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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                              )                                
                                                               
                              )                                
                                                               
     In the Matter of         )   File No: EB-10-DV-0413       
                                                               
     Rapidwave, LLC           )   NAL/Acct. No.: 201132800003  
                                                               
     Saratoga Springs, Utah   )   FRN: 0015337108              
                                                               
                              )                                
                                                               
                              )                                


             NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER

   Adopted: July 28, 2011 Released: July 28, 2011

   By the Chief, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture and Order 
       ("NAL"), we find that Rapidwave, LLC ("Rapidwave"), operator of an
       Unlicensed National Information Infrastructure ("U-NII") transmission
       system in Saratoga Springs, Utah, apparently willfully and repeatedly
       violated sections 301 and 302(b) of the Communications Act of 1934, as
       amended, ("Act") and sections 15.1(b) and 15.1(c) of the Commission's
       rules ("Rules") by operating an intentional radiator not in accordance
       with Part 15 of the Rules and the device's Equipment Authorization. We
       conclude that Rapidwave is apparently liable for a forfeiture in the
       amount of twenty-five thousand dollars ($25,000). We further order
       Rapidwave to submit a sworn statement certifying that it is now
       operating its U-NII systems in compliance with FCC rules and
       applicable authorizations.

   II. BACKGROUND

    2. Part 15 of the Rules allows devices employing relatively low-level
       radiofrequency ("RF") signals to be operated without individual
       licenses, as long as their operation causes no harmful interference to
       licensed services and the devices do not generate emissions or field
       strength levels greater than a specified level. Such devices must be
       authorized and operated in accordance with the Part 15 Rules.  For
       example, section 15.5 provides that operation of an intentional
       radiator must not cause harmful interference. If harmful interference
       occurs, the operation of the device must cease upon notification of
       such interference.

    3. Operating an RF device, such as an intentional or unintentional
       radiator, that is not in compliance with its authorization or the Part
       15 Rules is a violation of section 302(b) of the Act. Additionally,
       operating a Part 15 device in a manner that is inconsistent with the
       Part 15 Rules requires a license pursuant to section 301 of the Act,
       and such operation without a license violates section 301 of the Act.

    4. As part of its ongoing coordination efforts with the Federal Aviation
       Administration ("FAA"), the Enforcement Bureau received a complaint
       about radio emissions causing interference to the FAA's Terminal
       Doppler Weather Radar ("TDWR") installation serving Salt Lake City
       International Airport. TDWR installations exist at 45 major airports
       in the United States and assist air traffic controllers in detecting
       low-altitude wind shear that can pose a risk to aircraft. In order to
       avoid interference to the FAA's TDWR installations, the Commission
       requires that U-NII devices operating in the 5.25 - 5.35 GHz and 5.47
       - 5.725 GHz bands have Dynamic Frequency Selection ("DFS") radar
       detection functionality, which allows them to detect the presence of
       radar systems and avoid co-channel operations with radar systems.

    5. On October 27, 2010, an FCC agent from the Enforcement Bureau's Denver
       Office, along with FAA personnel, used direction-finding techniques to
       locate emissions on the frequency of 5600 MHz to the Lake Mountain
       communications site in Saratoga Springs, Utah. The FCC agent inspected
       the system, which was identified as being operated by Rapidwave. The
       U-NII system utilized the modular transceiver model XtremeRange5, an
       intentional radiator manufactured by Ubiquiti Networks, Inc. On the
       following day, FCC and FAA personnel used those same techniques in
       combination with an on/off test to confirm that the identified
       interference resulted from radio emissions emanating from the
       identified U-NII transmission system. The FCC Equipment Authorization
       for the Ubiquiti XtremeRange5 transceiver limits the device to
       operations within a frequency range of 5745 MHz to 5825 MHz. During
       the inspection, however, the FCC agent observed that the transceiver
       was operating on 5600 MHz, a channel outside the authorized frequency
       range. As the inspection continued on October 28, 2010, the FCC agent
       also observed - and a Rapidwave representative acknowledged - that the
       transceiver was not operating with DFS functionality. During the
       inspection, Rapidwave adjusted the device's operating frequency to
       cease any interference with the Salt Lake City TDWR installation.

    6. The FCC agent further observed that Rapidwave had incorporated a high
       gain antenna into the U-NII system. The addition of a high gain
       antenna to such a system can increase the system's effective isotropic
       radiated power ("EIRP") to levels not authorized under the Part 15
       Rules. Calculations performed by the FCC agent, based on the
       configuration of the Ubiquiti XtremeRange5 transceiver and the
       parabolic dish antenna in use at the time of the inspection, indicated
       that the EIRP for this system's configuration may have exceeded the
       maximum EIRP permitted by the Rules for operation on the frequency
       used by Rapidwave.

   III. DISCUSSION

    7. 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.  "Repeated" means that the act was
       committed or omitted more than once, or lasts more than one day.

    8. Section 301 of the Act states that "[n]o person shall use or operate
       any apparatus for the transmission of energy or communications or
       signals by radio . . . except under and in accordance with this Act
       and with a license in that behalf granted under the provisions of this
       Act." Part 15 of the Rules sets out the regulations under which an
       intentional  radiator may be operated without an individual license.
       Section 15.1(b) of the Rules provides that "operation of an
       intentional . . . radiator  that is not in accordance with the
       regulations in this part must be licensed pursuant to the provisions
       of section 301 of the Communications Act of 1934...." Thus, the
       operator of an intentional radiator who operates it in a manner
       inconsistent with the Part 15 Rules is no longer covered by the
       unlicensed provisions of those Rules and must obtain an individual
       license pursuant to section 301 of the Act.

    9. Pursuant to its Equipment Authorization, the Ubiquiti XtremeRange5
       transceiver is an intentional radiator, certified for use pursuant to
       Part 15, Subpart C of the Rules (Intentional Radiators). The
       transceiver is not certified for use as a U-NII device pursuant to
       Part 15, Subpart E of the Rules (Unlicensed National Information
       Infrastructure) and is only certified for use in the frequency range
       of 5745 MHz to 5825 MHz. Consequently, Rapidwave's operation of the
       Ubiquiti XtremeRange5 transceiver as a U-NII device was inconsistent
       with the requirements of Part 15, including the requirement to employ
       DFS radar detection when operating in the frequency bands of 5.25 -
       5.35 GHz and 5.47 - 5.725 GHz. Because Rapidwave did not have an
       individual license to operate on the frequency of 5600 MHz and did not
       operate its certified transceiver in accordance with Part 15 rules,
       its operation violated section 301.

   10. In addition, section 15.1(c) of the Rules provides that the operation
       of an intentional radiator that is not in compliance with the
       administrative and technical provisions in Part 15, including the
       device's Equipment Authorization, is a violation of section 302 of the
       Act. Section 302(b) of the Act provides that "[n]o person shall . . .
       use devices which fail to comply with the regulations promulgated
       pursuant to this section." Consequently, the operation of an
       intentional radiator, such as the Ubiquiti XtremeRange5 transceiver,
       in a manner that is inconsistent with its Equipment Authorization, or
       in a manner that is inconsistent with the Part 15 Rules, is a
       violation of section 302(b) of the Act.

   11. As discussed above, Rapidwave operated its Ubiquiti XtremeRange5
       transceiver on a frequency not authorized under the transceiver's FCC
       Equipment Authorization and with no functioning DFS radar detection
       mechanism as required under section 15.407(h)(2) of the Rules.
       Accordingly, Rapidwave apparently violated section 15.1(c) of the
       Rules and section 302(b) of the Act.

   12. We make the following additional observations regarding the
       application of other U-NII rules to these facts. Section 15.407(a) of
       the Rules limits the power of U-NII devices. As discussed above, the
       Enforcement Bureau's calculations suggest that Rapidwave may have
       operated its Ubiquiti transceiver in excess of permissible power
       limitations. Similarly, sections 15.401 through 15.407 of the Rules
       set out the parameters concerning operation of U-NII devices. We
       caution Rapidwave and other U-NII operators to be mindful of these
       requirements or risk further enforcement action.

   13. The FCC agent observed the operation of the unauthorized U-NII
       transmission system by Rapidwave on October 27 and 28, 2010.
       Rapidwave's violations were repeated because they occurred on more
       than one day. The violations were willful because Rapidwave
       consciously and deliberately operated the unauthorized U-NII
       transmission system.

   14. Based on the evidence before us, we find that Rapidwave apparently
       willfully and repeatedly violated sections 301 and 302(b) of the Act,
       and sections 15.1(b) and 15.1(c) of the Rules, by operating an
       intentional radiator in a manner not in compliance with the Part 15
       Rules, in a manner inconsistent with its Equipment Authorization and,
       consequently, without authorization.

   15. Pursuant to the Commission's Forfeiture Policy Statement and section
       1.80 of the Rules, the base forfeiture for operation of unauthorized
       equipment is $5,000 and the base forfeiture for 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.

   16. As detailed above, Rapidwave operated a Ubiquiti XtremeRange5
       transceiver as part of a U-NII transmission system, in violation of
       the transceiver's Equipment Authorization, as well as on a frequency
       not authorized on the transceiver's Equipment Authorization. Rapidwave
       also operated the transceiver in violation of the Part 15 Rules by not
       operating the transceiver with DFS functionality. Rapidwave's
       unauthorized operation of an unauthorized system created interference
       to the FAA's TDWR radar system at the Salt Lake City International
       Airport. Considering the totality of the evidence and the gravity of
       the public safety risks posed by the unauthorized operation, we find
       that an upward adjustment of $10,000 is warranted for Rapidwave's
       operation without an authorization in apparent violation of section
       301 of the Act and section 15.1(b) of the Rules, resulting in a
       proposed forfeiture of $20,000 for this apparent violation. We propose
       the base forfeiture amount ($5,000) for Rapidwave's operation of
       unauthorized equipment in apparent violation of section 302(b) of the
       Act and section 15.1(c) of the Rules. Applying the Forfeiture Policy
       Statement, section 1.80 of the Rules, and the statutory factors to the
       instant case, we therefore conclude that Rapidwave is apparently
       liable for a total forfeiture in the amount of $25,000.

   17. As discussed above, following the October 28, 2010, inspection by the
       Enforcement Bureau field agent, Rapidwave modified the frequency used
       by its transceiver to cease any interference with the FAA's TDWR
       installation. The new frequency used by Rapidwave, however, was not
       listed on the device's Equipment Authorization. We further note that
       the calculations performed by Enforcement Bureau field agent raises
       serious concerns about whether the Rapidwave U-NII device complied
       with the relevant power limits under Part 15. We therefore order
       Rapidwave to submit a written statement signed under penalty of
       perjury by an officer or director of the company stating that the
       company is now operating its U-NII devices in compliance with their
       Equipment Authorization and the Commission's Rules. This statement
       must be provided to the Enforcement Bureau at the address listed in
       paragraph 23 within thirty days of the release date of this Notice of
       Apparent Liability for Forfeiture and Order.

   IV. ORDERING CLAUSES

   18. 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 of the Commission's Rules, Rapidwave, LLC, is hereby NOTIFIED of
       this APPARENT LIABILITY FOR A FORFEITURE in the amount of twenty-five
       thousand dollars ($25,000) for apparently willfully and repeatedly
       violating sections 301 and 302(b) of the Act, and sections 15.1(b) and
       15.1(c) of the Rules.

   19. 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 and Order, Rapidwave, LLC,
       SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
       written statement seeking reduction or cancellation of the proposed
       forfeiture.

   20. IT IS FURTHER ORDERED that Rapidwave, LLC, SHALL SUBMIT a sworn
       statement as described in paragraph 17 to the Enforcement Bureau
       Office listed in paragraph 23 within thirty days of the release date
       of this Notice of Apparent Liability for Forfeiture and Order.

   21. Rapidwave, LLC, is HEREBY NOTIFIED that its operation of an Ubiquiti
       Networks, Inc., transceiver resulted in harmful interference to the
       FAA's TDWR system that serves the Salt Lake City International
       Airport. Rapidwave, LLC, is HEREBY WARNED that any further operation
       of any U-NII device, including the Ubiquiti Networks, Inc.,
       transceiver, on any frequency, and at any location, that results in
       interference to the FAA's TDWR system serving the Salt Lake City
       International Airport may be considered a willful violation of section
       333 of the Act, which prohibits willful or malicious interference to
       any radio communication of any station licensed or authorized under
       the Act or operated by the United States Government.

   22. Payment of the forfeiture must be made by credit card, check, or
       similar instrument, payable to the order of the Federal Communications
       Commission. The payment must include the NAL/Account Number and FRN
       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.    If you have questions, please contact the
       Financial Operations Group Help Desk at 1-877-480-3201 or Email:
       ARINQUIRIES@fcc.gov. Rapidwave, LLC, shall also send electronic
       notification on the date said payment is made to WR-Response@fcc.gov.

   23. 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 1.80(f)(3) and 1.16 of the Rules. The written statement  must
       be mailed to Federal Communications Commission, Enforcement Bureau,
       Western Region Office, 215 S. Wadsworth Blvd., Suite 303, Lakewood, CO
       80226, and must include the NAL/Acct. No. referenced in the caption.
       An electronic copy shall also be sent to WR-Response@fcc.gov.

   24. 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.

   25. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
       for Forfeiture and Order shall be sent by both Certified Mail, Return
       Receipt Requested, and regular mail, to Rapidwave, LLC, at 1304 North
       Redwood Road, # 131, Saratoga Springs, Utah, 84045.

   FEDERAL COMMUNICATIONS COMMISSION

   P. Michele Ellison

   Chief, Enforcement Bureau

   Rapidwave holds multiple FCC licenses, including Microwave Industrial /
   Business Pool licenses WQJI820, WQJI895, WQNC635, WQNC637 and WQNE818.

   47 U.S.C. S:S: 301, 302a(b).

   47 C.F.R. S: 15.1(b), (c).

   47 C.F.R. S:S: 15.1 et seq.

   47 C.F.R. S:S: 15.1, 15.407.

   Revision of Part 15 of the Rules Regarding the Operation of Radio
   Frequency Devices Without an Individual License, First Report and Order, 4
   FCC Rcd 3493 (1989).

   47 C.F.R. S:S: 15.1(a), 15.5.

   47 C.F.R. S: 15.5.

   Id.

   47 C.F.R. S: 15.1(c).

   47 C.F.R. S: 15.1(b).

   MIT Lincoln Laboratories,
   http://www.ll.mit.edu/mission/aviation/faawxsystems/tdwr.html (last
   visited Jan. 26, 2011).

   See 47 C.F.R. S: 15.407(h)(2). See also 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://www.wi-fi.org/files/FCC_Memorandum_on_UNII_Device_Operation_2010_07_27-M.pdf
   (last visited Feb. 1, 2011).

   The device has FCC ID SWX-XR5 ("Ubiquiti XtremeRange5"). Ubiquiti
   Networks, Inc. was issued a Grant of Equipment Authorization for the
   Ubiquiti XtremeRange5 by MET Laboratories, Inc., under the authority of
   the FCC, on February 16, 2007.

   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 Rapidwave's device was not
   authorized to operate in the U-NII bands, it was subject to the U-NII
   rules (47 C.F.R. 15.401-15.407) because Rapidwave operated it as a U-NII
   device.

   The Equipment Authorization for the Ubiquiti XtremeRange5 transceiver
   states that the device is certified for use pursuant to Part 15, Subpart C
   of the Rules (Intentional Radiators).

   Rapidwave changed the operating frequency of this system from 5600 MHz to
   5400 MHz. As noted earlier, the Ubiquiti XtremeRange5 transceiver is only
   authorized to operate within a frequency range of 5745 MHz to 5825 MHz.

   This U-NII arrangement operated with a Laird Technologies Model DA58-29
   DISH antenna with a total gain of 29 dBi and with a frequency range of
   5725 MHz - 5850 MHz.

   Section 15.407(a)(2) for the Rules provides:

   For the 5.25-5.35 GHz and 5.47-5.725 GHz bands, the maximum conducted
   output power over the frequency bands of operation shall not exceed the
   lesser of 250 mW or 11 dBm + 10 log B, where B is the 26 dB emission
   bandwidth in megahertz. In addition, the peak power spectral density shall
   not exceed 11 dBm in any 1 megahertz band. If transmitting antennas of
   directional gain greater than 6 dBi are used, both the maximum conducted
   output power and the peak power spectral density shall be reduced by the
   amount in dB that the directional gain of the antenna exceeds 6 dBi.

   Applying the Section 15.407(a)(2) formula, the maximum conducted output
   power (total power output) is 250 mW or 24 dBm. Given the antenna gain of
   6 dBi as described above, the maximum EIRP is 1 watt or 30 dBm. In this
   system's configuration, Rapidwave employed an antenna specified to have 29
   dBi of gain, far in excess of the standard 6 dBi gain upon which the
   operating limits were predicated. Calculations by the FCC agent revealed
   that the EIRP of Rapidwave's system, operating on 5600 MHz, is estimated
   to have been 159 watts or 52 dBm.

   See infra n. 18. The calculations assume the minimum power specifications
   for the devices.

   47 U.S.C. S: 503(b).

   47 U.S.C. S: 312(f)(1).

   H.R. Rep. No. 97-765, 97th 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., Application for Review of Southern California Broadcasting Co.,
   Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) ("Southern
   California Broadcasting Co.").

   See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
   Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10 (2001) ("Callais
   Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
   television operator's repeated signal leakage).

   Southern California Broadcasting Co., 6 FCC Rcd at 4388, P: 5; Callais
   Cablevision, Inc., 16 FCC Rcd at 1362, P: 9.

   47 U.S.C. S: 301.

   47 C.F.R. S: 15.1(a).

   47 C.F.R. S: 15.1(b).

   47 C.F.R. S: 15.1(b). See California Speedway, Forfeiture Order, 17 FCC
   Rcd 22701 (Enf. Bur. 2002) (in order to be exempt from Section 301's
   license requirement, an intentional radiator must be operated in
   accordance with Part 15; otherwise, the operation requires a license).

   47 C.F.R. S: 15.1(c).

   47 U.S.C. S: 302a(b).

   47 C.F.R. S: 15.1(c).

   47 C.F.R. S:S: 15.401 - 15.407.

   47 C.F.R. S: 15.407(a).

   See infra P: 6 &  nn. 17-18.

   See supra n.25.

   See supra n.21.

   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"), recon. denied, 15
   FCC Rcd 303 (1999); 47 C.F.R. S:1.80.

   47 U.S.C. S: 503(b)(2)(E).

   See infra P: 5.

   See infra n.16.

   47 U.S.C. S:S: 301, 302a(b), 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80,
   15.1(b), 15.1(c).

   47 U.S.C. S: 333.

   See 47 C.F.R. S: 1.1914.

   47 C.F.R. S:S: 1. 80(f)(3), 1.16.

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 11-1311

                                       8

   Federal Communications Commission DA 11-1311