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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-05-TP-196
Nextel License Holdings 1, Inc. ) NAL/Acct. No. 200632700001
Licensee of Station WPSW213 )
Reston, VA ) FRN 002050078
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
By the District Director, Tampa Office, South Central Region,
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Nextel License Holdings 1, Inc.
(``Nextel''), licensee of station WPSW213, in Pinellas County,
Florida, apparently willfully violated an Enforcement Bureau
order to conduct certain equipment tests, pursuant to the
authority provided by the Communications Act of 1934, as
amended (``Act''),1 and the Commission's Rules (``Rules'').2
We conclude, pursuant to Section 503(b) of the Act,3 that
Nextel is apparently liable for a forfeiture in the amount of
seven thousand dollars ($7,000).
2. On July 26, 2005, the Tampa Field Office of the Federal
Communication Commission's (``Commission'') Enforcement Bureau
(``Tampa Office'') received a complaint of an interfering
signal that drifted between 898 and 899 MHz. On July 27, 2005,
agents from the Tampa Office used radio direction finding
techniques to determine that the source of the interfering
signal was located on a tower with FCC Antenna Structure
Registration (``ASR'') #1030418. Nextel and Cingular are the
only two licensees located at the tower.
3. On July 28, 2005, at 10:00 a.m., the agents met with a
Nextel RF engineer at their site in Pinellas County, FL. The
Nextel engineer confirmed with his equipment that the
interference on 898.6 MHz was emanating from the site but
stated that he did not have any channels in operation near that
frequency at the site. The agents requested the Nextel
engineer to perform a short on/off test to verify whether the
interference was caused by their station. The Nextel engineer
refused to turn the station off for an on/off test, stating
that he was not authorized to turn the station off. The agents
advised that the test was necessary to determine the source of
the interfering signal and requested that he immediately
contact his supervisor to obtain permission to conduct the
test. At approximately 11:36 a.m., the agents spoke with the
engineer's supervisor. The supervisor stated that, he too, did
not have the authority to shut down the site during the day.
He stated that Nextel's official policy was that they do not
shut down any site during the day. He further stated that his
engineer advised him that their equipment was operating
normally. He asserted that Nextel had 48 hours to initiate
corrective action per Commission policy and that they were
being very cooperative by sending someone out within 24 hours.
Finally, he stated that he would contact the Vice President or
their legal department to follow-up, because he did not have
the authority to turn off the site. The agents reminded him
that this would be a simple on/off test lasting for
approximately two seconds. The agents also advised that if
Nextel did not follow their orders during the inspection they
would face a possible forfeiture. Later, at 2:46 p.m., the
supervisor advised the agents that he had talked with his legal
department and they advised him to not shut off the site for
testing. He stated that they would be testing later that night
at 11:00 p.m. and invited the agents to accompany them at that
time. At approximately 11:30 p.m., the agents determined that
Nextel was not the source of the interference after Nextel
conducted the on/off test.
4. On the morning of July 29, 2005, the agents contacted
Cingular, which sent an engineer to the site by 10 a.m. The
engineer immediately shut down Cingular's system for the on/off
test as ordered by the agents and complied with all other agent
directives. The engineer determined that Cingular's system was
the source of the interfering signal.
5. Section 503(b) of the Communications Act of 1934, as
amended (``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.4
6. Section 303(n) of the Act states in relevant part that
the Commission shall ``have authority to inspect all radio
installations associated with stations required to be licensed
... to ascertain whether in construction, installation, and
operation they conform to the requirements of the rules and
regulations of the Commission ...'' Section 90.439 of the
Rules states that ``all stations and records of stations in
[the Private Land Mobile Radio Services] shall be made
available for inspection at any reasonable time and any time
while the station is in operation upon reasonable request of an
authorized representative of the Commission.'' Section
0.314(d) of the Rules also states that Commission field
personnel may require ``special equipment and program tests
during inspections or investigations to determine compliance
with technical requirements specified by the Commission.'' On
July 28, 2005, duly authorized agents of the Commission,
operating under delegated authority, directed Nextel to conduct
a short on/off test during an official inspection to determine
the source of an interfering signal. Nextel refused to comply
with the agents' orders at the time of the request.5
7. Based on the evidence before us, we find that Nextel
apparently willfully violated an Enforcement Bureau order by
refusing to conduct on/off tests of its transmitter.6 This
order was made by an agent operating under delegated authority
and made during the course of an inspection and investigation,
authorized by the Act and the Rules,
8. There is no base forfeiture amount for refusing to
conduct a requested test during an inspection. We conclude,
however, that this violation is similar to a violation that
involves failing to permit inspection, which, 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, carries a base forfeiture amount of $7,000 for
each such violation.7 Failure to perform tests requested
during an inspection effectively negates the value of the
inspection, because it prevents the agents from obtaining
necessary information from the inspection. 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.8 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 $7,000 forfeiture.
IV. ORDERING CLAUSES
9. 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,9 Nextel Holdings 1, Inc., is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of seven
thousand dollars ($7,000) for violation of Section 0.314(d) of
10. 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 Holdings 1, Inc., SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
11. 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 by check
or money order may be mailed to Federal Communications
Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
12. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, South Central
Region, Tampa Office, 2203 N. Lois Avenue, Suite 1215, Tampa,
FL 33607 and must include the NAL/Acct. No. referenced in the
13. 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.
14. 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, 445 12th Street, S.W., Room
1A625, Washington, D.C. 20554.11
15. 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 Attention:
Robin J. Cohen, Nextel Holdings 1, Inc., 2001 Edmund Halley
Drive, Reston, VA 20191.
FEDERAL COMMUNICATIONS COMMISSION
Ralph M. Barlow
Tampa Office, South Central Region
1 47 U.S.C. §§ 303(n), 403.
2 47 C.F.R. §§ 0.314(d), 90.439.
3 47 U.S.C. § 503(b).
4 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 Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
5 We note that the interference resolution procedures before,
during and after band reconfiguration set forth in Section 90.674
of the Rules apply to non-cellular licensees and enhanced special
mobile radio licensees. 47 C.F.R. § 90.674. These procedures in
no way limit the broad inspection and investigative authority of
6 See SBC Communications Inc., Forfeiture Order, 17 FCC Rcd 7589
(2002) (violation of Enforcement Bureau order to submit a sworn
7 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. § 1.80.
8 47 U.S.C. § 503(b)(2)(D).
9 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80.
10 47 C.F.R. § 0.314(d).
11 47 C.F.R. § 1.1914.