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Before the
Federal Communications Commission
Washington, D.C. 20554
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)
)
In the Matter of File No: EB-09-SJ-0013
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Ayustar Corporation NAL/Acct. No.:201032680001
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San Juan, PR FRN:0008739229
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)
FORFEITURE ORDER
Adopted: January 26, 2010 Released: January 28, 2010
By the Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of ten thousand dollars ($10,000) to Ayustar Corporation
("Ayustar"), a wireless Internet provider using Unlicensed National
Information Infrastructure (U-NII) devices in San Juan, PR for willful
and repeated violation of Section 301 of the Communications Act of
1934, as amended ("Act"). The noted violations involve Ayustar's
operation of unlicensed radio transmitters.
II. BACKGROUND
2. On March 11, 2009, in response to information provided by the Federal
Aviation Administration ("FAA") that the Terminal Doppler Weather
Radar ("TDWR") that serves the San Juan International Airport had been
receiving interference on or adjacent to 5.61 GHz, agents from the
Commission's San Juan Office of the Enforcement Bureau ("San Juan
Office") and a team of FAA engineers, conducted an investigation on
the roof of the Western Bank Plaza Building in Hato Rey. Agents from
this office confirmed by direction finding techniques that radio
emissions on frequency 5.60 GHz were emanating from the building's
roof, the location of one of Ayustar's U-NII devices, Motorola Canopy
device, model # 5700BH20, FCC ID ABZ89F-C5804. This Motorola device is
certified for use as a U-NII device only on the 5735.0 - 5840.0 MHz
band. Still on March 11, 2009, the agents, with Ayustar's cooperation,
conducted on/off tests of Ayustar's equipment. When Ayustar's U-NII
device was in the transmit position, the TDWR experienced interference
on 5.61 GHz. When Ayustar's U-NII device was in the off position, the
interference to the TDWR ceased. According to Commission records,
Ayustar does not hold a license to operate on 5.60 MHz from the
Western Bank Plaza Building.
3. On April 20, 2009, the San Juan Office issued, via certified mail, a
Notice of Unlicensed Operation ("NOUO") to Ayustar for its operations
on March 11, 2009. The NOUO was delivered on April 23, 2009 by the
United States Postal Service. The NOUO advised Ayustar of its
obligation to comply with Section 301 of the Act.
4. On August 22, 2009, in response to information provided by the FAA
that the TDWR serving the San Juan International Airport was again
experiencing interference on or adjacent to 5.61 GHz, an agent of the
San Juan Office and a team of FAA engineers, conducted an
investigation on the roof of the Western Bank Plaza Building in Hato
Rey. An agent from this office confirmed by direction finding
techniques that radio emissions on frequency 5.624 GHz were emanating
from the building's roof, the location of one of Ayustar's U-NII
devices, Motorola Canopy device, model # 5700, FCC ID ABZ89FC4816.
This Motorola device is certified for use as a U-NII device only on
5745-5805 MHz band. Still on August 22, 2009, the agent, with
Ayustar's cooperation, conducted on/off tests of Ayustar's equipment.
When Ayustar's U-NII device was in the transmit position, the TDWR
experienced interference on 5.61 GHz. When Ayustar's U-NII device was
in the off position, the interference to the TDWR ceased. According to
Commission records, Ayustar does not hold a license to operate on
5.624 MHz from the Western Bank Plaza Building.
5. On November 12, 2009, the San Juan Office issued a Notice of Apparent
Liability for Forfeiture to Ayustar in the amount of ten thousand
dollars ($10,000), for the apparent willful and repeated violation of
Section 301 of the Act. Ayustar submitted a response to the NAL
requesting reduction or cancellation of the proposed forfeiture.
III. DISCUSSION
6. 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
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd
17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy
Statement"). In examining Ayustar's response, Section 503(b) 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.
7. 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. 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 intentional radiators fail to comply
with all of the applicable conditions set forth in Part 15 of the
Rules, they are not authorized to operate in the United States without
a license. Section 15.201(b) of the Rules provides that all
intentional radiators operating under Part 15 shall be certificated by
the Commission. Section 15.1(c) of the Rules states that the operation
of an intentional radiator that is not in compliance with the
administrative and technical provisions in this part is prohibited.
Part 15 Subpart E of the Rules sets forth more specific conditions
under which U-NII devices may operate in the, 5.47-5.725 GHz, and
5.725-5.825 GHz bands.
8. On March 11, and August 22, 2009, an agent from the San Juan Office
observed Ayustar operate a U-NII device on the center frequencies of
5.60 and 5.624 GHz, respectively. The device in use on March 11, 2009
was certified for use as a U-NII device only on the 5735.0 - 5840.0
MHz band, and the device in use on August 22, 2009 was certified for
use as a U-NII device only on 5745-5805 MHz band. Accordingly, the
devices were not certified to operate as U-NII devices on 5600 and
5624 MHz, respectively. Because Ayustar operated U-NII devices on
frequencies for which they were not certified, Ayustar did not operate
its U-NII devices in compliance with Part 15 requirements.
Consequently, its operations were unauthorized. According to
information in the Commission's database, Ayustar holds no
authorization to transmit on 5.60 or 5.624 GHz. Ayustar was informed
that operation of a Part 15 device not in compliance with all of the
Part 15 requirements renders the operation unlicensed via written NOUO
prior to the inspection conducted on August 22, 2009. In its response
to the NAL, Ayustar did not deny any of the facts set forth in the
NAL. Based on the evidence and technical information before us, we
find that Ayustar willfully and repeatedly violated Section 301 of
the Act by operating radio transmitters without a license on March 11
and August 22, 2009.
9. Ayustar requests reduction or cancellation of the forfeiture based
"solely on the lack of capacity of Ayustar to pay the established
fine." With regard to an individual's or entity's inability to pay,
the Commission has determined that, in general, gross revenues are the
best indicator of an ability to pay a forfeiture. We have reviewed the
financial information provided by Ayustar and have determined that its
gross revenues do not warrant a reduction in forfeiture.
10. We have examined Ayustar's response to the NAL pursuant to the
statutory factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we find no basis for
cancellation or reduction of the $10,000 forfeiture proposed for these
violations.
IV. ORDERING CLAUSES
11. 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(f)(4) of the Commission's Rules, Ayustar Corporation IS LIABLE
FOR A MONETARY FORFEITURE in the amount of ten thousand dollars
($10,000) for violations of Section 301 of the Act.
12. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within 30 days of the release of this Order.
If the forfeiture is not paid within the period specified, the case
may be referred to the Department of Justice for collection pursuant
to Section 504(a) of the Act. 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/Account
Number and FRN Number 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. Please contact
the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
Ayustar will also send electronic notification on the date said
payment is made to SCR-Response@fcc.gov.
13. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Ayustar
Corporation at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 U.S.C. S: 301; see also 47 C.F.R. S:S: 15.1(b), 15.407.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 201032680001
(Enf. Bur., San Juan Office, November 12, 2009) ("NAL").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 301.
See 47 C.F.R. S:S: 15.1 et seq.
47 C.F.R. S: 15.1(b).
See 47 C.F.R. S: 15.401 et seq.
Moreover, assuming arguendo that Ayustar's transmitters were not U-NII
devices and were instead general Part 15 unlicensed intentional
transmitters, Ayustar also apparently failed to comply with the power
limits contained in Section 15.407(2) of the Rules. 47 C.F.R. S:
15.407(2). Section 15.407(2) restricts output power in the 5.47-5.725 GHz
band to 0.25 Watts. Pursuant to the U-NII rules, which authorize higher
power levels, both devices utilized by Ayustar are designed to operate
with 0.8 watts output power. Accordingly, Ayustar's operations on April 20
and August 22, 2009 did not comply with the general Part 15 power limits.
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).
As provided by 47 U.S.C. S: 312(f)(2), a continuous violation is
"repeated" if it continues for more than one day. The Conference Report
for Section 312(f)(2) indicates that Congress intended to apply this
definition to Section 503 of the Act as well as Section 312. See H.R. Rep.
97th Cong. 2d Sess. 51 (1982). See Southern California Broadcasting
Company, 6 FCC Rcd 4387, 4388 (1991) and Western Wireless Corporation, 18
FCC Rcd 10319 at fn. 56 (2003).
See PJB Communications of Virginia, Inc., 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., 16
FCC Rcd 24385 (2000) (forfeiture not deemed excessive where it represented
approximately 7.9 percent of the violator's gross revenues); Hoosier
Broadcasting Corporation, 15 FCC Rcd 8640 (2002) (forfeiture not deemed
excessive where it represented approximately 7.6 percent of the violator's
gross revenues).
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S:S: 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 10-138
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Federal Communications Commission DA 10-138