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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Rapidwave, LLC Saratoga Springs, Utah ) ) ) ) ) ) File
No: EB-10-DV-0413 NAL/Acct. No.: 201132800003 FRN: 0015337108
Adopted: February 7, 2014 Released: February 7, 2014
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
the amount of twenty thousand dollars ($20,000) to Rapidwave, LLC
(Rapidwave), an operator of an Unlicensed National Information
Infrastructure (U-NII) transmission systems in Saratoga Springs, Utah,
for willful and repeated violation of 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").^ The violations
involved Rapidwave's operation of an intentional radiator not in
accordance with Part 15 of the Rules^ and the device's Equipment
2. On July 28, 2011, the Enforcement Bureau (Bureau) issued a Notice of
Apparent Liability for Forfeiture and Order (NAL) ^ ^ to Rapidwave
for its operation of an Unlicensed National Information Infrastructure
(U-NII) device on a frequency for which the device was not authorized
and without a license. As discussed in detail in the NAL in this
case,^ on October 27, 2010 and October 28, 2010, while searching for
the source of interference to the Federal Aviation Administration's
(FAA) Terminal Doppler Weather Radar (TDWR) serving the Salt Lake City
International airport, agents from the Bureau's Denver Office (Denver
Office) used direction-finding techniques to determine that radio
emissions on frequency 5600 MHz emanated from Rapidwave's U-NII
transmitter, a Ubiquiti Networks XtremeRange5 transceiver,^ located at
the Lake Mountain communications site is Sarasota Springs, Utah. The
Ubiquiti XtremeRange5 model is certified for use as a Part 15
intentional radiator only in the 5745.0 - 5825.0 MHz band and is not
certified as a U-NII intentional radiator.^ The device also was not
operating with Dynamic Frequency Selection (DFS), a functionality
which allows U-NII transmitters operating in the 5.25-5.35 GHz and
5.47-5.725 GHz bands to detect the presence of FAA radar systems and
avoid co-channel operations with radar systems.^ Rapidwave submitted a
response to the NAL requesting cancellation or reduction of the
proposed $25,000 forfeiture,^ because (1) the NAL's upward adjustment
is excessive and unwarranted;^ and (2) the NAL failed to give proper
weigh to the downward adjustment criteria, including Rapidwave's
inability to pay the forfeiture,^ its low degree of culpability^ and
its history of no prior offenses.^
3. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act,^ Section 1.80 of the Rules,^ and the
Forfeiture Policy Statement.^ In examining Rapidwave's response,
Section 503(b)(2)(E) of the Act requires that the Commission take into
account the nature, circumstances, extent, and gravity of the
violation 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.^ As discussed below, we have
considered Rapidwave's response in light of these statutory factors,
and find that a reduction of the forfeiture based on its history of
compliance is justified.
4. We find that the evidence supports the Bureau's findings that, on
October 27 and October 28, 2010, Rapidwave operated it Ubiquiti
XtremeRange5 transmitter on frequencies for which that device was not
certified, and without DFS functionality. Rapidwave does not dispute
these findings^ but does object to the amount of the proposed
forfeiture, arguing that the upward adjustment of $10,000 for
Rapidwave's apparent violation of Section 301 of the Act and Section
15.1(b) of the Rules is excessive because Rapidwave operated only one
device. Rapidwave argues that the Bureau has proposed the same upward
adjustment against operators of multiple devices and that this
violates the requirement that the Commission "treat similarly situated
parties in the same manner and to provide an adequate explanation if
it does not do so."^ We find that the Bureau has generally added an
upward adjustment of $10,000 to forfeitures proposed against U-NII
operators that have apparently violated Section 301 of the Act and
Section 15.1(b) of the Rules.^ This adjustment has been proposed
whether the U-NII operator was operating one device or multiple
devices for the stated reason, in each case, that the operation of the
device or devices was causing interference to an FAA TDWR radar system
at a nearby airport.^ Consequently, we see no error in proposing such
an upward adjustment concerning Rapidwave's operations.
5. Rapidwave also argues that the Bureau failed to give proper weight to
the downward adjustment criteria, including Rapidwave's inability to
pay the forfeiture,^ its low degree of culpability,^ and its history
of no prior offenses.^ With regard to an individual or entity's
inability to pay claim, the Commission has determined that, in
general, gross revenues are the best indicator of an ability to pay a
forfeiture.^ Based on the financial documents provided by Rapidwave,
we find no basis to reduce the proposed forfeiture based on inability
to pay. Rapidwave's culpability is clear as it admits to operating the
device at issue on unauthorized frequencies and without DFS capability
and does not dispute that its operations caused interference to the
FAA's TDWR radar system at the Salt Lake City International Airport.
We do, however, agree with Rapidwave regarding its history of
compliance with the Commission's rules.^ We have reviewed our records
and found no violations prior to those at issue here today. Thus, we
conclude that a reduction in forfeiture in the amount of $5,000 is
IV. ORDERING CLAUSES
6. 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(f)(4) of the Commission's rules, Rapidwave,
LLC, IS LIABLE FOR A MONETARY FORFEITURE in the amount of twenty
thousand dollars ($20,000) for violations of Sections 301 and 302(b)
of the Communications Act and Section 15.1(b) and 15.1(c) of the
7. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days after the
release date of this Forfeiture Order.^ If the forfeiture is not paid
within the period specified, the case may be referred to the U.S.
Department of Justice for enforcement of the forfeiture pursuant to
Section 504(a) of the Act.^ Rapidwave, LLC, shall send electronic
notification of payment to WR-Response@fcc.gov on the date said
payment is made. The payment must be made by check or similar
instrument, wire transfer, or credit card, and must include the
NAL/Account number and FRN referenced above. 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
* 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.
8. 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,
9. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
First Class and Certified Mail, Return Receipt Requested, to
Rapidwave, LLC, at 1304 North Redwood Road, # 131, Saratoga Springs,
Utah, 84045, and to its counsel, Stephen E. Coran, Rini Coran, PC,
1140 19^th Street, NW, Suite 600, Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
^ 47 U.S.C. SS 301, 302a(b).
^ 47 C.F.R. S 15.1(b), (c).
^ 47 C.F.R. SS 15.1 et seq.
^ 47 C.F.R. SS 15.1, 15.407.
^ Rapidwave, LLC, Notice of Apparent Liability for Forfeiture and Order,
26 FCC Rcd 10678 (Enf. Bur. 2011) (NAL). A comprehensive recitation of the
facts and history of this case can be found in the NAL and is incorporated
herein by reference.
^ See 26 FCC Rcd at 10678-10680.
^ 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 is subject to the U-NII rules
(47 C.F.R. 15.401-15.407) because Rapidwave operated it as U-NII device on
a U-NII frequency.
^ See 47 C.F.R. S 15.407(h)(2). FCC Enforcement Advisory, TDWR and U-NII
Devices, DA 12-459 (Sept. 27, 2012); Memorandum from Julius Knapp, Chief,
FCC Office of Engineering and Technology, and P. Michele Ellison, Chief,
FCC Enforcement Bureau, 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://
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
^ Response of Rapidwave (Aug. 29, 2011 ) (on file in EB-10-DV-0413)
(Response). Rapidwave captions its Response as "Petition for
Reconsideration and Request for Cancellation or Reduction of Proposed
Forfeiture," however, as it is filed in response to the NAL, we will treat
it as a response consistent with Section 1.80(f)(3) of the Rules. 47
C.F.R. S 180(f)(3). See NAL, 26 FCC Rcd at 10684. We note that Rapidwave
does not object to, and has complied with, the directive in the NAL
ordering Rapidwave to submit a written statement, under penalty of
perjury, stating that Rapidwave is now operating its U-NII devices in
compliance with their Equipment Authorizations and the Rules. See NAL, 26
FCC Rcd at 10683.
^ See Response at 5-7.
^ See id. at 8.
^ See id. at 9.
^ See id.
^ 47 U.S.C. S 503(b).
^ 47 C.F.R. S 1.80.
^ 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), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
^ 47 U.S.C. S 503(b)(2)(E).
^ See Response at Attachment A, Declaration of Sterling Jacobson,
Principal Owner of Rapidwave, LLC.
^ Response at 6. Rapidwave cites to Melody Music, Inc. v. Federal
Communications Commission, 345 F.2d 730 (D.C. Cir. 1965) (the Commission's
failure to explain decision denying a renewal application for a broadcast
station with simplicity and clarity required reversal and that on remand
the Commission would have to explain its reasons and do more than
enumerate differences between the applicant's case and other cases).
^ See, e.g., Utah Broadband, Notice of Apparent Liability for Forfeiture
and Order, 26 FCC Rcd 1419 (Enf. Bur 2011) (Utah Broadband) (forfeiture
paid); Sling Broadband, LLC, Notice of Apparent Liability for Forfeiture
and Order, 26 FCC Rcd 10686 (Enf. Bur. 2011) (Sling Broadband) forfeiture
assessed in Forfeiture Order 26 FCC Rcd 13062 (Enf Bur. 2011); AT&T, Inc.,
Notice of Apparent Liability for Forfeiture and Order, 26 FCC Rcd 1894
(Enf Bur. 2011) (AT&T, Inc.) forfeiture assessed in Forfeiture Order 27
FCC Rcd 10803 (Enf Bur. 2012); Ayustar Corporation, Notice of Apparent
Liability for Forfeiture and Order, 26 FCC Rcd 10693 (Enf Bur. 2011)
(Ayustar), Order and Consent Decree, DA 13-2080, 2013 WL 6069461 (Enf.
Bur. Nov. 18, 2013).
^ See Utah Broadband, 26 FCC Rcd at 1424 (proposing upward adjustment of
$10,000 for unauthorized operation of two transceivers causing
interference to the FAA's TDWR radar system at the Salt Lake City
International Airport); Sling Broadband, 26 FCC Rcd at 10690 (proposing
upward adjustment of $10,000 for unauthorized operation of four
transceivers, with one transceiver causing interference to the FAA's TDWR
radar system at the Fort Lauderdale - Hollywood International Airport);
AT&T, Inc., 26 FCC Rcd at 1897 (proposing upward adjustment of $10,000 for
unauthorized operation of one transceiver causing interference to the
FAA's TDWR radar system at the San Juan International Airport and to
ensure that the forfeiture liability is not simply a cost of doing
business for a large or highly profitable company); Ayustar, 26 FCC Rcd at
10696 (proposing upward adjustment of $10,000 for unauthorized operation
of one transceiver causing interference to the FAA's TDWR radar system at
the San Juan International Airport).
^ See Response at 8.
^ See id. at 9.
^ See id.
^ See PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd
2088, 2089 (1992) (forfeiture not deemed excessive where it represented
approximately 2.02 percent of the violator's gross revenues); Local Long
Distance, Inc., Forfeiture Order, 15 FCC Rcd 24385 (2000) (forfeiture not
deemed excessive where it represented approximately 7.9 percent of the
violator's gross revenues); Hoosier Broadcasting Corporation, Memorandum
Opinion and Order, 15 FCC Rcd 8640 (2000) (forfeiture not deemed excessive
where it represented approximately 7.6 percent of the violator's gross
^ See 47 C.F.R. S 1.80 (b)(4) note (stating that history of overall
compliance is a downward adjustment criteria for Section 503 forfeitures).
^ 47 U.S.C. SS 301, 302a(b), 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311,
0.314, 1.80(f)(4), 15.1(b), 15.1(c).
^ 47 C.F.R. S 1.80.
^ 47 U.S.C. S 504(a).
^ 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.
Federal Communications Commission DA 14-139
Federal Communications Commission DA 14-139