A recent FCC enforcement order signals the agency’s apparent intent to impose increasingly greater penalties on broadband providers using devices in unlicensed spectrum bands which interfere with other wireless systems.
In an enforcement order issued last week, the FCC found that wireless ISP Towerstream Corporation should be penalized $202,000 for operating devices using unlicensed spectrum which repeatedly interfered with the federal government’s Doppler radar systems. These radar systems are used at airports to detect wind shear and other dangerous weather conditions. Because of the importance of these radar systems the FCC vigorously enforces spectrum interference issues.
Towerstream is a wireless ISP that uses wireless devices operating on unlicensed spectrum in the 5 GHz band (known as “U-NII” devices) to deliver broadband and other communications services. In 2003 the FCC allocated spectrum for unlicensed use in the 5 GHz band and authorized U-NII devices to operate on that spectrum in order to facilitate the deployment of competitive wireless broadband services. Since then U-NII devices have played an increasingly important role in meeting the demand for wireless broadband services, particularly as a means for providers to offer wireless local area networking and broadband access. Wireless providers are authorized to operate U-NII devices in the 5.15-5.35 GHZ, 5.47-5.725 GHz, and 5.725-5.825 GHz bands on an unlicensed basis. However, under Part 15 rules, operation of these devices is subject to several limitations, including the obligation to cease operations upon notice of harmful interference.
The FCC found that Towerstream’s U-NII devices had repeatedly interfered with radar systems in New York and Florida in violation of the agency’s rules. After several warnings from the FCC’s field personnel Towerstream purportedly assured the FCC that it had remedied the situation and eliminated all interference issues. However, the agency found otherwise, and concluded that the company’s U-NII devices continued to cause impermissible interference with the radar systems. The agency also found that the company “willfully and repeatedly” violated the Telecom Act by continuing operations of these devices after being notified of the interference. Finally, the FCC also found that because Towerstream was operating equipment outside the parameters of Part 15, its operations were unauthorized and required a license (despite the fact that all operations in this band are unlicensed).
This order is one in a series of recent enforcement actions against broadband service providers using 5 GHz unlicensed U-NII devices which allegedly interfered with government radar systems. While the FCC’s prior enforcement actions have increased in number, they have not included penalties of the size imposed upon Towerstream. Thus, the agency appears to be signaling its intent to escalate penalties to deter other providers from interfering with these radar systems. For that reason, providers using U-NII devices should take time to ensure that their use of equipment in unlicensed spectrum bands does not interfere with other systems (especially the government’s Doppler radar systems). Further, any notice or communications from FCC representatives, or third parties, regarding alleged interference issues should be addressed immediately to avoid potential penalties like that imposed upon Towerstream.
Davis Wright Tremaine LLP attorneys advise wireless ISPs and other broadband providers on enforcement and spectrum use issues before the FCC. Please contact us for further assistance with these matters.
