Click here for Adobe Acrobat version
Click here for Microsoft Word version
******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************




                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                 )
                                 )
Nextel of California, Inc        )       File Number: EB-05-LA-176
                                 )
Owner of Antenna Structure       )      NAL/Acct. No. 200632900002
Highland, California             )                 FRN: 0003293511
ASR #1245078                     )



             NOTICE OF APPARENT LIABILITY FOR FORFEITURE


                                               Released: November 
                                                         18, 2005

By the District Director, Los Angeles Office, Western Region, 
Enforcement Bureau:

I.   INTRODUCTION

      1.  In this Notice of Apparent Liability for Forfeiture 
 ("NAL"), we find that Nextel of California, Inc ("Nextel"), 
 owner of antenna structure #1245078, in Highland, California, 
 apparently willfully and repeatedly violated Section 17.23 of 
 the Commission's Rules ("Rules")1 by failing to comply with the 
 antenna structure lighting requirements specified for antenna 
 structure #1245078.  We conclude, pursuant to Section 503(b) of 
 the Communications Act of 1934, as amended ("Act"),2 that 
 Nextel is apparently liable for a forfeiture in the amount of 
 ten thousand dollars ($10,000).  We also admonish Nextel for 
 its violation of Section 17.4(g) of the Rules, which requires 
 antenna structure owners to display, in a conspicuous place 
 near the base of the antenna, the structure's antenna structure 
 registration number.3

II.  BACKGROUND

      2.  On May 4, 2005, an agent from the Enforcement Bureau's 
 Los Angeles Office observed antenna structure #1245078 in 
 Highland, California.  The structure had the appearance of a 
 palm tree.  Green-colored cellular antennas and imitation palm 
 fronds were mounted at the top of a brown-colored pole.  The 
 structure was not equipped with red obstruction lights.  The 
 antenna structure registration (``ASR'') number was not 
 displayed. 4  Subsequent investigation determined that the 
 structure's ASR number is 1245078 and that the registrant of 
 the structure is Nextel.5

      3.  According to antenna structure #1245078's antenna 
 structure registration, the structure is required to have 
 ``Obstruction Marking and Lighting'' in accordance with the 
 applicable paragraphs of Federal Aviation Administration 
 (``FAA'') Circular Number 70/7460-1K.   Specifically, the FAA 
 determination for this structure requires top-mounted, red 
 obstruction lights.6

      4.  On July 8, 2005, a Los Angeles agent again inspected 
 the antenna structure and found that no lights were visible on 
 the structure.  On July 13 and 15, 2005, a Los Angeles agent 
 spoke on the telephone with a Nextel employee and discussed the 
 lighting requirements for the structure.  On July 16, 2005, 
 Nextel notified the Los Angeles Office, via electronic mail, 
 that lights had been mounted on the structure.

      5.  On July 25, 2005, the Los Angeles Office mailed a 
 Letter of Inquiry (``LOI'') to Nextel asking whether Nextel was 
 aware of the lighting requirements for antenna structure 
 #1245078, whether Nextel was aware that the lighting was 
 functioning, and whether there had been any changes to the 
 structure's FAA determination.  Nextel was also asked if it was 
 aware of its responsibility to display the ASR number for 
 antenna structure #1245078. 

      6.  In a letter dated August 11, 2005, Nextel replied to 
 the LOI.  Nextel stated that there had been no change in the 
 FAA's determination since July 23, 2004.  Nextel explained that 
 a previous, June 3, 2003 FAA determination did not require 
 lighting for the structure.  Subsequently, after the tower's 
 height was increased by six feet (by the addition of imitation 
 palm fronds), a new July 23, 2004 FAA determination was issued, 
 which did require lighting of the structure.  Nextel stated 
 that it did not notice the change in lighting requirements 
 because of ``an administrative oversight.''  Nextel stated that 
 lights were installed on the tower after being notified by the 
 Los Angeles agent in July 2005.  Nextel attached a copy of the 
 July 23, 2004 FAA determination requiring the antenna structure 
 to have red obstruction lights, in conformance with Chapters 4, 
 5 and 12 of FAA Circular 70/7460-1K.  Nextel also acknowledged 
 that it was aware of its responsibility to display the ASR 
 number for the antenna structure in a conspicuous place and the 
 ASR number was posted on or about July 16, 2005.


III.      DISCUSSION

      7.  Section 503(b) of the Act 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.7  The term 
 ``repeated'' means the commission or omission of such act more 
 than once or for more than one day.8
 
      8.  Section 17.23 of the Rules requires that registered 
 antenna structures conform to the mandatory FAA painting and 
 lighting recommendations set forth on the FAA determination 
 issued to the structure owner.9  The FAA determination for 
 antenna structure #1245078 requires that the structure have a 
 ``red obstruction light system.''10  Between May 5 and July 8, 
 2005, a Los Angeles agent observed that antenna structure 
 #1245078 was not equipped with lighting.  Nextel acknowledges 
 that the lights were not installed until July 16, 2005, and 
 that it had received a determination, dated July 23, 2004, from 
 the FAA stating that red obstruction lighting was required on 
 antenna structure #1245078.  

      9.  Nextel received notice from the FAA that red 
 obstruction lighting was required for antenna structure 
 #1245078, but Nextel failed to install such lighting on the 
 antenna structure.  Therefore, Nextel's violation was willful.  
 Nextel's violation occurred on more than one day, therefore, it 
 was repeated.  Based on the evidence before us, we find that 
 Nextel apparently willfully and repeatedly violated Section 
 17.23 of the Rules by failing to light antenna structure 
 #1245078 in accordance with the specifications set forth on the 
 structure's FAA determination and its antenna structure 
 registration.

      10.      Pursuant to The Commission's Forfeiture Policy 
 Statement and Amendment of Section 1.80 of the Rules to 
 Incorporate the Forfeiture Guidelines, ("Forfeiture Policy 
 Statement"), and Section 1.80 of the Rules, the base forfeiture 
 amount for failure to comply with prescribed lighting and/or 
 marking is $10,000.11  In assessing the monetary forfeiture 
 amount, we must also take into account the statutory factors 
 set forth in Section 503(b)(2)(D) of the Act, which include the 
 nature, circumstances, extent, and gravity of the violations, 
 and with respect to the violator, the degree of culpability, 
 and history of prior offenses, ability to pay, and other such 
 matters as justice may require.12  Applying the Forfeiture 
 Policy Statement, Section 1.80, and the statutory factors to 
 the instant case, we conclude that Nextel is apparently liable 
 for a $10,000 forfeiture.  Further, we admonish Nextel for 
 failing to post the ASR number for antenna structure #1245078 
 in a conspicuous place near the base of the antenna, in 
 violation of Section 17.4(g) of the Rules.

IV.  ORDERING CLAUSES

      11.      Accordingly, IT IS ORDERED that, pursuant to 
 Section 503(b) of the Communications Act of 1934, as amended, 
 and Sections 0.111, 0.311, 0.314 and 1.80 of the Commission's 
 Rules, Nextel of California, Inc. is hereby NOTIFIED of this 
 APPARENT LIABILITY FOR A FORFEITURE in the amount of ten 
 thousand dollars ($10,000) for violations of Section 17.23 of 
 the Rules.13

      12.      IT IS FURTHER ORDERED that Nextel of California, 
 Inc., IS ADMONISHED for failing to display the antenna 
 structure registration number for antenna structure #1245078 in 
 a conspicuous place near the base of the antenna, in accordance 
 with Section 17.4(g) of the Rules.14

      13.      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, Nextel of California, Inc SHALL PAY the full amount 
 of the proposed forfeiture or SHALL FILE a written statement 
 seeking reduction or cancellation of the proposed forfeiture.

      14.      Payment of the forfeiture must be made by check or 
 similar instrument, payable to the order of the Federal 
 Communications Commission. The payment must include the 
 NAL/Acct. No. and FRN No. referenced above. Payment bycheck 
 or money order may be mailed to Federal Communications 
 Commission, P.O. Box358340,Pittsburgh, PA 15251-8340. 
 Payment by overnight mail may be sent toMellon 
 Bank/LB358340,500 Ross Street, Room 1540670, Pittsburgh, PA 
 15251. Payment by wire transfer may be made to ABA 
 Number043000261, receiving bankMellon Bank, and account 
 number911-6106.

      15.      The response, if any, must be mailed to Federal 
 Communications Commission, Enforcement Bureau, Western Region, 
 Los Angeles Office, 18000 Studebaker Road, Suite 660, Cerritos, 
 California, 90703 and must include the NAL/Acct. No. referenced 
 in the caption.  

      16.      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.  

      17.      Requests for payment of the full amount of this 
 Notice of Apparent Liability for Forfeiture under an 
 installment plan should be sent to: Associate Managing Director 
 - Financial Operations, Room 1A625, 445 12th Street, S.W., 
 Washington, D.C. 20554.15

      18.      IT IS FURTHER ORDERED that a copy of this Notice 
 of Apparent Liability for Forfeiture shall be sent by Certified 
 Mail, Return Receipt Requested, and regular mail, to Nextel of 
 California, Inc. 


                              FEDERAL COMMUNICATIONS COMMISSION



                              
                              Catherine Deaton
                              District Director 
                              Los Angeles Office
                              Western Region
                              Enforcement Bureau



_________________________

147 C.F.R.  17.23.
247 U.S.C.  503(b).  
347 C.F.R.  17.4(g). 
447 C.F.R.  17.4(g) requires the Antenna Structure Registration 
(``ASR'') number to be displayed in a conspicuous place so that 
it is readily visible near the base of the antenna structure.  
5On June 22, 2005, the Los Angeles District Director telephoned 
the FAA's Riverside Automated Flight Service Station to determine 
if a Notice to Airman (``NOTAM'') had been issued for antenna 
structure #1245078.  Having found that a NOTAM had not been 
issued, the Los Angeles Office requested that one be issued for 
the structure.   
6Per FAA Circular Number 70/7460-1K, Chapters 4, 5, 12.
7Section 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 Southern California Broadcasting Co., 6 FCC 
Rcd 4387 (1991).
8Section 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.'' 
947 C.F.R.  17.23.
10FAA Advisory Circular 70/7460-1K, Chapters 4, 5.
1112 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 
47 C.F.R. 1.80.
1247 U.S.C.  503(b)(2)(D).
1347 U.S.C.  503(b), 47 C.F.R.  0.111, 0.311, 0.314, 1.80, 
17.23.
1447 C.F.R. 17.4(g). 
15See 47 C.F.R.  1.1914.