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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Ayustar Corporation San Juan, PR ) ) ) File Number:
EB-11-SJ-0003 ) NAL/Acct. No.:201132680002 ) FRN:0008739229
ORDER
Adopted: November 18, 2013 Released: November 18, 2013
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau of the Federal Communications Commission
(Bureau) and Ayustar Corporation (Ayustar). The Consent Decree terminates
the investigation and Notice of Apparent Liability for Forfeiture issued
by the Bureau of possible violations of Sections 301 and 302(b) of the
Communications Act of 1934, as amended (Act),^ and Section 15.1(b)-(c) of
the Commission's rules (Rules)^ concerning the operation of an intentional
radiator without a license and in a manner inconsistent with Part 15 of
the Rules^ and the device's equipment authorization.
2. The Bureau and Ayustar have negotiated the terms of a Consent Decree
that resolves this matter. A copy of the Consent Decree is attached hereto
and incorporated herein by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree, terminating the investigation.
4. Accordingly, IT IS ORDERED, pursuant to Section 4(i) and 503(b) of the
Communications Act of 1934, as amended,^ and Sections 0.111 and 0.311 of
the Commission's rules,^ the Consent Decree attached to the Order IS
ADOPTED.
5. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
6. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested to Ayustar Corporation at POB 16892, San Juan, PR 00908-6892.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director
South Central Region
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Ayustar Corporation San Juan, PR ) ) ) ) ) File Number:
EB-11-SJ-0003 NAL/Acct. No.:201132680002 FRN:0008739229
CONSENT DECREE
1. The Enforcement Bureau of the Federal Communications Commission
(Bureau) and Ayustar Corporation (Ayustar), by their authorized
representatives, hereby enter into this Consent Decree for the purpose
of terminating the Bureau's investigation into whether Ayustar
violated Sections 301 and 302(b) of the Communications Act of 1934, as
amended, and Section 15.1(b)-(c) of the Commission's 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.
I. DEFINITIONS
2. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C. S
151 et seq.
b. "Adopting Order" means an order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "Ayustar" means Ayustar Corporation.
d. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
e. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
f. "Communications Laws" means collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to
which Ayustar is subject by virtue of its business activities,
including but not limited to, the U-NII Rules.
g. "Compliance Plan" means the compliance obligations, programs, and
procedures described in this Consent Decree at paragraphs 11, 12, 13,
and 14.
h. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
i. "Investigation" means the investigation initiated by the Bureau on
December 7, 2010 of possible violations of Section 301 and 302(b) of
the Act and Section 15.1(b)-(c) of the Rules regarding Ayustar's
operation of U-NII transmitters and culminating in a Notice of
Apparent Liability and Order, DA 11-1313.
j. "Parties" means Ayustar and the Bureau, and each of which is a
"Party."
k. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
l. "U-NII" means Unlicensed National Information Infrastructure devices
and services.
m. "U-NII Rules" means collectively, Section 302(b) of the Act, 47
U.S.C. S 302a(b), the Rules contained in Part 15, Subparts A, C, and
E , 47 C.F.R. S 15.1 et seq., governing the use of unlicensed
intentional radiators in U-NII frequency bands, and other related
Communications Laws.
II. BACKGROUND
3. 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.
4. 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.
5. On December 7 and 8, 2010, agents from the Enforcement Bureau's San
Juan Office observed Ayustar operate a Part 15 intentional radiator-a
Motorola Canopy-on the center frequency of 5626 MHz from the roof of a
building in Santurce, Puerto Rico. The Motorola Canopy used by Ayustar
is not certified for use on that frequency and is incapable of
operating with the required Dynamic Frequency Selection radar
detection mechanism.
6. Ayustar cooperated with the agents from the Enforcement Bureau's San
Juan Office and has submitted financial documentation of its inability
to pay the proposed forfeiture.
III. TERMS OF AGREEMENT
7. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order.
8. Jurisdiction. Ayustar agrees that the Bureau has jurisdiction over it
and the matters contained in this Consent Decree and has the authority
to enter into and adopt this Consent Decree.
9. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the Effective Date. Upon release, the
Adopting Order and this Consent Decree shall have the same force and
effect as any other order of the Bureau. Any violation of the Adopting
Order or of the terms of this Consent Decree shall constitute a
separate violation of a Bureau order, entitling the Bureau to exercise
any rights and remedies attendant to the enforcement of a Commission
order.
10. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate the
Investigation. In consideration for the termination of the
Investigation, Ayustar agrees to the terms, conditions, and procedures
contained herein. The Bureau further agrees that in the absence of new
material evidence, the Bureau will not use the facts developed in this
Investigation through the Effective Date of the Consent Decree, or the
existence of this Consent Decree, to institute, on its own motion, any
new proceeding, formal or informal, or take any action on its own
motion against Ayustar concerning the matters that were the subject of
the Investigation. The Bureau also agrees that it will not use the
facts developed in this Investigation through the Effective Date of
this Consent Decree, or the existence of this Consent Decree, to
institute on its own motion any proceeding, formal or informal, or
take any action on its own motion against Ayustar with respect to
Ayustar's basic qualifications, including its character
qualifications, to be a Commission licensee or to hold Commission
licenses or authorizations.
11. Compliance Officer. Within thirty (30) calendar days after the
Effective Date, Ayustar shall designate a senior corporate manager
with the requisite corporate and organizational authority to serve as
Compliance Officer and to discharge the duties set forth below. The
person designated as the Compliance Officer shall be responsible for
developing, implementing, and administering the Compliance Plan and
ensuring that Ayustar complies with the terms and conditions of the
Compliance Plan and this Consent Decree. In addition to the general
knowledge of the Communications Laws necessary to discharge his/her
duties under this Consent Decree, the Compliance Officer shall have
specific knowledge of the U-NII Rules prior to assuming his/her
duties.
12. Compliance Plan. For purposes of settling the matters set forth
herein, Ayustar agrees that it shall within sixty (60) calendar days
after the Effective Date, develop and implement a Compliance Plan
designed to ensure future compliance with the Communications Laws and
with the terms and conditions of this Consent Decree. With respect to
the U-NII Rules, Ayustar shall implement the following procedures:
a. Inventory Assessment. Ayustar shall review the specifications for all
of its U-NII devices in use to ensure that its U-NII devices are being
operated consistent with those specifications prior to submission of
the second and third Compliance Reports. This review shall include,
but not be limited to, ensuring that only certified antennas are in
use, that devices are operating only on certified frequencies, that
any required dynamic frequency selection capabilities are in place,
that devices are operating with the proper country code, and that the
devices are deployed with current operating software releases. New
devices deployed after the review shall be checked prior to deployment
to ensure compliance with the U-NII Rules. Ayustar shall include the
results of its inventory assessment in its second and third Compliance
Reports and certify that it is checking new devices for compliance
prior to deployment.
b. Compliance Training Program. Ayustar shall establish and implement a
Compliance Training Program on compliance with the U-NII Rules. As
part of the Compliance Training Program, employees who perform,
supervise, oversee or manage the performance of duties that relate to
Ayustar's responsibilities under the U-NII Rules shall be advised of
Ayustar's obligation to report any noncompliance with the U-NII Rules
under paragraph 13 of this Consent Decree and shall be instructed on
how to disclose noncompliance to the Compliance Officer. All such
employees shall be trained pursuant to the Compliance Training Program
within sixty (60) calendar days after the Effective Date, except that
any person who is assigned to a position with duties related to
Ayustar's compliance with the U-NII Rules any time after the Effective
Date shall be trained within thirty (30) calendar days after the date
such person's responsibilities relating to the U-NII Rules begin.
Ayustar shall repeat the compliance training on an annual basis, and
shall periodically review and revise the Compliance Training Program
as necessary to ensure that it remains current and complete and to
enhance its effectiveness.
13. Reporting Noncompliance. Ayustar shall report any noncompliance with
the U-NII Rules and with the terms and conditions of this Consent
Decree within fifteen (15) calendar days after discovery of such
noncompliance. Such reports shall include a detailed explanation of
(i) each instance of noncompliance; (ii) the steps that Ayustar has
taken or will take to remedy such noncompliance; (iii) the schedule on
which such remedial actions will be taken; and (iv) the steps that
Ayustar has taken or will take to prevent the recurrence of any such
noncompliance. All reports of noncompliance shall be submitted to the
Regional Counsel, South Central Region, Enforcement Bureau, Federal
Communications Commission, Atlanta Office, 3575 Koger Blvd. Suite 320,
Duluth, GA 30096, with a copy submitted electronically to
SCR-Response@fcc.gov. The obligations set forth in this paragraph 13
shall expire thirty-six (36) months after the Effective Date.
14. Compliance Reports. Ayustar shall file Compliance Reports with the
Commission within ninety (90) days of the Effective Date, twelve (12)
months after the Effective Date, twenty-four (24) months after the
Effective Date, and thirty-six (36) months after the Effective Date.
a. Each Compliance Report shall include a detailed description of
Ayustar's efforts during the relevant period to comply with the terms
and conditions of this Consent Decree and the U-NII Rules. In
addition, each Compliance Report shall include a certification by the
Compliance Officer, as an agent of and on behalf of Ayustar, stating
that the Compliance Officer has personal knowledge that Ayustar (i)
has established and implemented the Compliance Plan; and (ii) is not
aware of any instances of noncompliance with the terms and conditions
of this Consent Decree, including the reporting obligations set forth
in paragraph 13 hereof.
b. The Compliance Officer's certification shall be accompanied by a
statement explaining the basis for such certification and must comply
with Section 1.16 of the Rules, 47 C.F.R. S 1.16, and be subscribed to
as true under penalty of perjury in substantially the form set forth
therein.
c. If the Compliance Officer cannot provide the requisite certification,
the Compliance Officer, as an agent of and on behalf of Ayustar, shall
provide the Commission with a detailed explanation of the reason(s)
why and describe fully (i) each instance of noncompliance; (ii) the
steps that Ayustar has taken or will take to remedy such
noncompliance, including the schedule on which proposed remedial
actions will be taken; and (iii) the steps that Ayustar has taken or
will take to prevent the recurrence of any such noncompliance,
including the schedule on which such preventive action will be taken.
d. All Compliance Reports shall be submitted to the Regional Counsel,
South Central Region, Enforcement Bureau, Federal Communications
Commission, Atlanta Office, 3575 Koger Blvd. Suite 320, Duluth, GA
30096, with a copy submitted electronically to SCR-Response@fcc.gov.
15. Termination Date. Unless stated otherwise, the obligations set forth
in paragraphs 11-14 of this Consent Decree shall expire thirty-six
(36) months after the Effective Date.
16. Voluntary Contribution. Ayustar agrees that it will make a voluntary
contribution to the United States Treasury in the amount of six
thousand dollars ($6,000) (Voluntary Contribution), with such
Voluntary Contribution to be made in installments (each an Installment
Payment). The first Installment Payment in the amount of five hundred
dollars ($500) must be made within thirty (30) calendar days after the
Effective Date. The balance of the Voluntary Contribution will be
made in eleven consecutive monthly payments of five hundred dollars
($500) payable on the first day of each month beginning January 1,
2014. The final payment is due on the first day of November 1, 2014
(Maturity Date). Ayustar acknowledges and agrees that upon execution
of this Consent Decree, the Voluntary Contribution and each
Installment Payment shall become a "Claim " or "Debt" as defined in 31
U.S.C. S 3701(b)(1). Upon an Event of Default, all procedures for
collection permitted by law may, at the Commission's discretion, be
initiated. In addition, Ayustar agrees that it will make the first
and all subsequent Installment Payments in United States Dollars
without further demand or notice by the dates specified above.
Installment Payments must be made by check or similar instrument,
payable in United States Dollars to the order of the Federal
Communications Commission. The payments must include the Account
Number and FRN referenced in the caption to the Adopting Order.
Payments by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payments by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payments by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. For payments
by credit card, an 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). Ayustar shall also send
electronic notification to SCR-Response@fcc.gov on the date each
Installment Payment is made.
17. Event of Default. Ayustar agrees that an Event of Default shall occur
upon the failure by Ayustar to pay the full amount of any Installment
Payment on or before the due date specified in this Consent Decree.
18. Interest, Charges for Collection, and Acceleration of Maturity Date.
After an Event of Default has occurred under this Consent Decree, the
then unpaid amount of the Voluntary Contribution shall accrue
interest, computed using the U.S. Prime Rate in effect on the date of
the Event of Default plus 4.75 percent, from the date of the Event of
Default until payment in full. Upon an Event of Default, the then
unpaid amount of the Voluntary Contribution, together with interest,
as aforesaid, any penalties permitted and/or required by the law,
including but not limited to 31 U.S.C. S 3717 and administrative
charge(s), plus the costs of collection, litigation, and attorneys'
fees, shall become immediately due and payable, without notice,
presentment, demand, protest, or notice of protest of any kind, all of
which are waived by Ayustar.
19. Waivers. Ayustar waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal, or stay,
or to otherwise challenge or contest the validity of this Consent
Decree and the Adopting Order, provided the Bureau issues an Adopting
Order as described herein. Ayustar shall retain the right to challenge
Commission interpretation of the Consent Decree or any terms contained
herein. If either Party (or the United States on behalf of the
Commission) brings a judicial action to enforce the terms of the
Adopting Order, neither Ayustar nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and Ayustar
shall waive any statutory right to a trial de novo. Ayustar hereby
agrees to waive any claims it may otherwise have under the Equal
Access to Justice Act, 5 U.S.C. S 504 and 47 C.F.R. S 1.1501 et seq.,
relating to the matters addressed in this Consent Decree.
20. Invalidity. In the event that this Consent Decree in its entirety is
rendered invalid by a court of competent jurisdiction, it shall become
null and void and may not be used in any manner in any legal
proceeding.
21. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent Rule or order adopted
by the Commission (except an order specifically intended to revise the
terms of this Consent Decree to which Ayustar does not expressly
consent) that provision will be superseded by such Rule or Commission
order.
22. Successors and Assigns. Ayustar agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
23. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further agree that this Consent Decree does not constitute
either an adjudication on the merits or a factual or legal finding or
determination regarding any compliance or noncompliance with the
requirements of the Communications Laws.
24. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
25. Paragraph Headings. The headings of the paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
26. Authorized Representative. Each Party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree. Each person signing this Consent Decree on behalf of a Party
hereby represents that he or she is fully authorized by the Party to
execute this Consent Decree and to bind the Party to its terms and
conditions.
27. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
______________________________ Dennis P. Carlton Regional Director South
Central Region Enforcement Bureau ________________________________ Date
Ayustar Corporation ________________________________ Stefan Lechner Chief
Executive Officer Ayustar Corporation ________________________________
Date
^ 47 U.S.C. SS 301, 302a(b); see also 47 C.F.R. S 15.407.
^ 47 C.F.R. S 15.1(b)-(c).
^ 47 C.F.R. SS 15.1 et seq.
^ 47 U.S.C. SS 154(i), 503(b).
^ 47 U.S.C. SS 0.111, 0.311.
^ 47 U.S.C. SS 301, 302a(b); 47 C.F.R. S 15.1(b)-(c).
^ 47 C.F.R. SS 15.1 et seq.
^ 47 U.S.C. S 301.
^ See 47 C.F.R. SS 15.1 et seq.
^ 47 C.F.R. S 15.1(b) (emphasis added).
^ 47 C.F.R. S 15.201(b).
^ 47 C.F.R. S 15.1(c).
^ 47 U.S.C. S 302a(b).
Federal Communications Commission DA 13-2080
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Federal Communications Commission DA 13-2080
2
Federal Communications Commission DA 12-XXX