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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
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Federal Communications Commission DA 11-306