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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                        )                                
                                                         
                        )                                
                                                         
     In the Matter of   )   File No: EB-11-SJ-0025       
                                                         
     VPNet, Inc.        )   NAL/Acct. No.: 201232680003  
                                                         
     San Juan, PR       )   FRN: 0021234265              
                                                         
                        )                                
                                                         
                        )                                


             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 VPNet, Inc. (VPNet), operator of Unlicensed National
       Information Infrastructure (U-NII) transmission systems in San Juan,
       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 without a license and in a manner
       inconsistent with both Part 15 of the Rules and the device's equipment
       authorization. We conclude that VPNet is apparently liable for a
       forfeiture in the amount of fifteen thousand dollars ($15,000).
       Further, we order VPNet to submit 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 May 11 and 12, 2011, in response to a complaint of interference, an
       agent with the Enforcement Bureau's San Juan Office (San Juan Office)
       used direction-finding techniques to determine that radio emissions on
       the frequency 5637 MHz were emanating from the roof of the south tower
       of Capitol Building Center in San Juan, Puerto Rico. On May 16, 2011,
       the agent used direction-finding techniques again to determine that
       radio emissions on the frequency 5637 MHz were emanating from one of
       VPNet's U-NII transmitters, a Motorola Canopy, located on the roof of
       the south tower of the Capitol Building Center. The Motorola Canopy
       model is certified for use only with reflectors or lenses with antenna
       gains of 7, 10, and 18 dBi and without an external antenna connector.
       On May 16, 2011, the agent from the San Juan Office observed that
       VPNet's U-NII transmitter was attached via an external antenna
       connector to a high-gain dish antenna. According to the specification
       sheet for the high-gain dish antenna, the antenna provides a gain of
       28.3 dBi.

    4. On May 17, 2011, VPNet's President admitted via a faxed letter that
       VPNet operated the U-NII transmitter on the frequency 5637 MHz. On May
       18, 2011, VPNet's technician and an agent from the San Juan Office
       confirmed that VPNet owned the U-NII transmitter observed on May 16,
       2011, and that the device was retuned away from 5637 MHz. The agent
       observed, however, that the high gain antenna was still in use via an
       external antenna connector.

   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 May 11, 12, and 16, 2011, an agent from the San Juan Office Office
       observed VPNet operate a Part 15 intentional radiator-a Motorola
       Canopy-on the center frequency of 5637 MHz from the roof of the south
       tower of the Capitol Building Center complex in San Juan, Puerto Rico.
       The Motorola Canopy used by VPNet is not certified for use with an
       external antenna connector. On May 16 and 17, 2011, agents from the
       San Juan Office observed that the Motorola Canopy used by VPNet had an
       external antenna connector. By employing an external antenna
       connector, VPNet's operations did not comply with the device's
       equipment authorization. Thus, VPNet's operations fell outside the
       scope of 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, VPNet
       does not hold a license to operate on the frequency 5637 MHz in San
       Juan, Puerto Rico. Thus, based on the evidence before us, we find that
       VPNet apparently willfully and repeatedly violated Section 301 of the
       Act and Section 15.1(b) of the Rules by operating unlicensed radio
       transmitters.

     A. Use of Unauthorized U-NII Device

    8. 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. The Motorola Canopy device used by VPNet is only certified
       for use in conjunction with reflectors or lenses with antenna gains of
       up to 18 dBi. On May 16 and 17, 2011, agents from the San Juan Office
       observed the Motorola Canopy device being used with an external
       high-gain antenna. By using an external high-gain antenna, VPNet'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 VPNet
       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 with
       an unauthorized external high-gain antenna.

     A. Proposed Forfeiture Amount and Reporting Requirement

    9. 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 VPNet is apparently liable for a total
       forfeiture of $15,000-consisting of $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 use of an unauthorized antenna in violation of
       Section 302(b) of the Act and Section 15.1(c) of the Rules.

   10. We order VPNet to submit 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. This statement must be provided to the
       Enforcement Bureau at the address listed in paragraph 16 within thirty
       (30) calendar days of the release date of this NAL.

   IV. ORDERING CLAUSES

   11. 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, VPNet, Inc. 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).

   12. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
       Commission's rules within thirty calendar days of the release date of
       this Notice of Apparent Liability for Forfeiture and Order,  VPNet,
       Inc., SHALL PAY the full amount of the proposed forfeiture or SHALL
       FILE a written statement seeking reduction or cancellation of the
       proposed forfeiture.

   13. IT IS FURTHER ORDERED that VPNet, Inc. SHALL SUBMIT a sworn statement
       as described in paragraph 10 to the Enforcement Bureau Office listed
       in paragraph 16 within thirty (30) calendar days of the release date
       of this Notice of Apparent Liability for Forfeiture and Order.

   14. VPNet, Inc. is HEREBY NOTIFIED that operation of a Motorola Canopy
       with a high gain antenna on the frequency 5637 MHz may cause harmful
       interference to the Federal Aviation Administration's (FAA) Terminal
       Doppler Weather Radar (TDWR) system that serves the San Juan
       International Airport. VPNet, Inc. is HEREBY WARNED that any further
       operation of any U-NII device, 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 or malicious
       interference to any radio communication of any station licensed or
       authorized under the Act or operated by the United States Government.

   15. 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. VPNet shall send
       electronic notification on the date said payment is made to
       SCR-Response@fcc.gov.

   16. 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 at FCC, US Federal Building Room
       762, San Juan, PR 00918-1731and must include the NAL/Acct. No.
       referenced in the caption. The statement should also be emailed to
       SCR-Response@fcc.gov.

   17. 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.

   18. 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 VPNet, Inc. at POB 193780, San
       Juan, PR 00919.

   FEDERAL COMMUNICATIONS COMMISSION

   Reuben Jusino

   Resident Agent

   San Juan Field Office

   South Central Region

   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.

   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.

   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 forth the
   relevant conditions to the grant.

   47 C.F.R. S: 15.1(c). See 47 U.S.C. S: 302a(b).

   47 C.F.R. S: 15.1(b).

   Agents from the San Juan Office believe that the emissions on 5637 MHz
   interfered with the Federal Aviation Administration's (FAA) Terminal
   Doppler Weather Radar (TDWR) system that serves 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. See MIT Lincoln
   Laboratories,
   http://www.ll.mit.edu/mission/aviation/faawxsystems/tdwr.html (last
   visited Jan. 26, 2011).

   The device was a Motorola Canopy model # BH 5400, FCC ID ABZ89FT7623.

   See equipment authorization for FCC ID ABZ89FT7623. The Commission
   approved the device as submitted in Motorola's equipment application.
   Motorola's device was tested by DLS Electronic Systems, Inc. The device
   was only tested with reflectors or lenses with antenna gains of 7, 10, and
   18 dBi. Thus, the device was only approved for use with reflectors or
   lenses with antenna gains of 7, 10, and 18 dBi. None of the photos of the
   device tested by DLS Electronic Systems, Inc. included an external antenna
   connector. Thus, the device was only approved for use without an external
   antenna connector. See
   https://apps.fcc.gov/eas/GetApplicationAttachment.html?id=1176358 (last
   visited Aug. 12, 2011).

   The high gain dish antenna, model no. SP2-5.2, is manufactured by Radio
   Waves, Inc.

   See http://www.wlanmall.com/foot-parabolic-dish-antenna-p-706.html (last
   visited Aug. 12, 2011).

   See Letter from Felipe Hernandez, President VPNet, Inc., to Reuben Jusino,
   Field Officer, San Juan Office, Enforcement Bureau (May 17, 2011) (on file
   in EB-11-SJ-0025).

   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 11.

   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).

   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.

   See 47 C.F.R. S: 1.1914.

   47 C.F.R. S:S: 1.80(f)(3), 1.16.

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 12-450

                                       2

   Federal Communications Commission DA 12-450