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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No: EB-10-DV-0413
Rapidwave, LLC ) NAL/Acct. No.: 201132800003
Saratoga Springs, Utah ) FRN: 0015337108
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: July 28, 2011 Released: July 28, 2011
By the Chief, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture and Order
("NAL"), we find that Rapidwave, LLC ("Rapidwave"), operator of an
Unlicensed National Information Infrastructure ("U-NII") transmission
system in Saratoga Springs, Utah, 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. We
conclude that Rapidwave is apparently liable for a forfeiture in the
amount of twenty-five thousand dollars ($25,000). We further order
Rapidwave to submit a sworn statement certifying that it is now
operating its U-NII systems in compliance with FCC rules and
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 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
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,
and such operation without a license violates section 301 of the Act.
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 Salt Lake City
International Airport. TDWR installations exist at 45 major airports
in the United States 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 October 27, 2010, an FCC agent from the Enforcement Bureau's Denver
Office, along with FAA personnel, used direction-finding techniques to
locate emissions on the frequency of 5600 MHz to the Lake Mountain
communications site in Saratoga Springs, Utah. The FCC agent inspected
the system, which was identified as being operated by Rapidwave. The
U-NII system utilized the modular transceiver model XtremeRange5, an
intentional radiator manufactured by Ubiquiti Networks, Inc. On the
following day, FCC and FAA personnel used those same techniques in
combination with an on/off test to confirm that the identified
interference resulted from radio emissions emanating from the
identified U-NII transmission system. The FCC Equipment Authorization
for the Ubiquiti XtremeRange5 transceiver limits the device to
operations within a frequency range of 5745 MHz to 5825 MHz. During
the inspection, however, the FCC agent observed that the transceiver
was operating on 5600 MHz, a channel outside the authorized frequency
range. As the inspection continued on October 28, 2010, the FCC agent
also observed - and a Rapidwave representative acknowledged - that the
transceiver was not operating with DFS functionality. During the
inspection, Rapidwave adjusted the device's operating frequency to
cease any interference with the Salt Lake City TDWR installation.
6. The FCC agent further observed that Rapidwave had incorporated a high
gain antenna into the U-NII system. The addition of a high gain
antenna to such a system can increase the system's effective isotropic
radiated power ("EIRP") to levels not authorized under the Part 15
Rules. Calculations performed by the FCC agent, based on the
configuration of the Ubiquiti XtremeRange5 transceiver and the
parabolic dish antenna in use at the time of the inspection, indicated
that the EIRP for this system's configuration may have exceeded the
maximum EIRP permitted by the Rules for operation on the frequency
used by Rapidwave.
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 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. "Repeated" means that the act was
committed or omitted more than once, or lasts more than one day.
8. Section 301 of the Act states that "[n]o person shall use or operate
any apparatus for the transmission of energy or communications or
signals by radio . . . except under and in accordance with this Act
and with a license in that behalf granted under the provisions of this
Act." Part 15 of the Rules sets out the regulations under which an
intentional radiator may be operated without an individual license.
Section 15.1(b) of the Rules provides that "operation of an
intentional . . . radiator that is not in accordance with the
regulations in this part must be licensed pursuant to the provisions
of section 301 of the Communications Act of 1934...." Thus, the
operator of an intentional radiator who operates it in a manner
inconsistent with the Part 15 Rules 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. Pursuant to its Equipment Authorization, the Ubiquiti XtremeRange5
transceiver is an intentional radiator, certified for use pursuant to
Part 15, Subpart C of the Rules (Intentional Radiators). The
transceiver is not certified for use as a U-NII device pursuant to
Part 15, Subpart E of the Rules (Unlicensed National Information
Infrastructure) and is only certified for use in the frequency range
of 5745 MHz to 5825 MHz. Consequently, Rapidwave's operation of the
Ubiquiti XtremeRange5 transceiver as a U-NII device was inconsistent
with the requirements of Part 15, including the requirement to employ
DFS radar detection when operating in the frequency bands of 5.25 -
5.35 GHz and 5.47 - 5.725 GHz. Because Rapidwave did not have an
individual license to operate on the frequency of 5600 MHz and did not
operate its certified transceiver in accordance with Part 15 rules,
its operation violated section 301.
10. In addition, section 15.1(c) of the Rules provides that the operation
of an intentional radiator that is not in compliance with the
administrative and technical provisions in Part 15, including the
device's Equipment Authorization, is a violation of section 302 of the
Act. 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, such as the Ubiquiti XtremeRange5 transceiver,
in a manner that is inconsistent with its Equipment Authorization, or
in a manner that is inconsistent with the Part 15 Rules, is a
violation of section 302(b) of the Act.
11. As discussed above, Rapidwave operated its Ubiquiti XtremeRange5
transceiver 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.
Accordingly, Rapidwave apparently violated section 15.1(c) of the
Rules and section 302(b) of the Act.
12. We make the following additional observations regarding the
application of other U-NII rules to these facts. Section 15.407(a) of
the Rules limits the power of U-NII devices. As discussed above, the
Enforcement Bureau's calculations suggest that Rapidwave may have
operated its Ubiquiti transceiver in excess of permissible power
limitations. Similarly, sections 15.401 through 15.407 of the Rules
set out the parameters concerning operation of U-NII devices. We
caution Rapidwave and other U-NII operators to be mindful of these
requirements or risk further enforcement action.
13. The FCC agent observed the operation of the unauthorized U-NII
transmission system by Rapidwave on October 27 and 28, 2010.
Rapidwave's violations were repeated because they occurred on more
than one day. The violations were willful because Rapidwave
consciously and deliberately operated the unauthorized U-NII
14. Based on the evidence before us, we find that Rapidwave apparently
willfully and repeatedly violated sections 301 and 302(b) of the Act,
and sections 15.1(b) and 15.1(c) of the Rules, by operating an
intentional radiator in a manner not in compliance with the Part 15
Rules, in a manner inconsistent with its Equipment Authorization and,
consequently, without authorization.
15. Pursuant to the Commission's Forfeiture Policy Statement and section
1.80 of the Rules, the base forfeiture for operation of unauthorized
equipment is $5,000 and the base forfeiture 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, any history
of prior offenses, ability to pay, and other such matters as justice
16. As detailed above, Rapidwave operated a Ubiquiti XtremeRange5
transceiver as part of a U-NII transmission system, in violation of
the transceiver's Equipment Authorization, as well as on a frequency
not authorized on the transceiver's Equipment Authorization. Rapidwave
also operated the transceiver in violation of the Part 15 Rules by not
operating the transceiver with DFS functionality. Rapidwave's
unauthorized operation of an unauthorized system created interference
to the FAA's TDWR radar system at the Salt Lake City International
Airport. Considering the totality of the evidence and the gravity of
the public safety risks posed by the unauthorized operation, we find
that an upward adjustment of $10,000 is warranted for Rapidwave's
operation without an authorization in apparent violation of section
301 of the Act and section 15.1(b) of the Rules, resulting in a
proposed forfeiture of $20,000 for this apparent violation. We propose
the base forfeiture amount ($5,000) for Rapidwave's operation of
unauthorized equipment in apparent violation of section 302(b) of the
Act and section 15.1(c) of the Rules. Applying the Forfeiture Policy
Statement, section 1.80 of the Rules, and the statutory factors to the
instant case, we therefore conclude that Rapidwave is apparently
liable for a total forfeiture in the amount of $25,000.
17. As discussed above, following the October 28, 2010, inspection by the
Enforcement Bureau field agent, Rapidwave modified the frequency used
by its transceiver to cease any interference with the FAA's TDWR
installation. The new frequency used by Rapidwave, however, was not
listed on the device's Equipment Authorization. We further note that
the calculations performed by Enforcement Bureau field agent raises
serious concerns about whether the Rapidwave U-NII device complied
with the relevant power limits under Part 15. We therefore order
Rapidwave to submit a written statement signed under penalty of
perjury by an officer or director of the company stating that the
company is now operating its U-NII devices in compliance with their
Equipment Authorization and the Commission's Rules. This statement
must be provided to the Enforcement Bureau at the address listed in
paragraph 23 within thirty days of the release date of this Notice of
Apparent Liability for Forfeiture and Order.
IV. ORDERING CLAUSES
18. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.311, and
1.80 of the Commission's Rules, Rapidwave, LLC, is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of twenty-five
thousand dollars ($25,000) for apparently willfully and repeatedly
violating sections 301 and 302(b) of the Act, and sections 15.1(b) and
15.1(c) of the Rules.
19. 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, Rapidwave, LLC,
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
20. IT IS FURTHER ORDERED that Rapidwave, LLC, SHALL SUBMIT a sworn
statement as described in paragraph 17 to the Enforcement Bureau
Office listed in paragraph 23 within thirty days of the release date
of this Notice of Apparent Liability for Forfeiture and Order.
21. Rapidwave, LLC, is HEREBY NOTIFIED that its operation of an Ubiquiti
Networks, Inc., transceiver resulted in harmful interference to the
FAA's TDWR system that serves the Salt Lake City International
Airport. Rapidwave, LLC, is HEREBY WARNED that any further operation
of any U-NII device, including the Ubiquiti Networks, Inc.,
transceiver, on any frequency, and at any location, that results in
interference to the FAA's TDWR system serving the Salt Lake City
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.
22. 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 NAL/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, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. Rapidwave, LLC, shall also send electronic
notification on the date said payment is made to WR-Response@fcc.gov.
23. 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,
Western Region Office, 215 S. Wadsworth Blvd., Suite 303, Lakewood, CO
80226, and must include the NAL/Acct. No. referenced in the caption.
An electronic copy shall also be sent to WR-Response@fcc.gov.
24. 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.
25. 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 Rapidwave, LLC, at 1304 North
Redwood Road, # 131, Saratoga Springs, Utah, 84045.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Rapidwave holds multiple FCC licenses, including Microwave Industrial /
Business Pool licenses WQJI820, WQJI895, WQNC635, WQNC637 and WQNE818.
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.
47 C.F.R. S:S: 15.1, 15.407.
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. S:S: 15.1(a), 15.5.
47 C.F.R. S: 15.5.
47 C.F.R. S: 15.1(c).
47 C.F.R. S: 15.1(b).
MIT Lincoln Laboratories,
visited Jan. 26, 2011).
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
(last visited Feb. 1, 2011).
The device has FCC ID SWX-XR5 ("Ubiquiti XtremeRange5"). Ubiquiti
Networks, Inc. was issued a Grant of Equipment Authorization for the
Ubiquiti XtremeRange5 by MET Laboratories, Inc., under the authority of
the FCC, on February 16, 2007.
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 Rapidwave'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 Rapidwave operated it as a U-NII
The Equipment Authorization for the Ubiquiti XtremeRange5 transceiver
states that the device is certified for use pursuant to Part 15, Subpart C
of the Rules (Intentional Radiators).
Rapidwave changed the operating frequency of this system from 5600 MHz to
5400 MHz. As noted earlier, the Ubiquiti XtremeRange5 transceiver is only
authorized to operate within a frequency range of 5745 MHz to 5825 MHz.
This U-NII arrangement operated with a Laird Technologies Model DA58-29
DISH antenna with a total gain of 29 dBi and with a frequency range of
5725 MHz - 5850 MHz.
Section 15.407(a)(2) for the Rules provides:
For the 5.25-5.35 GHz and 5.47-5.725 GHz bands, the maximum conducted
output power over the frequency bands of operation shall not exceed the
lesser of 250 mW or 11 dBm + 10 log B, where B is the 26 dB emission
bandwidth in megahertz. In addition, the peak power spectral density shall
not exceed 11 dBm in any 1 megahertz band. If transmitting antennas of
directional gain greater than 6 dBi are used, both the maximum conducted
output power and the peak power spectral density shall be reduced by the
amount in dB that the directional gain of the antenna exceeds 6 dBi.
Applying the Section 15.407(a)(2) formula, the maximum conducted output
power (total power output) is 250 mW or 24 dBm. Given the antenna gain of
6 dBi as described above, the maximum EIRP is 1 watt or 30 dBm. In this
system's configuration, Rapidwave employed an antenna specified to have 29
dBi of gain, far in excess of the standard 6 dBi gain upon which the
operating limits were predicated. Calculations by the FCC agent revealed
that the EIRP of Rapidwave's system, operating on 5600 MHz, is estimated
to have been 159 watts or 52 dBm.
See infra n. 18. The calculations assume the minimum power specifications
for the devices.
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).
Southern California Broadcasting Co., 6 FCC Rcd at 4388, P: 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362, P: 9.
47 U.S.C. S: 301.
47 C.F.R. S: 15.1(a).
47 C.F.R. S: 15.1(b).
47 C.F.R. S: 15.1(b). See California Speedway, Forfeiture Order, 17 FCC
Rcd 22701 (Enf. Bur. 2002) (in order to be exempt from Section 301's
license requirement, an intentional radiator must be operated in
accordance with Part 15; otherwise, the operation requires a license).
47 C.F.R. S: 15.1(c).
47 U.S.C. S: 302a(b).
47 C.F.R. S: 15.1(c).
47 C.F.R. S:S: 15.401 - 15.407.
47 C.F.R. S: 15.407(a).
See infra P: 6 & nn. 17-18.
See supra n.25.
See supra n.21.
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"), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S:1.80.
47 U.S.C. S: 503(b)(2)(E).
See infra P: 5.
See infra n.16.
47 U.S.C. S:S: 301, 302a(b), 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80,
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.
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Federal Communications Commission DA 11-1311
Federal Communications Commission DA 11-1311