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Federal Communications Commission DA 19-801
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
In the Matter of
CA Solutions, Inc. (d/b/a Boom Solutions), Caguas, Puerto Rico
Boom Net, LLC (d/b/a Boom Solutions), Caguas, Puerto Rico
File No.: EB-FIELDSCR-18-00028272
NAL/Acct. No.: 201932020003
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: August 22, 2019 Released: August 22, 2019
By the Acting Field Director, Enforcement Bureau:
1. The Federal Aviation Administration (FAA) uses terminal doppler weather radar stations to detect wind shear and other dangerous weather conditions near airports. Interference to these radar stations is unacceptable and, in certain circumstances, could be potentially life threatening. CA Solutions, Inc. (d/b/a Boom Solutions), and Boom Net, LLC (d/b/a Boom Solutions) (together, Boom Solutions) Any entity that is a Small Business Concern as defined in the Small Business Act (Pub. L. 85-536, as amended) may avail itself of rights set forth in that Act, including rights set forth in 15 U.S.C. 657, Oversight of Regulatory Enforcement, in addition to other rights set forth herein.
provide wireless internet service in Puerto Rico. Boom Solutions was apparently operating two Unlicensed National Information Infrastructure (U-NII) devices in an unauthorized manner that caused interference to an FAA terminal doppler weather radar station in San Juan, Puerto Rico. This operation was in apparent willful violation of section 301 of the Communications Act of 1934, as amended (Act), 47 U.S.C. 301. 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. 47 U.S.C. 312(f)(1). As Congress explained, the term is used to address a situation in which a person knew that he [or she] was doing the act in question, regardless of whether there was an intent to violate the law. H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) (also noting that the definition of willful in section 312(f)(1) was intended to be similarly interpreted in the context of a forfeiture brought under section 503(b) of the Act). See also, Jay Peralta, Corona, New York, Notice of Apparent Liability for Forfeiture, 32 FCC Rcd 3246, 3247-48, para. 5 (2017), forfeiture ordered, 32 FCC Rcd 7993 (2017).
and sections 15.1(b) and 15.407(h)(2) of the Commissions rules. 47 CFR 15.1(b), 15.407(h)(2).
Accordingly, we propose a penalty of $25,000, jointly and severally, against Boom Solutions.
2. Section 301 of the Act states that [n]o person shall use or operate any apparatus for the transmission of energy or communications or signals by radio within the United States or its territories without a license granted by the Commission. 47 U.S.C. 301.
Part 15 of the Commissions rules provides an exception to this general section 301 license requirement and sets forth conditions under which such devices (intentional radiators) may operate without an individual license. 47 CFR 15.1, et seq.
Pursuant to section 15.1(b) of the Commissions rules, however, operation of an intentional . . . radiator that is not in accordance with the regulations in this part must be licensed. . . . See 47 CFR 15.1(b) (emphasis added).
3. In 2003, the Commission allocated additional spectrum for unlicensed use by U-NII devices in the 5 GHz band as a means of promoting competitive wireless broadband services. See Revision of Parts 2 and 15 of the Commissions Rules to Permit Unlicensed National Information Infrastructure (U-NII) Devices in the 5 GHz Band, Report and Order, 18 FCC Rcd 24484 (2003).
In particular, some wireless Internet service providers rely U-NII devices to provide point-to-point broadband connections within their networks. U-NII device operators are authorized to operate radio transmitters in specific portions of the 5 GHz band on an unlicensed basis, but they must comply with technical rules specific to U-NII devices to prevent harmful interference to radar stations (including the FAAs terminal doppler weather radar system) operating in the same portions of the 5 GHz band in which U-NII devices are permitted to operate. See 47 CFR 15.407.
To enable this spectrum sharing while avoiding harmful interference to government radar stations, the Commission requires, pursuant to section 15.407(h)(2) of its rules, that U-NII devices operating in the 5.25 5.35 GHz (U-NII-2A) and 5.47 5.725 GHz (U-NII-2C) bands have Dynamic Frequency Selection radar detection functionality, which allows them to detect the presence of radar systems and automatically avoid operating on the same channel as those nearby radar systems. See 47 CFR 15.407(h)(2).
Without Dynamic Frequency Selection enabled, a U-NII device operating on this shared spectrum can cause harmful interference to government radar stations.
4. As part of the Enforcement Bureaus (Bureau) ongoing coordination efforts with the FAA, on October 16, 2018, the FAA reported that its terminal doppler weather radar station serving the San Juan International Airport was receiving interference from a source to the East-Southeast of the radar station (i.e., on an azimuth of 105- 106 True North). According to the FAA, the San Juan terminal doppler weather radar station operates on 5.610 GHz and was receiving interference from a source operating on that frequency or an adjacent frequency.
5. On November 6, 2018, Bureau personnel used direction-finding techniques and determined that radio emissions on 5.630 5.650GHz were emanating from the roof of the Condominio Plaza Inmaculada II in San Juan, Puerto Rico (Transmitter Site). The Transmitter Site lies along the San Juan terminal doppler weather radar stations 105 True North azimuth. Bureau personnel then contacted the buildings manager, who stated that Boom Solutions, a wireless internet service provider, leases space on the roof of Condominio Plaza Inmaculada II.
6. On December 12, 2018, a Bureau agent traveled to the corporate offices of Boom Solutions in Caguas, Puerto Rico, while other Bureau personnel stationed themselves at the Transmitter Site and monitored the emissions on 5.630 5.650 GHz. At Boom Solutions corporate offices, the agent and Boom Solutions proprietor, Carlos Alberti, observed as Boom Solutions personnel used an online management tool to remotely access two Ubiquiti PowerBeam 5AC 500 devices (one located at the Transmitter Site, and the other at a remote location) (together, the Ubiquiti Devices), whereupon the agent observed that the Ubiquiti Devices were operating on the same wireless network using a center frequency of 5.640GHz. The agent also observed that the Ubiquiti Devices were configured to operate without a country code and without Dynamic Frequency Selection enabled. Many U-NII device manufacturers use the country code setting as a means of automatically configuring a device to operate with the parameters applicable to that country. Thus, setting the United States country code during the initial setup of a U-NII device is often a simple way to enable Dynamic Frequency Selection.
7. The agent and Mr. Alberti then observed as Boom Solutions personnel reconfigured the Ubiquiti Devices to operate on a different frequency that would not interfere with the FAAs terminal doppler weather radar station. Upon reconfiguring the devices, the Bureau personnel stationed at the Transmitter Site reported that they were no longer able to measure emissions centered on 5.640 GHz at that location. Bureau personnel subsequently reviewed the user manual for the online management tool and confirmed that, based on the observed device settings, Dynamic Frequency Selection had not been enabled for either Ubiquiti Device when the devices were observed operating with a center frequency of 5.640GHz. Boom Solutions used Ubiquitis airOS software to manage the devices in question. According to the airOS user manual, had Dynamic Frequency Selection been active, DFS would have been displayed after the operating frequency. See Ubiquiti Networks, airOS 8 Operating System for Ubiquiti airMAX ac Series Products: User Guide, Release Version: 8, at https://dl.ubnt.com/guides/airOS/airOS_UG_V80.pdf (on file in EB-FIELDSCR-18-00028272). DFS was not displayed.
8. After researching Boom Solutions using publicly available corporate databases, on February 8, 2019, a Bureau agent contacted Mr. Alberti to inquire about the relationship, if any, among Boom Solutions, CA Solutions, Inc., and Boom Net, LLC. Mr. Alberti explained that his companies provide internet-based services through a number of corporate entities, all of which do business under the umbrella name of Boom Solutions. CA Solutions, Inc., provides internet, VoIP, and IP TV services and currently operates under both the Boom Solutions and Boom TV trade names. Boom Net, LLC provides internet services to the public and operates under both the Boom Solutions and Boom Net trade names.
9. Following the February 8, 2019, conversation with Mr. Alberti, the agent also reviewed prior enforcement actions against U-NII device operators in Puerto Rico and determined that, on January 20, 2015, the Bureau issued CA Solutions, Inc. (d/b/a Boomnet) a Notice of Unlicensed Operation in connection with the companys operation of a U-NII device on 5.625 GHz without Dynamic Frequency Selection enabled. Letter from Reuben Jusino, Resident Agent, San Juan Office, Enforcement Bureau, to CA Solutions, Inc., (d/b/a Boomnet) (Jan. 20, 2015) (on file in EB-FIELDSCR-18-00028272).
10. We find that Boom Solutions has apparently willfully violated section 301 of the Act and has also apparently violated sections 15.1(b) and 15.407(h)(2) of the Commissions rules. 47 U.S.C. 301; 47 CFR 15.1(b), 15.407(h)(2).
Specifically, on December 12, 2018, a Bureau agent and other Bureau personnel observed that Boom Solutions was operating the Ubiquiti Devices on 5.640GHz (i.e., within the U-NII-2C band) that it had configured to operate without the required Dynamic Frequency Selection capability enabled. Boom Solutions misconfiguration of the Ubiquiti Devices apparently violated section 15.407(h)(2) of the Commissions rules. Because Boom Solutions was operating the Ubiquiti Devices on 5.640 GHz without Dynamic Frequency Selection enabled, it did not satisfy the section 15.1(b) condition for unlicensed operationnamely that devices must be operated in accordance with the applicable provisions of part 15 of the Commissions rules. 47 CFR 15.1(b), 15.407(h)(2).
Accordingly, because Boom Solutions holds no license from the Commission permitting operation on 5.640GHz without Dynamic Frequency Selection, we find that its operation of the two Ubiquiti Devices without Dynamic Frequency Selection enabled apparently violated section 301 of the Act and sections 15.1(b) and 15.407(h)(2) of the Commissions rules. 47 U.S.C. 301; 47 CFR 15.1(b), 15.407(h)(2).
A. Proposed Forfeiture
11. Section 503(b) of the Act authorizes the Commission to impose a forfeiture against any entity that willfully or repeatedly fail[s] to comply with any of the provisions of [the Act] or of any rule, regulation, or order issued by the Commission. 47 U.S.C. 503(b).
Here, section 503(b)(2)(D) of the Act authorizes us to assess a forfeiture against Boom Solutions of up to $20,134 for each day of a continuing violation, up to a statutory maximum of $151,005 for a single act or failure to act. See 47 U.S.C. 503(b)(2)(D); 47 CFR 1.80(b)(7), (9); see also Amendment of Section 1.80(b) of the Commissions Rules, Adjustment of Civil Monetary Penalties to Reflect Inflation, Order, 33 FCC Rcd 12278 (EB 2018).
In exercising our forfeiture authority, we must consider the nature, circumstances, extent, and gravity of the violation and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require. 47 U.S.C. 503(b)(2)(E).
In addition, the Commission has established forfeiture guidelines; they establish base penalties for certain violations and identify criteria that we consider when determining the appropriate penalty in any given case. 47 CFR 1.80(b)(8), Note to paragraph (b)(8).
Under these guidelines, we may adjust a forfeiture upward for violations that are egregious, intentional, or repeated, or that cause substantial harm or generate substantial economic gain for the violator. Id.
12. Pursuant to the Commissions Forfeiture Policy Statement and section 1.80 of the Commissions rules, the base forfeiture amount for operation without an instrument of authorization is $10,000. The Commissions Forfeiture Policy Statement and Amendment to 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 CFR 1.80.
Because, on December 12, 2018, Boom Solutions apparently operated two Ubiquiti Devices on 5.640GHz without having Dynamic Frequency Selection enabled and without a license, as required when operating outside of the parameters set forth in part 15 of the Commissions rules, See 47 CFR 15.1(b).
we find that Boom Solutions conduct resulted in two separate apparent violations of section 301 of the Act and sections 15.1(b) and 15.407(h)(2) of the Commissions rules. These two apparent violations yield an aggregate base forfeiture of $20,000. See, e.g., Towerstream Corporation, Middletown, Rhode Island, Notice of Apparent Liability for Forfeiture and Order, 28 FCC Rcd 11604 (2013) (applying a $10,000 base forfeiture for the unauthorized operation of a U-NII device and upwardly adjusting the proposed forfeiture to the statutory maximum because the violations were intentional, caused substantial harm to terminal doppler weather radar systems, and followed multiple prior violations), terminated in Order, 31 FCC Rcd 8530 (EB 2016).
13. 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. Based on the prior warning that the Bureau issued to Boom Solutions on January 20, 2015, we conclude that Boom Solutions apparent violations of section 301 of the Act and sections 15.1(b) and 15.407(h)(2) were intentional and warrant an upward adjustment of $5,000. Id.
We therefore propose an aggregate forfeiture of $25,000 for Boom Solutions apparent violations of section 301 of the Act and sections 15.1(b) and 15.407(h)(2) of the Commissions rules.
B. Reporting Requirement
14. To preserve the integrity of the FAAs terminal doppler weather radar station serving the San Juan International Airport, we also find that Boom Solutions should certify its compliance with the requirements at issue in this matter. We therefore order Boom Solutions to submit a statement signed under penalty of perjury by an officer or director of the company stating that each U-NII device that it operates is currently operating in compliance with the Commissions rules and the equipments applicable authorizations. This statement must be provided to the Enforcement Bureau at the address listed in paragraph 18 within thirty (30) calendar days of the release date hereof.
15. We have determined that Boom Solutions apparently willfully violated section 301 of the Act and sections 15.1(b) and 15.407(h)(2) of the Commissions rules. 47 U.S.C. 301; 47 CFR 15.1(b), 15.407(h)(2).
As such, Boom Solutions is apparently liable for a forfeiture of $25,000.
V. ORDERING CLAUSES
16. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the Act 47 U.S.C. 503(b).
and section 1.80 of the Commissions rules, 47 CFR 1.80.
CA Solutions, Inc., and Boom Net, LLC, are hereby NOTIFIED of their APPARENT JOINT AND SEVERAL LIABILITY FOR A FORFEITURE in the amount of Twenty-Five Thousand Dollars ($25,000) for willful violations of section 301 of the Act 47 U.S.C. 301.
and sections 15.1(b) and 15.407(h)(2) of the Commissions rules. 47 CFR 15.1(b), 15.407(h)(2).
17. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the Commissions rules, 47 CFR 1.80.
within thirty (30) calendar days of the release of this Notice of Apparent Liability for Forfeiture and Order, CA Solutions, Inc., and Boom Net, LLC, SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture consistent with paragraph 21 below.
18. IT IS FURTHER ORDERED that CA Solutions, Inc., and Boom Net, LLC, SHALL SUBMIT a written statement, as described in paragraph 14, 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 the Federal Communications Commission, Enforcement Bureau, Office of the Field Director, 445 12th Street, SW, Washington, DC 20554, with a copy sent by email to firstname.lastname@example.org.
19. Payment of the forfeiture must be made by credit card, ACH (Automated Clearing House) debit from a bank account using the Commissions Fee Filer (the Commissions online payment system), Payments made using the Commissions Fee Filer system do not require the submission of FCC Form 159.
or by wire transfer. The Commission no longer accepts forfeiture payments by check or money order. Below are instructions that payors should follow based on the form of payment selected: For questions regarding payment procedures, please contact the Financial Operations Group Help Desk by phone at 1-877-480-3201 (option #6), or by e-mail at ARINQUIRIES@fcc.gov.
Payment by wire transfer must be made to ABA Number 021030004, receiving bank TREAS/NYC, and Account Number 27000001. A completed Form 159 must be faxed to the Federal Communications Commission at 202-418-2843 or e-mailed to RROGWireFaxes@fcc.gov on the same business day the wire transfer is initiated. Failure to provide all required information in Form 159 may result in payment not being recognized as having been received. When completing FCC Form 159, enter the Account Number in block number 23A (call sign/other ID), enter the letters FORF in block number 24A (payment type code), and enter in block number 11 the FRN(s) captioned above (Payor FRN). Instructions for completing the form may be obtained at https://www.fcc.gov/Forms/Form159/159.pdf.
For additional detail and wire transfer instructions, go to https://www.fcc.gov/licensing-databases/fees/wire-transfer.
Payment by credit card must be made by using the Commissions Fee Filer website at https://apps.fcc.gov/FeeFiler/login.cfm. To pay by credit card, log-in using the FRN captioned above. If payment must be split across FRNs, complete this process for each FRN. Next, select Pay bills on the Fee Filer Menu, and select the bill number associated with the NAL Accountthe bill number is the NAL Account number with the first two digits excludedand then choose the Pay by Credit Card option. Please note that there is a $24,999.99 limit on credit card transactions.
Payment by ACH must be made by using the Commissions Fee Filer website at https://apps.fcc.gov/FeeFiler/login.cfm. To pay by ACH, log in using the FRN captioned above. If payment must be split across FRNs, complete this process for each FRN. Next, select Pay bills on the Fee Filer Menu and then select the bill number associated to the NAL Accountthe bill number is the NAL Account number with the first two digits excludedand choose the Pay from Bank Account option. Please contact the appropriate financial institution to confirm the correct Routing Number and the correct account number from which payment will be made and verify with that financial institution that the designated account has authorization to accept ACH transactions.
20. Any request for making full payment over time under an installment plan should be sent to: Chief Financial OfficerFinancial Operations, Federal Communications Commission, 445 12th Street, SW, Room 1-A625, Washington, DC 20554. See 47 CFR 1.1914.
Questions regarding payment procedures should be directed to the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
21. 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 Commissions rules. 47 CFR 1.16, 1.80(f)(3).
The written statement must be mailed to the Office of the Secretary, Federal Communications Commission, 445 12th Street, SW, Washington, DC 20554, ATTN: Enforcement BureauOffice of the Field Director, and must include the NAL/Account Number referenced in the caption. The statement must also be e-mailed to email@example.com.
22. 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; or (3)some other reliable and objective documentation that accurately reflects the petitioners current financial status. Any claim of inability to pay must specifically identify the basis for the claim by reference to the financial documentation.
23. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for Forfeiture and Order shall be sent by first class mail and certified mail, return receipt requested, to CA Solutions, Inc. and Boom Net LLC at Urbanizacin San Alfonso, A-8 Avenida Degetau, Caguas, Puerto Rico 00726.
FEDERAL COMMUNICATIONS COMMISSION
Acting Field Director