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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No.: EB-FIELDWR-12-00002769
Skybeam Acquisition Corporation ) NAL/Acct. No.: 201232800009
Englewood, Colorado ) FRN: 0021775820
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: September 26, 2012 Released: September 27, 2012
By the District Director, Denver Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Skybeam Acquisition Corporation (Skybeam), operator of an
Unlicensed National Information Infrastructure (U-NII) transmission
system in Parker, Colorado, 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 without a license
and in a manner inconsistent with Part 15 of the Rules and the
device's equipment authorization. We conclude that Skybeam is
apparently liable for a forfeiture in the amount of fifteen thousand
dollars ($15,000). In addition, we direct Skybeam to submit, no later
than thirty (30) calendar days from the date of this NAL, 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 limit. Such devices must be
authorized and operated in accordance with the Part 15 Rules. For
example, Section 15.1(c) of the Rules provides that intentional
radiators must operate consistent with the terms of their equipment
authorizations. 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.
3. On September 29, 2011, in response to a complaint of interference from
the FAA to the Terminal Doppler Weather Radar (TDWR) at Denver
International Airport, agents with the Enforcement Bureau's Denver
District Office (Denver Office) used direction-finding techniques to
determine that radio emissions on the frequency 5610 MHz were
emanating from the Hilltop Tower communications site in Parker,
Colorado. On September 30, 2011, the agents used those same techniques
in combination with an on/off test to confirm that the interference
was emanating from the U-NII transmission system being operated by
Skybeam.
4. The Skybeam U-NII system utilized a transceiver module, model Canopy
5700BH20, which is an intentional radiator manufactured by Motorola,
Inc. The FCC Equipment Authorization for the Motorola Canopy 5700BH20
transceiver limits the device to operations within a frequency range
of 5735 MHz to 5840 MHz. During the inspection, however, the agents
determined that the transceiver had been operating on 5610 MHz, a
frequency outside the transceiver's authorized frequency range. 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. As the inspection continued on September 30, 2011, the agents
also observed that the transceiver was not operating with DFS
functionality. The agents determined that Skybeam had adjusted the
transceiver's operating frequency to the frequency 5875 MHz - a
frequency also outside the transceiver's authorized frequency range -
in an effort to cease any interference with the Denver TDWR
installation. The interference to the Denver TDWR ceased as a result
of Skybeam's adjustment to the transceiver's operating frequency.
III. DISCUSSION
5. 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 Sections 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.
A. Unlicensed Operation of U-NII Device
6. Section 301 of the Act prohibits the use or operation of 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. An exception to the license requirement under
Section 301 is found in Part 15 of the Rules, which sets forth
conditions under which intentional radiators may operate without an
individual license. Pursuant to Section 15.1(b) of the Rules, however,
"operation of an intentional ... radiator that is not in accordance
with the regulations in this part must be licensed ... ." Thus, if an
intentional radiator fails to comply with the conditions set forth in
its equipment authorization, the operation is no longer covered by the
unlicensed provisions of Part 15 and must be licensed pursuant to
Section 301 of the Act.
7. On September 29, 2011, agents from the Denver Office observed Skybeam
operating a Part 15 intentional radiator - a Motorola Canopy - on the
center frequency of 5610 MHz from the Hilltop Tower communications
site in Parker, Colorado. On the following day, September 30, 2011, a
representative of Skybeam ran an on/off test for the agents to confirm
that the identified interference resulted from radio emissions
emanating from the identified U-NII transmission system. The U-NII
system utilized a transceiver module model Canopy 5700BH20, an
intentional radiator manufactured by Motorola, Inc. The FCC Equipment
Authorization for the Motorola Canopy 5700BH20 transceiver limits the
device to operations within a frequency range of 5735 MHz to 5840 MHz.
During the inspection, however, the FCC agents determined that the
transceiver had been operating on 5610 MHz, a channel outside the
authorized frequency range. As the inspection continued on September
30, 2011, the FCC agents also observed - and a Skybeam representative
acknowledged - that the transceiver was not operating with DFS
functionality. Skybeam adjusted the device's operating frequency to
frequency 5875 MHz to cease any interference with the Denver TDWR
installation.
8. Pursuant to its Equipment Authorization, the Motorola Canopy 5700BH20
transceiver is an intentional radiator, certified for use pursuant to
Part 15, Subpart C of the Rules (Intentional Radiators). By operating
on frequency 5610 MHz and later on frequency 5875 MHz, Skybeam's
operations did not comply with the equipment authorization, and, as a
result, the Part 15 exception for unlicensed operation no longer
applies, and a license is required under Section 301. According to
Commission records, Skybeam does not hold a license to operate on the
frequencies 5610 MHz and 5875 MHz in Parker, Colorado. Thus, based on
the evidence before us, we find that Skybeam apparently willfully and
repeatedly violated Section 301 of the Act and Section 15.1(b) of the
Rules by operating by operating an unlicensed radio transmitter.
B. Use of Unauthorized U-NII Device
9. 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. As discussed above, the Motorola Canopy device used by
Skybeam was found operating on a frequency not authorized under the
transceiver's FCC Equipment Authorization and with no functioning DFS
radar detection mechanism as required under Section 15.407(h)(2) of
the Rules. By operating in this fashion, Skybeam's operations did not
comply with either the device's equipment authorization or with Part
15 requirements and thus were unauthorized. Therefore, based on the
evidence before us, we find that Skybeam apparently willfully and
repeatedly violated Section 302(b) of the Act and Section 15.1(c) of
the Rules by operating its transmitter on unauthorized frequencies and
operating a transceiver without required DFS functionality on
restricted frequencies.
B. Proposed Forfeiture Amount and Reporting Requirement
10. 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, any history of prior offenses, ability to pay, and other
such matters as justice may require. Applying the Forfeiture Policy
Statement, Section 1.80 of the Rules, and the statutory factors to the
instant case, we conclude that Skybeam is apparently liable for a
total forfeiture in the amount of $15,000, consisting of the
following: $10,000 for unlicensed operation in violation of Section
301 of the Act and Section 15.1(b) of the Rules, and $5,000 for
operating a U-NII transmitter on unauthorized frequencies and with DFS
functionality disabled in violation of Section 302(b) of the Act and
Section 15.1(c) of the Rules.
11. We further order Skybeam to submit a written statement, pursuant to
Section 1.16 of the Rules, signed under penalty of perjury by an
officer or director of Skybeam, 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 Denver Office
at the address listed in paragraph 14 within thirty (30) calendar days
of the release date of this Notice of Apparent Liability for
Forfeiture and Order.
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, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, Skybeam Acquisition
Corporation is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of fifteen thousand dollars ($15,000) for
violations of Sections 301 and 302(b) of the Act and Sections 15.1 (b)
and 15.1(c) of the Rules.
13. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture and Order,
Skybeam Acquisition Corporation SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
14. IT IS FURTHER ORDERED that Skybeam Acquisition Corporation SHALL
SUBMIT a written statement, as described in paragraph 11, within
thirty (30) calendar days of the release date of this Notice of
Apparent Liability for Forfeiture and Order. The statement must be
mailed to Federal Communications Commission, Enforcement Bureau,
Western Region, Denver District Office, 215 S. Wadsworth Blvd., Suite
303, Lakewood, Colorado 80226. Skybeam shall also e-mail the written
statement to WR-Response@fcc.gov.
15. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Skybeam shall also send electronic
notification on the date said payment is made to WR-Response@fcc.gov.
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.
16. 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.
17. 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 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Western
Region, Denver District Office, 215 S. Wadsworth Blvd., Suite 303,
Lakewood, Colorado 80226. Skybeam shall also e-mail the written
statement to WR-Response@fcc.gov.
18. 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.
19. 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 Skybeam Acquisition Corporation
at 400 Inverness Parkway, Suite 330, Englewood, Colorado 80112.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
District Director
Denver Office
Western Region
Enforcement Bureau
LP Broadband, Inc., a corporation wholly-owned by Skybeam, holds numerous
FCC licenses, including Common Carrier Fixed Point to Point Microwave (149
call signs), Microwave Industrial/Business Pool (five call signs),
Industrial/Business Pool, Conventional (two call signs), Millimeter Wave
70/80/90 GHz Service (one call sign), and 3650-3700 MHz (three call
signs).
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.
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).
See 47 C.F.R. S: 15.1(c). Section 15.201(b) of the Rules provides that all
intentional radiators operating under Part 15 of the Rules shall be
certificated by the Commission. 47 C.F.R. S: 15.201(b). The Commission
issues equipment authorizations for such devices, setting for the relevant
conditions to the grant.
The unauthorized emissions on the frequency 5610 MHz impacted the Federal
Aviation Administration's (FAA) Terminal Doppler Weather Radar (TDWR)
system that serves the Denver 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. See MIT Lincoln Laboratories,
http://www.ll.mit.edu/mission/aviation/faawxsystems/tdwr.html (last
visited June 15, 2012).
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 Skybeam's device was not
authorized to operate in the U-NII bands, it was subject to the U-NII
rules (47 C.F.R. 15.401-15.407) because Skybeam operated it as a U-NII
device.
The device was a Motorola Canopy model # BH5700BH20, FCC ID ABZ89FC5804
(Model 5700xx Canopy radio (Wireless Ethernet)). Motorola Solutions, Inc.,
was issued a Grant of Equipment Authorization for the Motorola 5700xx
Canopy radio by Elite Electronic Engineering, Inc., under the authority of
the FCC, on June 4, 2003.
The Equipment Authorization for the Motorola Canopy 5700BH20 transceiver
states that the device is certified for use pursuant to Part 15, Subpart C
of the Rules (Intentional Radiators).
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://transition.fcc.gov/eb/uniidwr/pdf (last visited Aug. 31, 2012).
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), recons. denied,
7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 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." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
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)(emphasis added).
See supra note 6.
See supra note 8.
The device has FCC ID ABZ89FC5804 (Model 5700xx Canopy radio (Wireless
Ethernet)). Motorola Solutions, Inc., was issued a Grant of Equipment
Authorization for the Motorola 5700xx Canopy radio by Elite Electronic
Engineering, Inc., under the authority of the FCC, on June 4, 2003.
The Equipment Authorization for the Motorola Canopy 5700BH20 transceiver
states that the device is certified for use pursuant to Part 15, Subpart C
of the Rules (Intentional Radiators).
Skybeam changed the operating frequency of this system from 5610 MHz to
5875 MHz. As noted earlier, the Motorola Canopy 5700BH20 transceiver is
only authorized to operate within a frequency range of 5735 MHz to 5840
MHz.
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: 15.1(c).
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), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
See VPNet, Inc., Notice of Apparent Liability for Forfeiture, 27 FCC Rcd
2879 (Enf. Bur. 2012) (proposing a forfeiture of $15,000 to the operator
of one U-NII device for violations of Sections 301 and 302(b) of the Act,
and Sections 15.1(b) and 15.1(c) of the Rules); Utah Broadband, Notice of
Apparent Liability for Forfeiture, 26 FCC Rcd 1419 (Enf. Bur. 2011)
(proposing a forfeiture of $25,000 to the operator of two U-NII devices
for violations of Sections 301 and 302(b) of the Act, and Sections 15.1(b)
and 15.1(c) of the Rules).
47 U.S.C. S:S: 301, 302a(b), 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311,
0.314, 1.80, 15.1(b), 15.1 (c).
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.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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Federal Communications Commission DA 12-1549
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Federal Communications Commission DA 12-1549