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
)
) File No. EB-09-SE-065
In the Matter of
) Acct. No. 201032100025
Airspan Networks (Israel), Ltd.
) FRN No. 0009320326
)
ORDER
Adopted: April 14, 2010 Released: April 15, 2010
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Airspan Networks
(Israel), Ltd. ("Airspan"). The Consent Decree terminates an
investigation by the Bureau against Airspan for possible violations of
Section 302(b) of the Communications Act of 1934, as amended ("Act"),
and Sections 2.803, 2.925, and 15. 407(h)(2) of the Commission's Rules
("Rules") regarding the marketing and selling of unlicensed National
Information Infrastructure ("U-NII") devices.
2. The Bureau and Airspan have negotiated the terms of the Consent Decree
that resolve this matter. A copy of the Consent Decree is attached
hereto and incorporated by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and terminating the investigation.
4. In the absence of material new evidence relating to this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether Airspan possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to section 4(i) of the
Communications Act of 1934, as amended, and sections 0.111 and 0.311
of the Commission's Rules, the Consent Decree attached to this Order
IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Eric D. Stonestrom, CEO, President and Executive
Director, Airspan Networks (Israel) Ltd., 777 Yamato Road, Suite 310,
Boca Raton, FL 33431, and counsel for Airspan, Michael R. Bennet,
Esq., Bennet & Bennet, PLLC, 4350 East West Highway, Suite 201,
Bethesda, MD 20814.
FEDERAL COMMUNICATIONS COMMISSION
Kathryn S. Berthot
Chief, Spectrum Enforcement Division
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-09-SE-065
In the Matter of
) Acct. No. 201032100025
Airspan Networks (Israel), Ltd.
) FRN No. 0009320326
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and Airspan Networks (Israel), Ltd.
("Airspan"), by their authorized representatives, hereby enter into
this Consent Decree for the purpose of terminating the Bureau's
investigation of Airspan for possible violations of Section 302(b) of
the Communications Act of 1934, as amended ("Act"), and Sections
2.803, 2.925, and 15.407(h)(2) of the Commission's Rules ("Rules")
regarding the marketing and selling of unlicensed National Information
Infrastructure ("U-NII") devices.
I. DEFINITIONS
1. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Act" means the Communications Act of 1934, as amended 47 U.S.C. S:
151 et seq.
b. "Adopting Order" means an Order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "Airspan" means Airspan Networks (Israel), Ltd., and its subsidiaries
and its predecessors-in-interest and successors-in-interest.
d. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
e. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
f. "Compliance Plan" means the program described in this Consent Decree
at paragraph 8.
g. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
h. "Investigation" means the investigation commenced by the Bureau's
April 20, 2009 letter of inquiry ("LOI") to Airspan regarding
possible violations of Section 302(b) of the Act and Sections 2.803,
2.925, and 15.407(h)(2) of the Rules.
i. "Parties" mean Airspan and the Bureau.
j. "Rules" mean the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
2. Pursuant to Section 302(b) of the Act and Section 2.803 of the Rules,
radio frequency devices may not be marketed in the United States
unless such devices comply with the applicable technical and
administrative provisions of the Rules and are labeled as required by
Section 2.925. In accordance with Section 15.407(h)(2), U-NII devices
operating in the 5.25-5.35 GHz and 5.47-5.725 GHz bands shall employ a
Dynamic Frequency Selection ("DFS") radar detection mechanism to avoid
co-channel interference with licensed radar systems.
3. On April 20, 2009, the Bureau issued a letter of inquiry (LOI) to
Airspan. The LOI directed Airspan, among other things, to submit a
sworn written response to a series of questions relating to the
marketing and selling of various U-NII devices. Airspan responded to
the LOI on June 2, 2009.
III. TERMS OF AGREEMENT
4. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order
without change, addition, modification, or deletion.
5. Jurisdiction. Airspan agrees that the Bureau has jurisdiction over it
and the matters contained in this Consent Decree and has the authority
to enter into and adopt this Consent Decree.
6. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the date on which the Bureau releases the
Adopting Order. Upon release, the Adopting Order and this Consent
Decree shall have the same force and effect as any other Order of the
Bureau. Any violation of the Adopting Order or of the terms of this
Consent Decree shall constitute a separate violation of a Bureau
Order, entitling the Bureau to exercise any rights and remedies
attendant to the enforcement of a Commission Order.
7. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate its
investigation. In consideration for the termination of said
investigation, Airspan agrees to the terms, conditions, and procedures
contained herein. The Bureau further agrees that in the absence of new
material evidence, the Bureau will not use the facts developed in this
investigation through the Effective Date of the Consent Decree, or the
existence of this Consent Decree, to institute, on its own motion, any
new proceeding, formal or informal, or take any action on its own
motion against Airspan concerning the matters that were the subject of
the investigation. The Bureau also agrees that it will not use the
facts developed in this investigation through the Effective Date of
this Consent Decree, or the existence of this Consent Decree, to
institute on its own motion any proceeding, formal or informal, or
take any action on its own motion against Airspan with respect to
Airspan's basic qualifications, including its character
qualifications, to be a Commission licensee or to hold Commission
authorizations.
8. Compliance Plan. In response to the Bureau's investigation, Airspan
initiated certain remedial measures and, for purposes of settling the
matters herein, agrees to implement a Compliance Plan related to
future compliance with the Act, the Commission's Rules, and the
Commission's Orders. The Compliance Plan will include, at a minimum,
the following components:
a. Compliance Officer. Within 90 days of the Effective Date, Airspan
will designate a senior corporate officer ("Compliance Officer") who
is responsible for administering the Compliance Plan.
b. Remedial Measures. Airspan has developed and distributed to its
United States MicroMAX customers a software upgrade for its MicroMAX
device that prevents users from disabling the DFS radar detection
mechanism and varying any other operating parameters of the device.
In addition, Airspan asserts that it has contacted all of its
MicroMAX customers and verified that the software was received by all
such customers, and Airspan agrees to provide telephone support and
direction to any customer requiring assistance in installing or
operating the software. Finally, Airspan has distributed labels that
comply with FCC rules to its customers for the MicroMAX and ProST 5.4
GHz TDD devices that were shipped to the United States without
labels.
c. Training. Within 90 days of the Effective Date, and annually
thereafter, Airspan will provide training concerning compliance with
Parts 2 and 15 of the Rules to all of its employees who are involved
directly or indirectly in the marketing and distribution of radio
frequency products imported, marketed and sold by Airspan in the
United States. Furthermore, within 90 days of hire, Airspan will
similarly provide training to all new employees involved directly or
indirectly in the marketing and distribution of radio frequency
products imported, marketed, and sold by Airspan.
d. Compliance Reports. Airspan will file compliance reports with the
Commission 90 days after the Effective Date, 12 months after the
Effective Date, and 24 months after the Effective Date. Each report
shall include a compliance certificate from the Compliance Officer
stating that the Compliance Officer has personal knowledge that
Airspan has established operating procedures intended to ensure
compliance with this Consent Decree, together with an accompanying
statement explaining the basis for the Compliance Officer's
compliance certification. All compliance reports shall be submitted
to Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W. Washington, D.C.
20554. All compliance reports shall also be submitted electronically
to Linda.Nagel@fcc.gov and Kathy.Berthot@fcc.gov.
e. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire 24 months after the Effective Date.
9. Voluntary Contribution. Airspan agrees that it will make a voluntary
contribution to the United States Treasury in the amount of ten
thousand dollars ($10,000). The payment will be made within 30 days
after the Effective Date of the Adopting Order. The payment must be
made by check or similar instrument, payable to the order of the
Federal Communications Commission. The payment must include the
Account Number and FRN Number referenced in the caption to the
Adopting Order. 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 Account number
in block number 23A (call sign/other ID), and enter the letters "FORF"
in block number 24A (payment type code). Airspan will also send
electronic notification to Linda.Nagel@fcc.gov and
Kathy.Berthot@fcc.gov on the date said payment is made.
10. Waivers. Airspan waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal, or stay,
or to otherwise challenge or contest the validity of this Consent
Decree and the Adopting Order, provided the Bureau issues an Adopting
Order adopting the Consent Decree without change, addition,
modification, or deletion. Airspan shall retain the right to challenge
Commission interpretation of the Consent Decree or any terms contained
herein. If either Party (or the United States on behalf of the
Commission) brings a judicial action to enforce the terms of the
Adopting Order, neither Airspan nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and Airspan
shall waive any statutory right to a trial de novo. Airspan hereby
agrees to waive any claims it may otherwise have under the Equal
Access to Justice Act, 5 U.S.C. S: 504 and 47 C.F.R. S: 1.1501 et
seq., relating to the matters addressed in this Consent Decree.
11. Invalidity. In the event that this Consent Decree is rendered invalid
by any court of competent jurisdiction, it shall become null and void
and may not be used in any manner in any legal proceeding.
12. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent rule or Order adopted
by the Commission (except an Order specifically intended to revise the
terms of this Consent Decree to which Airspan does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
13. Successors and Assigns. Airspan agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
14. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further agree that this Consent Decree does not constitute
either an adjudication on the merits or a factual or legal finding or
determination regarding any compliance or noncompliance with the
requirements of the Act or the Commission's Rules and Orders.
15. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
16. Paragraph Headings. The headings of the Paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
17. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
18. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
_______________________________
Kathryn S. Berthot
Chief
Spectrum Enforcement Division
Enforcement Bureau
________________________________
Date
________________________________
David Brant
Chief Financial Officer
Airspan Networks Inc.
________________________________
Date
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803, 2.925, 15.407(h)(2).
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 U.S.C. S: 302a(b).
47 C.F.R. S:S: 2.803, 2.925, 15.407(h)(2).
See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission, to Eric D.
Stonestrom, CEO, President and Executive Director, Airspan Networks
(Israel), Ltd. (April 20, 2009) ("LOI").
See LOI.
See Letter from Michael R. Bennet, Counsel for Airspan, to Kathy S.
Berthot, Chief, and Linda Nagel, Spectrum Enforcement Division,
Enforcement Bureau, Federal Communications Commission (June 3, 2009) ("LOI
Response").
Federal Communications Commission DA 10-618
2
Federal Communications Commission DA 10-618
Federal Communications Commission DA 10-618
5
Federal Communications Commission DA 10-618