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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                        )                                
                                                         
                        )                                
                                                         
     In the Matter of   )   File No: EB-10-SJ-0066       
                                                         
     AT&T, Inc.         )   NAL/Acct. No.: 201132680001  
                                                         
     San Juan, PR       )   FRN: 0018840736              
                                                         
                        )                                
                                                         
                        )                                


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: February 17, 2011 Released: February 17, 2011

   By the Chief, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       that AT&T, Inc. through its subsidiary AT&T Mobility ("AT&T"),
       operator of an Unlicensed National Information Infrastructure
       ("U-NII") transmission system in Santurce, Puerto Rico, 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 and without a license. We
       conclude that AT&T is apparently liable for forfeiture in the amount
       of twenty-five thousand dollars ($25,000).

   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 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.
       Such operation without a license violates that provision.

    4. As part of its ongoing coordination efforts with the Federal Aviation
       Administration ("FAA"), the Enforcement Bureau received a complaint
       that radio emissions were causing interference on or adjacent to the
       frequency 5610 MHz to the FAA's Terminal Doppler Weather Radar
       ("TDWR") installation serving the San Juan 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. 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 December 7, 2010, agents from the Enforcement Bureau's San Juan
       Office ("San Juan Office") conducted an investigation on the roof of
       the Miramar Plaza Condominium Building in Santurce, Puerto Rico. The
       agents from the San Juan Office confirmed by direction-finding
       techniques that radio emissions on frequency 5605 MHz were emanating
       from the building's roof, the location of one of AT&T's U-NII
       transmitters, a Motorola Canopy. The Canopy model is certified for use
       as a Part 15 intentional radiator only in the 5735.0 - 5840.0 MHz band
       and is not certified as a U-NII intentional radiator. The device also
       is not capable of DFS functionality.

    6. On December 8, 2010, agents from the San Juan Office again confirmed
       using direction-finding techniques that AT&T's U-NII transmitter on
       the roof of the Miramar Plaza Condominium Building was operating on
       the frequency 5605 MHz. The agents conducted additional tests and
       found that when the frequency for AT&T's device was changed from 5605
       MHz, the interference to the TDWR ceased, thereby confirming that
       AT&T's operations were the source of the interference. According to
       Commission records, AT&T does not hold a license to operate on the
       frequency 5605 MHz from the Miramar Plaza Condominium Building. On
       December 13, 2010, AT&T ceased operating its U-NII transmitter at this
       location.

   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) of the Act 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 requires that no person shall use or operate
       any apparatus for the transmission of energy or communications or
       signals by radio within the United States except under and in
       accordance with the Act and with a license. Part 15 of the Rules,
       however, sets forth conditions under which intentional radiators may
       operate without an individual license. Pursuant to section 15.1(b) of
       the Rules, "the operation of an intentional or unintentional radiator
       that is not in accordance with the regulations in [Part 15] must be
       licensed pursuant to the provisions of section 301 of the
       Communications Act...." Thus, if 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.

    9. On December 7 and 8, 2010, as described above, agents from the San
       Juan Office observed AT&T consciously operate a Part 15 intentional
       radiator, a Motorola Canopy, on the center frequency of 5605 MHz from
       the rooftop of a building in Santurce, Puerto Rico. That device is not
       certified for use on the frequency 5605 MHz. Therefore, AT&T's
       operations did not comply with the device's Equipment Authorization or
       Part 15 requirements and required a license. According to Commission
       records, AT&T does not hold a license to operate on the frequency 5605
       MHz in Santurce, Puerto Rico. Thus, based on the evidence before us,
       we find that AT&T apparently willfully and repeatedly violated section
       301 of the Act and section 15.1(b) of the Rules by operating an
       unlicensed radio transmitter on December 7 and 8, 2010.

   10. Section 15.201(b) of the Rules provides that all intentional radiators
       operating under Part 15 shall be certificated by the Commission.
       Section 15.1(c) of the Rules states that the operation of an
       intentional radiator that is not in compliance with the administrative
       and technical provisions in this part is prohibited. 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 in a manner
       inconsistent with the Part 15 Rules is a violation of section 302(b)
       of the Act. Section 15.504(h)(2) of the Rules requires U-NII devices
       operating in the 5.47 - 5.725 GHz band to employ DFS. AT&T operated a
       U-NII transmitter that was incapable of operating with the DFS radar
       detection mechanism required under section 15.407(h)(2) of the Rules.
       Thus, based on the evidence before us, we find that AT&T apparently
       willfully and repeatedly violated section 302(b) of the Act and
       section 15.1(c) of the Rules by operating a U-NII transmitter without
       DFS capability on a frequency for which it was required on December 7
       and 8, 2010.

   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 and the base forfeiture amount
       for operation of unauthorized equipment is $5,000. 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, and history of prior offenses, ability to pay, and other
       such matters as justice may require.

   12. Because AT&T caused interference to the San Juan International
       Airport's TDWR and posed a safety hazard to air traffic, we believe an
       upward adjustment in the forfeiture amount for AT&T's apparent
       unlicensed operation is warranted. We also recognize that AT&T is a
       multi-billion dollar, global enterprise. To ensure that forfeiture
       liability is a deterrent and not simply a cost of doing business, the
       Commission has determined that large or highly-profitable companies,
       such as AT&T, should expect the assessment of higher forfeitures for
       violations.  Based on these factors, we find that an upward adjustment
       from $10,000 to $20,000 is appropriate for AT&T's apparent
       unauthorized operation. We propose the base forfeiture amount ($5,000)
       for AT&T's operation of unauthorized equipment in apparent violation
       of section 302(b) of the Act and section 15.1(c) of the Rules.

   13. Although we could impose larger upward adjustments for AT&T's apparent
       violations, we decline to do so, based on the particular circumstances
       of this case. We caution AT&T 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 AT&T is apparently liable for a total forfeiture of
       $25,000 consisting of the following: $20,000 for unlicensed operation
       in violation of section 301 of the Act and section 15.1(b) of the
       Rules and $5,000 for operation of unauthorized equipment in violation
       of section 302(b) of the Act and section 15.1(c) of the Rules.

   IV. ORDERING CLAUSES

   14. 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, AT&T, Inc. is hereby
       NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
       twenty-five thousand dollars ($25,000) for violations of sections 301
       and 302(b) of the Act and sections 15.1(b) and 15.1(c) of the Rules.

   15. 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,  AT&T, Inc., SHALL PAY
       the full amount of the proposed forfeiture or SHALL FILE a written
       statement seeking reduction or cancellation of the proposed
       forfeiture.

   16. AT&T is HEREBY NOTIFIED that its operation of a Motorola Canopy
       transceiver resulted in harmful interference to the FAA's TDWR system
       that serves the San Juan International Airport. AT&T is HEREBY WARNED
       that any further operation of any U-NII device, including the Motorola
       Canopy transceiver, on any frequency, and at any location, that
       results in interference to the FAA's TDWR system serving the San Juan
       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.

   17. 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 Number
       referenced above. Payment by check or money order may be mailed to
       Federal Communications Commission, P.O. Box 979088, St. Louis, MO
       63197-9000. Payment by overnight mail may be sent to U.S. Bank -
       Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
       Louis, MO 63101. Payment by wire transfer may be made to ABA Number
       021030004, receiving bank TREAS/NYC, and account number 27000001. For
       payment by credit card, an FCC Form 159 (Remittance Advice) must be
       submitted.  When completing the FCC Form 159, enter the NAL/Account
       number in block number 23A (call sign/other ID), and enter the letters
       "FORF" in block number 24A (payment type code). Requests for full
       payment under an installment plan should be sent to:  Chief Financial
       Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
       Washington, D.C.  20554.8   If you have questions, please contact the
       Financial Operations Group Help Desk at 1-877-480-3201 or Email:
       ARINQUIRIES@fcc.gov. If payment is made, AT&T will send electronic
       notification on the date said payment is made to SCR-Response@fcc.gov.

   18. 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, US Federal Building, Room 762, San Juan, PR,
       00918-1731 and must include the NAL/Acct. No. referenced in the
       caption. The statement should also be emailed to SCR-Response@fcc.gov.

   19. 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.

   20. 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 AT&T, Inc. at POB 71514, San Juan, PR
       00936

   FEDERAL COMMUNICATIONS COMMISSION

   P. Michele Ellison

   Chief, Enforcement Bureau

   47 U.S.C. S:S: 301, 302a(b); see also 47 C.F.R. S: 15.407.

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

   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.

   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 was a Motorola Canopy model #5700, FCC ID ABZ89FC5804.

   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 AT&T'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 AT&T operated them as U-NII
   devices on a U-NII frequency.

   Because this device is not authorized to be used on the 5.25 - 5.35 GHz
   and 5.47 - 5.725 GHz frequency bands, the Rules do not require it to have
   DFS functionality when manufactured. Devices operating on the 5.25 - 5.35
   GHz and 5.47 - 5.725 GHz frequency bands, however, must have DFS
   functionality. See supra note 10.

   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.

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

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

   47 C.F.R. S: 15.201(b).

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

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

   47 C.F.R. S: 15.407(h)(2).

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

   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).

   AT&T is one of the world's largest communications companies and does
   business worldwide. Currently, AT&T is also ranked 21 on the Fortune 500,
   with reported revenues of more than $123 billion. See
   http://money.cnn.com/magazines/fortune/global500/2010/full_list/ (last
   visited February 10, 2011).

   See Forfeiture Policy Statement, 12 FCC Rcd at 17099-100 (cautioning all
   entities and individuals that, independent from the uniform base
   forfeiture amounts, the Commission will take into account the subject
   violator's ability to pay in determining the amount of a forfeiture to
   guarantee that forfeitures issued against large or highly profitable
   entities are not considered merely an affordable cost of doing business,
   and noting that such large or highly profitable entities should expect
   that the forfeiture amount set out in a Notice of Apparent Liability
   against them may in many cases be above, or even well above, the relevant
   base amount).

   47 U.S.C. S:S: 301, 302a(b), 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314,
   1.80, 15.1(b), 15.1(c).

   47 U.S.C. S: 333.

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

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 11-306

                                       2

   Federal Communications Commission DA 11-306