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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.
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(continued....)
Federal Communications Commission DA 12-450
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Federal Communications Commission DA 12-450