Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                   Before the

   Federal Communications Commission

   Washington, D.C. 20554


                           )                               
                                                           
                           )                               
                                                           
                           )                               
     In the Matter of          File No: EB-09-SJ-0013      
                           )                               
     Ayustar Corporation       NAL/Acct. No.:201032680001  
                           )                               
     San Juan, PR              FRN:0008739229              
                           )                               
                                                           
                           )                               
                                                           
                           )                               


                                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

   2

   Federal Communications Commission DA 10-138