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Before the
Federal Communications Commission
Washington, D.C. 20554
)
File No: EB-11-SJ-0055
In the Matter of )
File No: EB-11-SJ-0062
Argos Net, Inc. )
NAL/Acct. No.: 201232680002
Caguas, PR )
FRN: 0021525951
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: March 23, 2012 Released: March 23, 2012
By the Resident Agent, San Juan Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Argos Net, Inc. (Argos), an operator of Unlicensed
National Information Infrastructure (U-NII) transmission systems in
Puerto Rico, apparently willfully and repeatedly violated Section 301
of the Communications Act of 1934, as amended (Act), and Section
15.1(b) of the Commission's rules (Rules) by operating intentional
radiators not in accordance with Part 15 of the Rules and without a
license. We conclude that Argos is apparently liable for forfeiture in
the amount of twenty five thousand dollars ($25,000). We further order
Argos to submit a statement under penalty of perjury certifying that
it is now operating its U-NII systems in compliance with the 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 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.
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. As part of its ongoing coordination efforts with the Federal Aviation
Administration (FAA), the Enforcement Bureau received a complaint
about radio emissions causing interference 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.
4. On November 18, 2011, an agent from the Enforcement Bureau's San Juan
Office (San Juan Office), in conjunction with an FAA engineer,
monitored radio transmissions centered on the frequency 5605 MHz in
Gurabo, Puerto Rico. These transmissions on the frequency 5605 MHz
included a Service Set Identifier (SSID) of "Lenny" and a Media Access
Control (MAC) address of "00:15:6D:EC:2E:B5." That same day, the agent
used direction-finding techniques to locate the source of the
transmissions on the frequency 5605 MHz to a communications site in
Gurabo, Puerto Rico, consisting of two antenna structures.
5. On November 29, 2011, an agent from the San Juan Office interviewed
the president of Argos, who admitted that Argos owned a device
manufactured by Ubiquity with a MAC address of "00:15:6D:EC:2E:B5" and
an SSID of "Lenny" located at the Gurabo communications site. Argos
stated that the "Lenny" device was now operating on the frequency 5715
MHz, not 5605 MHz. Argos supplied information about the device, which
stated it was a Ubiquity model Rocket M5. The Rocket M5 model is
certified for use as a Part 15 intentional radiator only in the
5745-5825 MHz band and is not certified as a U-NII intentional
radiator.
6. On December 8, 2011, an agent from the San Juan Office met Argos's
president and technician at the Gurabo communications site. The agent
observed the Rocket M5 known as "Lenny" and confirmed it was operating
on the frequency 5715 MHz. The agent stressed to Argos that Part 15
devices must be operated consistent with Part 15 Rules and the
devices' equipment authorizations and must not cause harmful
interference to TDWR systems.
7. On December 21, 2011, based on a complaint filed by the FAA of
intermittent interference to the TDWR serving the San Juan
International Airport, an agent from the San Juan Office used
direction finding techniques to locate the source of radio
transmissions centered on the frequency 5620 MHz to a communications
site located on State Road 795 in Caguas, Puerto Rico. The
transmissions on 5620 MHz included an SSID of "UBNT AP Caguas 2" and a
MAC address of "00:15:6D:E9:73:DD."
8. On December 22, 2011, Argos admitted that it owned a Ubiquity
NanoStation5 device with an SSID of "UBNT AP Caguas 2" and a MAC
address of "00:15:6D:E9:73:DD" at the Caguas communications site.
Argos stated on December 22, 2011 that it was operating on the
frequency 5620 MHz due to technician error. The NanoStation5 model is
certified for use as a Part 15 intentional radiator only in the
5745-5825 MHz band and is not certified as a U-NII intentional
radiator. According to Commission records, Argos does not hold
licenses to operate on the frequencies, 5605 MHz, 5620 MHz, or 5715
MHz in Puerto Rico.
III. DISCUSSION
9. 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 Operations
10. 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.
11. On November 18, and December 8 and 21, 2011, as described above,
agents from the San Juan Office observed Argos operate two Part 15
intentional radiators, a Ubiquity Rocket M5 on the center frequency of
5605 MHz and 5715 MHz and a Ubiquity NanoStation5 on the center
frequency of 5620, from two communications sites in Puerto Rico.
Argos's two Ubiquity devices are not certified for use on the
frequencies 5605 MHz, 5620 MHz, and 5715 MHz. Therefore, Argos's
operations did not comply with either of the device's equipment
authorizations or Part 15 requirements and thus required a license.
According to Commission records, Argos does not hold a license to
operate on the frequencies 5605 MHz, 5620 MHz, or 5715 MHz anywhere in
Puerto Rico. Thus, based on the evidence before us, we find that Argos
apparently willfully and repeatedly violated Section 301 of the Act
and Section 15.1(b) of the Rules by operating unlicensed radio
transmitters on November 18, and December 8 and 21, 2011 from two
different sites in Puerto Rico.
A. Proposed Forfeiture Amount and Reporting Requirement
12. 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. 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. Because Argos operated two unlicensed devices at two
different locations on different dates, we propose a $10,000
forfeiture for each location. In addition, Argos's operation of its
unlicensed device at the Caguas site after being warned on the
importance of operating U-NII devices consistent with the Rules and
the equipment authorizations demonstrates a deliberate disregard for
the Commission's requirements. Thus, we find an upward adjustment in
the forfeiture amount of $5,000 for the unlicensed operation on
December 21, 2011 is warranted. Although we could impose larger upward
adjustments for Argos's apparent violations, we decline to do so,
based on the particular circumstances of this case. We caution Argos
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 conclude that Argos is apparently liable for a
forfeiture of $25,000 for violations of Section 301 of the Act and
Section 15.1(b) of the Rules.
13. Finally, we order Argos to submit a written statement, pursuant to
Section 1.16 of the Rules, signed under penalty of perjury by an
officer or director of Argos stating that Argos is now operating all
of its U-NII devices in compliance with their equipment authorizations
and the Rules. This statement must be provided to the San Juan Office
at the address listed in paragraph 19 within thirty (30) calendar days
of the release date of this Notice of Apparent Liability for
Forfeiture and Order.
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, 0.204,
0.311, 0.314 and 1.80 of the Commission's rules, Argos Net, Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty-five thousand dollars ($25,000) for violations of
Section 301 of the Act and Section 15.1(b) of the Commission's rules.
15. 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,
Argos Net, 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. IT IS FURTHER ORDERED that, within thirty (30) calendar days of the
release date of this Notice of Apparent Liability for Forfeiture and
Order, Argos Net, Inc. SHALL SUBMIT a written statement as described
in paragraph 13 to the San Juan Office listed below.
17. Argos Net, Inc. is HEREBY NOTIFIED that its operation of a Ubiquiti
Rocket M5 and Nanostation5 resulted in harmful interference to the
FAA's TDWR system that serves the San Juan International Airport.
Argos Net, Inc. is HEREBY WARNED that any further operation of any
U-NII device, including the Ubiquiti Rocket M5 and Nanostation5, 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.
18. 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
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 regarding payment
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. Argos Net, Inc. will
send electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
19. 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, San Juan Office, 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.
20. 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.
21. 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 Argos Net, Inc., Oficina #212,
Calle Acosta #32, Caguas, PR, 00725.
FEDERAL COMMUNICATIONS COMMISSION
Reuben Jusino
Resident Agent
San Juan Field Office
South Central Region
Enforcement Bureau
47 U.S.C. S: 301; see also 47 C.F.R. S: 15.407.
47 C.F.R. S: 15.1(b).
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(b).
MIT Lincoln Laboratories,
http://www.ll.mit.edu/mission/aviation/faawxsystems/tdwr.html (last
visited Jan. 26, 2011).
Agents from the San Juan Office were unable to determine the FCC IDs for
the Rocket M5's in use. However, there are five FCC IDs associated with
Ubiquiti Rocket M5 devices: SWX-M5, SWX-M5B, SWX-M5G, SWX-M5L and SWX-M5D.
All of these FCC IDs are certified as Part 15C devices and are authorized
to operate only in the 5745 MHz - 5825 MHz band.
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 Argos'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 Argos operated them as U-NII devices on
U-NII frequencies.
There is only one FCC ID for the NanoStation5, SWX-NS5. This FCC ID is
certified as a Part 15C device and is authorized to operate only in the
5745 MHz - 5825 MHz band.
Although Argos's device was not authorized to operate in the U-NII band,
it is subject to the U-NII rules (47 C.F.R. 15.401-15.407) because Argos
operated it as a U-NII device on a U-NII frequency. See supra note 10.
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), recon. denied,
7 FCC Rcd 3454 (1992) (Southern California Broadcasting Co.).
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."
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).
Argos also admitted to operating a Ubiquity NanoStation5 on the frequency
5620 MHz on December 22, 2010.
Although Argos contends it operated on the frequency 5620 MHz due to
technician error, violators can be held liable for violations resulting
from mistakes. See Tidewater Communications LLC, Order on Review, 25 FCC
Rcd 1675, 1676 (2010).
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).
47 C.F.R. S: 1.16.
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80, 15.1(b).
47 U.S.C. S: 333.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 12-279
4
Federal Communications Commission DA 12-279