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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                            )                                
                                                             
                            )                                
                                                             
     In the Matter of       )   File No: EB-10-MA-0111       
                                                             
     Sling Broadband, LLC   )   NAL/Acct. No.: 201132600008  
                                                             
     Hollywood, FL          )   FRN: 0018006452              
                                                             
                            )                                
                                                             
                            )                                


             NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER

   Adopted: July 29, 2011 Released: July 29, 2011

   By the Chief, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture and Order ("NAL"),
       we find that Sling Broadband, LLC ("Sling"), operator of Unlicensed
       National Information Infrastructure ("U-NII") transmission systems in
       Deerfield Beach, Florida, apparently willfully and repeatedly violated
       section 301 of the Communications Act of 1934, as amended ("Act"), and
       section 15.1(b) of the Commission's rules ("Rules") by operating
       intentional radiators not in accordance with Part 15 of the Rules and
       without a license. We conclude that Sling is apparently liable for a
       forfeiture in the amount of twenty thousand dollars ($20,000). We
       further order Sling to submit a statement signed under penalty of
       perjury by an officer or director of the company stating that it is
       currently 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 of the Rules 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. 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. Such operation without a license
       violates that provision.

    3. 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 the Fort
       Lauderdale - Hollywood International Airport. TDWR installations exist
       at 45 major airports in the United States and Puerto Rico and assist
       air traffic controllers in detecting low-altitude wind shear that can
       pose a risk to aircraft.

    4. On January 5, 2011, agents from the Enforcement Bureau's Miami Office
       ("Miami Office") confirmed by direction-finding techniques that radio
       emissions on the frequencies 5425 MHz, 5445 MHz, 5650 MHz, and 5670
       MHz were emanating from antennas mounted near the top of ASR number
       1019595 in Deerfield Beach, Florida. The owner of the antenna
       structure stated that Sling was the only wireless internet service
       provider with equipment on the antenna structure and provided copies
       of its collocation agreement with Sling, which authorized the
       placement of three U-NII transmitters, Ubiquiti Network, Inc. Rocket
       M5 transceivers. The Rocket M5 model is certified for use as a Part 15
       intentional radiator only in the 5745-5825 MHz band and is not
       certified as a U-NII intentional radiator.

    5. On January 10, 2011, agents from the Miami Office again confirmed
       using direction-finding techniques that Sling operated U-NII
       transmitters on the frequencies 5425 MHz, 5445 MHz, and 5725 MHz on
       ASR number 1019595. According to Commission records, Sling does not
       hold licenses to operate on the frequencies 5425 MHz, 5445 MHz, 5650
       MHz, 5670 MHz, and 5725 MHz from ASR number 1019595. Moreover, the
       Part 15 Rules do not authorize intentional radiators to operate in the
       5.35-5.46 MHz band.

    6. On January 10, 2011, Sling's Radio Frequency Engineer informed agents
       from the Miami Office that Sling was operating the access point with
       three Rocket M5s with three panel antennas for three subscriber
       sectors, and one more Rocket M5 for backhaul services. He stated that
       on January 7, 2011, he discovered a malfunction in one of the Rocket
       M5s, which was causing it to continuously cycle upward though all
       channels. Agents from the Miami Office replied that, during their
       previous monitoring, they only observed four constant 20 MHz wide
       transmissions and did not observe the transmissions cycling up, to
       which the engineer had no response. Sling's RF Engineer also stated
       that one Rocket M5 transmitter at the site was replaced on January 7,
       2011, and that the new one was set to another frequency (centered at
       5725 MHz) away from the TDWR band. The FAA confirmed that the
       interference to the TDWR serving the Fort Lauderdale - Hollywood
       International Airport ceased on January 7, 2010, thereby confirming
       that Sling's transmissions on the frequencies 5650 MHz and 5670 MHz
       were the source of the interference.

    7. The FCC agents further observed that Sling had incorporated high gain
       sector antennas into three of its U-NII systems. 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 agents, based on the
       configuration of the Rocket M5s and the sector antennas in use at the
       time of the inspection, indicated that the EIRP for all three systems
       may have exceeded the maximum EIRP permitted by the Rules for
       operation on the frequencies used by Sling.

   III. DISCUSSION

    8. 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 section 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. The term "repeated" means the
       commission or omission of such act more than once or for more than one
       day.

    9. 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. Part 15 intentional radiators
       are not permitted to operate in the 5.35-5.46 MHz band. 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 an intentional radiator
       fails to comply with all of the applicable conditions set forth in
       Part 15 of the Rules, it is no longer covered by the unlicensed
       provisions of those Rules and must obtain an individual license
       pursuant to section 301 of the Act.

   10. On January 5 and 10, 2011, as described above, agents from the Miami
       Office observed Sling operate four Part 15 intentional radiators,
       Rocket M5s, on the center frequencies 5425 MHz, 5445 MHz, 5650 MHz,
       5670 MHz, and 5725 MHz from ASR number 1019595 in Deerfield Beach,
       Florida. No Part 15 intentional radiators are permitted to operate on
       the frequencies 5425 MHz and 5445 MHz, as they are in a restricted
       frequency band. The Rocket M5 device is only certified for use on the
       5745-5825 MHz frequency band. Therefore, Sling's operations did not
       comply with either the device's Equipment Authorization or Part 15
       requirements and thus required a license. According to Commission
       records, Sling does not hold a license to operate on the frequencies
       5425 MHz, 5445 MHz, 5650 MHz, 5670 MHz, and 5725 MHz in Deerfield
       Beach, Florida. Thus, based on the evidence before us, we find that
       Sling apparently willfully and repeatedly violated section 301 of the
       Act and section 15.1(b) of the Rules by operating unlicensed radio
       transmitters on January 5 and 10, 2011.

   11. Pursuant to the Commission's Forfeiture Policy Statement and section
       1.80 of the Rules, the base forfeiture amount 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.

   12. Because Sling operated four unauthorized U-NII transmitters and caused
       interference to the Fort Lauderdale - Hollywood International
       Airport's TDWR and posed a safety hazard to air traffic, we believe an
       upward adjustment in the forfeiture amount for Sling's apparent
       unlicensed operation is warranted. On June 9, 2010, Sling operated a
       Part 15 radio transmitter on 5650 MHz, a frequency for which it was
       not certified, without a license and caused interference to the TDWR
       at the Fort Lauderdale - Hollywood International Airport, the very
       same activity at issue today. Accordingly, we find Sling's apparent
       violations to be egregious and deserving of an additional upward
       adjustment. Based on these factors, we find that $10,000 is an
       appropriate upward adjustment for Sling's apparent unlicensed
       operation, resulting in a $20,000 proposed forfeiture for this
       apparent violation.

   13. As discussed above, following the January 5, 2011 inspection by
       Enforcement Bureau field agents, Sling modified the frequencies used
       by its transceivers to cease any interference with the FAA's TDWR
       installation. One of the new frequencies used by Sling, however, was
       not authorized by the devices' Equipment Authorization. We also note
       that the calculations performed by Enforcement Bureau field agents
       raise serious concerns about whether the Sling U-NII devices complied
       with the relevant power limits under Part 15. We further order Sling
       to submit a statement signed under penalty of perjury by an officer or
       director of the company stating that it is currently operating its
       U-NII systems in compliance with FCC rules and applicable
       authorizations. This statement must be provided to the Enforcement
       Bureau at the address listed in paragraph 20 within thirty days of the
       release date of this NAL.

   14. Although we could impose larger upward adjustments for Sling's
       apparent violations, we decline to do so, based on the particular
       circumstances of this case. We caution Sling and other U-NII service
       providers, however, that we may do so in future cases if the
       circumstances warrant or if our current approach does not serve as a
       sufficient deterrent. Applying the Forfeiture Policy Statement,
       section 1.80 of the Rules, and the statutory factors to the instant
       case, we therefore conclude that Sling is apparently liable for a
       forfeiture of $20,000 for unlicensed operation in violation of section
       301 of the Act and section 15.1(b) of the Rules.

   IV. ORDERING CLAUSES

   15. 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, Sling Broadband, LLC is
       hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
       amount of twenty thousand dollars ($20,000) for violations of section
       301 of the Act and section 15.1(b).

   16. 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,  Sling
       Broadband, LLC, SHALL PAY the full amount of the proposed forfeiture
       or SHALL FILE a written statement seeking reduction or cancellation of
       the proposed forfeiture.

   17. IT IS FURTHER ORDERED that Sling Broadband, LLC SHALL SUBMIT a sworn
       statement as described in paragraph 13 to the Enforcement Bureau
       Office listed in paragraph 20 within thirty days of the release date
       of this Notice of Apparent Liability for Forfeiture and Order.

   18. Sling Broadband, LLC is HEREBY NOTIFIED that its operation of an
       Ubiquiti Network, Inc. Rocket M5 transceiver resulted in harmful
       interference to the FAA's TDWR system that serves the Fort Lauderdale
       - Hollywood International Airport. Sling Broadband, LLC is HEREBY
       WARNED that any further operation of any U-NII device, including the
       Ubiquiti Network, Inc. Rocket M5, on any frequency, and at any
       location, that results in interference to the FAA's TDWR system
       serving the Fort Lauderdale - Hollywood 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.

   19. 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 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 regarding payment
       procedures, please contact the Financial Operations Group Help Desk at
       1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. Sling shall send
       electronic notification on the date said payment is made to
       SCR-Response@fcc.gov.

   20. 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,
       South Central Region, Miami Office, P.O. Box 520617, Miami, FL 33152
       and must include the NAL/Acct. No. referenced in the caption. The
       statement should also be emailed to SCR-Response@fcc.gov.

   21. 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.

   22. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
       for Forfeiture shall be sent by both Certified Mail, Return Receipt
       Requested, and regular mail, to Sling Broadband, LLC at 2700 N. State
       Road 7, Hollywood, FL 33021.

   FEDERAL COMMUNICATIONS COMMISSION

   P. Michele Ellison

   Chief, Enforcement Bureau

   47 U.S.C. S: 301; see also 47 C.F.R. S: 15.407.

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

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

   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(b).

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

   The collocation agreement referenced Ubiquity Rocket M5 transceivers with
   FCC ID SWX-M5.

   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 Sling's devices were not
   authorized to operate in the U-NII bands, they are subject to the U-NII
   rules (47 C.F.R. S:S: 15.401-15.407) because Sling operated them as U-NII
   devices on U-NII frequencies.

   Sling was also operating on the frequency 5745 MHz, a frequency for which
   the Rocket M5 is certified. Operation pursuant to section 15.247 of the
   Rules, however, must comply with the applicable power limits specified
   therein. 47 C.F.R. S: 15.247.

   47 C.F.R. S: 15.205(a).

   See email from Aaron Tuttle, TDWR & Meteorological Support, FAA, to Miami
   Office, dated February 22, 2011.

   According to the collocation agreement, the Rocket M5s employed Ubiquiti
   Airmax 5G-19-120 sector antennas with a gain of 19 dBi (18.6 dBi according
   to the Airmax specifications). The antennas photographed by the agents of
   the Miami Office on January 5, 2011 appeared to be Ubiquiti Airmax sector
   antennas.

   Section 15.407(a)(2) of 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...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 allowable EIRP is 1 watt or 30 dBm.
   Systems operating on U-NII band frequencies are required to adhere to this
   limit.

   Section 15.247 of the Rules provides that the maximum peak conducted
   output power of the intentional radiator shall not exceed the following:

   15.247(b)(3) For systems using digital modulation in the 902-928 MHz,
   2400-2483.5 MHz, and 5725-5850 MHz bands: 1 Watt.

   15.247(b)(4) Except as shown in paragraph (c) of this section (fixed point
   to point operation), if transmitting antennas of directional gain greater
   than 6dBi are used, the conducted output power...shall be reduced below
   the stated values...by the amount in dB that the directional gain of the
   antenna exceeds 6 dBi.

   Applying Section 15.247(b)(3) of the Rules, the maximum conducted output
   power (total power output) is 1 W or 30 dBm. Given the antenna gain of 6
   dBi as described above, the maximum EIRP is 4 watts or 36 dBm. Systems
   operating under Section 15.247 are required to adhere to this limit.

   In the configuration of its three systems at Deerfield Beach, Sling
   employed antennas specified to have 18.6 dBi of gain, in excess of the
   standard 6 dBi gain upon which the operating limits were predicated.
   Calculations by the FCC agents revealed that the EIRP of each of Sling's
   systems operating on 5650 MHz, 5670 MHz, 5725 MHz and 5745 MHz is
   estimated to be 9.1 watts or 39.6 dBm.

   See supra n. 15. The calculations assume the minimum average 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).

   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."

   47 U.S.C. S: 301.

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

   47 C.F.R. S: 15.205(a).

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

   12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
   S:1.80.

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

   See Sling Broadband, LLC, Notice of Unlicensed Operation and Notification
   of Harmful Interference, Document Number W201032600061 (Enf. Bur. rel.
   July 20, 2010).

   See supra P:P: 6, 7.

   See supra P: 11.

   47 U.S.C. S:S: 301, 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80,
   15.1(b).

   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 11-1312

                                       2

   Federal Communications Commission DA 11-1312