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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No: EB-10-DV-0376
Utah Broadband ) NAL/Acct. No.: 201132800001
Sandy, Utah ) FRN: 0018608117
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: February 10, 2011 Released: February 11, 2011
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order
("NAL"), we find that Utah Broadband, operator of two Unlicensed
National Information Infrastructure ("U-NII") transmission systems in
Salt Lake City, 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 intentional radiators not in accordance with
Part 15 of the Rules and the devices' Equipment Authorization. We
conclude that Utah Broadband is apparently liable for a forfeiture in
the amount of twenty five thousand dollars ($25,000). We further order
Utah Broadband to submit a sworn statement certifying that it is
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 and, if harmful
interference occurs, the operation of the device must cease.
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 an allegation
that radio emissions were 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 5, 2010, FCC agents from the Enforcement Bureau's Denver
and San Diego Offices, along with FAA personnel, used
direction-finding techniques to locate emissions on the frequencies
5580 and 5640 MHz. On the following day, FCC and FAA personnel used
those same techniques to confirm that the identified interference
resulted from radio emissions emanating from two U-NII transmission
systems located on the rooftop of the Brody Chemical Building in Salt
Lake City, Utah. The FCC agents inspected the systems (hereinafter
"System 1" and "System 2"), which were operated by Utah Broadband.
Both U-NII systems utilized the modular transceiver model
XtremeRange5, an intentional radiator manufactured by Ubiquiti
Networks, Inc. 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 agents observed that the System 1 transceiver was
operating on 5580 MHz and the System 2 transceiver was operating on
5640 MHz, both outside the authorized frequency range. The FCC agents
also observed - and Utah Broadband personnel acknowledged - that the
required DFS functionality of each transceiver was disabled. During
the inspection, Utah Broadband adjusted the devices' operating
frequencies to cease any interference with the Salt Lake City TDWR
installation.
6. The FCC agents further observed that Utah Broadband had incorporated
high gain antennas into both 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 Ubiquiti XtremeRange5 transceivers and parabolic
dish antennas in use at the time of the inspection, indicated that the
EIRP for both System 1 and System 2 may have exceeded the maximum EIRP
permitted by the Rules for operation on the frequencies used by Utah
Broadband.
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. The term "willful" as used in section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for 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, Utah Broadband's operation of
the Ubiquiti XtremeRange5 transceivers as U-NII devices 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 Utah
Broadband did not have an individual license to operate on the 5580
and 5640 MHz frequencies and did not operate its certified
transceivers in accordance with Part 15 rules, its operations 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, Utah Broadband operated its Ubiquiti XtremeRange5
transceivers on frequencies not authorized under the transceivers' FCC
Equipment Authorization and with the DFS radar detection mechanism
required under section 15.407(h)(2) of the Rules disabled.
Accordingly, Utah Broadband 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 Utah Broadband may have
operated its Ubiquiti transceivers 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 Utah Broadband and other U-NII operators to be mindful of
these requirements or risk further enforcement action.
13. The FCC agents observed the operation of the unauthorized U-NII
transmission systems by Utah Broadband on October 5 and 6, 2010. Utah
Broadband's violations were repeated because they occurred on more
than one day. The violations were willful because Utah Broadband
consciously and deliberately operated the unauthorized U-NII
transmission systems.
14. Based on the evidence before us, we find that Utah Broadband
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 intentional radiators in a manner not in compliance with the
Part 15 Rules, in a manner inconsistent with their 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, Utah Broadband operated two Ubiquiti XtremeRange5
transceivers as part of U-NII transmission systems, in violation of
the transceivers' Equipment Authorization, as well as on frequencies
not authorized on the transceivers' Equipment Authorization. Utah
Broadband also operated the transceivers in violation of the Part 15
Rules by disabling the DFS function on the transceivers. Utah
Broadband's unauthorized operation of unauthorized systems created
interference to the FAA's TDWR radar system at the Salt Lake City
International Airport. Considering the totality of the evidence, the
number of unauthorized systems in operation, and the gravity of the
public safety risks posed by the unauthorized operation, we find that
an upward adjustment of $10,000 (to $20,000) is warranted for Utah
Broadband's operation without an authorization in apparent violation
of section 301 of the Act and section 15.1(b) of the Rules. We propose
the base forfeiture amount ($5,000) for Utah Broadband's operation of
unauthorized equipment in apparent violation of section 302(b) of the
Act and section 15.1(c) of the Rules.
17. Although we could impose additional upward adjustments or calculate
the forfeiture on a per-device basis, we decline to do so based on the
particular circumstances of this case. We caution Utah Broadband 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 Utah Broadband is apparently
liable for a forfeiture in the amount of $25,000.
18. As discussed above, following the October 6, 2010 inspection by
Enforcement Bureau field agents, Utah Broadband modified the
frequencies used by its transceivers to cease any interference with
the FAA's TDWR installation. The new frequencies used by Utah
Broadband, however, were not those listed on the devices' Equipment
Authorization. We further note that the calculations performed by
Enforcement Bureau field agents raise serious concerns about whether
the Utah Broadband U-NII devices complied with the relevant power
limits under Part 15. We therefore order Utah Broadband 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 24 within thirty days of the
release date of this Notice of Apparent Liability for Forfeiture and
Order.
IV. ORDERING CLAUSES
19. 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, Utah Broadband, 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.
20. 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, Utah Broadband,
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
21. IT IS FURTHER ORDERED that Utah Broadband SHALL SUBMIT a sworn
statement as described in paragraph 18 to the Enforcement Bureau
Office listed in paragraph 24 within thirty days of the release date
of this Notice of Apparent Liability for Forfeiture and Order.
22. Utah Broadband is HEREBY NOTIFIED that its operation of the Ubiquiti
XtremeRange5 transceivers resulted in harmful interference to the
FAA's TDWR system that serves the Salt Lake City International
Airport. Utah Broadband is HEREBY WARNED that any further operation of
any U-NII device, including the Ubiquiti XtremeRange5 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 interference to any radio communication of any
station licensed or authorized under the Act or operated by the United
States Government.
23. 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. Utah Broadband shall also send electronic
notification on the date said payment is made to WR-Response@fcc.gov.
24. 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.
25. 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.
26. 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 Utah Broadband at 197 Cottage
Avenue, Sandy, Utah, 84070.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Utah Broadband holds multiple FCC licenses, including Common Carrier Fixed
Point to Point Microwave Service licenses WQJA725, WQJA739, WQJA742, and
WQJA805; and Microwave Industrial / Business Pool licenses WQKI933,
WQKI934, WQKI935, WQLG502, WQLG506, WQLG508, WQLI632, WQLI634, WQLX639,
and WQME824.
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.
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).
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 Utah Broadband's devices were
not authorized to operate in the U-NII bands, they are subject to the
U-NII rules (47 C.F.R. 15.401-15.407) because Utah Broadband operated them
as U-NII devices.
The devices have 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.
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).
Utah Broadband changed the operating frequency of System 1 from 5580 MHz
to 5540 MHz and changed the operating frequency of System 2 from 5640 MHz
to 5240 MHz. As noted earlier, the Ubiquiti XtremeRange5 transceiver is
only authorized to operate within a frequency range of 5745 MHz to 5825
MHz.
System 1 employed an MTi Wireless Edge Model MT-486001 antenna with a gain
of 28 dBi and with an operating frequency range of 5150 MHz - 5875 MHz.
System 2 operated with a Laird Technologies Model HDDA5W-32 antenna with a
total gain of 32 dBi and with a frequency range of 4900 MHz - 5875 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 the
configuration of System 1, Utah Broadband employed an antenna specified to
have 28 dBi of gain, far 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 Utah Broadband's System 1, operating on 5540
MHz, is estimated to be 126 watts or 51 dBm.
Section 15.407(a)(1) of the Rules provides:
For the band 5.15-5.25 GHz, the maximum conducted output power over the
frequency band of operation shall not exceed the lesser of 50 mW or 4 dBm
+ 10 log B, where B is the 26-dB emission bandwidth in MHz. In addition,
the peak power spectral density shall not exceed 4 dBm in any 1-MHz 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)(1) formula, the maximum conducted output
power (total power output) is 50 mW or 17 dBm. Given the referenced
antenna gain of 6 dBi, the maximum EIRP should be 200 mW or 23 dBm. In the
configuration of System 2, Utah Broadband employed an antenna specified to
have 32 dBi of gain, far 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 Utah Broadband's System 2, operating on 5240
MHz, is estimated to be 316 watts or 55 dBm.
See infra nn. 18-19. The calculations assume the minimum power
specifications for the devices.
47 U.S.C. S: 503(b).
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, e.g., Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991), recon. denied, 7
FCC Rcd 3454 (1992).
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.
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. 18-19.
See supra n.23.
See supra n.22.
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.
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Federal Communications Commission DA 11-273