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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Nextel WIP License Corp. ) File No. EB-02-HL-078
Palehua Ridge, Hawaii )
) NAL/Acct. No. 200232860002
) FRN 0002-2070-66
Adopted: September 23, 2003 Released: September 26,
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree
entered into between the Enforcement Bureau and Nextel WIP
License Corp. (``Nextel WIP''). The Consent Decree terminates
the Enforcement Bureau's forfeiture proceeding against Nextel WIP
for apparently operating a radio station without Commission
authorization in violation of Section 301 of the Communications
Act of 1934, as amended (``Act'').1
2. The Consent Decree provides that, among other things,
Nextel WIP will implement a Compliance Plan to ensure its future
compliance with the Commission's Rules and will make a $10,000
voluntary contribution to the United States Treasury.
3. After having reviewed the record and the Consent
Decree, including the incorporated Compliance Plan, we believe
that the public interest will be served by adopting the Consent
Decree and terminating the Enforcement Bureau's forfeiture
proceeding against Nextel WIP.2
2. Accordingly, IT IS ORDERED that, pursuant to Sections
4(i), 4(j), and 503(b) of the Act,3 and Sections 0.111 and 0.311
of the Commission's Rules,4 the Consent Decree attached to this
Order IS ADOPTED.
3. IT IS FURTHER ORDERED that the Enforcement Bureau's
forfeiture proceeding against Nextel WIP IS TERMINATED.
6. IT IS FURTHER ORDERED that Nextel WIP shall make its
voluntary contribution to the United States Treasury by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note
NAL/Acct. No. 200232860002 and FRN 0002-2070-66.
4. IT IS FURTHER ORDERED that a copy of this Order and
Consent Decree shall be sent by Certified Mail Return Receipt
Requested to Nextel WIP License Corp., 10120 West 76th Street,
Eden Prairie, Minnesota 55344 and its counsel, Albert F.
Catalano, Esq., Catalano & Plache, PLLC, 3221 M Street, N.W.,
Washington, DC 20007.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1. The Enforcement Bureau of the Federal
Communications Commission (``Commission'' or ``FCC'') and
Nextel WIP License Corp. (``Nextel WIP'') hereby enter into
this Consent Decree for the purpose of terminating a
forfeiture proceeding arising from an investigation of
Nextel WIP for alleged violation of Section 301 of the
Communications Act of 1934, as amended (``Act'').5
2. Nextel WIP is a wholly-owned subsidiary of Nextel
Partners, Inc., which is a publicly-traded company that
provides digital wireless telecommunications services in
various regions of the United States, including Hawaii.
Nextel WIP is a license holding entity for Nextel Partners,
Inc. Nextel WIP is licensed for operations on hundreds of
800 MHz channels at hundreds of locations in Hawaii.
3. On August 27, 2002, the FCC's Honolulu, Hawaii
Resident Agent Office (``Honolulu Office'') received a
complaint of interference to a site receiver belonging to
the local electric company. On August 28, 2002, an agent
from the Honolulu Office determined that an interfering
signal originated on frequency 854.7875 MHz from a
transmitter operated by Nextel WIP at Palehua Ridge, Hawaii.
On the same day, the FCC agent determined, and Nextel WIP
confirmed, that Nextel WIP was not licensed on frequency
854.7875 MHz. Nextel immediately dispatched a technician to
remove the transmitter from the air. Nextel WIP determined
further that it was licensed on frequency 854.7375 MHz,
which was not in use at the site.
4. On September 30, 2002, the Honolulu Office issued
a Notice of Apparent Liability for Forfeiture (``NAL'') to
Nextel WIP in the amount of $10,000 for the apparent willful
violation of Section 301 of the Act by operating a radio
station without Commission authorization. On October 30,
2002, Nextel WIP submitted a response to the NAL indicating
that the facts alleged in the NAL were, in Nextel WIP's
view, insufficient to sustain a finding of violation of
Section 301 because, in Nextel WIP's view, there is no
indication that Nextel WIP had knowledge that it was
operating on frequency 854.7875 MHz, prior to being
contacted by the Honolulu Office Agent on August 28, 2002.
5. For the purposes of this Consent Decree, the
following definitions shall apply:
(a) The ``Commission'' means the Federal
(b) The ``Bureau'' means the Enforcement Bureau of
(c) ``Nextel WIP'' means Nextel WIP License
Corporation and all of its subsidiaries and
(d) The ``Order'' means the Bureau's order
adopting this Consent Decree.
(e) ``Enforcement Proceeding'' means the
investigation of the alleged rule violation by
Nextel WIP culminating in the Notice of Apparent
Liability for Forfeiture.
(f) ``Notice of Apparent Liability for
Forfeiture'' means Nextel WIP License Corp., File
No. EB-02-HL-078, NAL/Acct. No. 200232860002 (Enf.
Bur., Honolulu Office, rel. September 30, 2002).
6. Nextel WIP acknowledges and agrees that the Bureau
has jurisdiction over the matters referenced in this Consent
Decree and that the Bureau has the authority to enter into
and adopt this Consent Decree.
7. Nextel WIP and the Bureau agree that this Consent
Decree does not constitute either an adjudication of the
merits, or a factual or legal finding or determination
regarding any compliance or noncompliance by Nextel WIP with
the requirements of the Act or the Commission's Rules,
including Section 301 of the Act. Nextel WIP and the Bureau
agree that this Consent Decree is for settlement purposes
only and that by agreeing to this Consent Decree, Nextel WIP
does not admit or deny any liability for violating the Act
or Commission's Rules in connection with the matters that
are the subject of this Consent Decree. Nextel WIP and the
Bureau agree further that the Bureau will not use this
Consent Decree or otherwise consider the violations alleged
in the NAL for any purpose in any future Commission
proceeding against Nextel WIP or any of its affiliated
8. The Bureau agrees that it will not institute or
recommend to the Commission, on its own motion, any new
proceeding, formal or informal, or take any action on its
own motion against Nextel WIP for possible past violations
of Section 301 of the Act. The Bureau also agrees that, in
the absence of material new evidence related to this matter,
it will not use the facts developed in this proceeding
through the effective date of this Consent Decree or the
existence of this Consent Decree to institute on its own
motion any proceeding, formal or informal, or take any
action on its own motion against Nextel WIP with respect to
its basic qualifications, including the character
qualifications, to be a Commission licensee. Nothing in
this Consent Decree shall prevent the Bureau from
instituting new investigations or enforcement proceedings
against Nextel WIP pursuant to Section 4(i), 403 and 503 of
the Act, 47 U.S.C. §§ 4(i), 403 and 503, in the event of any
alleged future misconduct, for violation of this Consent
Decree, or for violation of Section 301 of the Act
consistent with the provisions of this Consent Decree.
9. Nothing in this Consent Decree shall prevent the
Bureau from adjudicating complaints filed pursuant to
Section 208 of the Act, 47 U.S.C. § 208, against Nextel WIP
or its subsidiaries for alleged violations of Section 301 of
the Act as modified by this Consent Decree, or for any other
type of alleged misconduct, regardless of when such
misconduct took place. If any such complaint is made, the
Bureau's adjudication of that complaint will be based solely
on the record developed in that proceeding.
10. Nextel WIP agrees to the following:
(a) Within thirty (30) days of the release
date of the Order, Nextel WIP will make a
voluntary contribution to the United States
Treasury in the amount of Ten Thousand Dollars
($10,000.00). Nextel WIP shall make its voluntary
contribution to the United States Treasury by
mailing a check or similar instrument, payable to
the order of the Federal Communications
Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission,
P.O. Box 73482, Chicago, Illinois 60673-7482. The
payment should note NAL/Acct. No. 20023286002 and
(b) No later than thirty (30) days of the release
date of the Order, Nextel WIP will undertake the
following improvements to its frequency use
monitoring program in Hawaii:
(1) All frequencies placed in use by
Nextel WIP in Hawaii will be cross-
checked against the FCC's licensing
database prior to being used to ensure
against unauthorized operation;
(2) This cross-check will include
verification that Nextel WIP has
appropriate authorization for use of the
(3) This cross-check will also verify that
there is no other conflicting licensee
on the frequency in the relevant service
(4) This check will be conducted on a
bi-monthly basis for all frequencies in
use at any location in Hawaii; and
(5) All personnel will receive training
for the new procedure.
11. Nextel WIP and the Bureau acknowledge and agree
that this Consent Decree will constitute a final settlement
between them of the Enforcement Proceeding.
12. In express reliance upon the covenants and
representations contained herein, the Bureau agrees to
terminate the Enforcement Proceeding at such time as both
parties sign this Consent Decree and the Bureau adopts this
13. In consideration for the termination of the
Enforcement Proceeding, Nextel WIP agrees to the terms,
conditions, and procedures detailed in this Consent Decree.
14. Nextel WIP waives any and all rights it may have
to seek administrative or judicial reconsideration, review,
appeal or stay, or to otherwise challenge or contest the
validity of this Consent Decree and the Order adopting this
Consent Decree, provided the Order adopts the Consent Decree
15. Nextel WIP and the Bureau agree that the
effectiveness of this Consent Decree is expressly contingent
upon issuance of the Order, provided the Order adopts the
Consent Decree without modification.
16. Nextel WIP and the Bureau agree that, in the event
any court of competent jurisdiction renders this Consent
Decree invalid, the Consent Decree shall become null and
void and may not be used in any manner in any legal
17. Nextel WIP and the Bureau agree that, if the
Commission, or the United States on behalf of the
Commission, brings a judicial action to enforce the terms of
the Order adopting this Consent Decree, neither Nextel WIP
nor the Commission will contest the validity of the Consent
Decree or Order and Nextel WIP will waive any statutory
right to a trial de novo with respect to the matter upon
which the Order is based, and shall consent to a judgment
incorporating the terms of this Consent Decree.
18. Nextel WIP agrees to waive any claims it may
otherwise have under the Equal Access to Justice Act, 5
U.S.C. Section 504 and 47 C.F.R. Sections 1.1501 et seq.
19. Nextel WIP agrees that any violation of the
Consent Decree or the Order adopting this Consent Decree
will constitute a separate violation of a Commission order,
entitling the Commission to exercise any rights or remedies
attendant to the enforcement of a Commission order.
20. Any provision of this Consent Decree affected by
or inconsistent with any subsequent rule or order adopted by
the Commission will be superseded by such Commission rule or
21. Nextel WIP and the Bureau agree to be bound by the
terms and conditions stated in this Consent Decree.
22. Nextel WIP and the Bureau agree that the terms and
conditions of this Consent Decree shall remain in effect for
a period of twenty-four (24) months, which shall begin on
the release date of the Order.
23. This Consent Decree may be signed in counterparts.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
NEXTEL WIP LICENSE CORP.
Donald J. Manning
Vice President and General Counsel
1 47 U.S.C. § 301.
2 Nextel WIP License Corp., NAL Acct. No. 200232860002 (Enf.
Bur., Honolulu Office, rel. September 30, 2002).
3 47 U.S.C. §§ 4(i), 4(j), 503(b).
4 47 C.F.R. §§ 0.111, 0.311.
5 47 U.S.C. § 301.