Use of unlicensed transmitter on non-certified frequency brings fine for operation without a license

The FCC has proposed a $25,000 fine against AT&T for the offense of . . . well, let’s talk about that.  In its zeal to protect the spectrum, the FCC may have charged AT&T with the wrong offense.

A little background may help.

The FCC allows unlicensed operation in a band up above 5 GHz. The applications tend to be a lot like Wi-Fi, but under a different set of rules, called U-NII, for “unlicensed national information infrastructure.” (No, that won’t be on the exam.)

A few years ago the FCC expanded the U-NII band into a region of the spectrum also used by airport weather radars. The radars are used to detect wind shear in the vicinity, important to flight safety. In careful collaboration with the FAA, the FCC added rules that require U-NII devices to listen for the radars and avoid their frequencies – a capability called dynamic frequency selection, or DFS. The band is now popular for wireless Internet access service, among other applications.

But the technical rules did not work as planned.

A number of radars have experienced interference even from compliant, DFS-equipped transmitters. The FCC could have come down hard on the U-NII operators: an unlicensed transmitter, even in full compliance, is not permitted to interfere with an authorized or government service, like airport radars. Instead, though, and to its credit, the FCC took a collaborative approach with the providers causing the problem. It did mention, though, that transmitters not in compliance with the rules would be subject to enforcement action.

The airport in San Juan, Puerto Rico, is one of those that reported interference to its radar. The FCC traced the signal to a roof-mounted transmitter a few miles away, made by Motorola and operated by AT&T. The unit was FCC-certified for U-NII operation at 5735-5840 MHz. But it was operating outside that band, at 5605 MHz, and had no working DFS.

The FCC cited AT&T for two offenses. One was operating a transmitter outside the frequency range in the certification, and without the required DFS. The other charge is a little more complicated. Because the transmitter operated outside the band where it was certified for unlicensed operation, it did not qualify for unlicensed operation. Therefore, reasoned the FCC, by definition AT&T needed a license. But AT&T did not have one for 5605 MHz. So the FCC added on the more serious charge of operation without a license.

The base fine for the outside-the-certification problem is $5,000, and for operation without a license, $10,000. The FCC doubled the latter, explaining that it did so because AT&T is a large and profitable company, to reach a total of $25,000.

We have two questions.

In cases where a transmitter fails to match its certification, as here, the FCC usually cites the manufacturer. Going after AT&T makes sense only if the FCC thinks the transmitter was compliant when shipped, and that AT&T took it out of the box, re-tuned it to an unauthorized frequency, and turned off the DFS. That would indeed be a blatant offense. But the FCC does not accuse AT&T of doing this. The farthest it goes is to say AT&T “consciously” operated at the unauthorized frequency. Contrast the delicate touch with another recent case, in which the FCC flatly accused the provider both of disabling the DFS and of fitting the unit with an unauthorized antenna that pushed the effective power to hundreds of times above the maximum permitted. (Despite the more egregious offense, and the improper use of two systems on two frequencies, the fine there was the same $25,000).

Usually, before the FCC proposes a fine, it sends a Letter of Inquiry to the suspected offender to get the other side of the story. There is no indication that it sent one to AT&T. We don’t know all the facts; but if AT&T has an explanation, we think it should have the chance to say so before its alleged offense is splashed over the public record.

Our other question concerns the charge of operating without a license at 5605 MHz. That frequency is part of the U-NII band, and AT&T’s operation appears to have been within the power limit for that frequency. So far as we can tell, Motorola (or AT&T) could have had the same transmitter re-certified to include 5605 MHz. AT&T was at fault for not making sure this happened. But calling that omission “operation without a license” is a stretch.

The only licensable services at 5605 MHz are maritime radionavigation, meteorological aids, and radar. AT&T’s use of the transmitter is none of these. The communications function it provided is lawful only as an unlicensed service. Had AT&T sought a license for this application at that frequency, it would have been turned down.

Think about this. AT&T was fined for failing to do something it could not have done. And the fine was doubled, to boot.

Plainly some kind of enforcement action is needed. There was interference to an important radar system from a transmitter that failed to meet the requirements of its certification. Given the actual circumstances, though, AT&T’s only real offense was the use of unauthorized equipment (base fine, $5,000). Yes, the rules can be read to permit an allegation of operation without a license, and that might be justified in some cases. Here, though, the main effect of the added charge was to greatly boost the allowable fine.

The FCC may simply have wanted to make an impression on AT&T. That’s reasonable. But we would also like to see the Commission stay within a common-sense interpretation of the rules. We think that’s only fair.