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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-06-SJ-022
Neptuno Networks, Inc. ) NAL/Acct. No.:200732680005
San Juan, PR ) FRN:0012841458
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 23, 2007
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 Neptuno Networks, Inc. ("Neptuno"), an Unlicensed National
Information Infrastructure (U-NII) operator, 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 Neptuno is apparently liable for forfeiture in the
amount of twenty thousand dollars ($20,000).
II. BACKGROUND
2. In response to a complaint of unauthorized operation, resident agents
from the San Juan Office of the Enforcement Bureau ("San Juan Office")
opened an investigation into Neptuno's operations. On May 18, 2006,
resident agents from the San Juan Office of the Enforcement Bureau
("San Juan Office") conducted an inspection on the roof top of the
Western Bank Plaza on Luis Munoz Rivera Avenue in the Hato Rey Ward of
San Juan. The agents observed that Neptuno was using U-NII equipment
manufactured by Axxcelera Broadband Wireless, Inc. to transmit from
the roof top of the building on the center frequencies of 5.175, 5.215
and 5.250 GHz.
3. On June 6, 2006, a resident agent from the San Juan Office conducted
an inspection on the roof top of the First Bank Building in the
Santurce Ward of San Juan. The agent observed that Neptuno was using
U-NII equipment manufactured by Axxcelera Broadband Wireless, Inc. to
transmit from the roof top of the building on the center frequencies
of 5.155 and 5.230 GHz.
4. On June 8, 2006, resident agents from the San Juan Office conducted an
inspection on the roof top of an old water tower in the Cerro Pinas
Ward of Cayey, PR. The agents observed that Neptuno was using U-NII
equipment manufactured by Axxcelera Broadband Wireless, Inc. to
transmit from the rooftop of the old water tower on the center
frequencies of 5.155, 5.215 and 5.235 GHz and on 5.375 GHz.
5. On June 14, 2006, resident agents from the San Juan Office returned to
the rooftops of the Western Bank Plaza and the First Bank Building.
The agents were accompanied by the Vice President of Operations for
Neptuno. The agents observed that Neptuno was still using the same
Axxcelera equipment and was transmitting from the roof tops on the
center frequencies of 5.175, 5.215 and 5.250 GHz and on 5.375 GHz
(Western Bank Plaza) and the center frequencies of 5.155 and 5.230 GHz
and on 5.350 GHz (First Bank Building). The agents warned the Vice
President of Operations that Neptuno's U-NII operations were not in
conformance with the Commission's Rules ("Rules") governing U-NII
devices or the Act.
6. On June 15, 2006, resident agents from the San Juan Office again
conducted an inspection on the roof top of the Cayey old water tower.
The agents were accompanied by the Vice President of Operations for
Neptuno. During the inspection, the Vice President informed the agents
that the Axxcelera equipment could be adjusted with over-the-air
commands to transmit on different center frequencies. The agents
observed that Neptuno was no longer transmitting on the frequencies in
use on June 8, 2006. Neptuno's Vice President later confirmed that
the channels had been changed to the center frequencies of 5.260,
5.270, 5.285, 5.300, 5.335, 5.340, 5.345, and 5.800 GHz,
respectively, at the Cayey old water tower. The Vice President stated
that Neptuno was in the process of changing the band plan, which had
been the same for five years, for the Western Bank Plaza and First
Bank Building.
7. In three written communications between June 15 and June 17, 2006,
Neptuno informed the San Juan Office that it had changed the transmit
frequencies for the Western Bank Plaza and First Bank Building and was
now in full compliance with the Rules at these locations.
Subsequently, at a meeting with the agents from the San Juan Office on
June 23, 2006, the Vice President of Operations for Neptuno detailed
an action plan whereby all of the company's 68 sites would be in
compliance with the Rules by August 4, 2006.
III. DISCUSSION
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 Rules,
however, sets forth conditions under which intentional radiators may
operate without an individual license. If intentional radiators fail
to comply with the conditions set forth in Part 15, they are not
authorized to operate in the United States without a license. Part 15
Subpart E of the Rules sets forth more specific conditions under which
U-NII devices may operate in the 5.15-5.35 GHz, 5.47-5.725 GHz, and
5.725-5.825 GHz bands. Section 15.407(e) of the Rules provides that
"[w]ithin the 5.15-5.25 GHz band, U-NII devices will be restricted to
indoor operations to reduce any potential for harmful interference to
co-channel MSS operations."
9. On May 18, June 6, June 8, and June 14, 2006, resident agents from the
San Juan Office observed Neptuno operate U-NII devices within the
5.15-5.25 GHz band outdoors at three separate locations, in violation
of Section 15.407(e) of the Rules. Neptuno admitted that it had been
operating in this band outdoors at these locations for close to five
years. Neptuno also admitted to operating in this band outdoors at
approximately 68 other sites. On June 8 and June 14, 2006, resident
agents observed Neptuno operate U-NII devices on 5.375 GHz, a
frequency outside of the U-NII bands. Based on the evidence before us,
we find that Neptuno failed to operate its U-NII devices in accordance
with the requirements of Section 15.407 of the Rules.
10. Moreover, Neptuno cannot claim that its operations fell within the
more general requirements for intentional transmitters set forth in
Part 15 of the Rules. The Axxcelera equipment used by Neptuno is
certified for use in the U-NII bands and complies with the technical
requirements set forth in Section 15.407 of the Rules. According to
the equipment's specifications, it operates at power levels far in
excess of the general radiated emission limit specified in Part 15.
Also according to the equipment's specifications, users cannot alter
the equipment's power settings. Therefore, based on the information
available to us, Neptuno operated its intentional transmitters at
power levels greater than allowed in Section 15.209 of the Rules.
Because Neptuno failed to comply with the conditions set forth in Part
15 of the Rules, it was not authorized to operate its transmitters
without a license. According to information in the Commission's
database, Neptuno holds no authorization to transmit in the U-NII
band.
11. Based on the evidence and technical information before us, we find
that Neptuno apparently willfully and repeatedly violated Section 301
of the Act by operating radio transmitters without a license.
12. 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 there under, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) 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.
13. 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. Section 15.1(b) of the Rules states that an
intentional radiator that is not in accordance with the requirements
of Part 15 must be licensed, pursuant to Section 301 of the Act.
Therefore, Neptuno's operations, which were inconsistent with Part 15,
were apparently unlicensed, not unauthorized. In assessing the
monetary forfeiture amount, we must also take into account the
statutory factors set forth in Section 503(b)(2)(D) 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. Given the number of active sites,
the duration of the violations, and the commercial application for the
unlicensed activity, we believe it appropriate to increase the
forfeiture amount above the base forfeiture. Applying the Forfeiture
Policy Statement, Section 1.80, and the statutory factors to the
instant case, we conclude that Neptuno is apparently liable for a
$20,000 forfeiture.
IV. ORDERING CLAUSES
14. 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, Neptuno Networks, Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty thousand dollars ($20,000) for violations of Sections
301 of the Act.
15. 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 Neptuno Networks, Inc.
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
16. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106.
17. 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.
18. 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.
19. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director, Financial Operations, 445 12th Street,
S.W., Room 1A625, Washington, D.C. 20554.^8
20. 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 Neptuno Networks, Inc. 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. SS 15.1(b), 15.407.
47 U.S.C. S 503(b).
Neptuno was transmitting from two antennas, one horizontal and one
vertical, on 5.230 GHz.
See, e.g., 47 C.F.R. S 15.407.
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 15.401 et seq.
47 C.F.R. S 15.407(e).
MSS stands for Mobile Satellite Service.
See 47 C.F.R. S 15.403(t) for the definition of U-NII devices. See also 47
C.F.R. S 15.407 (general technical requirements for U-NII devices do not
list 5.375 GHz).
47 C.F.R. SS 15.201 et seq.
See 47 C.F.R. S 15.209.
Neptuno apparently failed to comply with Section 15.407 of the Rules.
Moreover, assuming arguendo that Neptuno's transmitters were not U-NII
devices and were instead general Part 15 unlicensed intentional
transmitters, Neptuno also apparently failed to comply with Section 15.209
of the Rules.
At the time of the inspection, Neptuno Media had a common carrier fixed
point to point microwave license, WQEQ831. However, this license does not
authorize Neptuno to operate on the U-NII bands.
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."
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80. Although Neptuno Media is a licensee, Neptuno was not operating
pursuant to its license at the inspected sites. The transmitters located
at the inspected sites were not transmitting on the licensed frequency or
from the licensed location. The transmitters were U-NII devices and were
intended to operate pursuant to Part 15, Subpart E of the Rules.
47 C.F.R. S 15.1(b).
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. SS 301, 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80.
^8 See 47 C.F.R. S 1.1914.
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Federal Communications Commission
5
Federal Communications Commission