAL, but reducing the
forfeiture amount based on the company's history of compliance with the
Commission's rules).
^ 47 U.S.C. SS 301, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80,
15.1(b).
^ 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. SS 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 14-328
2
Federal Communications Commission DA 14-328
References
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