FCC Works its Will on the WISP

Wireless Internet provider fined $202,000 for interference to airport radar.

An FCC enforcement official once let us in on a bit of internal policy: “We keep jacking up the fines till we get their attention,” he said. At $202,000, we suspect the FCC has Towerstream’s attention.

The case is one more in a series of 5 GHz unlicensed transmitters causing interference to airport Terminal Doppler Weather Radar (TDWR) systems. In the past, the FCC has cracked down on illegally modified transmitters, as here, but when the interference comes from lawful transmitters, it has acted more gently. This case adds a third category: severe treatment for a repeat offender, albeit using lawful equipment.

Towerstream Corporation, according to its website, is a wireless Internet service provider (WISP) catering to business customers. At least some of its facilities use the 5 GHz unlicensed “U-NII” band, of which a segment is shared with TDWRs. Back in 2009, the FCC notified Towerstream it was causing interference to TDWRs at six different airports variously serving the New York City area, Chicago, and the Florida east coast. Towerstream subsequently assured the FCC in detail that it had fixed the problem.

The FCC found otherwise. In 2012 it notified Towerstream of interference from multiple devices to TDWRs at the JFK, Miami, and Fort Lauderdale airports.

Towerstream, like many other WISPs, relies on FCC rules that permit certain devices in certain bands to transmit without an FCC license, provided they do not cause interference to licensed or government systems. There was no allegation that Towerstream used unlawful equipment. Based on the facts we have, it appears the FCC properly charged Towerstream with the offense of causing interference to authorized communications. More troubling to us is an added-on charge of “operating without a license.” The FCC's reasoning goes like this.  The interference violated a condition of Towerstream’s unlicensed operation.  Therefore, the company’s unlicensed operation was not compliant with the law. Lacking the protection of the unlicensed rules, the FCC reasoned, Towerstream needed a license. Hence its operation without one was an offense.

The problem with this logic: the FCC would not have issued a license to Towerstream for the frequency band in question. More specifically, there is no licensed service covering Towerstream’s operation in that band. The FCC thus charged Towerstream for failing to do something that Towerstream could not have done.

We have objected before to this syllogism. If the penalties for interference from an unlicensed device are inadequate, perhaps the FCC and Congress need to stiffen them. The alternative of transmuting the interference into the separate and additional offense of operation without a license strikes us as specious and fundamentally unfair.

In the end, the FCC charged Towerstream with operating without a license as to seven different devices at two sites (in Miami and New York City), and with interference caused by six of them, for a total of thirteen violations. Twelve of these incurred the maximum fine of $16,000 each. One instance of unlicensed operation arose not from interference but from use of the wrong frequency, and drew the base fine of $10,000. Adding these up yields $202,000.

We agree with the FCC that unlicensed users must be constrained from causing interference to vital services such as TDRW. We don’t agree with the enforcement technique of adding on illogical violations for the same wrongful act.

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Jack Unger - August 18, 2013 11:59 AM

Yes but in addition to operating on 5.6 GHz too close to TDWR airports didn't Towerstream admit to operating on 4.9 GHz (a licensed frequency) without a license?

Mitchell Lazarus - August 21, 2013 3:37 PM

Jack -- You are correct that among Towerstream's offenses was operation of a "non-U-NII broadband transceiver" at 4.965 GHz. The blog piece mentioned this component in the second-to-last paragraph as "use of the wrong frequency" that drew the base fine of $10,000. While 4.965 GHz is a licensed frequency, as you say, it is ordinarily available only to public safety entities, so again the FCC would have denied the license that Towerstream was fined for not having.

Jack Unger - August 21, 2013 5:18 PM

Mitchell - Agreed that the FCC would not have issued Towerstream a license to use 4.965 GHz. What is surprising is that Towerstream had to be aware that their use was not a public safety use and that therefore they were not eligible for legal, licensed use of 4.965 GHz... but they proceeded to use it anyway.

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