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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