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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
File No: EB-FIELDWR-12-00002815
NAL/Acct. No.: 201332800001
Adopted: February 20, 2014 Released: February 21, 2014
By the Regional Director, Western Region, Enforcement Bureau:
* In this Forfeiture Order (Order), we issue a monetary forfeiture in the amount of twenty thousand dollars ($20,000) to Directlink, LLC (Directlink), operator of an Unlicensed National Information Infrastructure (U-NII) transmission system in Elizabeth, Colorado, 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 Directlink's operation of an intentional radiator without a license and in a manner inconsistent with Part 15 of the Rules and the device's equipment authorization.
* II. BACKGROUND
* On January 4, 2013, the Enforcement Bureau's Denver Office (Denver Office) issued a Notice of Apparent Liability for Forfeiture and Order (NAL) to Directlink for its operation of a 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 January 10, 2012, while searching for the source of interference to the Federal Aviation Administration's (FAA) Terminal Doppler Weather Radar (TDWR) serving the Denver International Airport, Denver Office agents used direction-finding techniques to determine that radio emissions on frequency 5630 MHz were emanating from the Red Fox Circle communications site in Elizabeth, Colorado. On January 12, 2012, the agents used those same techniques in combination with Directlink's involvement to confirm that the interference was emanating from the U-NII transmission system operated by Directlink. On January 12, 2012, an FCC agent's telephone call to the FAA confirmed that the U-NII interference had ceased when Directlink changed its center frequency from 5630 MHz to 5785 MHz during the Denver Office investigation. The U-NII system utilized a transceiver module, model Rocket M5, an intentional radiator manufactured by Ubiquiti Networks, Inc. The FCC Equipment Authorization for the Ubiquiti Rocket M5 transceiver limits the device to operations within a frequency range of 5745 MHz to 5825 MHz. During the inspection, however, the FCC agents observed that the transceiver was operating on a center frequency of 5630 MHz, which is outside the authorized frequency range of the device. Subsequently, Directlink remotely adjusted the device's operating frequency from 5630 MHz to 5785 MHz which ceased the interference impacting the Denver TDWR installation.
* 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 January 12, 2012, FCC agents also observed and were advised by Directlink's representative that the transceiver was not operating with DFS functionality.
* Directlink submitted a response to the NAL requesting cancellation or reduction of the proposed $25,000 forfeiture, asserting that it was entitled to a citation or warning prior to the NAL; that there were no aggravating factors that required an upward adjustment of the forfeiture; that the downward adjustment factors were not applied to the proposed forfeiture; and that the proposed forfeiture was not consistent with actions taken against similarly situated violators.
* 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 Directlink'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 Directlink's response in light of these statutory factors, and find that a reduction of the forfeiture based on its history of compliance is justified.
* We find that the evidence supports the Denver Office's findings that, on January 10 and January 12, 2012, Directlink operated its Ubiquiti Rocket M5 transceiver on a frequency for which that device was not certified, and without DFS functionality. Directlink first argues that it should have received a warning or citation pursuant to Section 1.80(d) of the Rules, because Directlink was operating in "unlicensed" spectrum. Directlink is incorrect. The preliminary procedure required under Section 1.80(d) is not applicable if the subject "is engaged in (and the violation relates to) activities for which a license, permit certificate or other authorization is required . . . ." Directlink does not dispute that it was operating its Ubiquiti Rocket M5 transceiver on a frequency for which the device was not certified and, therefore, in violation of the Part 15 Rules. Pursuant to Section 15.1(b) of the Rules, the operation of 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. Therefore, Directlink was engaged in activities for which a license was required and, consequently, is not eligible for the preliminary procedure outlined in section 1.80(d).
* Directlink also argues that there were no "aggravating circumstances" pursuant to the Commission's adjustment factors and again suggests that a warning letter should have been issued. We disagree. The Denver Office determined that Directlink's unauthorized operation of an unauthorized system created interference to the FAA's TDWR radar system at the Denver International Airport, creating grave public safety risks. Contrary to Directlink's assertions, there is no requirement that the Commission issue warnings or Notices of Unlicensed Operations (NOUOs) to violators, particularly those causing interference to FAA radar installations.
* We also disagree with Directlink's contention that none of the upward adjustment criteria in the Rules were met by Directlink's violation and that the forfeiture should be reduced for that reason. Directlink does not deny the violations and the Denver Office determined that the unauthorized operation caused interference to FAA TDWR radar, which, given the obvious public safety concern, meets the criteria of substantial harm. Because that factor was present, we find no error in the upward adjustment to the proposed forfeiture made by the Denver Office.
* Directlink further argues that it is entitled to a reduction or cancellation of the proposed forfeiture under the downward adjustment criteria in the Rules. Directlink claims that its violation was minor, and it should have received a NOUO, like various other violators have. We first note that the issuance of a NOUO does not mean that a violation is minor. Instead, it puts the subject on notice of its violation of Section 301 of the Act. Of the NOUOs cited to by Directlink, most were issued in the early stages of enforcement against illegal U-NII operations. On July 27, 2010, the FCC's Enforcement Bureau and Office of Engineering and Technology issued a Memorandum to Manufacturers and Operators of Unlicensed 5 GHz Outdoor Network Equipment, like Directlink, concerning the interference caused to TDWR by U-NII systems and devices. The OET/EB Memo notified wireless internet service providers, like Directlink, that operate within the vicinity of TDWR installations or line-of-sight of TDWR installations, of the potential for interference to TDWR installations. In particular, providers operating within 35 kilometers were encouraged to operate 30 MHz away from the TDWR frequency in use. Because complaints from the FAA concerning interference to TDWR operations continued after the release of the OET/EB Memo, the Enforcement Bureau determined in 2011 that stronger enforcement action was necessary, including upward adjustments in forfeiture amounts where appropriate.
* In 2013, the Commission issued a Notice of Apparent Liability for Forfeiture in the amount of $202,000 against a U-NII operator. In the Towerstream NAL, the Commission specifically stated that the interference created by unauthorized U-NII systems (such as the one operated by Directlink) creates interference that "poses a clear hazard to air traffic safety and requires aggressive enforcement." The Commission also stated that for these violations, including operating without authorization and causing interference, the Communications Act authorizes monetary forfeitures of up to $16,000 for each violation. Given the concerns raised and actions taken by the Enforcement Bureau in 2010 and 2011 concerning the interference from illegal U-NII operations, we find that Directlink's 2012 violation cannot be considered minor nor can it be dismissed with a warning.
* We also disagree with Directlink's contention that it is being treated differently than other similarly situated violators. According to its website, Directlink was "[f]ounded in 2002, [and] is one of the leading fixed wireless broadband providers in Colorado." Beginning in 2011, the Enforcement Bureau put wireless internet service providers on notice that operating illegally on U-NII frequencies and causing interference to TDWR installations would result in a notice of apparent liability for forfeiture, and not a warning, for the first violation. In particular, prior to Directlink's violations, two other wireless internet service providers were issued notices of apparent liability for forfeiture for operating devices illegally on U-NII frequencies, in violation of Section 301 of the Act, and for not activating or intentionally disabling the available DFS on Ubiquiti transceivers, in violation of Section 302(b) of the Act. Both of these operators received proposed forfeiture amounts of $25,000, the same amount proposed to Directlink for the same violations. Given its advertised long term status as a commercial wireless internet services provider, we see no reason not to treat Directlink as other providers, who were aware they were operating equipment on unauthorized frequencies and were not operating the device with the required, and available, functionality to avoid interference with TDWR radar.
* Directlink also argues that the remedial measures it took to correct its violations after working with the Denver Office agents evidences its good faith, however, the Commission will not reduce forfeiture amounts for remedial efforts taken after Commission involvement. We have also reviewed the tax records provided by Directlink and find that they do not justify a reduction based on inability to pay. With regard to an individual's or entity's inability to pay claim, the Commission has determined that, in general, gross income or revenues are the best indicator of an ability to pay a forfeiture. While the Commission has in a few limited cases looked to other factors, including profits and losses, to determine ability to pay, those cases involved licensees in severe financial distress. Directlink has failed to demonstrate that it is experiencing a level of financial distress that would qualify for an exception to our gross revenues policy. Based on our review of the financial documents provided by Directlink, we decline to reduce on inability to pay grounds.
* Directlink also requests that the proposed forfeiture be reduced based on its history of compliance with the Rules. Prior to this violation, Directlink had no violations of the Act or the Rules and, therefore, consistent with the adjustment factors, we find that reduction of the forfeiture based on Directlink's history of compliance with the Rules is warranted and reduce the forfeiture by $5,000. Therefore, after consideration of the entire record and the factors listed above, we find that a forfeiture in the amount of $20,000 is warranted.
* ORDERING CLAUSES
* 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, Directlink, 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 Commission's rules.
* 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. Directlink, 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 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 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.
* IT IS FURTHER ORDERED that a copy of this Order shall be sent by both First Class and Certified Mail, Return Receipt Requested, to Directlink, LLC, 43217 London Drive, Parker, Colorado, 80138, and to its counsel, Eric J. Cecil, Esquire, Sourcelaw, PC, 9769 W. 119th Dr., Suite 32, Broomfield, Colorado, 80021.
* FEDERAL COMMUNICATIONS COMMISSION
* Rebecca L. Dorch
* Regional Director, Western Region
* ` Enforcement Bureau