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Federal Communications Commission
Washington, D.C. 20554
In the Matter of CMARR, Inc. San Juan, PR ) ) ) ) ) ) ) File No:
EB-FIELDSCR-13-00011740 NAL/Acct. No.: 201432680004 FRN: 0018774943
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 24, 2014 Released: June 24, 2014
By the Resident Agent, San Juan Office, South Central Region, Enforcement
1. We propose a penalty of $25,000 against CMARR, Inc. (CMARR), for
apparently willfully interfering with a Federal Aviation
Administration (FAA) weather radar in San Juan, Puerto Rico, by
operating radio transmitters without a license. Given the risk to
public safety created by CMARR's unlicensed operations, and the fact
that CMARR had already received a warning for similar violations,
these actions warrant a significant penalty.
2. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that CMARR, operator of an Unlicensed National Information
Infrastructure (U-NII) transmission system in San Juan, Puerto Rico,
apparently willfully and repeatedly violated Sections 301 and 333 of
the Communications Act of 1934, as amended (Act),^ by causing
interference to the FAA by operating an intentional radiator without a
license. We conclude that CMARR is apparently liable for forfeiture in
the amount of twenty-five thousand dollars ($25,000).
3. As part of its ongoing coordination efforts with the FAA, the
Enforcement Bureau received a complaint about radio emissions causing
interference to the FAA's Terminal Doppler Weather Radar (TDWR)
installation serving the San Juan International Airport. TDWR
installations exist at 45 major airports in the United States and
Puerto Rico and assist air traffic controllers in detecting
low-altitude wind shear that can pose a risk to aircraft.^ The TDWR
serving the San Juan International Airport operates on the center
frequency of 5610 MHz.
4. On November 13, 2013, in response to an FAA complaint of interference,
an agent from the Enforcement Bureau's San Juan Office (San Juan
Office) monitored radio transmissions on the frequency 5610 MHz in the
San Juan area, which were originating on an azimuth of 129 degrees
true north from the TDWR site, the same direction as the source of the
interference reported by the FAA. On November 13 and 18, 2013, the
agent, using direction-finding techniques, identified the source of
the transmissions on 5610 MHz as the rooftop of the RP Auto Parts
Store on Pineiro Avenue in San Juan. On November 18, 2013, the agent,
accompanied by CMARR's owner, conducted an inspection of the rooftop
and found that the transmissions on 5610 MHz were not present. CMARR's
owner confirmed that all of the transmitters on the rooftop belonged
to CMARR and that the highest transmitter on a tower on the rooftop,
an Ubiquiti Rocket model M5, had been transmitting on 5610 MHz. He
also stated that the transmitter had been retuned away from 5610 MHz
minutes before the agent arrived at approximately 3:15 P.M. The agent
subsequently learned that the FAA reported the interference to the
TDWR serving the San Juan Airport ceased between 3:10 and 3:22 P.M. on
November 18, 2013, thus confirming that CMARR's device was the source
of the interference.^
5. The Rocket M5 model is certified for use as a Part 15 intentional
radiator only in the 5745-5825 MHz band^ and is not certified as a
U-NII intentional radiator.^ According to Commission records, CMARR
does not hold a license to operate on 5610 MHz from this location in
San Juan, Puerto Rico.
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
A. Willful Interference with FAA Weather Radar
7. Section 333 of the Act prohibits any person from willfully or
maliciously interfering with or causing interference to any radio
communications of any licensed station.^ The evidence is sufficient to
find that CMARR apparently willfully interfered with the FAA's TDWR
serving the San Juan International Airport, because it was on notice
that its actions could cause harmful interference. In response to a
complaint of interference from the FAA, on November 6, 2013, an agent
from the San Juan Office warned CMARR's owner verbally that its
unlicensed operations from the roof of the Cobian Plaza Condo Building
in San Juan Puerto Rico were causing interference to the FAA's weather
radar and must stop. The agent determined CMARR operated an Ubiquiti
Rocket M5 on 5610 MHz, and CMARR's owner confirmed the operations.
Therefore, on November 13 and 18, 2013, CMARR was aware that operating
an Ubiquiti Rocket M5 on 5610 MHz, the center frequency of the TDWR,
could cause harmful interference to the FAA's weather radar. An agent
from the San Juan Office determined and CMARR admits that it operated
an Ubiquiti Rocket M5 on 5610 MHz on the rooftop of the RP Auto Parts
Store, and its operations did in fact interfere with the TDWR. Thus,
based on the evidence before us, we find that CMARR apparently
willfully and repeatedly violated Section 333 of the Act by willfully
interfering with the FAA's weather radar.
B. Unlicensed Operation of U-NII Intentional Radiator
8. 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
Commission's rule (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 the conditions set forth in
its equipment authorization,^ the operation is no longer covered under
the unlicensed provisions of those Rules and must obtain an individual
license pursuant to Section 301 of the Act.
9. On November 13 and November 18, 2013, as described above, an agent
from the San Juan Office observed CMARR operate a Part 15 intentional
radiator, a Ubiquity Rocket M5, on the center frequency of 5610 MHz
from the rooftop of the RP Auto Parts Store in San Juan, Puerto Rico.
The device is not certified for use on the frequency 5610 MHz.
Therefore, CMARR's operations did not comply either with the device's
Equipment Authorization or Part 15 requirements and thus required a
license. According to Commission records, CMARR does not hold a
license to operate on the frequency of 5610 MHz in San Juan, Puerto
Rico. Thus, based on the evidence before us, we find that CMARR
apparently willfully and repeatedly violated Section 301 of the Act by
operating an unlicensed radio transmitter on November 13 and 18, 2013.
C. Proposed Forfeiture
10. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for interference is
$7,000 and 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 may require.^ The
fact that CMARR operated an unlicensed transmitter and created a
safety hazard by causing interference to the FAA's weather radar after
being put on notice that its actions could cause harmful interference
and violated the Act demonstrates an egregious and deliberate
disregard for the Commission's requirements. Thus, we find that an
upward adjustment in the base forfeiture amounts of $8,000 is
11. Although we could impose larger upward adjustments for CMARR's
apparent violations, we decline to do so, based on the particular
circumstances of this case. We caution CMARR and other U-NII service
providers, however, that we may do so in future cases if the
circumstances warrant or if our current approach does not serve as a
sufficient deterrent. Applying the Forfeiture Policy Statement,
Section 1.80 of the Rules, and the statutory factors to the instant
case, we therefore conclude that CMARR is apparently liable for a
total forfeiture of $25,000 for violations of Section 301 and 333 of
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Sections 0.111, 0.311, 0.314 and 1.80 of the Rules, CMARR,
Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of twenty-five thousand dollars ($25,000) for violations of
Sections 301 and 333 of the Act.^
13. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture and Order, CMARR, Inc. SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
14. 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. CMARR, Inc. shall also send electronic
notification on the date said payment is made to
SCR-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.
15. 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,
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, South
Central Region, #150 Carlos Chardon St., US Federal Building Room 762
San Juan, PR 00918-1731 and must include the NAL/Acct. No. referenced
in the caption. The statement should also be emailed to
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 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
18. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and first class mail, to CMARR, Inc. at POB 21377, San
FEDERAL COMMUNICATIONS COMMISSION
San Juan, PR
^ 47 U.S.C. SS 301, 333.
^ MIT Lincoln Laboratories,
visited Jan. 26, 2011).
^ U-NII operators located within 35 km or line of sight of a TDWR
installation have been urged to implement a 30 MHz guardband around the
TDWR center operating frequency, to prevent interference to the TDWR. See
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 at
http://transition.fcc.gov/eb/uniitdwr.pdf (last visited April 27, 2013).
The RP Auto Parts Store is less than 15 km from the TDWR serving the San
Juan International Airport.
^ Agents from the San Juan Office were unable to determine the FCC IDs for
the Rocket M5's in use. However, there are five FCC IDs associated with
Ubiquiti Rocket M5 devices: SWX-M5, SWX-M5B, SWX-M5G, SWX-M5L and SWX-M5D.
All of these FCC IDs are certified as Part 15C devices and are authorized
to operate only in the 5745 MHz - 5825 MHz band.
^ 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 CMARR's devices were not
authorized to operate in the U-NII bands, they are subject to the U-NII
rules (47 C.F.R. 15.401-15.407) because CMARR operated them as U-NII
devices on U-NII frequencies.
^ 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
^ 47 U.S.C. S 333.
^ 47 U.S.C. S 301.
^ See 47 C.F.R. SS 15.1 et seq.
^ 47 C.F.R. S 15.1(b).
^ See 47 C.F.R. S 15.201(b) (providing that all intentional radiators
operating under Part 15 of the Rules be certificated by the Commission).
The Commission issues equipment authorizations for such devices, which set
forth relevant conditions for the grant.
^ 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), recons.
denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S 1.80.
^ 47 U.S.C. S 503(b)(2)(E).
^ See, e.g., Estevan J. Gutierrez, Notice of Apparent Liability for
Forfeiture, 26 FCC Rcd 12542 (Enf. Bur. 2011) (upwardly adjusted $17,000
base forfeiture amounts for violations of Sections 301 and 333 to $25,000
because of threats and interference to public safety); Gabriel A. Garcia,
Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 3750 (Enf. Bur.
2011) (upward adjustment warranted for unlicensed operation, with full
knowledge that such activity violated the Act, which resulted in
interference to public safety radio operations).
^ 47 U.S.C. SS 301, 333, 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80.
^ 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).
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Federal Communications Commission DA 14-863
Federal Communications Commission DA 14-863