Federal Communications Commission DA 11-273 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Utah Broadband Sandy, Utah ) ) ) ) ) ) ) File No: EB-10-DV-0376 NAL/Acct. No.: 201132800001 FRN: 0018608117 NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER Adopted: February 10, 2011 Released: February 11, 2011 By the Chief, Enforcement Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture and Order (“NAL”), we find that Utah Broadband,1 operator of two Unlicensed National Information Infrastructure (“U-NII”) transmission systems in Salt Lake City, Utah, apparently willfully and repeatedly violated sections 301 and 302(b) of the Communications Act of 1934, as amended, (“Act”)2 and sections 15.1(b) and 15.1(c) of the Commission’s rules (“Rules”)3 by operating intentional radiators not in accordance with Part 15 of the Rules4 and the devices’ Equipment Authorization.5 We conclude that Utah Broadband is apparently liable for a forfeiture in the amount of twenty five thousand dollars ($25,000). We further order Utah Broadband to submit a sworn statement certifying that it is 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 level.6 Such devices must be authorized and operated in accordance with the 1 Utah Broadband holds multiple FCC licenses, including Common Carrier Fixed Point to Point Microwave Service licenses WQJA725, WQJA739, WQJA742, and WQJA805; and Microwave Industrial / Business Pool licenses WQKI933, WQKI934, WQKI935, WQLG502, WQLG506, WQLG508, WQLI632, WQLI634, WQLX639, and WQME824. 2 47 U.S.C. §§ 301, 302a(b). 3 47 C.F.R. § 15.1(b),(c). 4 47 C.F.R. §§ 15.1 et seq. 5 47 C.F.R. §§ 15.1, 15.407. 6 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). Federal Communications Commission DA 11-273 2 Part 15 Rules.7 For example, section 15.5 provides that operation of an intentional radiator must not cause harmful interference and, if harmful interference occurs, the operation of the device must cease.8 3. 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.9 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, and such operation without a license violates section 301 of the Act.10 4. As part of its ongoing coordination efforts with the Federal Aviation Administration (“FAA”), the Enforcement Bureau received an allegation that radio emissions were causing interference to the FAA’s Terminal Doppler Weather Radar (“TDWR”) installation serving Salt Lake City International Airport. TDWR installations exist at 45 major airports in the United States and assist air traffic controllers in detecting low-altitude wind shear that can pose a risk to aircraft.11 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.12 5. On October 5, 2010, FCC agents from the Enforcement Bureau’s Denver and San Diego Offices, along with FAA personnel, used direction-finding techniques to locate emissions on the frequencies 5580 and 5640 MHz. On the following day, FCC and FAA personnel used those same techniques to confirm that the identified interference resulted from radio emissions emanating from two U-NII transmission systems13 located on the rooftop of the Brody Chemical Building in Salt Lake City, Utah. The FCC agents inspected the systems (hereinafter “System 1” and “System 2”), which were operated by Utah Broadband. Both U-NII systems utilized the modular transceiver model XtremeRange5, an intentional radiator manufactured by Ubiquiti Networks, Inc.14 The FCC Equipment 7 47 C.F.R. §§ 15.1(a), 15.5. 8 47 C.F.R. § 15.5. 9 47 C.F.R. § 15.1(c). 10 47 C.F.R. § 15.1(b). 11 MIT Lincoln Laboratories, http://www.ll.mit.edu/mission/aviation/faawxsystems/tdwr.html (last visited Jan. 26, 2011). 12 See 47 C.F.R. § 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). 13 47 C.F.R. § 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 Utah Broadband’s devices were not authorized to operate in the U-NII bands, they are subject to the U-NII rules (47 C.F.R. 15.401-15.407) because Utah Broadband operated them as U-NII devices. 14 The devices have FCC ID SWX-XR5 (“Ubiquiti XtremeRange5”). Ubiquiti Networks, Inc. was issued a Grant of Equipment Authorization for the Ubiquiti XtremeRange5 by MET Laboratories, Inc., under the authority of the FCC, on February 16, 2007. Federal Communications Commission DA 11-273 3 Authorization for the Ubiquiti XtremeRange5 transceiver limits the device to operations within a frequency range of 5745 MHz to 5825 MHz.15 During the inspection, however, the FCC agents observed that the System 1 transceiver was operating on 5580 MHz and the System 2 transceiver was operating on 5640 MHz, both outside the authorized frequency range. The FCC agents also observed – and Utah Broadband personnel acknowledged – that the required DFS functionality of each transceiver was disabled. During the inspection, Utah Broadband adjusted the devices’ operating frequencies to cease any interference with the Salt Lake City TDWR installation.16 6. The FCC agents further observed that Utah Broadband had incorporated high gain antennas into both U-NII systems.17 The addition of a high gain antenna to such a system can increase the system’s effective isotropic radiated power (“EIRP”) to levels not authorized under the Part 15 Rules. Calculations performed by the FCC agents, based on the configuration of the Ubiquiti XtremeRange5 transceivers and parabolic dish antennas in use at the time of the inspection, indicated that the EIRP for both System 118 and System 219 may have exceeded the maximum EIRP permitted by the Rules for operation on the frequencies used by Utah Broadband.20 15 The Equipment Authorization for the Ubiquiti XtremeRange5 transceiver states that the device is certified for use pursuant to Part 15, Subpart C of the Rules (Intentional Radiators). 16 Utah Broadband changed the operating frequency of System 1 from 5580 MHz to 5540 MHz and changed the operating frequency of System 2 from 5640 MHz to 5240 MHz. As noted earlier, the Ubiquiti XtremeRange5 transceiver is only authorized to operate within a frequency range of 5745 MHz to 5825 MHz. 17 System 1 employed an MTi Wireless Edge Model MT-486001 antenna with a gain of 28 dBi and with an operating frequency range of 5150 MHz – 5875 MHz. System 2 operated with a Laird Technologies Model HDDA5W-32 antenna with a total gain of 32 dBi and with a frequency range of 4900 MHz – 5875 MHz. 18 Section 15.407(a)(2) for the Rules provides: For the 5.25–5.35 GHz and 5.47–5.725 GHz bands, the maximum conducted output power over the frequency bands of operation shall not exceed the lesser of 250 mW or 11 dBm + 10 log B, where B is the 26 dB emission bandwidth in megahertz. In addition, the peak power spectral density shall not exceed 11 dBm in any 1 megahertz band. If transmitting antennas of directional gain greater than 6 dBi are used, both the maximum conducted output power and the peak power spectral density shall be reduced by the amount in dB that the directional gain of the antenna exceeds 6 dBi. Applying the Section 15.407(a)(2) formula, the maximum conducted output power (total power output) is 250 mW or 24 dBm. Given the antenna gain of 6 dBi as described above, the maximum EIRP is 1 watt or 30 dBm. In the configuration of System 1, Utah Broadband employed an antenna specified to have 28 dBi of gain, far in excess of the standard 6 dBi gain upon which the operating limits were predicated. Calculations by the FCC agents revealed that the EIRP of Utah Broadband’s System 1, operating on 5540 MHz, is estimated to be 126 watts or 51 dBm. 19 Section 15.407(a)(1) of the Rules provides: For the band 5.15–5.25 GHz, the maximum conducted output power over the frequency band of operation shall not exceed the lesser of 50 mW or 4 dBm + 10 log B, where B is the 26–dB emission bandwidth in MHz. In addition, the peak power spectral density shall not exceed 4 dBm in any 1–MHz band. If transmitting antennas of directional gain greater than 6 dBi are used, both the maximum conducted output power and the peak power spectral density shall be reduced by the amount in dB that the directional gain of the antenna exceeds 6 dBi. Applying the Section 15.407(a)(1) formula, the maximum conducted output power (total power output) is 50 mW (continued....) Federal Communications Commission DA 11-273 4 III. DISCUSSION 7. Section 503(b) of the Act21 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. The term “willful” as used in section 503(b) has been interpreted to mean simply that the acts or omissions are committed knowingly.22 The term “repeated” means the commission or omission of such act more than once or for more than one day.23 8. 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 . . . except under and in accordance with this Act and with a license in that behalf granted under the provisions of this Act.”24 Part 15 of the Rules sets out the regulations under which an intentional radiator may be operated without an individual license.25 Section 15.1(b) of the Rules provides that “operation of an intentional . . . radiator that is not in accordance with the regulations in this part must be licensed pursuant to the provisions of section 301 of the Communications Act of 1934….”26 Thus, the operator of an intentional radiator who operates it in a manner inconsistent with the Part 15 Rules is no longer covered by the unlicensed provisions of those Rules and must obtain an individual license pursuant to section 301 of the Act. 9. Pursuant to its Equipment Authorization, the Ubiquiti XtremeRange5 transceiver is an intentional radiator, certified for use pursuant to Part 15, Subpart C of the Rules (Intentional Radiators). The transceiver is not certified for use as a U-NII device pursuant to Part 15, Subpart E of the Rules (Unlicensed National Information Infrastructure) and is only certified for use in the frequency range of (...continued from previous page) or 17 dBm. Given the referenced antenna gain of 6 dBi, the maximum EIRP should be 200 mW or 23 dBm. In the configuration of System 2, Utah Broadband employed an antenna specified to have 32 dBi of gain, far in excess of the standard 6 dBi gain upon which the operating limits were predicated. Calculations by the FCC agents revealed that the EIRP of Utah Broadband’s System 2, operating on 5240 MHz, is estimated to be 316 watts or 55 dBm. 20 See infra nn. 18-19. The calculations assume the minimum power specifications for the devices. 21 47 U.S.C. § 503(b). 22 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies to violations for which forfeitures are assessed under Section 503(b) of the Act, provides that “[t]he term ‘willful’, when used with reference to the commission or omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this Act or any rule or regulation of the Commission authorized by this Act….” See, e.g., Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991), recon. denied, 7 FCC Rcd 3454 (1992). 23 Section 312(f)(2) of the Act, 47 U.S.C. § 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.” 24 47 U.S.C. § 301. 25 47 C.F.R. § 15.1(a). 26 47 C.F.R. § 15.1(b). Federal Communications Commission DA 11-273 5 5745 MHz to 5825 MHz. Consequently, Utah Broadband’s operation of the Ubiquiti XtremeRange5 transceivers as U-NII devices was inconsistent with the requirements of Part 15, including the requirement to employ DFS radar detection when operating in the frequency bands of 5.25 – 5.35 GHz and 5.47 – 5.725 GHz. Because Utah Broadband did not have an individual license to operate on the 5580 and 5640 MHz frequencies and did not operate its certified transceivers in accordance with Part 15 rules, its operations violated section 301.27 10. In addition, section 15.1(c) of the Rules provides that the operation of an intentional radiator that is not in compliance with the administrative and technical provisions in Part 15, including the device’s Equipment Authorization, is a violation of section 302 of the Act.28 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.”29 Consequently, the operation of an intentional radiator, such as the Ubiquiti XtremeRange5 transceiver, in a manner that is inconsistent with its Equipment Authorization, or in a manner that is inconsistent with the Part 15 Rules, is a violation of section 302(b) of the Act. 11. As discussed above, Utah Broadband operated its Ubiquiti XtremeRange5 transceivers on frequencies not authorized under the transceivers’ FCC Equipment Authorization and with the DFS radar detection mechanism required under section 15.407(h)(2) of the Rules disabled. Accordingly, Utah Broadband apparently violated section 15.1(c) of the Rules and section 302(b) of the Act.30 12. We make the following additional observations regarding the application of other U-NII rules to these facts.31 Section 15.407(a) of the Rules limits the power of U-NII devices.32 As discussed above, the Enforcement Bureau’s calculations suggest that Utah Broadband may have operated its Ubiquiti transceivers in excess of permissible power limitations.33 Similarly, sections 15.401 through 15.407 of the Rules set out the parameters concerning operation of U-NII devices. We caution Utah Broadband and other U-NII operators to be mindful of these requirements or risk further enforcement action. 13. The FCC agents observed the operation of the unauthorized U-NII transmission systems by Utah Broadband on October 5 and 6, 2010. Utah Broadband’s violations were repeated because they occurred on more than one day.34 The violations were willful because Utah Broadband consciously and deliberately operated the unauthorized U-NII transmission systems.35 27 47 C.F.R. § 15.1(b). See California Speedway, Forfeiture Order, 17 FCC Rcd 22701 (Enf. Bur. 2002) (in order to be exempt from Section 301’s license requirement, an intentional radiator must be operated in accordance with Part 15; otherwise, the operation requires a license). 28 47 C.F.R. § 15.1(c). 29 47 U.S.C. § 302a(b). 30 47 C.F.R. § 15.1(c). 31 47 C.F.R. §§ 15.401 – 15.407. 32 47 C.F.R. § 15.407(a). 33 See infra ¶ 6 & nn. 18-19. 34 See supra n.23. 35 See supra n.22. Federal Communications Commission DA 11-273 6 14. Based on the evidence before us, we find that Utah Broadband apparently willfully and repeatedly violated sections 301 and 302(b) of the Act, and sections 15.1(b) and 15.1(c) of the Rules, by operating intentional radiators in a manner not in compliance with the Part 15 Rules, in a manner inconsistent with their Equipment Authorization and, consequently, without authorization. 15. Pursuant to the Commission’s Forfeiture Policy Statement and section 1.80 of the Rules, the base forfeiture for operation of unauthorized equipment is $5,000 and the base forfeiture for operation without an instrument of authorization is $10,000.36 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.37 16. As detailed above, Utah Broadband operated two Ubiquiti XtremeRange5 transceivers as part of U-NII transmission systems, in violation of the transceivers’ Equipment Authorization, as well as on frequencies not authorized on the transceivers’ Equipment Authorization. Utah Broadband also operated the transceivers in violation of the Part 15 Rules by disabling the DFS function on the transceivers. Utah Broadband’s unauthorized operation of unauthorized systems created interference to the FAA’s TDWR radar system at the Salt Lake City International Airport. Considering the totality of the evidence, the number of unauthorized systems in operation, and the gravity of the public safety risks posed by the unauthorized operation, we find that an upward adjustment of $10,000 (to $20,000) is warranted for Utah Broadband’s operation without an authorization in apparent violation of section 301 of the Act and section 15.1(b) of the Rules. We propose the base forfeiture amount ($5,000) for Utah Broadband’s operation of unauthorized equipment in apparent violation of section 302(b) of the Act and section 15.1(c) of the Rules. 17. Although we could impose additional upward adjustments or calculate the forfeiture on a per-device basis, we decline to do so based on the particular circumstances of this case. We caution Utah Broadband and other U-NII service providers, however, that we may do so in future cases if the circumstances warrant or if our current approach does not serve as a sufficient deterrent. Applying the Forfeiture Policy Statement, section 1.80 of the Rules, and the statutory factors to the instant case, we therefore conclude that Utah Broadband is apparently liable for a forfeiture in the amount of $25,000. 18. As discussed above, following the October 6, 2010 inspection by Enforcement Bureau field agents, Utah Broadband modified the frequencies used by its transceivers to cease any interference with the FAA’s TDWR installation.38 The new frequencies used by Utah Broadband, however, were not those listed on the devices’ Equipment Authorization.39 We further note that the calculations performed by Enforcement Bureau field agents raise serious concerns about whether the Utah Broadband U-NII devices complied with the relevant power limits under Part 15. We therefore order Utah Broadband to submit a written statement signed under penalty of perjury by an officer or director of 36 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”), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. §1.80. 37 47 U.S.C. § 503(b)(2)(E). 38 See infra ¶ 5. 39 See infra n.16. Federal Communications Commission DA 11-273 7 the company stating that the company is now operating its U-NII devices in compliance with their Equipment Authorization and the Commission’s Rules. This statement must be provided to the Enforcement Bureau at the address listed in paragraph 24 within thirty days of the release date of this Notice of Apparent Liability for Forfeiture and Order. IV. ORDERING CLAUSES 19. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the Communications Act of 1934, as amended, and sections 0.111, 0.311, and 1.80 of the Commission’s Rules, Utah Broadband, is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of twenty-five thousand dollars ($25,000) for apparently willfully and repeatedly violating sections 301 and 302(b) of the Act, and sections 15.1(b) and 15.1(c) of the Rules.40 20. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the Commission’s Rules within thirty days of the release date of this Notice of Apparent Liability for Forfeiture and Order, Utah Broadband, SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 21. IT IS FURTHER ORDERED that Utah Broadband SHALL SUBMIT a sworn statement as described in paragraph 18 to the Enforcement Bureau Office listed in paragraph 24 within thirty days of the release date of this Notice of Apparent Liability for Forfeiture and Order. 22. Utah Broadband is HEREBY NOTIFIED that its operation of the Ubiquiti XtremeRange5 transceivers resulted in harmful interference to the FAA’s TDWR system that serves the Salt Lake City International Airport. Utah Broadband is HEREBY WARNED that any further operation of any U-NII device, including the Ubiquiti XtremeRange5 transceiver, on any frequency, and at any location, that results in interference to the FAA’s TDWR system serving the Salt Lake City International Airport may be considered a willful violation of section 333 of the Act, which prohibits willful interference to any radio communication of any station licensed or authorized under the Act or operated by the United States Government.41 23. 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 NAL/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. 42 If you have questions, please contact the Financial Operations Group Help 40 47 U.S.C. §§ 301, 302a(b), 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80, 15.1(b), 15.1(c). 41 47 U.S.C. § 333. 42 See 47 C.F.R. § 1.1914. Federal Communications Commission DA 11-273 8 Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. Utah Broadband shall also send electronic notification on the date said payment is made to WR-Response@fcc.gov. 24. 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, Western Region Office, 215 S. Wadsworth Blvd., Suite 303, Lakewood, CO 80226, and must include the NAL/Acct. No. referenced in the caption. An electronic copy shall also be sent to WR-Response@fcc.gov. 25. 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. 26. 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 Utah Broadband at 197 Cottage Avenue, Sandy, Utah, 84070. FEDERAL COMMUNICATIONS COMMISSION P. Michele Ellison Chief, Enforcement Bureau