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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No: EB-FIELDWR-12-00002815
)
Directlink, LLC NAL/Acct. No.: 201332800001
)
Parker, Colorado FRN: 0020233508
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: January 3, 2013 Released: January 4, 2013
By the District Director, Denver Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Directlink, LLC (Directlink), operator of an Unlicensed
National Information Infrastructure (U-NII) transmission system in
Elizabeth, Colorado, 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 Part 15 of the Rules and the device's
equipment authorization. We conclude that Directlink is apparently
liable for a forfeiture in the amount of twenty-five thousand dollars
($25,000). In addition, we direct Directlink to submit, no later than
thirty (30) calendar days from the date of this NAL, 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 an intentional
radiator must operate consistent with the terms of their station
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. Operation of such a device without a license
violates that provision.
3. On January 10, 2012, in response to a complaint of interference,
agents with the Enforcement Bureau's Denver District Office (Denver
Office) used direction-finding techniques to determine that radio
emissions on frequency 5630 MHz, were emanating from the Red Fox
Circle communications site in Elizabeth, Colorado. The FCC agents
investigated the system and identified Directlink as its operator. On
January 12, 2012, the agents used those same techniques in combination
with Directlink's involvement to confirm that the interference was
emanating from the U-NII transmission system operated by Directlink.
On January 12, 2012, an FCC agent's telephone call to the FAA
confirmed that the U-NII interference had ceased when Directlink
changed its center frequency from 5630 MHz to 5785 MHz during the
Denver Office investigation. The U-NII system utilized a transceiver
module, model Rocket M5, an intentional radiator manufactured by
Ubiquiti Networks, Inc. The FCC Equipment Authorization for the
Ubiquiti Rocket M5 transceiver limits the device to operations within
a frequency range of 5745 MHz to 5825 MHz. During the inspection,
however, the FCC agents observed that the transceiver was operating on
a center frequency of 5630 MHz, which is outside the authorized
frequency range of the device. Subsequently, Directlink remotely
adjusted the device's operating frequency from 5630 MHz to 5785 MHz
which ceased the interference impacting the Denver TDWR installation.
4. In order to avoid interference to the FAA's TDWR installations, the
Commission requires that U-NII devices operating in the 5.25 - 5.35
GHz and 5.47 - 5.725 GHz bands have Dynamic Frequency Selection (DFS)
radar detection functionality, which allows them to detect the
presence of radar systems and avoid co-channel operations with radar
systems. As the inspection continued on January 12, 2012, FCC agents
also observed and were advised by Directlink's representative that the
transceiver was not operating with DFS functionality.
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. Part 15 of the Rules provides an exception to the
license requirement of Section 301 and 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 January 10 and 12, 2012, agents from the Denver District Office
observed Directlink operating a Part 15 intentional radiator - a
Ubiquiti Rocket M5 - on the center frequency of 5630 MHz with a
bandwidth of 40 MHz from the Red Fox Circle communications site in
Elizabeth, Colorado. On January 12, 2012, a representative from
Directlink remotely modified the operating frequency of this site. The
Agents confirmed with the FAA that the frequency change corrected the
interference from this identified U-NII transmission system. The U-NII
system utilized transceiver module model Rocket M5, an intentional
radiator manufactured by Ubiquiti Networks, Inc. The FCC Equipment
Authorization for the Ubiquiti Rocket M5 transceiver limits the device
to a frequency range of 5745 MHz to 5825 MHz. During the
investigation, however, the FCC agents observed that the transceiver
was operating with a bandwidth of 40 MHz on a center frequency of 5630
MHz, a channel outside the authorized frequency range. As the
inspection continued on January 12, 2012, the FCC agents also observed
- and a Directlink representative acknowledged - that the transceiver
was not operating with DFS functionality.
8. Pursuant to its Equipment Authorization, the Ubiquiti Rocket M5
transceiver is an intentional radiator, certified for use pursuant to
Part 15, Subpart C of the Rules (Intentional Radiators). By operating
on frequency 5630 MHz, Directlink did not comply with 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, Directlink does not hold a
license to operate on the center frequency of 5630 MHz in Elizabeth,
Colorado. Thus, based on the evidence before us, we find that
Directlink apparently willfully and repeatedly violated Section 301 of
the Act and Section 15.1(b) of the Rules by operating an unlicensed
radio transmitter.
B. Use of Unauthorized U-NII Device
9. 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 that 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. As discussed above, the Ubiquiti Rocket M5 device used by
Directlink was found operating on a frequency not authorized under the
transceiver's FCC Equipment Authorization and with no functioning DFS
radar detection mechanism as required under Section 15.407(h)(2) of
the Rules. By operating in this fashion, Directlink'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 Directlink apparently willfully
and repeatedly violated Section 302(b) of the Act and Section 15.1(c)
of the Rules by operating its transmitter on unauthorized frequencies
and doing so with the DFS functionality disabled.
C. Proposed Forfeiture Amount and Reporting Requirement
10. 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. As detailed above, Directlink
operated a Ubiquiti transceiver as part of a U-NII transmission
system, in violation of the transceiver's Equipment Authorization, as
well as on a frequency not authorized on the transceiver's Equipment
Authorization. Directlink also operated the transceiver in violation
of the Part 15 Rules by not operating the transceiver with DFS
functionality. Directlink's unauthorized operation of an unauthorized
system created interference to the FAA's TDWR radar system at the
Denver International Airport. Considering the totality of the evidence
and the gravity of the public safety risks posed by the unauthorized
operation, we find that an upward adjustment of $10,000 is warranted
for Directlink's operation without an authorization in apparent
violation of Section 301 of the Act and Section 15.1(b) of the Rules,
resulting in a proposed forfeiture of $20,000 for this apparent
violation. We propose the base forfeiture amount ($5,000) for
Directlink's operation of unauthorized equipment in apparent violation
of Section 302(b) of the Act and Section 15.1(c) of the Rules.
Applying the Forfeiture Policy Statement, Section 1.80 of the Rules,
and the statutory factors to the instant case, we conclude that
Directlink is apparently liable for a total forfeiture in the amount
of $25,000.
11. We further order Directlink to submit a written statement, pursuant to
Section 1.16 of the Rules, signed under penalty of perjury by an
officer or director of Directlink, 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
Denver Office at the address listed in paragraph 14 within thirty (30)
calendar days of the release date of this Notice of Apparent Liability
for Forfeiture and Order.
IV. ORDERING CLAUSES
12. 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, Directlink LLC, is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twenty-five thousand dollars ($25,000) for violations of
Sections 301 and 302(b) of the Act, and Sections 15.1(b) and 15.1(c)
of the Rules.
13. 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,
Directlink, LLC, SHALL PAY the full amount of the proposed forfeiture
or SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
14. IT IS FURTHER ORDERED that Directlink, LLC, SHALL SUBMIT a written
statement as described in paragraph 11, within thirty (30) calendar
days of the release date of this Notice of Apparent Liability for
Forfeiture and Order. The statement must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region, Denver
District Office, 215 S. Wadsworth Blvd., Suite 303, Lakewood, Colorado
80226. Directlink shall also e-mail the written statement to
WR-Response@fcc.gov.
15. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Directlink shall also send electronic
notification on the date said payment is made to WR-Response@fcc.gov.
Regardless of the form of payment, a completed 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). Below are additional instructions you should follow based on
the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
16. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 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 by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
17. 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 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
must be mailed to Federal Communications Commission, Enforcement
Bureau, Western Region, Denver District Office, Office, 215 S.
Wadsworth Blvd., Suite 303, Lakewood, CO 80226, and must include the
NAL/Acct. No. referenced in the caption. Directlink also shall email
the written response to WR-Response@fcc.gov.
18. 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.
19. 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 Directlink, LLC, at 43217
London Drive, Parker, Colorado 80138.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
District Director
Denver Office
Western Region
Enforcement Bureau
Directlink, LLC, holds three FCC licenses for microwave operations (call
signs WQPL428, WQPL429, and WQPL430).
47 U.S.C. S:S: 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. 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, which set forth relevant
conditions for 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).
The unauthorized emissions on frequency 5630 MHz impacted the Federal
Aviation Administration's (FAA) Terminal Doppler Weather Radar (TDWR)
system that serves the Denver International Airport. TDWR installations
exist at 45 major airports in the United States and Puerto Rico. These
radar installations 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 June 15, 2012).
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 Directlink's device was not
authorized to operate in the U-NII bands, it was subject to the U-NII
rules (47 C.F.R. 15.401-15.407) because Directlink operated it as a U-NII
device.
The device was a Ubiquiti model Rocket M5, FCC ID SWX-M5. Ubiquiti
Networks, Inc., was issued a Grant of Equipment Authorization for the
Rocket M5 by MET Laboratories, Inc., under the authority of the FCC, on
August 14, 2009.
The Equipment Authorization for the Ubiquiti Rocket M5 transceiver states
that the device is certified for use pursuant to Part 15, Subpart C of the
Rules (Intentional Radiators).
Directlink changed the operating frequency of this system from 5630 MHz to
5785 MHz during the FCC investigation on January 12, 2012. As noted above,
the Ubiquiti Rocket M5 transceiver is authorized to operate only within a
frequency range of 5745 MHz to 5825 MHz.
See 47 C.F.R. S: 15.407(h)(2). See also Memorandum from Julius Knapp,
Chief, Office of Engineering and Technology, FCC, and P. Michele Ellison,
Chief, Enforcement Bureau, FCC, to Manufacturers and Operators of
Unlicensed 5 GHz Outdoor Network Equipment Re: Elimination of Interference
to Terminal Doppler Weather Radar (TDWR) (dated July 27, 2010), available
at
http://www.wi-fi.org/files/FCC_Memorandum_on_UNII_Device_Operation_2010_07_27-M.pdf
(last visited Feb. 1, 2011).
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 7.
See supra note 12.
See supra note 13.
See supra note 14.
47 C.F.R. S: 15.201(b).
47 U.S.C. S: 302a(b); 47 C.F.R. S: 15.1(c).
47 U.S.C. S: 302a(b).
47 C.F.R. S: 15.407(h)(2).
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, 0.204, 0.311,
0.314, 1.80, 15.1(b), 15.1(c).
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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Federal Communications Commission DA 13-8
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Federal Communications Commission DA 13-8