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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
)
)
FORFEITURE ORDER
Adopted: September 27, 2012 Released: September 27, 2012
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
the amount of twenty- five thousand dollars ($25,000) to AT&T, Inc.
dba AT&T Mobility (AT&T) for willful and repeated violation of
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). The noted violation involves AT&T's operation of an
intentional radiator without a license and contrary to the
requirements of Part 15 of the Rules and the device's Equipment
Authorization.
II. BACKGROUND
2. On February 17, 2011, the Enforcement Bureau (Bureau) issued a Notice
of Apparent Liability for Forfeiture (NAL) to AT&T for its operation
of an Unlicensed National Information Infrastructure (U-NII) device on
a frequency for which the device was not authorized and without a
license. As discussed in detail in the NAL in this case, on December
7, 2010 and December 8, 2010, while searching for the source of
interference to the Federal Aviation Administration's (FAA) Terminal
Doppler Weather Radar (TDWR) serving the San Juan International
airport, agents from the Bureau's San Juan Office (San Juan Office)
used direction-finding techniques to determine that radio emissions on
frequency 5605 MHz emanated from AT&T's U-NII transmitter, a Motorola
Canopy, located on the roof of the Miramar Plaza Condominium Building
in Santurce, Puerto Rico. 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 Dynamic Frequency Selection (DFS), a functionality
which allows U-NII transmitters operating in the 5.25-5.35 GHz and
5.47-5.725 GHz bands to detect the presence of FAA radar systems and
avoid co-channel operations with radar systems. AT&T submitted a
response to the NAL requesting cancellation or reduction of the
proposed forfeiture, because it alleges its U-NII transmitters
operated on the frequencies 5685 MHz and 5825 MHz on December 7 and
December 8, 2010 and were not the source of the interference to the
FAA's TDWR.
III. DISCUSSION
3. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and the
Forfeiture Policy Statement. In examining AT&T's response, Section
503(b)(2)(E) of the Act requires that the Commission take into account
the nature, circumstances, extent, and gravity of the violation 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. As discussed below, we have considered AT&T's response in
light of these statutory factors and impose a $25,000 forfeiture.
4. 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.
5. On December 7 and 8, 2010, agents from the San Juan Office used their
direction-finding equipment to determine that AT&T was operating 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. As discussed below, AT&T asserts that its Motorola Canopy
device operated on 5685 MHz, not 5605 MHz. The Motorola Canopy device,
however, is only certified for use in the 5735.0 -5840.0 MHz band.
Therefore, there is no dispute that AT&T's operations required a
license and violated the device's Equipment Authorization and Part 15
requirements. According to Commission records, AT&T does not hold a
license to operate on the frequencies 5605 MHz or 5685 MHz in
Santurce, Puerto Rico. Accordingly, we find that AT&T willfully and
repeatedly violated Section 301 of the Act and Section 15.1(b) of the
Rules by operating an unlicensed radio transmitter.
6. 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.
7. 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 incapable of operating with the DFS radar detection
mechanism required under Section 15.407(h)(2) of the Rules. In its
response, AT&T does not dispute that the Motorola Canopy is incapable
of DFS capability. Thus, based on the evidence before us, we find that
AT&T 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.
8. The Bureau upwardly adjusted the proposed forfeiture for the violation
of Section 301 of the Act by $10,000, in part, because we found that
AT&T apparently caused interference to the TDWR serving the San Juan
International Airport. In its NAL Response, AT&T provides two
screenshots of the "uptime clock" of a Motorola Canopy device that
allegedly show that the unit operated on 5685 MHz for two months prior
to December 12, 2010. AT&T asserts that the screenshots are of the
Motorola Canopy unit at issue in this case and that the device's
"uptime clock" resets to zero every time the frequency setting of the
unit is changed. AT&T claims its screenshots demonstrate that the
device did not operate on 5605 MHz on December 7 and 8, 2010, and
therefore did not cause interference to the San Juan TDWR, which
operates on the frequency 5610 MHz. AT&T further asserts that its
device could not have been the source of the 5605 MHz interference to
the San Juan TDWR because its device was not retuned to a different
frequency on December 8, 2010, as described in the NAL. AT&T states
that the frequency of its device could only have been changed by a
"physical onsite intervention or remotely, through commands sent from
an AT&T location." AT&T claims that physical onsite intervention did
not occur because the agents from the San Juan Office could not access
the locked boxes housing the unit's network connections directly, and
AT&T personnel were not present during the December 8 inspection. AT&T
also states that the "remaining procedure to change the frequencies
requires taking the unit off line and resetting it," which AT&T
alleges would reset the uptime clock. Thus, AT&T asserts that some
other device must have been the source of the 5605 MHz interference.
9. We conclude that the preponderance of the evidence supports the
Bureau's findings. On December 7 and 8, 2010, agents from the San Juan
Office did not just track the source of the signals on 5605 MHz to the
rooftop of the Miramar Condominium building; but traced the source to
a specific device, AT&T's Motorola Canopy. On December 8, 2010, the
agents took measurements directly in front of the Motorola Canopy
transmitter, later identified by AT&T employees as an AT&T device, and
recorded the spectral display of the transmission on 5605 MHz. The
spectral images show a strong signal on 5605 MHz, and no signal on
5685 MHz. On December 8, 2010, agents from the San Juan Office were
present when AT&T's transmitter stopped transmitting on 5605 MHz. At
that point, the interference to the San Juan TDWR noticeably
decreased. The Commission has repeatedly relied on such evidence to
establish a finding of interference.
10. We are unpersuaded that AT&T's device was not the source of the
interference. While AT&T offers two screenshots purporting to show
that its Motorola Canopy unit operated on 5685 MHz at the time of the
FCC measurements, it is unclear whether the device operating on 5685
MHz was the unit examined by the Bureau agents or a different unit. In
the absence of more reliable rebuttal information, we find that the
preponderance of the evidence supports our earlier conclusion that
AT&T's Motorola Canopy on the rooftop of the Miramar Condominium
operated on 5605 MHz and caused interference to the San Juan TDWR.
Accordingly, we affirm our earlier finding that an upward adjustment
to the proposed forfeiture was appropriate.
11. In any event, even if we reconsidered our finding that AT&T caused
interference to the San Juan TDWR, the outcome would be the same. AT&T
acknowledges that it operated on an unauthorized frequency. This
constitutes a violation of Section 301 of the Act. An upward
adjustment of $10,000 is reasonable given AT&T's substantial gross
revenues, and we therefore find no reason to reduce the proposed
forfeiture.
IV. ORDERING CLAUSES
12. 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(f)(4) of the Commission's rules, AT&T, Inc. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of twenty-five thousand dollars
($25,000) for violation of Sections 301 and 302(b) of the Act and
Sections 15.1(b) and 15.1(c) of the rules.
13. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days after the
release date of this Forfeiture Order. If the forfeiture is not paid
within the period specified, the case may be referred to the U.S.
Department of Justice for enforcement of the forfeiture pursuant to
Section 504(a) of the Act. AT&T, Inc. shall send electronic
notification of payment to SCR-Response@fcc.gov on the date said
payment is made.
The payment must be made by check or similar instrument, wire transfer, or
credit card, and must include the NAL/Account number and FRN referenced
above. Regardless of the form of payment, a completed FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form 159,
enter the Account Number in block number 23A (call sign/other ID) and
enter the letters "FORF" in block number 24A (payment type code). Below
are additional instructions you should follow based on the form of payment
you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
14. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 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 by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
15. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
First Class and Certified Mail Return Receipt Requested to AT&T, Inc.
at 1120 20th Street, NW, Suite 1000, Washington, DC 20036.
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:S: 15.1(b), (c).
47 C.F.R. S:S: 15.1 et seq.
AT&T, Inc., Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 1894
(Enf. Bur. 2011). A comprehensive recitation of the facts and history of
this case found in the NAL is incorporated herein by reference.
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 device was not authorized
to operate in the U-NII bands, it is subject to the U-NII rules (47 C.F.R.
15.401-15.407) because AT&T operated it as U-NII device on a U-NII
frequency.
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). 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.
Agents from the San Juan Office only investigated the U-NII device
operating on the frequency 5605 MHz. The agents did not confirm that AT&T
operated a second U-NII device on the frequency 5825 MHz. The frequency
5825 MHz, however, is an authorized operating frequency for the Motorola
Canopy model in question. Accordingly, AT&T's operation of a U-NII device
on 5825 MHz is not relevant to this proceeding.
See Answer to Notice of Apparent Liability for Forfeiture from William L.
Roughton, Jr., General Attorney, AT&T Services Inc. (Apr. 18, 2011) (NAL
Response).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
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), recons. denied, 15 FCC Rcd 303 (1999) (Forfeiture
Policy Statement).
47 U.S.C. S: 503(b)(2)(E).
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).
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. 47 U.S.C. S: 312(f)(1).
The term "repeated" means the commission or omission of such act more than
once or for more than one day. 47 U.S.C. S: 312(f)(2).
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).
The proposed forfeiture was also upwardly adjusted based on the size of
AT&T's gross revenues.
NAL Response at 3.
Id.
Id. at 4.
Id.
Agents from the San Juan Office photographed themselves inspecting the
exterior of the device in question on the rooftop. The agents were not
accompanied by representatives of AT&T.
See Ayustar Corporation, Notice of Apparent Liability for Forfeiture, 26
FCC Rcd 10693 (Enf. Bur. 2011); Rapidwave, LLC, Notice of Apparent
Liability for Forfeiture, 26 FCC Rcd 10678 (Enf. Bur. 2011); Utah
Broadband, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 1419
(Enf. Bur. 2011).
Although the company could have provided a single screenshot showing the
operating frequency, hardware identification, and location, AT&T instead
provided two separate screenshots -- one showing the frequency in use and
another showing the transmitter identification information. Moreover, the
operating frequency displayed in the menu can be changed and printed out
as a screenshot with no effect to the transmitter, because any changes to
the transmitter are not implemented until the transmitter is rebooted. See
Canopy Installation and Configure Guide, September 2006. Therefore, it is
possible to generate a screenshot showing a device operating on 5685 MHz
for any number of days, when the transmitter is in fact operating on 5605
MHz or any other frequency.
47 U.S.C. S:S: 301, 302a(b), 503(b); 47 C.F.R. S:S: 0.111, 0.311,
1.80(f)(4), 15.1(b), 15.1(b).
47 C.F.R. S: 1.80.
47 U.S.C. S: 504(a).
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
Federal Communications Commission DA 12-1142
6
Federal Communications Commission DA 12-1142