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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                           )                               
                                                           
                           )                               
                                                           
     In the Matter of      )   File Number: EB-09-SJ-0013  
                                                           
     Ayustar Corporation   )   NAL/Acct. No.:201032680001  
                                                           
     San Juan, PR          )               FRN:0008739229  
                                                           
                           )                               
                                                           
                           )                               


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                                  Released: November 12, 2009

   By the Resident Agent, San Juan Office, South Central Region, Enforcement
   Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       that Ayustar Corporation ("Ayustar"), a wireless Internet provider
       using Unlicensed National Information Infrastructure (U-NII) devices
       in San Juan, PR, apparently willfully and repeatedly violated Section
       301 of the Communications Act of 1934, as amended ("Act"), by
       operating unlicensed radio transmitters. We conclude, pursuant to
       Section 503(b) of the Act, that Ayustar is apparently liable for
       forfeiture in the amount of ten thousand dollars ($10,000).

   II. BACKGROUND

    2. On March 11, 2009, in response to information provided by the Federal
       Aviation Administration ("FAA") that the Terminal Doppler Weather
       Radar ("TDWR") that serves the San Juan International Airport had been
       receiving interference on or adjacent to 5.61 GHz, agents from the
       Commission's San Juan Office of the Enforcement Bureau ("San Juan
       Office") and a team of FAA engineers, conducted an investigation on
       the roof of the Western Bank Plaza Building in Hato Rey. Agents from
       this office confirmed by direction finding techniques that radio
       emissions on frequency 5.60 GHz were emanating from the building's
       roof, the location of one of Ayustar's  U-NII devices, Motorola Canopy
       device, model # 5700BH20, FCC ID ABZ89F-C5804. This Motorola device is
       certified for use as a U-NII device only on the 5735.0 - 5840.0 MHz
       band. Still on March 11, 2009, the agents, with Ayustar's cooperation,
       conducted on/off tests of Ayustar's equipment. When Ayustar's U-NII
       device was in the transmit position, the TDWR experienced interference
       on 5.61 GHz. When Ayustar's U-NII device was in the off position, the
       interference to the TDWR ceased. According to Commission records,
       Ayustar does not hold a license to operate on 5.60 MHz from the
       Western Bank Plaza Building.

    3. On April 20, 2009, the San Juan Office issued, via certified mail, a
       Notice of Unlicensed Operation ("NOUO") to Ayustar for its operations
       on March 11, 2009. The NOUO was delivered on April 23, 2009 by the
       United States Postal Service. The NOUO advised Ayustar of its
       obligation to comply with Section 301 of the Act.

    4. On August 22, 2009, in response to information provided by the FAA
       that the TDWR serving the San Juan International Airport was again
       experiencing interference on or adjacent to 5.61 GHz, an agent of the
       San Juan Office and a team of FAA engineers, conducted an
       investigation on the roof of the Western Bank Plaza Building in Hato
       Rey. An agent from this office confirmed by direction finding
       techniques that radio emissions on frequency 5.624 GHz were emanating
       from the building's roof, the location of one of Ayustar's U-NII
       devices, Motorola Canopy device, model # 5700, FCC ID ABZ89FC4816.
       This Motorola device is certified for use as a U-NII device only on
       5745-5805 MHz band. Still on August 22, 2009, the agent, with
       Ayustar's cooperation, conducted on/off tests of Ayustar's equipment.
       When Ayustar's U-NII device was in the transmit position, the TDWR
       experienced interference on 5.61 GHz. When Ayustar's U-NII device was
       in the off position, the interference to the TDWR ceased. According to
       Commission records, Ayustar does not hold a license to operate on
       5.624 MHz from the Western Bank Plaza Building.

   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. The term "willful" as used in Section 503(b) of the Act has
       been interpreted to mean simply that the acts or omissions are
       committed knowingly. The term "repeated" means the commission or
       omission of such act more than once or for more than one day.

    6. 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 intentional radiators fail to comply
       with all of the applicable conditions set forth in Part 15 of the
       Rules, they are not authorized to operate in the United States without
       a license. 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.
       Part 15 Subpart E of the Rules sets forth more specific conditions
       under which U-NII devices may operate in the, 5.47-5.725 GHz, and
       5.725-5.825 GHz bands.

    7. On March 11, and August 22, 2009, an agent from the San Juan Office
       observed Ayustar operate a U-NII device on the center frequencies of
       5.60 and 5.624 GHz, respectively. The device in use on March 11, 2009
       was certified for use as a U-NII device only on the 5735.0 - 5840.0
       MHz band, and the device in use on August 22, 2009 was certified for
       use as a U-NII device only on 5745-5805 MHz band. Accordingly, the
       devices were not certified to operate as U-NII devices on 5600 and
       5624 MHz, respectively. Because Ayustar operated U-NII devices on
       frequencies for which they were not certified, Ayustar did not operate
       its U-NII devices in compliance with Part 15 requirements.
       Consequently, its operations were unauthorized.  According to
       information in the Commission's database, Ayustar holds no
       authorization to transmit on 5.60 or 5.624 GHz. Ayustar was informed
       that operation of a Part 15 device not in compliance with all of the
       Part 15 requirements renders the operation unlicensed via written NOUO
       prior to the inspection conducted on August 22, 2009. Based on the
       evidence and technical information before us, we find that Ayustar 
       apparently willfully and repeatedly violated Section 301 of the Act by
       operating radio transmitters without a license on March 11 and August
       22, 2009.

    8. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
       of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
       ("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. Applying the Forfeiture Policy Statement, Section 1.80, and
       the statutory factors to the instant case, we conclude that Ayustar 
       is apparently liable for a $10,000 forfeiture.

    9. Ayustar is also hereby warned that operation of U-NII equipment in any
       way that is inconsistent with the equipment's certification renders
       such operation unlicensed and could subject Ayustar to additional
       enforcement action.

   IV. ORDERING CLAUSES

   10. 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 ten thousand dollars ($10,000) for violations of Sections
       301 of the Act.

   11. 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  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.

   12. 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 Number
       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.  20554.8   If you have questions, please contact the
       Financial Operations Group Help Desk at 1-877-480-3201 or Email:
       ARINQUIRIES@fcc.gov. If payment is made, Ayustar will send electronic
       notification on the date said payment is made to SCR-Response@fcc.gov.

   13. The response, if any, 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.

   14. 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.

   15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
       for Forfeiture shall be sent by Certified Mail, Return Receipt
       Requested, and regular mail, to Ayustar  at its address of record.

   FEDERAL COMMUNICATIONS COMMISSION

   Reuben Jusino

   Resident Agent

   San Juan Office

   South Central Region

   Enforcement Bureau

   47 U.S.C. S: 301; see also 47 C.F.R. S:S: 15.1(b), 15.407.

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

   Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
   violations for which forfeitures are assessed under Section 503(b) of the
   Act, provides that "[t]he term 'willful', when used with reference to the
   commission or omission of any act, means the conscious and deliberate
   commission or omission of such act, irrespective of any intent to violate
   any provision of this Act or any rule or regulation of the Commission
   authorized by this Act...." See Southern California Broadcasting Co., 6
   FCC Rcd 4387 (1991).

   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).

   See 47 C.F.R. S: 15.401 et seq.

   Moreover, assuming arguendo that Ayustar's transmitters were not U-NII
   devices and were instead general Part 15 unlicensed intentional
   transmitters, Ayustar also apparently failed to comply with the power
   limits contained in Section 15.407(2) of the Rules. 47 C.F.R. S:
   15.407(2). Section 15.407(2) restricts output power in the 5.47-5.725 GHz
   band to 0.25 Watts. Pursuant to the U-NII rules, which authorize higher
   power levels, both devices utilized by Ayustar are designed to operate
   with .8 watts output power. Accordingly, Ayustar's operations on April 20
   and August 22, 2009 did not comply with the general Part 15 power limits.

   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).

   47 U.S.C. S:S: 301, 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80.

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

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission

                                       4

   Federal Communications Commission